Mr Jamie Chand v Maxton Fox Commercial Furniture Pty Ltd

[2014] FWC 8564

[2014] FWC 8564

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Jamie Chand
v
Maxton Fox Commercial Furniture Pty Ltd
(U2014/14308)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 2 DECEMBER 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 Chand and the respondent ended on 22 September 2014. Mr Chand lodged his application at the Fair Work Commission on 14 October 2014. Mr Chand's application was lodged one day outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Chand. In his application he provided the following explanation for his delay.

“I was trying to research if I was actually unfairly dismissed and as I couldn’t find out for myself I had to wait till Tuesday 14/10/2014 to get free legal advice from south west legal centre which they advised that I should have a good case for unfair dismissal.”

[4] I wrote to Mr Chand on 24 October 2014 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters within 14 days. Mr Chand provided a statement on 9 November 2014 regarding both his reason for his delay and the merit of his application. This is set out below:

“Reason for the delay and merit of the application

Prior to my termination I took two days of compassionate leave and two days carer’s leave because my partner’s grandfather died. This leave was from 15 to 16 September 2014. The carer’s leave was from 17 to 18 September 2014 to look after my partner who was devastated by her grandfather’s death. The funeral was on 19 September 2014.

My partner was the carer for her grandparents and we were (and still are) living in their house. We have been living there for ….years. During this time I became very close to my partner’s grandfather in particular and his death left me very upset.

I had been working for the employer as a cabinet maker for six years. My employer never raised any performance issues with me in the past. I recently discovered that I have been underpaid for this period. I had also lodged a workers compensation application for an injury that I sustained at work.

I was told that I was terminated by Maxton Fox because I took four days of compassionate leave that I wasn’t entitled to. I suspect the real reason for my termination was because I had made a worker’s compensation complaint a few months prior and also a few weeks before I had mentioned to my supervisor about being under paid and the employer was just looking for an excuse to sack me.

Since I was terminated, I have been looking after my partner who has been very upset by the death of her grandfather. We have also been organising all the matters that need to be finalised with the death of a family member. It is an unusual situation for me to have to take care of my partner at a time when I am also mourning the death of someone I loved.

Notice and affect of the dismissal

I was told of the termination on 22 September 2014, but my separation certificate stated that I was terminated on 24 September 2014.

Any action taken to dispute the dismissal

I lodged my application for unfair dismissal on 14 October 2014 on the same day I managed to get legal advice from South West Sydney Legal Centre. I was using the separation certificate as the date of the termination and so I assumed that the application was on time.

South West Sydney Legal Centre told me that I was entitled to take compassionate leave because it was a member of the household that died.

Prior to this I had tried to get legal advice but I was having trouble getting free advice. I eventually found South West Sydney Legal Centre from the internet.

Prejudice to the Employer

My application for unfair dismissal, even if the date for the termination was taken to be 22 September 2014, was only one day out of time. Given how unfairly the employer treated me, it is overall not onerous for the employer to have to respond to my unfair dismissal application. It would not be difficult for the employer to provide all the evidence required to defend the unfair dismissal application.

In Carfoot v SAC Sydney Archdiocese T/A St Vincent De Paul Society [2010]FWA 4080 found that a delay of five days would only cause minimal prejudice to the employer. In my case a delay of one day should cause even less prejudice to my employer.”

[5] The respondent made the following submission in its employer response:

“The prescribed time limit is obviously in place for a reason. That reason therefore should be adhered to. Unless the applicant was physically unable to apply within that time frame.”

[6] I issued an Order 1 refusing Mr Chand's application for an extension of time and dismissed his application on 19 November 2014.

[7] The relevant legislative framework for the exercise of the Fair Work 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.

[8] 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 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]

[9] 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.

[10] 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)

[11] The reason Mr Chand provided for his delay in lodgement was that he had been occupied with the care of his partner who had been devastated by her grandfather's recent death and his own grief at that event. I was not persuaded that Mr Chand's difficulties were out of the ordinary, unusual or uncommon.

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

[12] Mr Chand became aware of the end of his relationship with the respondent on 22 September 2014.

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

[13] Mr Chand disputed his dismissal by lodging this application.

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

[14] I was satisfied that there would be no greater prejudice to the respondent caused by Mr Chand’s 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)

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

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

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

[17] Having considered all of the matters to which my attention is directed by the Act 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. Mr Chand's circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

 1   PR557967

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