Mr Paul Higgins v Des Pty Ltd

[2016] FWC 4167

[2016] FWC 4167

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Paul Higgins
v
DES Pty Ltd
(U2016/7132)

COMMISSIONER PLATT ADELAIDE, 24 JUNE 2016

Application for relief from unfair dismissal.

[1] Mr Paul Edward Higgins lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with DES Pty Ltd (DES) on 31 March 2016.

[2] Mr Higgins application was lodged on 23 May 2016, 31 days outside of the 21 day time limit allowed for lodging an application. Mr Higgins sought an extension of time.

[3] On 2 June 2016, my Associate corresponded with both Mr Higgins and DES, and advised them that the extension of time issue would be considered at a telephone conference on 22 June 2016. Substantial information about the extension of time issue was provided to the parties. Mr Higgins was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 17 June 2016.

[4] DES submitted a F3 Employer Response Form and submissions opposing the extension of time.

[5] Mr Higgins submitted:

● a response to the Form F3 which included submissions regarding the extension of time;
● the termination letter; and
● an Involuntary Unemployment Claim Form.

[6] The Commission conducted a conference by telephone on 8 June 2016. Mr Higgins appeared on his own behalf. Ms Sarah Toomey Westcott appeared on behalf of DES.

[7] At this hearing, I determined that in the absence of “exceptional circumstances” the application would be dismissed. My detailed reasons for that decision follow.

Background

Mr Higgins commenced employment with DES on 2 March 2015 as an Account Manager based in Adelaide. On 31 March 2016, following a restructure in the company Mr Higgins’ position was made redundant. Mr Higgins was paid a severance payment and four weeks’ notice.

[8] Mr Higgins submitted that the reason for filing his application out of time was that:

● he believed his position was made redundant; and
● he only became aware that his dismissal was unfair after having spoken to a client on 6 May 2016 who advised him that DES had replaced him with another employee.

[9] Mr Higgins explanation for the 17 day delay from the time he became aware that the redundancy may not have been genuine and the time of filing of the application was that:

● he did not have access to a computer to lodge the application; and
● he had been working 7 days a week on the new Royal Adelaide Hospital (RAH) construction site which had been tiring.

[10] At the telephone conference Mr Higgins initially confirmed that he had work continuously at the RAH construction site for 17 days. Upon further examination, Mr Higgins conceded that he had had time off from work over that 17 day period, on weekends and in accordance with the construction industry roster. It is unfortunate that Mr Higgins exaggerated the true position. This conduct requires me to take caution when considering his explanation for the delay.

[11] DES raised two jurisdictional objections at the hearing. The first was that the application was filed well beyond the 21 day time period and the second was that the dismissal was a case of genuine redundancy.

[12] DES submitted the Mr Higgins’ role was no longer financially viable and that the Adelaide representative would need to address a larger market outside metropolitan Adelaide. The new representative would be responsible for customers based in Adelaide, Melbourne Sydney and the Northern Territory and would need managerial experience. DES did not understand Mr Higgins to fit this skill set nor did they believe him to be capable of fulfilling the requirements of the role.

Discretion to extend time

[13] Section 394(3) of the Act states:

“(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.”

[14] I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ 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 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.”

[15] Whilst Mr Higgins may not have been aware that a similar role was created within the business until 6 May 2016, it took him a further 17 days to file his application. Mr Higgins has not provided an adequate explanation as to the reasons for the delay in lodging his application.

[16] I find that the duration of the delay does not favour a finding that an extension of time of this magnitude would prejudice DES.

[17] In terms of the merits of the application, information which allows a definitive conclusion in this respect is not before me and I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

[18] Considerations of fairness relative to other persons in similar positions, is not relevant in this matter.

[19] I find that Mr Higgins circumstances are not exceptional so as to warrant an extension of time. Mr Higgins unfair dismissal application is therefore, dismissed.

ORDER

[20] 1. The application lodged by Mr Paul Edward Higgins pursuant to s.394 of the Act on 23 May 2016 is dismissed.

COMMISSIONER

Appearances:

E Higgins on his own behalf.

S Toomey Westcott of Bradfield & Scott Lawyers on behalf of the Respondent.

1 [2011] FWAFB 975

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