Nathan Clements v Bedford Phoenix Incorporated

[2016] FWC 4856

[2016] FWC 4856

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Clements
v
Bedford Phoenix Incorporated
(U2016/3175)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 22 JULY 2016

Application for relief from unfair dismissal - extension of time not granted.

[1] Mr Clements has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Bedford Phoenix Incorporated (Bedford). At a telephone conference convened on 22 July 2016 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion

[2] Mr Clements’ application was lodged on his behalf by the Construction, Forestry, Mining and Energy Union (CFMEU) on 1 July 2016. That application advised that Mr Clements’ employer was the Bedford Group Pty Ltd T/A Bedford Group. The employer’s response to the application confirmed the correct name of the employer and there was no opposition to my amendment of the application pursuant to s.586 of the FW Act. The application advised that Mr Clements’ employment was terminated with effect from 13 May 2016. The application asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept Mr Clements’ application out of time:

“1. The Applicant was coerced into accepting a forced resignation on 13 May 2016.

2. The Applicant felt threatened, victimized and timid to seek help and assistance from his Union.

3. The Applicant’s step-son suffered an injury whilst holidaying in the Philippines at or around this period, therefore the member was highly distressed and could not focus his mind to organize the time to seek help and assistance from his Union or to lodge unfair dismissal proceedings.

4. As soon as the Applicant informed the Union (30 June 2016) as to what happened on 13 May 2016, the Union sought to immediately lodge his unfair dismissal Application.” 1

[3] On 6 July 2016 my Associate corresponded with both Mr Clements and Bedford and advised that the extension of time issue would be considered through a telephone conference on 22 July 2016. Substantial information about the extension of time issue was provided to the parties. Mr Clements was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 15 July 2016.

[4] Mr Clements did not provide a statement detailing his position but a submission on his behalf was forwarded by the Construction, Forestry, Mining and Energy Union (CFMEU). That submission asserted:

“4. On 8 May 2016, 5 days before his dismissal, the Applicant's stepson sustained a serious injury whilst he was in the Philippines.

5. The stepson was admitted to hospital and remained in induced coma until 14 May 2016 (the day after the Applicant's dismissal).

6. At the time, the Applicant's thoughts were with his stepson and his welfare and lodging unfair dismissal proceedings was the last thing on his mind given the family emergency.

…

7. The Applicant was coerced into resignation. He had no choice in the matter. He was given an ultimatum; voluntarily resign or be dismissed.

8. The Applicant was confused after the meeting of 13 May 2016 as to whether he was dismissed or forced to resign.

9. He signed his resignation letter and accepted the funds offered to him.

10. We maintain the Applicant was constructively dismissed on the meeting of 13 May 2016.

11. The Applicant also perceived that, because he was offered some settlement money, he would not be allowed to bring unfair dismissal proceedings.

12. The Applicant does not understand unfair dismissal laws and he assumed accepting the resignation was the only option open to him.

…

13. Refer to paragraphs 3, 4, 5, 11 and 12 of the above. The Applicant did not dispute the dismissal due to family emergency and because he was not aware of his legal rights. He did not contact the Union because he felt this was the end of the matter and he had no rights to challenge the situation.

14. The Applicant did not fly to the Philippines but his mind was pre-occupied with the thoughts of his stepson's wellbeing.

…

15. The Respondent will not suffer any prejudice if the application is to proceed out of time.”

[5] The submission asserted that Mr Clements had a very meritorious case in that there was no valid reason for his dismissal and he was not given a meaningful opportunity to respond. The submission asserted that Bedford adopted a process which deprived Mr Clements of the opportunity to arrange a support person and that a warning given to him in October 2014 was not relevant. The submission asserted that Bedford had access to dedicated human resource management specialists and procedures. The submission made on behalf of Mr Clements was that he was a long serving employee and the termination of his employment had particularly harsh consequences. Further, that issues around alleged workplace bullying could have been resolved through meaningful discussions with him.

[6] The Employer’s Response to the application objected to the application on the basis that it asserted that Mr Clements resigned, and was not dismissed. Bedford also objected to the application on the basis that it was lodged out of time. Bedford stated:

“The Applicant was advised of the Employer's intention to dismiss him for serious and willful misconduct at a meeting on 13 May 2016 with effect from that day. The Applicant was offered instead, the option of resigning and the Employer would pay out his notice period, The Applicant took the option of resigning.

