Mr Troy Harrison v BJ & KL Niethe T/A Niethe Transport
[2019] FWC 4955
•21 AUGUST 2019
| [2019] FWC 4955 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Troy Harrison
v
BJ & KL Niethe T/A Niethe Transport
(U2019/1756)
COMMISSIONER HUNT | BRISBANE, 21 AUGUST 2019 |
Application for an unfair dismissal remedy – jurisdiction – date of effective termination – extension of time – no exceptional circumstances present – unfair dismissal application dismissed.
[1] On 18 February 2019, Mr Troy Harrison made an application under s.394 of the Fair Work Act (the Act) alleging that he had been dismissed by BJ & KL Niethe Pty Ltd (Niethe Transport) and that the dismissal was harsh, unjust or unreasonable.
Background and jurisdictional objections
[2] Niethe Transport is owned and operated by Mrs Kristy Niethe and Mr Brenton Niethe. Mr Harrison commenced employment with Niethe Transport on 11 April 2016 and worked as a casual employee. The date of dismissal is disputed between the parties.
[3] In its Form F3 – Employer Response to Unfair Dismissal Application, Niethe Transport raised three jurisdictional objections in relation to the applicant’s application:
(a) The application was made out of time pursuant to s.366 of the Act given that Niethe Transport maintained that the dismissal occurred on 10 January 2019, and the application was not filed until 19 February 2019, some 19 days beyond the 21 day time limit;
(b) The termination was a case of genuine redundancy in accordance with s.389 of the Act; and
(c) The respondent acted in accordance with the Small Business Fair Dismissal Code (the Code) in terminating Mr Harrison.
[4] Directions were issued to both parties to file material and submissions relevant to the jurisdictional objections.
Determinative Conference
[5] The matter was listed for hearing before me on 27 June 2019. Mr Harrison appeared on his own behalf, with his fiancé, Ms Christina Cotronese who also gave evidence. Mr Brett Barton of the National Road Transport Association appeared for the respondent. Mr Niethe and Mrs Niethe attended and gave evidence. After obtaining the views of the parties, I decided to hold the matter as a determinative conference.
The Legislative Framework
[6] Section 385 of the Act defines the meaning of “unfair dismissal” and states as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[7] Section 386 of the Act deals with the meaning of dismissed, providing:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
……………….”
[8] Section 394 of the Act provides the criteria required to obtain an unfair dismissal remedy:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a 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.”
Summary of evidence
[9] The respondent is a road transport business based at Tharonga, Queensland. Its primary business functions involves providing hauling services for construction and demolition materials, clean fill and contaminated fill.
[10] The respondent employed Mr Harrison on a casual basis on 11 April 2016, and he was paid $30 per hour for day work, and $36 per hour for night work. Niethe Transport acknowledges that Mr Harrison was a committed and reliable employee for the most part of his tenure with the business.
[11] Mr Niethe’s evidence is that during the last few months of Mr Harrison’s employment, he was working on night shift at the Lantrak construction site in Brisbane, carting clean fill. In late 2018, Mr Harrison had a period of about seven weeks’ off work due to his Crohn’s Disease. Despite being a casual employee, the respondent provided some paid leave to Mr Harrison.
[12] Between 11 December 2018 and 7 January 2019, Mr Harrison only worked 11.25 hours, but was paid for 40 hours, as Mr Niethe wanted to ensure that Mr Harrison would return in 2019 after an industry shutdown.
Cessation of work at Lantrak site
[13] Niethe Transport last performed work at the Lantrak site on 11 December 2018, but expected to continue to provide services in January 2019. On 9 January 2019, Mr Matt Yarnold of Lantrak messaged Mr Niethe to inform him that Lantrak was not recommencing night shift as there had been safety concerns on the site. Mr Yarnold told Mr Niethe that Lantrak did not have knowledge of when this would be rectified, and when night shift would recommence.
