Mr James Mahon v Aldi Stores Prestons T/A Aldi Villawood Supermarket

[2015] FWC 4156

[2015] FWC 4156

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr James Mahon
v
ALDI STORES PRESTONS T/A ALDI VILLAWOOD SUPERMARKET
(C2015/2030)

COMMISSIONER BULL SYDNEY, 22 JUNE 2015

General protections application to deal with contraventions involving dismissal, extension of time required to file application, no exceptional circumstances demonstrated, application dismissed.

[1] On 9 March 2015, a section 365 general protections application was filed by Mr James Mahon (the applicant). The Form F8 filed by Mr Mahon stated that his employer was Aldi Stores Prestons T/A ALDI Villawood Supermarket. An employer response Form F8A was filed on 25 March 2015 and named ALDI Foods Pty Ltd as General Partner of ALDI Stores (A Limited Partnership) (ALDI) as the employer. Pursuant to s.586 of the Fair Work Act 2009 (the Act) the application is amended to the extent that the true legal employer of the applicant is correctly identified as stated in the employer response.

[2] Section 368 of the Act prescribes that s.365 applications must first be dealt with by the Commission in a compulsory conference for mediation/conciliation.

[3] A mediation conference was held on 10 April 2015; however the matter was not resolved. One of the respondent’s objections to the application included that the application has been filed out of time. The applicant was terminated on 13 January 2015 and filed his application on 9 March 2015, which is outside the 21 day time period provided to file as per s.366(1)(a) of the Act.

[4] The time frame for filing a s.365 application and the ability for the Commission to extend the time for filing is set out at s.366(1) of the Act:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).”

[5] Section 366(2) states that the Commission may allow a further period in which to file an application when satisfied that exceptional circumstances exist:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

[6] Directions were issued on 13 April 2015, directing Mr Mahon to file written submissions addressing the matters in s.366(2) above. The respondent was to do likewise. The matter was listed for hearing on 16 June 2015.

[7] At the hearing of 16 June 2015, Ms Moran, a solicitor from Enterprise Law sought leave to appear for the respondent on the basis that the employer’s objection had a degree of complexity and that matter would be dealt with more efficiently by granting permission for the respondent to be legally represented. Mr Mahon, whilst agreeing that the matter was complex opposed the request.

[8] Leave was granted on the basis that the matter being considered was a jurisdictional point requiring reference and application of case law that would best be dealt with by legal representation.

[9] At the conclusion of the hearing the Commission advised the parties that it was not satisfied that “exceptional circumstances” existed to allow a further period to file the out of time application. These are the written reasons for that conclusion.

Background

[10] Mr Mahon commenced employment with the respondent on 24 November 2014 and his employment was terminated on 13 January 2015. His period of employment was less than 2 months.

[11] On 21 January 2015, Mr Mahon filed an unfair dismissal application 1 against the respondent which was prior to making this s.365 application. Mr Mahon has subsequently discontinued his s.394 unfair dismissal application.

[12] Mr Mahon had not completed the 6 month minimum period of employment as required by s.382 of the Act and so was not a person protected from unfair dismissal.

[13] On 22 January 2015, the day after his unfair dismissal application was filed, the Commission phoned Mr Mahon and sent an email advising him that ss. 382 and 383 of the Act require an applicant to have completed a minimum of 6 months employment to enable an unfair dismissal application to proceed. Accordingly, the Commission advised that there was no jurisdiction for the Commission to deal with his unfair dismissal application. Mr Mahon was requested to advise the Commission within 14 days if he wished to pursue his application. Contact details of community legal centres were provided in the event he wished to obtain independent advice.

[14] On 27 January 2015, Mr Mahon replied by email stating that he wished to “go ahead with this unfair dismissal [sic].”

[15] On 2 March 2015, the Commission sent an email to Mr Mahon suggesting he look at the Commission’s web site related to unfair dismissal claims. Mr Mahon’s response, received on the same day, is set out below including any grammatical errors that it may contain:

“I have already log a disputes this is pissing me off. I was sack for beening charge for drink driving a year ago, I was let off with no conviction and ALDI found out and sack me for not telling them lets take this to court please don’t form after form and you still write same crap back to me then ...”