The Applicant was offered and refused to avail himself of the option to have representation despite written correspondence and verbal offers before and during the proceedings.

The Applicant is a member of the Union and has had frequent contact with the Union official on site. The delay cannot be attributed to the Applicant not being aware of how to seek advice about his dismissal or to a lack of access to sources of advice.

The Applicant chose to use his payment in lieu of notice to travel overseas rather than remain in Australia and seek advice in relation to his termination. This trip was not planned because the Applicant had not previously arranged annual leave.

There are no exceptional circumstances explaining the delay (as required by section 394(3) of the Act) and in particular:

• The Applicant was aware of the termination of his employment on 13 May 2016 and he sent an email to the Employer to confirm his resignation that day;



• The delay was substantial and the application was not filed until 4 weeks after the relevant time limit had expired; and



• For the reasons set out in section 3.2 of this response, this application has no merit and there is no reasonable prospect that the Applicant will succeed.  2

[7] Mr Clements participated in the telephone conference. He was represented by Mr Malbasa of the CFMEU. Mr Ey, of counsel represented Bedford pursuant to an unopposed grant of permission made under s.596(2)(a) and (c). Mr Scanlon from Bedford also participated in the conference. Mr Clements was given the opportunity to expand on the information provided to me.

[8] My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[9] 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.”

[10] On the information before me I am satisfied that the application was made some 28 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. 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 3 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.”

[11] Mr Clements’ reasons for the delay go to his advice that, between 8 and 14 May 2016 his stepson was seriously ill in hospital in the Philippines and that this assumed a priority rather than lodgement of this application. Mr Clements has not provided an acceptable reason for the significant delay after that date. Mr Clements acknowledged that he proceeded to Bali, on holidays for two weeks over this period and that he only became aware of his potential capacity to pursue an application of this nature after his union contacted him on 30 June 2016. To the extent that he was unaware of his capacity to challenge his dismissal, because he was forced to resign, cannot be regarded as an exceptional circumstance. Additionally, I am not satisfied that the illness of his stepson adequately explains the substantial delay in this instance. Further, to the extent that Mr Clements asserts that he was too stressed by the termination of his employment to progress an application of this nature, I consider this to be inconsistent with the holiday that he took and do not consider that it adequately explains the delay. Consequently, I am not satisfied that Mr Clements’ explanation for the delay represents acceptable reasons for the delay or that it is indicative of exceptional circumstances.

[12] It is clear from Mr Clements’ application that he was aware of the termination of his employment on the day it took effect.

[13] I am not satisfied that, apart from the late lodgement of this application, Mr Clements pursued other actions so as to challenge the termination of his employment.

[14] Whilst I think it possible that an extension of time of this magnitude may well prejudice Bedford in terms of clear access to information about the circumstances that led to the termination of Mr Clements employment, I have not taken this into account in considering the extension of time and have considered this to be a neutral factor.

[15] In terms of the merits of the application, I consider that the information before me confirms that Mr Clements was dismissed. The Bedford advice was that:

“17. At the conclusion of the meeting the Applicant was advised of the decision to terminate his employment. The justification for this decision was explained, and his understanding of this was confirmed.

18. Given the Applicant's length of service, the Employer gave him the option of resigning and being paid his notice in lieu. The Applicant stated that he would prefer to resign and receive payment in lieu of notice. After some discussion, management agreed to this arrangement on the basis that he resign immediately as the termination was effective on this day. He was again asked if he would like to discuss this with anyone/get some advice and he again refused.” 4

[16] However, a finding that Mr Clements was dismissed does not amount to a finding that the termination of his employment was unfair. Information which enables an assessment of that issue is simply not before me so that I have also regarded the merits of the application as a neutral consideration relative to the extension of time issue.

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

[18] Having taken all of the material before me into account, I am not satisfied that Mr Clements’ circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR583000) giving effect to this decision will be issued.

Appearances (by telephone):

D Malbasa of the CFMEU, for the applicant.

D Ey of counsel for the respondent.

Hearing (Conference) details:

2016.

Adelaide:

July 22.

 1   Form F2, para 1.4

 2   Form F3, para 2.2, 1st two paras

 3   [2011] FWAFB 975

 4   Form F3, para 3.2, paras 17 and 18

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