[14] Given that Mr Harrison preferred not to work day shift, Mr Niethe concluded that he would “let Mr Harrison go”. He also took into account that Mr Harrison did not like driving the newer trucks, and he had reportedly stated that he had plans to buy a truck himself.
Telephone conversation 10 January 2019
[15] Mr Niethe’s recollection of his telephone call to Mr Harrison on 10 January 2019 is as follows:
Niethe: | “How you going? |
Harrison: | Yea, good. You? |
Niethe: | Got some bad news, I’ve just found out that nightshift will not be running again. It’s finished up for the foreseeable future. We have no other nightshift available so basically I have no work for you mate. |
Harrison: | Oh, righto. I’m driving all the way down to Maxville and all the way back so I’ve got plenty of time to figure out what I’m going to do. I’ll have to organise something else. |
Niethe: | I’ll have a talk to Dad; you might be able to drive his body truck. He’s just had an operation and doesn’t have anyone to drive it. I’ll make some calls and see if I can organise something else, but at this point I don’t know what else is happening so just let me know if you want to drive Dad’s truck. |
Harrison: | Oh yeah, rightio, no worries. I’ll catch ya later. [sic]” |
[16] Mr Niethe’s evidence is that given Mr Harrison was a casual employee, he considered he had effected a termination of employment. He contacted several transport businesses he knew were looking for short-term drivers and gave them Mr Harrison’s phone number. One of those contacts informed Mr Niethe that he had tried unsuccessfully to contact Mr Harrison.
[17] Mr Harrison’s evidence is that he did not mind working day shift, but preferred to work night shift. He stated that Mr Niethe always came up with plans to move him onto day shift if night shift was ever cancelled.
[18] Mr Harrison contended that shortly before Christmas, Mr Niethe inquired about the time that Mr Harrison was having off work and suggested that it was annoying. Mr Harrison replied that he did not expect to be paid, and he was working to get his medication and diet correct in addressing his Crohn’s Disease.
[19] Mr Niethe requested Mr Harrison work 3 January 2019, and he obliged on the basis that he had been paid over the Christmas break when there had been no obligation to be paid, and he wanted to make it up to Mr Niethe. Mr Harrison’s evidence is that again, Mr Niethe suggested that Mr Harrison’s time off was annoying.
[20] On 8 January 2019, Mr Harrison called Mr Niethe and asked if there was any further work. Mr Harrison stated that he would be driving to Sydney to drop his children to their mother, and he would have returned to Brisbane on 10 January 2019. Mr Niethe responded that he had not yet heard from anyone at Lantrak, and he would let him know if it changed.
[21] On 10 January 2019, Mr Harrison was driving to Sydney with Ms Cotronese and his children. The call was accepted on the Bluetooth speaker in his car. His recollection of the telephone call with Mr Niethe is as follows:
Niethe: | “Hey mate hows it going? |
Harrison: | Hay mate yeah good. Did you find out when they’re starting the nights up again? |
Niethe: | Yeah about that got some bad news. I’ve just gotten off the phone to Chocko and he has told me that they won’t be running nights. |
Harrison: | Oh OK. Whys that? |
Niethe: | Apparently something to do with the walls caving in and how its just not structurally sound. So they won’t be running nights for now. But they will start back up in a few months’ time. |
Harrison: | A few months? |
Niethe: | Yeah three months or so. |
Harrison: | So what are we gonna do then? |
Niethe: | I’m not too sure. I might be able to get you some day shift work through Dad, but I’ll let you know. |
Harrison: | okay well I’m just on my way to Sydney to take the kids home so I’ll have a look and see if I can find any work for the truck. |
Niethe: | yeah righto. I’ll see what I come up with. I’ll let ya know what I can come up with and you do the same. |
Harrison: | okay mate talk soon. |
Niethe: | Cya [sic]” |
[22] Mr Harrison did not draw a conclusion from the conversation that his employment had been terminated. Ms Cotronese confirmed Mr Harrison’s recollection of the conversation in evidence.
