Mr Thomas Cook v Tiger Airways Australia Pty Ltd T/A Tigerair

[2014] FWC 8574

[2014] FWC 8574

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Thomas Cook
v
Tiger Airways Australia Pty Ltd T/A Tigerair
(U2014/14553)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 2 DECEMBER 2014

Termination of employment.

[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 Cook and the respondent ended on 22 September 2014. Mr Cook lodged his application at the Fair Work Commission on 24 October 2014. Mr Cook‘s application was lodged 11 days outside the statutory time limit.

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

“1.4 Before making an application I was required to make an appeal in which I had to wait for a reply & a final Decision. Before this could be done a number of interviews and investigating had to be carried out.”

[4] I wrote to Mr Cook on 28 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 Cook provided a statement on 3 November 2014 regarding his reason for delay. This is set out below.

“Thank you for your email regarding my application against Tiger Airways Australia Pty Ltd.

I have previously sent an email explaining why this application was submitted late, along with the emails supporting this that were sent between myself & Louisa Trombin.

I was advised by Tiger Airways on the 22nd of September 2014, that they had made the decision to terminate my contract due to me apparently not complying with minimum proficiency standards.

On the 24th of September I contacted Fair Work Australia regarding this issue, I believe I spoke with a lady by the name of Sarah, after explaining the situation to Sarah she advised that I was best to write an appeal to Tiger Air as per the Company dispute resolution process.

This appeal written to Louisa Trombin was sent of (sic) the 26th September. Upon sending this Louise replied to this email on the same day confirming she had received it as per the email below.

‘From: Louisa Trombin------
Sent: Friday, 26 September 2014 3:53:19 PM
To: [email protected]

Dear Thomas

Confirming receipt of your letter of appeal.

Please allow me a chance to review your detail and I shall revert back as soon as possible, certainly within a week.

Best regards Louisa.’

As you can see this email from Louisa, she states that she will have a reply to me within a week.

This was not the case, after numerous emails & phone calls to chase up a reply to my appeal (Please see emails attached showing this) I did (sic) receive a reply until Late on the 8th of October 2014.

After receiving this reply from Louisa & not being satisfied with the reply, I then contacted FWA on the 24th of October 2014 to start the process.

The Delay between the 8th of October & the 24th of October was caused from myself needing to seek future employment & also having to Urgently Travel back home to Country NSW for Family reasons & not having access to internet connection.

As I was only acting under what I had been advised to do by Sarah at FWA & in that time was sorting out with The Airline as to why they were unlawfully with holding (sic) my Final Pay (this was sorted out successfully with Adam from FWA, I feel it would only be fair to accept this application after the 21 day period as I have followed all dispute resolution processes to the best of my knowledge.”

[5] The respondent made the following submission in its Employer Response:

“i. Mr Cook lodged his application for unfair dismissal more than 30 days after the dismissal took effect. Mr Cook states this is because he had appealed the decision and was awaiting the outcome of the internal review.

ii. Tiger Airways respectfully notes that his decision to file an application was not contingent on the findings of the Appeal and he could have filed his application within 21 days if he felt it was unfair.

iii. The reasons for the termination were clearly outlined to him in his meeting with his Base Manager and Training Manager and also outlined in writing to him subsequent to this.”

[6] I issued an Order 1 refusing Mr Cook’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). XXX 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 Cook provided for his delay in lodgement was the pursuit of an internal appeal and his delay based on the advice of persons from the Fair Work Ombudsman. Mr Cook decided to pursue an internal appeal instead of investigating his entitlement to lodge an application for an unfair dismissal remedy. This was his choice and his delay arose from that choice. I was not persuaded that his 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 Cook 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 Cook disputed his dismissal by an internal appeal and then 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 Cook'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 Cook 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 Cook's circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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