Mr Peter Janik v Calson Pty Ltd T/A Chapel of the Holy Family

[2015] FWC 8763

[2015] FWC 8763

FAIR WORK COMMISSION

DECISION

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

Mr Peter Janik
v
Calson Pty Ltd T/A Chapel of the Holy Family
(U2015/14904)

COMMISSIONER PLATT ADELAIDE, 22 DECEMBER 2015

Application for relief from unfair dismissal – extension of time granted.

[1] On 10 November 2015, Mr Janik lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Calson Pty Ltd T/A Chapel of the Holy Family (the Chapel of the Holy Family).

[2] The Chapel of the Holy Family contends that it terminated Mr Janik’s employment on 8 October 2015.

[3] Mr Janik contends that his employment was terminated upon receipt of an email from the Chapel of the Holy Family’s Chief Executive Officer, Mr Farrugia, on 21 October 2015.

[4] On 19 November 2015, my associate corresponded with both Mr Janik and the Chapel of the Holy Family, and advised that the extension of time issue would be considered through a telephone conference on 4 December 2015. Substantial information about the extension of time issue was provided to the parties. Mr Janik was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 27 November 2015.

[5] Mr Janik provided a statement, copy of a signed contract of employment dated 23 September 2013, a job description, a copy of an unsigned contract of employment dated 20 May 2015, copies of emails and text messages exchanged with the Chapel of the Holy Family, copies of diary extracts between March 2015 and October 2015, and some handwritten notes.

[6] A conference was conducted by telephone on 4 December 2015. Mr Janik and Ms Simes, on behalf of the Chapel of the Holy Family, attended.

[7] It was common ground that Mr Janik was dealing with a number of issues which adversely impacted his ability to attend work in August and September 2015.

[8] In September 2015, the Chapel of the Holy Family became concerned at the frequency of Mr Janik’s work absences. Mr Farrugia, Chief Executive Officer, sought to meet with Mr Janik to discuss the matter.

[9] On 8 October 2015, Mr Farrugia met with Mr Janik. What was discussed at that meeting is not agreed. Mr Janik states that he advised the Chapel of the Holy Family that he was fit and ready to return to work. The Chapel of the Holy Family contends that it advised Mr Janik, due to his poor work performance and attendance, it had decided to end his contract of employment and proposed an alternative arrangement. There was no evidence to support the Chapel of the Holy Family’s contention that Mr Janik’s employment was terminated by text message on 8 October 2015.

[10] The Chapel of the Holy Family contended that the termination text message had been resent.

[11] The telephone conference was adjourned to allow the Chapel of the Holy Family to provide further evidence concerning the text message allegedly sent on 8 October 2015 and its subsequent redelivery, and to provide an opportunity to respond to other matters raised by Mr Janik.

[12] On 7 December 2015, the Chapel of the Holy Family’s representative provided a number of screenshots of text messages purportedly between the Chapel of the Holy Family and Mr Janik between 16 July 2014 and 7 September 2015, and a statement of Ms Cathie Spence.

[13] On 11 December 2015, Mr Janik responded to the further material.

[14] The text messages provided by the Chapel of the Holy Family did not include any communication to Mr Janik between 8 October and 21 October 2015 which terminated his employment. The extract reveals a text message dated 15 July 2015 which purports to terminate Mr Janik’s employment, but I note that this is prior to the meeting of 8 October 2015.

[15] Ms Spence’s statement reports that Mr Janik and Mr Farrugia met on 8 October 2015 “behind closed doors”. Ms Spence was not present at that part of the meeting. Ms Spence was present during a discussion between Mr Farrugia and Mr Janik when the rate for the production of pot holders on a contract basis was agreed, however such a conversation does not establish that the employment relationship had come to an end on 8 October 2015.

[16] Ms Spence also stated that Mr Janik sought and was paid 30 hours of annual leave. This was corroborated by text messages between the Chapel of the Holy Family and Mr Janik; however the making of this payment does not establish that Mr Janik employment had been terminated on 8 October 2015.

[17] There is no dispute that Mr Janik received an email from Mr Farruggia entitled “Employment Arrangement” on 21 October 2015. This email suggests that Mr Janik’s employment was terminated by way of abandonment of employment on an unstated date when a text message had been sent by Ms Spence after Mr Janik failed to report for work for a 10 day period.

[18] Based on the information provided, I am unable to determine when the contract of employment was terminated by the Chapel of the Holy Family.

[19] On the information before me, I am satisfied that Mr Janik first became aware that his employment had terminated on 21 October 2015.

[20] I now turn to my discretion to extend the period to lodge the application beyond the 21 day limit.

[21] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[22] I have considered the provisions of s.394(3) 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 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.”

[23] I have considered the reasons for the delay put by Mr Janik.

[24] With respect to his lack of knowledge of the termination until the receipt of Mr Farrugia's email on 21 October 2015, I regard this circumstance as exceptional.

[25] Mr Janik commenced to contest the termination decision from the date he received the email as is evidenced by his text messages to Ms Spence and the lodgement of this application within 21 days of the time that he became aware of the termination.

[26] The duration of the delay favours a finding that an extension of time of this magnitude would prejudice the Chapel of the Holy Family, but given that no submission in this respect has been made I have regarded this as a neutral issue.

[27] 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.

[28] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[29] Accordingly, I conclude that the material before me establishes that Mr Janik's circumstances are can be regarded as exceptional so as to warrant an extension of time. The request for an extension of time is granted and, accordingly, the application will be referred for conciliation. An Order (PR575372) reflecting this decision will be issued.

COMMISSIONER

Appearances:

Mr Peter Janik, applicant.

Ms Janet Simes, for the respondent.

Hearing details:

2015.

Adelaide:
December 15.

 1   [2011] FWAFB 975

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