[23] Mr Harrison’s evidence is that following the conversation on 10 January 2019, he sent numerous text messages and tried calling Mr Niethe several times to see if any work had been found for him. During the determinative conference, this became an issue of fact; how many attempts had Mr Harrison made to telephone Mr Niethe prior to sending a text message on 21 January 2019?
[24] The telephone records provided in evidence at the determinative conference demonstrated that no telephone exchange had occurred between the two men between 10 January 2019 and a text message of 21 January 2019. Mr Harrison stated the following: 1
Harrison: | Well, obviously, because I'd been ignored basically, since the phone call on the 10th. I failed to get any sort of acknowledgement out of Brenton in regards to where I stood or anything like that. I do believe I've - - - |
Commissioner: | Well, let's just stop there. So there's the 10 January conversation. |
Harrison: | Yes. |
Commissioner: | Where you say, your evidence is that you were told that night shift is on the back-burner for three months. |
Harrison: | Yes. |
Commissioner: | You said that you would look at other things as well. |
Harrison: | Yes. |
Commissioner: | Then you initiate the next contact on 21 January. |
Harrison: | Correct. |
Commissioner: | So, why do you say you feel you're being ignored? |
Harrison: | Because like I was saying that I had tried attempting to call Brenton since the 10th, however shown phone records - - - |
Commissioner: | Where's your evidence of that? |
Harrison: | Well, phone records aren't showing that, obviously because I hung up before it went to voicemail. So the only ones that were coming up on - - - |
Commissioner: | You were calling him from the 10th to the 21st, were you? |
Harrison: | I tried a few times since the 10th, yes, correct, to find out where I stood and what was happening? |
Commissioner: | Where's your evidence of that? |
Harrison: | I haven't got any evidence of that. |
Commissioner: | Well, is it in your statement? |
Harrison: | I believe it is in the statement, not specific dates of what days I called, because I thought it would be in the phone records. But yes, I do believe in my statement it does say that I contracting Brenton several times, along with text messages. |
Commissioner: | What, more text message than what you've produced? |
Harrison: | No, not more text messages. This one here from the 21st, that was the first one I'd sent, but that was after I tried making a number of phone calls. |
Commissioner: | Well, paragraph 19 of your statement is the closest it goes, following the conversation of the 10th. Annexure 3 is your phone record, is it, and what will that show? |
Harrison: | That won't show any calls in between the 10th and the 21st, but I believe that's because obviously the phone call wasn't answered and I'd obviously hung up before it got a chance to go to voice mail. So, it's not showing up as records that an actual phone call was made. I believe I only get charged once the phone call is answered as such. If I knew it was going to come down to this, I would have obviously screen shotted it on my phone at the time, but yes. |
[25] Telephone records produced by Mr Harrison following the determinative conference demonstrate that Mr Harrison attempted to call Mr Niethe on 16 January 2019 at 8:57pm, consisting of a one minute voice message. A further attempted call was made on 18 January 2019 at 2:39pm, consisting of a one minute voice message. As is clear in Mr Niethe’s evidence in [28], Mr Harrison also tried to call Mr Niethe on 22 January 2019, but he must have finished the call before it went to voicemail.
Text messages sent by Mr Harrison
[26] The following text messages were sent by Mr Harrison to Mr Niethe:
(a) 21 January 2019 at 1:32pm:
“So that’s it ay, ain’t heard nothing in over a week so assume fuck off and find another job?”
(b) 25 January 2019 at 8:49pm:
“Take it as a yes”
(c) 25 January 2019 at 10:48pm:
“All good, will be around at some point to get my shit”
(d) 1 February 2019 at 9:40pm:
“Gonna come get me shit if that’s sweet?”
