Mr Troy Hersey v Reece Pty Ltd

[2014] FWC 4792

[2014] FWC 4792

FAIR WORK COMMISSION

DECISION

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

Mr Troy Hersey
v
Reece Pty Ltd
(U2014/1581)

COMMISSIONER RIORDAN SYDNEY, 18 JULY 2014

Application for relief from unfair dismissal.

[1] Mr Troy Hersey was dismissed from the employment of Reece Pty Ltd on April 10, 2014. He applied to the Fair Work Commission (FWC) on May 5, 2014.

[2] The FWC wrote to Mr Hersey on May 7, 2014 to advise him that his application has been lodged outside of the legislated 21 day timeframe. The correspondence further advised Mr Hersey that he would need to show a member of the FWC that there were “exceptional circumstances” which caused the delay in his application for an unfair dismissal remedy.

[3] The matter was listed for Conference/Hearing on 4 July, 2014. Mr Hersey did not provide any written submissions in relation to the jurisdictional issue. At the Conference, both parties relied upon the material contained in the respective F2 application and F3 response.

[4] Mr Hersey highlighted the doctor’s certificate that he had obtained on 23 April, 2014 which identified that he was suffering from Depression and was placed on anti-depressant medication. He advised that for the first two weeks after his dismissal that he had struggled to get out of bed due to his depression.

[5] Mr Rogers re-iterated that Mr Hersey was dismissed for his failure to follow the Occupational Health and Safety (OH&S) policies of the Company.

[6] Mr Rogers advised that Mr Hersey had recently been issued with a final warning.

[7] The relevant legislative framework for an extension of time application is section 394(3) of the Fair Work Act, 2009 (the Act).

“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] FWA FB 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). 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]

[9] Whilst this determination is discretionary in nature, it is necessary to consider all of the factors outlines in s394(3) when deciding whether or not an exceptional circumstance actually exist in this case.

[10] I am satisfied that Mr Hersey’s depression as a result of his dismissal is a reason which falls within the boundaries of an exceptional circumstance. Mr Hersey made application for an unfair dismissal remedy four days outside the statutory timeframe after struggling to deal with his dismissal for some thirteen days before seeking medical advice. I also note that the doctor stated that Mr Hersey was unfit for work until 23 May 2014.

[11] I accept that there was no delay in Mr Hersey becoming aware of his dismissal.

[12] I do not accept that the case of the employer will be prejudiced by the granting of the extension of time.

[13] Mr Hersey’s application has its own inherent difficulties on the basis that he has previously been issued with a final warning, however, on the evidence submitted to date, he has, at best, an arguable case that the final warning may have been issued unfairly, that he had been subjected to workplace bullying and harassment and that the reason for his dismissal was harsh.

[14] I am not aware of any issue in relation to fairness between Mr Hersey and any other employee in a similar position.

Conclusion

[15] Having considered all of the issues as required by the Act and the, albeit, brief submissions of the parties, I am satisfied that there were exceptional circumstances which warrant an extension of time being granted to Mr Hersey in accordance with s394(3) of the Act.

[16] An Order reflecting this decision will be issued.

COMMISSIONER

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