Mr Jason Varcoe v Leo Fardell Pty Ltd

[2010] FWA 6025

[2010] FWA 6025

FAIR WORK AUSTRALIA

DECISION

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

Mr Jason Varcoe
v
Leo Fardell Pty Ltd
(U2010/5949)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 12 AUGUST 2010

Termination of employment - extension of time - exceptional circumstances.

[1] Mr Varcoe sought an extension of time for lodgement of his application made pursuant to s394 of the Fair Work Act 2009 (the Act). I heard this application by transcribed telephone link on 6 April 2010. Mr Varcoe appeared for himself. Ms Kelly Friend solicitor, of M.J. Duffy and Son, appeared for Leo Fardell Pty Ltd (Fardells).

[2] Mr Varcoe posted his application one day before the 14 day statutory time limit for lodgement expired. The application was received in the Sydney Registry of Fair Work Australia (FWA) one day after the time limit expired.

[3] Mr Varcoe did not have any explanation for not lodging his application earlier. He did not make any enquiries about expected delivery times. He appears to have relied on Australia Post delivering the application in one day. Mr Varcoe did not attempt to make a telephone lodgement. He did not have the means to make an online application.

[4] Ms Friend submitted, without any supporting evidence, that everyone in Dubbo knows that mail from Dubbo will not be delivered in Sydney the next day. She submitted that Mr Varcoe’s application for an extension of time should be refused because he had not made a sufficient effort to lodge on time, because, if time was extended, her client would have to face the burden of defending the application and because Mr Varcoe’s case was unmeritorious on its own facts.

[5] The relevant legislative framework for the exercise of FWA’s discretion in relation to applications of this kind is set out below.

“S394 Application for unfair dismissal remedy

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[6] I have considered the discussion of exceptional circumstances by Justices Allsop and Branson in Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd. 1Justice Allsop, following a discussion of previous authority, concluded that if rights are to be set aside or circumstances altered, as in this case by an extension of time, then the exceptional circumstances relied on must be “...circumstances sufficient to justify that outcome.”2

[7] Justice Branson said “To put the matter another way, ‘exceptional circumstances’ are simply circumstances sufficient to render it just and equitable to grant relief notwithstanding that the grant of relief will defeat rights of unsecured creditors.” 3 In Maan v Minister for Immigration and Citizenship4 Branson J again discussed “exceptional circumstances”, in that case in relation to non-compliance with a visa condition. She said:

“[51] Although the expression “exceptional circumstances” is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

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. (cf Baker v The Queen (2004) 223 CLR 513 at 573, and Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[25])” 5

(my emphasis)

[8] This approach was adopted by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd T/A Joy Mining Machinery. 6I have also adopted that approach.

[9] I have considered the circumstances of this case in light of the criteria set out for consideration in s394(3). I have considered ss394(3)(a). If one is posting an application then exceptional delays can occur. Mail can be delivered outside the ordinary service delivery standards or it can go astray entirely. This is not one of those cases.

[10] Consideration of when post might arrive at the destination to which it is addressed is a matter that arises routinely. It is a circumstance normally encountered and considered. Where there is a time limit on lodgement, it would be ordinary conduct to check Australia Post’s delivery standards and make allowances. Had Mr Varcoe managed to check these standards, it would have been clear that the expected delivery time between country locations and metropolitan areas of capital cities is two days within the same State.

[11] Next day delivery could then have been assured by Mr Varcoe attending the post office and faxing the application, or by sending it by express post. Mr Varcoe did neither of these things. He did neither of these things because he did not address his mind to the question of whether or not the application would arrive on time.

[12] I have considered and taken into account the other criteria set out in s394. All were neutral issues in my consideration of this application.

[13] Mr Varcoe’s circumstances were unremarkable. They are regularly, routinely and normally encountered.

[14] The application for an extension of time for lodgement of this application is refused.

SENIOR DEPUTY PRESIDENT

 1 [2003] FCAFC 256.

 2   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [192]

 3   Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256 para [28]

 4 [2009] FCAFC 150

 5   Maan v Minister for Immigration and Citizenship [2009] FCAFC 150 para [51]

 6   [2010] FWA 1394 [PR994029] - 25 February 2010

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