(e) 1 February 2019 at 11:15pm:
“No worries, got me shit, thanks for being ignorant”
[27] Mr Niethe’s evidence is that on receipt of the text message at [26(a)], he was surprised, as he considered that he had made it clear during the telephone discussion of 10 January 2019 that he didn’t have any further work for him. Mr Niethe stated that he attempted to telephone Mr Harrison, but the call was not answered.
[28] Mr Niethe stated that on 22 January 2019, he noticed that Mr Harrison had attempted to call him at 3:22pm, however it was late when he noticed the missed call on his phone, and he did not think it appropriate to call Mr Harrison so late in the evening. Mr Niethe then received the further two text messages on 25 January 2019. I take it from Mr Niethe’s evidence that Mr Harrison collected his belongings from the depot in between his two text messages on 1 February 2019, in the evening.
Request for a pay slips and a separation certificate
[29] On 2 February 2019, Mr Harrison sent the following text message to Mrs Niethe, and the following exchange occurred:
(a) 2 February 2019 at 11:44am:
“Hey kristy, been trying to get in contact with Brenton. I’m chasing payslip back dating from when I first started and to when I finished please. Preferably prior to the 17/02/19 thanks”
(b) “Okay, I’ll email them to you”
(c) “thanks, appreciate it”
[30] Mr Harrison’s written statement was to the effect that he and Ms Cotronese attended a Centrelink appointment on 4 February 2019 to inquire if he could make a claim for income assistance while he waited for Mr Niethe to return his phone calls and text messages. He was informed that Centrelink could not assist until he had a separation certificate. On 4 February 2019 at 1:52pm, Mr Harrison sent the following text message to Mrs Niethe:
“Also chasing a separation certificate please asap?”
[31] On 4 February 2019 at 10:00pm, Mrs Niethe sent the following email to Mr Harrison:
“Payroll advice from 11/04/2016 to 25/06/2018
Hi Troy,
This is the correct report for the dates mentioned above. I’m still working on saving and emailing the current payslips from Xero to email to you along with the letter of separation.”
[32] On 4 February 2019, there were a multitude of text messages sent between Mr Harrison and Mrs Niethe relevant to his payslips. The text messages were extremely polite between each other, with Mrs Niethe attempting to provide all of the material respectfully requested by Mr Harrison.
[33] One of the text messages from Mr Harrison stated:
“All good no stress, just the last two payslips are the important ones for insurance. Just confirming that I was employed as a casual as I’m filling in my income insurance papers and I just need to get all info correct so there is no delay. Sorry to be a pain, it’s just we are struggling and need to sort it”
[34] On 5 February 2019, Mr Harrison politely chased Mrs Niethe up for the requested separation certificate. Mrs Niethe completed the separation certificate and scanned it to Mr Harrison, noting the date the employment ceased as 7 January 2019, ticking the box “shortage of work”.
[35] Mrs Niethe’s evidence is that she incorrectly stated 7 January 2019, and she should have stated 10 January 2019 per the telephone call between Mr Niethe and Mr Harrison.
[36] Mr Harrison stated in evidence that he was shocked when he received the separation certificate, as he was unaware that he was unemployed until he received it. Mr Harrison stated that from that date, he proceeded to bring an unfair dismissal claim, and he was genuinely not aware of his dismissal until the separation certificate was sent through.
What was the date of the dismissal?
[37] Mr Harrison contends that the date of the dismissal was 5 February 2019 when he was issued a separation certificate informing him that he had been dismissed. Accordingly, he submitted that his application has been made within time.
[38] The respondent contends that the date of the dismissal was 10 January 2019, per the telephone conversation with Mr Harrison. In the alternative, it was submitted that the dismissal should be taken to be 21 January 2019 or 25 January 2019 when Mr Harrison sent the above text messages concluding that his employment had ended. 2 If the Commission were to find the date of the dismissal to be 21 January 2019, the application has been made eight days late. If the Commission were to find the date of the dismissal to be 25 January 2019, the application has been made four days late.
[39] I took the parties through the considerations the Commission must have if an application has been made out of time. The following evidence and submissions was given.
