Mr Gregory Stedman v Transdev NSW Pty Ltd T/A Transdev Buses

[2014] FWC 7893

[2014] FWC 7893 [Note: a correction has been issued to this document] [Note: An appeal pursuant to s.604 (C2014/7659) was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 20 March 2015 [[2015] FWCFB 1877] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Gregory Stedman
v
Transdev NSW Pty Ltd T/A Transdev Buses
(U2014/1950)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 7 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr Stedman and the respondent ceased on 9 May 2014. Mr Stedman lodged his application before the Fair Work Commission (Commission) on 2 September 2014. His application was lodged 9 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Stedman. In that application he set out the matters he considered the Commission should take into account when deciding whether or not to accept his application out of time. This is set out below:

“21 calendar days ended 30 may 2014. Today is 02 June 2014.
I was discouraged by my former employer to lodge and application for unfair dismissal, and was not aware, nor advised I had only 21 calendar days to lodge.
I lodged an appeal to my former employer by lengthy letter dated 13 may 2014.
I was telephoned by Mr Len Kidd, general Manager, Friday 23 May 2014 and informed they (Transdev) would not reverse their decision to summarily dismiss me on 09 May 2014.”

[4] The respondent lodged an Employer Response which contained its objections to the extension of time. They are set out below.

“1. The Company refutes the allegation made by the Applicant that he was discouraged from making an application for unfair dismissal.

2. The Applicant was informed by the Deputy MD/GM Service Delivery Manager on 23 May 2014 the Company would not be reversing its decision to terminate his employment. At the conclusion of the call the Applicant indicated he would be pursuing the matter further.

3. After this meeting the Applicant had seven (7) days before the 21 day period lapsed to submit his application.

4. It is not the responsibility of the Company to advise the Applicant of the 21 day time limit for lodging an unfair dismissal application.”

[5] On 4 August 2014 Mr Stedman made the following submission:

“I sent an Email to the Respondent seeking dialogue in order that the FWA resources may be spared in settling my grievance. However, Transdev have informed me by return Email that they prefer to utilise the FWA framework to deal with this matter.

I verily believe, as do all Applicants I suppose, that my claim is rational and reasonable, and I will contend very strongly that lodgment of my application ‘out of time’ should not deny me natural justice.  The 21^st day was the Friday, and my application was filed electronically on the Monday. In the interim I wrote a lengthy appeal to Transdev seeking review of their decision, to be acknowledged with a telephone call to me on 22 May advising in the negative.  Hence, I believe some latitude could be afforded me by FWA in this regard. 

Moreover, Transdev took their time responding – one month. Furthermore, there are many factual inaccuracies with the Respondents contentions as well as other issues raised that I have no knowledge of, and I verily believe there were (are) less severe remedies available in lieu of Summary Dismissal. This matter is serious and must be heard by an independent party / adjudicator – such as FWA.

Hence, despite my efforts not to tie up FWA resources, we are now committed to the process, and I would appreciate any further assistance / direction FWA can provide me.”

[6] I heard this application in Sydney on 12 September 2014. Mr Stedman appeared on his own behalf. A pro bono solicitor was in attendance to assist the Commission in relation to Mr Stedman’s application. Mr Stedman provided a detailed written submission. He raised the failure of the employer to provide him with a Fair Work Information Statement 1.

[7] I adjourned the application to allow the respondent a further opportunity to address the merit of Mr Stedman’s substantive application. That submission was received on 22 September 2014. Mr Stedman responded on 1 October 2014.

[8] Despite Mr Stedman's detailed submissions the final factual position was that Mr Stedman could have filed on time but did not do so. There was no impediment to his travelling to the city to lodge his application or lodging on line or by telephone. His reasons for not doing so were insufficient to persuade me to grant an exception to compliance with the time limit. I issued an Order refusing the application for an extension of time and dismissed Mr Stedman’s application on 1 October 2014 2.

[9] The relevant legislative framework for the exercise of the Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.

[10] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench said:

“[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His/Her Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.
27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [Endnotes not reproduced]

[11] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[12] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.

reason for the delay-s.394(3)(a)

[13] I was not persuaded that Mr Stedman’s difficulties were out of the ordinary, unusual or uncommon.

whether the person first became aware of the dismissal after it taken effect-s.394(3)(b)

[14] Mr Stedman became aware of the cessation of his relationship with the respondent on 9 May 2014.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[15] Mr Stedman disputed his dismissal by writing to the respondent appealing the dismissal on 13 May 2014 and telephoning on 23 May 2014. This was unsuccessful and he then pursued this application.

prejudice to the employer-s.394(3)(d)

[16] There would be no greater prejudice to the respondent caused by Mr Stedman application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[17] Merit was as a neutral issue in my consideration of this application.

fairness as between Mr Stedman and other persons in a similar position-S.394(3)(f)

[18] There was no issue of fairness in relation to any other person in a similar position.

[19] I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application.

SENIOR DEPUTY PRESIDENT

 1   Exhibit Mr Stedman 1

 2   PR556146

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