Mr Tim Ives v JBM Trailers and Fabrications Pty Ltd

[2018] FWC 511

[2018] FWC 511

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Tim Ives
v
JBM Trailers and Fabrications Pty Ltd
(C2017/5976)

COMMISSIONER HUNT BRISBANE, 5 FEBRUARY 2018

Application to deal with contraventions involving dismissal - extension of time.

[1] Mr Tim Ives has made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that he was dismissed by JBM Trailers and Fabrications Pty Ltd (JBM) in contravention of the general protection provisions of the Act. Mr Ives claims he was dismissed for making a complaint or enquiry in relation to health and safety equipment.

[2] Mr Ives was employed by JBM from 6 September 2017 until 22 September 2017. Mr Ives made his application on 31 October 2017.

[3] Section 366 of the Act states:

‘366 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.’

[4] For Mr Ives to have made his application within the statutory time limit of 21 days after the dismissal took effect, the application needed to have been filed by 13 October 2017. The application has been made eighteen days out of time.

[5] It is necessary for Mr Ives to seek an extension of time within which to make his application. Mr Ives stated the reason for the delay on the Form F8 application is that he had to “check the advice I got from the Helpline” and “needed to get legal advice”.

[6] On 4 December 2017, directions were sent to Mr Ives and JBM which required them to address the criteria set out on s.366(2) of the Act and provide any supporting evidence they wished to rely upon. No material was filed by either party in response to the directions.

[7] On 15 December 2017, communication was issued from my Chambers in relation to their non-compliance with the directions. The parties were requested to urgently contact the Fair Work Commission (the Commission) and were afforded a further period of time to provide any material they wished to rely upon. The parties were advised that if nothing was heard, the Commission would consider the extension of time on the material that was before the Commission.

[8] On 20 December 2017, further correspondence was issued from my Chambers to a separate email address used on behalf of Mr Ives to lodge the application. The correspondence requested that Mr Ives urgently contact the Commission.

[9] Attempts to contact Mr Ives by telephone have been unsuccessful and to date, no material has been received from Mr Ives or JBM. In the circumstances I have decided to determine the application ‘on the papers’.

Applicable Case Law

[10] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd¹ 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). 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.’ [Endnotes not reproduced]

[11] For exceptional circumstances to arise as contemplated by s.366 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 s.366(2) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[12] The onus of establishing exceptional circumstances is on Mr Ives who needs to provide a credible reason for the whole of the period that the application was delayed. 2

[13] This point was emphasised by the Full Bench in the decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

‘[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.’

Consideration

Subsection 366(2)(a) - The reason for the delay

[14] Mr Ives stated the reason for the delay on the Form F8 application as that he needed to check advice he obtained from the ‘helpline’ and that he needed to obtain legal advice.

[15] There is nothing exceptional about a prospective applicant to a matter seeking relevant advice before proceeding with an application.

[16] It is difficult to glean from the reasons given for the delay by Mr Ives which ‘helpline’ Mr Ives contacted or what basis he needed to check the advice he received. It may be reasonably inferred that he contacted either the Commission’s Helpline or the Fair Work Ombudsman’s Infoline. It may also be reasonably inferred that during any conversation he had with either he would have been made aware of the importance of the 21 day timeframe within which he had to make the application.

[17] The stated reasons for the delay weigh against granting an extension.

Subsection 366(2)(b) - Any action taken by the person to dispute the dismissal

[18] It is not clear what steps were taken by Mr Ives to dispute the dismissal other than his purported attempts to seek advice.

[19] This factor weighs against granting an extension.

Subsection 366(2)(c) - Prejudice to the employer (including prejudice caused by the delay)

[20] JBM has not provided a response to the application and has not demonstrated that any prejudice will be suffered by it as a result of the application being filed late that would not have occurred had the application been filed on time.

[21] I am not satisfied the delay of eighteen days would cause any prejudice to the employer.

[22] This is a neutral consideration.

Subsection 366(2)(d) - The merits of the application

[23] In the matter of Kornicki v Telstra-Network Technology Group 4the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:5

‘If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.’

[24] After considering the very limited material filed by Mr Ives in relation to the substantive application and in light of JBM’s failure to respond to the application, it is not apparent that the application is without merit or that merit is anything other than a neutral consideration.

Subsection 366(2)(e) - Fairness as between the person and other persons in a like position

[25] Neither party made submissions as to the relative fairness as between the applicant and other persons in a similar position.

[26] A relevant principle in consideration of this criterion was articulated by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd: 6 

‘Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.’

[27] Similar cases, in which there is no clear account of the delay or demonstration of the exceptional circumstances, have not favoured the exercise of the discretion to extend time. 7 Granting the extension would cause unfairness to other parties in a similar position whose applications to extend time had been refused.

[28] I am not satisfied that the issue of fairness as between Mr Ives and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral factor when considering the discretion to grant an extension.

Conclusion

[29] Mr Ives did not adequately account for the delay for filing his application. On the material before the Commission there is no factor, either taken individually or considered collectively, which would weigh in favour of the grant of an extension of time.

[30] I have considered each of the criteria set out in s.366(2) of the Act. On the basis of the very limited material before the Commission, I am not satisfied of the existence of exceptional circumstances which warrant the exercise of my discretion to extend the time for Mr Ives to make his application. Accordingly, the application is dismissed.

COMMISSIONER

1 [2011] FWAFB 975.

 2   See: Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403.

 3   [2016] FWCFB 349.

 4   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 5   Ibid.

 6   [2016] FWCFB 6963 at [41].

 7   See for example: Burke v Mamre Association Inc T/A Mamre [2017] FWC 5922; Pellew v Samuel O’Connor T/A Hair Republic[2017] FWC 6382; Hoger v Bondall Pty Ltd [2017 FWC 6067.

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