Section 394(3)(a) - The reason for the delay
[40] Mr Harrison stated that it was not up to him to assume if he was employed or not. He considered that he had been ignored, and termination had not been confirmed. He stated that he couldn’t assume he had been dismissed, and there had been no contact between 10 January 2019 and 5 February 2019, when he received the separation certificate. 3
[41] Mr Harrison was cross-examined as to what his expectations might have been had he been informed on 10 January 2019 that there was no work for three months. He replied that he thought that he’d be given yard work, cleaning trucks, greasing or maintaining vehicles. He agreed that he would not expect that kind of work for a complete three months, but he might expect it for a couple of weeks. 4 In questioning from me, he stated that he could have gone to the yard in anticipation of yard work, but he considered that “something’s up otherwise why would he [Mr Niethe] be ignoring me? How do I know I’d be even welcome there?”5
[42] It was put to Mr Harrison that he could have indicated to Mr Niethe whether he was prepared to drive for Mr Niethe’s parents in their transport business. Mr Harrison responded that he’d been ignored by Mr Brenton Niethe, so that was not the text message that he could be expected to have sent.
[43] Mr Barton put to Mr Harrison that during the telephone call of 10 January 2019, Mr Niethe had not ever mentioned to him that the reason for the lack of work was due to a structural issue with the walls potentially caving in. Mr Barton suggested that Mr Harrison had discovered this news from other people on site. Mr Harrison agreed that he had spoken with other people on site. He suggested that if Mr Niethe had said that there was a safety issue, or if he had said that the walls were caving in, it was related. 6
[44] Relevant to the text message sent by Mr Harrison on 25 January 2019, it was put to him that he had concluded that his job did not exist anymore. He responded, “That was my assumptions, within me, but again I'm not the employer. I'm not the one firing myself am I. I've had no one tell me that I have no job.” 7
[45] In cross-examination, Mr Harrison agreed that none of the text messages that he sent to Mr Niethe was requesting work. 8 In evidence he stated that it was his prerogative to refuse the work offered to work for Mr Niethe’s father. He also recalled that he needed to have a colonoscopy performed over this period of time. Documents produced after the determinative conference reveal that Mr Harrison was examined on 21 January 2019 in preparation for the procedure which was then performed on 8 February 2019. He was then examined post-operatively on 18 February 2019. Mr Harrison explained that the colonoscopy incapacitated him the night before the surgery and the day of the surgery, but not otherwise.9
[46] Mr Niethe’s evidence is that when he received Mr Harrison’s text message on 25 January 2019, “Take it as a yes”, he considered that it was obviously a yes, because he didn’t have any work for Mr Harrison. He thought that Mr Harrison was trying to get a reaction out of him. 10 He opined that if Mr Harrison still thought he was employed, why would you speak to your boss like that?11
Section 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect
[47] Mr Harrison stated that it was only when he received the separation certificate that it had it had been “concrete” that he was no longer employed. 12 As to what Mr Harrison meant when he sent a text to Mrs Niethe stating, “…from when I first started and to when I finished please”, he stated that he had assumed that he had finished. Mr Harrison stated that even though he sent that text on 2 February 2019, he was still shocked to learn on 5 February 2019 that he was no longer employed.13
[48] The respondent submitted that Mr Harrison’s evidence that he only became aware of his termination when he received his separation certificate lacks credibility. 14
Section 394(3)(c) - Any action taken by the person to dispute the dismissal
[49] Relevant to Mr Harrison’s text message to Mr Niethe on 1 February 2019 at 11.15pm where he stated, “No worries, got me shit. Thanks for being ignorant”, Mr Harrison’s evidence is that he was unsure if he was still employed, but he had some items such as car parts and tyres that he wished to retrieve. He stated that he assumed that he wasn’t welcome on the premises, but he wasn’t sure because he had not heard from Mr Niethe. He stated, “I just went there to get my stuff.” 15
[50] Mrs Niethe gave evidence that when Mr Harrison began requesting payslips and other information in early February 2019, he did not raise that he considered his dismissal to be unfair. 16
Section 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)
[51] Mr Harrison submitted that a short delay would not cause any prejudice to the respondent. Mr Barton submitted that given the small size of the enterprise a delay, even it was found by the Commission to be a four day delay would prejudice the respondent.
