Nathan Langtry v Mitolo Group Pty Ltd T/A Mitolo Group

[2016] FWC 4865

[2016] FWC 4865

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Langtry
v
Mitolo Group Pty Ltd T/A Mitolo Group
(U2016/3241)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 22 JULY 2016

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

[1] Mr Langtry 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 Mitolo Group Pty Ltd T/A Mitolo Group (Mitolo). At a telephone conference convened on 22 July 2016 I advised that I had concluded, on the material before me, 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 Langtry’s application was lodged on 6 July 2016. In that application Mr Langtry advised that the termination of his employment took effect on 26 April 2016. In his application, Mr Langtry provided the following explanation for his late lodgement of the application:

“My reason for delay is lack of understanding of process with regard to termination of employment, after discussion with a family member it was pointed out to me that the process didn’t appear reasonable in the way that my termination was handled. I had no understanding of the Fair Work Process and very little access to the information needed. It was only very recently that I discussed this with a family member and they have assisted me with lodging this application.” 1

[3] The Employer’s Response to the application confirmed that the termination of Mr Langtry’s employment took effect on 26 April 2016 and advised that it was opposed to an extension of time.

[4] On 6 July 2016 my Associate corresponded with both Mr Langtry and Mitolo 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 Langtry 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.

[5] Further information was received from Mr Langtry on 15 July 2015 in the following terms:

“My name is Nathan Langtry I am writing in response to your request to provide further information as to my reasoning for late claim for unfair dismissal.

I have no education when it comes to workplace rights and unfair dismissal and where to go should I require support with regard to these matters. I have not had access to research such information and although my feeling was that I had been unfairly dismissed, it was only during discussion with a family member recently that they asked me about the process that was followed, what had been discussed previously and my history including my work performance and following that discussion assisted me immediately to lodge this application, for which I am grateful.

I am a basic person and only work in manual industry, have done for some time. I have not had the opportunity that a reasonable person would consider fair, its only my lack of knowledge that has caused the delay, for this I apologise. If I had some understanding earlier or liaised with the right people or been offered the information by my former company, I most certainly would have contested this within the timeframe. There is no animosity, I am just seeking support as I feel that process has not been followed fairly, I am happy to return to work for the organisation, I asked for an opportunity on the day I was dismissed and was told there was nothing further I could do to keep my job.

I appreciate your time with this matter and can say that I hope to learn from this experience and be better prepared for such occurrences in the future, hoping that I will not have a need of course.

Many thanks
Nathan Langtry”

[6] Mr Langtry participated in the telephone conference together with a family member, Mr Harris. Mitolo was represented by Ms Colquhoun. I note that a sound file record of this telephone conference was kept.

[7] My conclusions about the extension of time issue were reached on the basis of all of the information before me.

[8] 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.”

[9] On the information before me I have concluded that Mr Langtry’s application was made 50 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 2 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.”

[10] Mr Langtry’s reasons for the delay go to his advice that he was unaware of his capacity to pursue this application until he had a discussion with a family member which alerted him to the capacity to pursue an application of this nature. I am not satisfied that Mr Langtry has established that his lack of knowledge of the capacity to pursue an unfair dismissal application represents a circumstance which should be regarded as acceptable or exceptional for the purposes of an extension of time.

[11] The termination of Mr Langtry’s employment took effect on 26 April 2016 and he was aware of that termination on the same day.

[12] Apart from the late lodgement of this application Mr Langtry has confirmed that he took no other action to dispute the termination of his employment.

[13] The information before me does not extend to the extent of any prejudice relative to Mitolo, so that I have regarded that matter as a neutral consideration.

[14] The material before me relative to the merits of the application does not permit any form of conclusion. Consequently I have regarded the merits of the application as a neutral consideration relative to the extension of time issue.

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

[16] Accordingly, I have concluded that the material before me does not establish that Mr Langtry’s circumstances can be regarded as exceptional so as to warrant an extension of time. An Order (PR583055) giving effect to this decision will be issued.

Appearances (by telephone):

N Langtry with C Harris on his own behalf.

P Colquhoun for the Respondent.

Hearing (Conference) details:

2016.

Adelaide:

July 22.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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