[16] On 13 February 2015, correspondence was sent to Mr Mahon from the Commission again stating that it appeared he had not met the minimum employment period for submitting an unfair dismissal application and asked for a response.

[17] On 9 March 2015, a Notice of Discontinuance for the unfair dismissal application was filed, on the same day his general protections s.365 application was filed.

[18] The application should have been filed by 3 February 2015. The delay in filing is significant, being 34 days following the expiration of the 21 day period allowed.

Applicant’s submissions

[19] Mr Mahon was self represented and his written and oral submissions focussed on the unfairness of his termination of employment. For example, documents forwarded primarily related to matters concerning the reasons for his dismissal. Attached to his application was previous correspondence between Mr Mahon and the Commission relating to his unfair dismissal claim.

[20] Mr Mahon submits that he filed his unfair dismissal application within the required 21 day period but as he submitted the wrong form, he then subsequently relied on the Commission to forward him the correct forms which went to an incorrect address. 2

[21] Mr Mahon acknowledged he received the Commission’s correspondence of 22 January 2015, advising that as he had not been employed for 6 months there was no jurisdiction to deal with his claim. He claims he contacted a community legal centre as suggested in the Commission’s correspondence and they were unable to assist him.

Respondent’s Submission’s

[22] ALDI argue that no “exceptional circumstances” exist for the Commission to extend the time for filing the general protections application. The applicant was advised on 22 January 2015 of the jurisdictional difficulty with his application but failed to take any action until 9 March 2015. He had up until 3 February 2015 to file his general protection application.

[23] It was further submitted that the filing of an earlier unfair dismissal application resulting in an out of time general protections application does not equate to an exceptional circumstance. In respect of the merits of the application it does not disclose any conduct by ALDI which gives rise to a claim under Part 3-1 - General Protections of the Act.

Conclusion

[24] The Commission is constrained in extending the period in which to file a general protections s.365 application to where it is satisfied that “exceptional circumstances” exist.

[25] In Nulty v Blue Star Group  3 (Nulty) the Full Bench discussed the meaning of “exceptional circumstances” in the following terms:

“[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 4 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 5, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed6:

“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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended."

[26] In Zhan Gao v Department of Human Services 7 Bisset C in circumstances similar to this application stated the following at paragraph (41) of the decision:

“[41] It does appear that Mr Gao has lodged this application, at least in part, because there was no more he could do to prosecute his unfair dismissal application after it was rejected by the Full Bench. It is not unusual that an individual may not be able to proceed with an unfair dismissal claim for jurisdictional reasons - in this case that it was lodged out of time. This does not, of itself, create an exceptional circumstance when a general protections application is lodged out of time with respect to the same matter.” (Reference omitted)”

[27] In George Przedpelski v Trustee of Czapp Pty Ltd t/a Airport Doors Pty Ltd 8the Full Bench considered the reverse situation where an unfair dismissal remedy application was made after an applicant had filed, and the Commission had dealt with, a prior general protections application:

“[11]Nevertheless, the ultimate question that the Deputy President needed to determine was whether there were exceptional circumstances that warranted an extension of time being granted with respect to the period from the date of termination to the date of making the application - a period of approximately five months.

[12]The Deputy President noted at paragraph [10] of the decision (and perhaps again not recording accurately) that the application was made over three months outside the 14 days from dismissal provided by s.394 of the Act. The Deputy President also said in paragraph [24] of the decision that the application was made more than 14 days from the issue of a certificate, even if he was to ignore the earlier period of delay.

[13]In our view it is clear that the earlier period of delay is relevant to the question of whether to extend time. The fact that another application was made under s.365 of the Act, in our view, is not an exceptional circumstance that warrants an extension of time. In all of the circumstances we are of the view that the Deputy President was correct in concluding that there were no exceptional circumstances warranting an extension of time. We come to that view while acknowledging the errorhe made in recording the date of the actual application.”