Section 394(3)(e) - The merits of the application
[52] Mr Harrison submitted that his application is not without merit. Mr Barton submitted that there is no merit to the application as there was no work for Mr Harrison to perform beyond the termination.
Section 394(3)(f) - Fairness as between the person and other persons in a similar position
[53] The parties are agreed that there is no person in a similar position to Mr Harrison.
Submissions relevant to other matters
[54] The parties made submissions relevant to the jurisdictional objections of whether the dismissal was a genuine redundancy, together with the Code. The parties also addressed the Commission relevant to s.387 considerations and remedy, in the event that it was necessary.
Conclusion on the date of the dismissal
[55] After hearing all of the evidence and submissions relevant to the date of the dismissal, I conclude that there while Mr Niethe believed that he had dismissed Mr Harrison on 10 January 2019, this was not properly understood by Mr Harrison. This is understandable, given the conversation was by telephone, in a car on bluetooth, with Mr Harrison travelling to Sydney and returning shortly thereafter. I accept that Mr Harrison, at that time, understood he might be contacted further as to when work might continue.
[56] I have determined that while Mr Niethe considered the dismissal to have been effected on 10 January 2019, a misunderstanding occurred. I determine that pursuant to s.386(1)(a) of the Act, Mr Niethe did take positive steps to end the employment relationship.
[57] I find that Mr Harrison did not understand or appreciate this until he sent his text messages to Mr Niethe on 25 January 2019, confirming that he, Mr Harrison, should take it as a yes that he no longer had a job. Mr Harrison had unsuccessfully attempted to call Mr Niethe on 16, 18 and 22 January 2019. He concluded, thereafter, on 25 January 2019 that because he considered he was being ignored, he was no longer employed. He then stated that he would collect his belongings.
[58] I do not accept Mr Harrison’s evidence that upon receiving a separation certificate on 5 February 2019 it came as a shock to him to learn that his employment had ended. His text message to Mrs Niethe on 2 February 2019, requesting his payslips from when he first stated to when he finished is demonstrative of him understanding at that time that his employment had ended.
[59] Accordingly, I conclude that whilst Mr Niethe believed that he properly communicated the dismissal to Mr Harrison on 10 January 2019, Mr Harrison did not become aware of the dismissal until 25 January 2019. Therefore the application has been made four days late if 25 January 2019 is accepted as the date of the dismissal. The application cannot proceed unless I am satisfied that there are exceptional circumstances and I decide to exercise my discretion to grant an extension of time.
Applicable Case Law
[60] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd17where 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]
[61] For exceptional circumstances to arise as contemplated by s.394(3) 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.394(3) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.
[62] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters18, a Full Bench of the Commission rejected the finding at first instance that that the decision in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers19 stood for a decision rule that, absent a credible explanation for the entirety of the delay there could be no finding of exceptional circumstances. The Full Bench reaffirmed the test for exceptional circumstances as follows:20
“As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.’ (original emphasis)
Consideration
The reason for the delay
[63] The reason for the delay asserted by Mr Harrison is primarily that he did not become aware of the dismissal until 5 February 2019. I have rejected that proposition above.
[64] I have found that Mr Harrison concluded that he had been dismissed on 25 January 2019 when he formed the view that following the telephone call of 10 January 2019, and his numerous attempts to contact Mr Niethe had been ignored.
