Mr Michael Alistair Lindner v Consunet Pty Ltd
[2023] FWC 2336
•13 SEPTEMBER 2023
| [2023] FWC 2336 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Michael Alistair Lindner
v
Consunet Pty Ltd
(C2023/4718)
| COMMISSIONER PLATT | ADELAIDE, 13 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal – extension of time – application dismissed
On 4 August 2023 Mr Michael Alistair Lindner (the Applicant) lodged a s.365 general protections application seeking a remedy in relation to the termination of his employment with Consunet Pty Ltd (the Respondent) which is alleged to have occurred on 12 July 2023.
The Fair Work Act 2009 allows 21 days to lodge this application. The application appears to have been made outside of that time frame. This means that an extension of time must be granted by the Fair Work Commission in order for the general protections application to proceed.
By way of the Form F8 application form, the Applicant failed to identify his application was made beyond the 21-day time frame.
The Respondent filed a Form F8A employer response on 18 August 2023, raising the out of time jurisdictional objection.
On 23 August 2023 my Chambers issued a Notice of Listing and sent an email to the parties advising a Hearing was listed via telephone at 10:00am (SA) Wednesday, 13 September 2023 in respect of the extension of time issue raised and provided Directions for the filing of material.
The Applicant was directed to file his material in support of the extension of time application by 4:00pm (SA) Wednesday, 30 August 2023. The Respondent’s material was due by 4:00pm (SA) Wednesday, 6 September 2023.
At 11:10am (SA) on 30 August 2023 my Associate emailed the Applicant a reminder notifying that his material was due by 4:00pm (SA).
At 5:21pm (SA) the same day, my Associate emailed the Applicant advising his submissions were overdue and to file without further delay.
On 4 September 2023 the Applicant contacted my Chambers via telephone and was advised that he should lodge his material without delay. No further correspondence was received.
The Hearing was conducted by teleconference on 13 September 2023. The Applicant did not attend the Hearing at 10:00am (SA). My Associate attempted to contact the Applicant by telephone and email. The Hearing commenced at 10:08am (SA). Mr Haddy represented the Respondent and advised the Application for an extension of time was opposed.
I have no information from the Applicant in support of an application for an extension of time.
Applicable Law
Section 366 of the Act relevantly states:
“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).
(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.”
I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[1] which stated:
“[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 every day 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.”
Consideration
I have determined to deal with the extension of time application based on the material before me.
The Form F8 completed by the Applicant indicated the dismissal occurred on 12 July 2023. This is not in dispute.
This general protections application by Mr Lindner was lodged on 4 August 2023, 2 days outside of the 21 day time limit and therefore, can only be pursued if the time limit is extended.
Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay
No reason for the delay has been proffered.
Any action taken by the person to dispute the dismissal
No evidence of any other conduct to dispute the dismissal has been provided.
Prejudice to the employer (including prejudice caused by the delay)
There is no submission that the granting of an extension of time represents prejudice to the Respondent.
The merits of the application
In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.
Fairness as between the person and other persons in a similar position
Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
Having considered the evidence before me, I am not satisfied that the Mr Lindner’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order5 reflecting this decision will be issued.
COMMISSIONER
[1] PR766154
Printed by authority of the Commonwealth Government Printer
<PR766142>
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