[28] A decision as to whether the time under s.366(2) should be extended, involves the exercise of discretion 9, and to this extent the case law indicates that there is a “high hurdle” in meeting the test of “exceptional circumstances”.10

[29] As stated above s.366(2) sets out a list of matters that the Commission is to take into account when determining whether exceptional circumstances exist, these are now considered separately below.

(a) The reason for the delay

[30] On the authorities cited above, Mr Mahon’s filing of an earlier unfair dismissal application is not sufficient to establish an exceptional circumstance. It is abundantly clear that Mr Mahon believed his dismissal was unfair; as a result he filed an unfair dismissal application. Despite being put on notice by the Commission that he had not served the requisite minimum period of employment to make an unfair dismissal application, he confirmed that he wished to proceed with the claim.

[31] The submission by Mr Mahon that he was not provided with the correct documents and that they were forwarded to the wrong address was not supported by any detailed evidence. Even accepting that this was the case, it is not sufficient to warrant being an exceptional circumstance. Mr Mahon did not discontinue his unfair dismissal application until 9 March 2015, having been advised as early as 22 January 2015 that the application could not proceed. During this period he corresponded freely with the Commission by email and indicated he wished to continue with his unfair dismissal application. The onus is on Mr Mahon to undertake the necessary due diligence in the filing of his application within the requisite timeframe. While I accept his submission that he was not fully conversant with the law I do not consider such a lack of knowledge an exceptional circumstance. As stated in Nulty above “Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”

(b) Any action taken by the person to dispute the dismissal

[32] As explained above, prior to making this application the applicant had contested his dismissal through the making of an unfair dismissal remedy application. In this sense ALDI were aware that he wished to challenge his dismissal.

(c) Prejudice to the employer (including prejudice caused by the delay)

[33] There was a significant delay in filing this application, however; there is no suggestion that there is any particular prejudice to the employer if a further period to apply was allowed.

(d) The merits of the application

[34] In conciliation and at the extension of time hearing the applicant has continually maintained that he was unfairly dismissed. Having considered his written material and submissions and those of the respondent, there is an arguable case that his dismissal was unfair, in that it was harsh, unjust or unreasonable.

[35] However, what is before the Commission is an application to extend the time for filing a section 365 general protection application. A general protections application is not a substitute for an unfair dismissal simply because the unfair dismissal application has failed due to a jurisdictional hurdle.

[36] A general protections claim must at least allege a breach of a relevant section of the Act. Questions 3.2 and 3.3 of the submitted Form F8 which provides for the applicant to state what protection has been contravened and the action that led to the contravention have been left blank.

[37] In response to questions from the Commission, Mr Mahon indicated he was not aware of the differences between an unfair dismissal and a general protections claim. It would appear on what was presented to the Commission that the s.365 application has been filed in default of the unfair dismissal application which could not proceed due to the applicant not meeting the minimum employment period. While reasons for a dismissal may justify either an unfair dismissal or a general protections claim, in this case I am unable to see any grounds for the general protections application having been made.

(e) Fairness as between the person and other persons in a similar position

[38] There is no information regarding fairness between the applicant and other persons in a similar position.

[39] I have considered all the information provided by the applicant and the relevant factors I am required to have regard to under the Act. I am not satisfied that the delay in making this application involves exceptional circumstances.

[40] As such,I am not persuaded that I should exercise the discretion available to allow a further period for this application to be made. The application is not properly before the Commission and is dismissed.

COMMISSIONER

Appearances:

Mr J Mahon on his own behalf.

Ms S Moran Solicitor for the Respondent.

Hearing details:

2015.
Sydney:
16 June 2015.

 1   U2015/2478

 2   Mr Mahon’s written submission and email of 13 April 2015

 3   [2011] FWAFB 975

 4   [2010] FWAFB 7251

 5 [2007] FCA 388 (27 March 2007)

 6   at paras [23]-[27]

 7   [2011] FWA 8072

 8   [2012] FWAFB 8577

 9   Hart v Damien John Pedder & Kirsty Michelle Pedder as Trustees of the Plumbing Solutions Trust[2014] FWCFB 3270 at [8]

 10   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

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