[65] Mr Harrison has not provided a reasonable explanation for the delay in bringing the application. His medical appointments during the period from which he was aware that there was a dismissal until when he made the application do not provide an adequate explanation, as he was not incapacitated for any considerable period of time. Further, he was capable of returning to the workplace and collecting all of his belongings during this time. I consider that the reasons for the delay weigh against exercising the discretion to grant an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[66] I have determined that if the dismissal did take effect on 10 January 2019, if it could be said to be the case given the telephone discussion and what Mr Harrison understood was continuing employment, he most certainly concluded that his employment had come to an end on 25 January 2019. Mr Harrison then failed to promptly bring his application, meaning that it was made outside of the 21 day time limit.
Any action taken by the person to dispute the dismissal
[67] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.21
[68] There is no evidence before the Commission that upon Mr Harrison concluded that his employment had ended on 25 January 2019, he took steps to dispute the dismissal other than texting Mr Niethe on 1 February 2019 to inform him that he had collected his personal items, and to tell him that he was “ignorant”.
[69] At no time in Mr Harrison’s very polite exchanges with Mrs Niethe, seeking relevant documents which appeared to Mrs Niethe to be sought to assist Mr Harrison in pursuing an insurance claim, did Mr Harrison dispute the dismissal. Accordingly, this is a factor which weighs against Mr Harrison in considering whether to exercise the discretion to grant an extension.
Prejudice to the employer (including prejudice caused by the delay)
[70] The delay of four days, if it is accepted that 25 January 2019 was the date that the dismissal became known to Mr Harrison will not cause any prejudice to the employer.
[71] I have considered the respondent’s submissions and I find that it has not demonstrated that any other 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.
[72] This is a neutral factor when considering whether to exercise the discretion to grant an extension.
The merits of the application
[73] In the matter of Kornicki v Telstra-Network Technology Group22 the 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:23
“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.”
[74] After considering the material filed by the parties in relation to the substantive application it is not apparent that the application is without merit or that merit is anything other than a neutral consideration.
Fairness as between the person and other persons in a similar position
[75] A relevant principle in consideration of this criterion was articulated by the Full Bench in Perry v Rio Tinto Shipping Pty Ltd:24
“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.”
[76] 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.25 Granting the extension would cause unfairness to other parties in a similar position whose applications to extend time had been refused.
[77] I am not satisfied that the issue of fairness as between Mr Harrison 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
[78] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied there are exceptional circumstances which would warrant granting an exception to the statutory time limit.
[79] Mr Harrison’s circumstances are not out of the ordinary course, unusual, special or uncommon.
[80] As Mr Harrison has not demonstrated that there are exceptional circumstances sufficient for me to exercise my discretion to extend time, I refuse the application for an extension of time. The application has been filed outside of the time required by s.394(2)(a) of the Act. The application must be dismissed.
[81] I order that the Application be dismissed.
COMMISSIONER
Appearances:
Harrison T, the Applicant
Barton B, National Road Transport Association, for the Respondent
Determinative conference details:
Brisbane
27 June
2019.
Final written submissions:
Submissions of the Applicant, 10 June 2019.
Submissions of the Respondent, 19 June 2019.
<PR710391>
1 PN85 – PN107.
2 PN1314.
3 PN258.
4 PN305.
5 PN1048.
6 PN418.
7 PN465.
8 PN467.
9 PN524.
10 PN894.
11 PN896.
12 PN599.
13 PN627.
14 PN1326.
15 PN642.
16 PN1243.
17 [2011] FWAFB 975.
18 [2018] FWCFB 901.
19 (2010) 197 IR 403 at [16]-[18].
20 [2018] FWCFB 901 at [38].
21 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
22 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
23 Ibid.
24 [2016] FWCFB 6963 at [41].
25 See for example: Burke v Mamre Association Inc T/A Mamre [2017] FWC 5922; Pellew v Samuel O’Connor T/A Hair
Printed by authority of the Commonwealth Government Printer
Republic [2017] FWC 6382; Hoger v Bondall Pty Ltd [2017 FWC 6067.
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