Neil Scott Collier v Sunraysia Residential Services Inc

[2015] FWC 2735

[2015] FWC 2735

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Neil Scott Collier
v
Sunraysia Residential Services Inc
(U2015/3443)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 21 APRIL 2015

Application for relief from unfair dismissal.

[1] Mr Neil Scott Collier alleged that the termination of his employment by Sunraysia Residential Services Inc on 2 February 2015 was unfair.

[2] Mr Collier’s unfair dismissal application lodged on 25 February 2015 was not made within 21 days of the date of the dismissal.

[3] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[4] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 1 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]

(a) the reason for the delay;

[5] Despite directions being issued to Mr Collier to file material to support his application for an extension of time, he did not comply with the directions.

[6] The only explanation for the delay was provided orally by Mr Collier at the conference.

[7] Mr Collier submitted that he did not file his application because he was going through a separation with his partner at the time and his two young children were unwell. Mr Collier was not questioned on this evidence.

[8] Further he said that he had given Sunraysia time to pay him his two weeks’ severance pay and they did not make any payment to him. When after a week and a half he questioned why he was not paid, he was told it was because he had resigned.

[9] Sunraysia submitted that Mr Collier was able during this time to obtain other employment and maintain contact with other employees. However while Sunraysia provided evidence that Mr Collier had applied for a position prior to the dismissal and had been successful in obtaining that employment by 11 March 2015, there is no evidence of when Mr Collier attended an interview for the position.

[10] It is clear from the evidence that Mr Collier’s relationship difficulties preceded the termination of his employment. It was in fact his argument with his partner at work which led to the termination of his employment. It is not clear how this prevented him from lodging his claim.

[11] However I accept Mr Collier’s unchallenged evidence that being the sole carer of his children was one of the reasons he did not lodge his application in time. However, being a sole carer is not unusual.
[12] One of the reasons for the delay was that Mr Collier thought he was entitled to severance pay. However on his own evidence, he knew within one and a half weeks of his dismissal, that Sunraysia did not consider he was entitled to severance pay. Had he lodged his application then he would have been within time.

[13] I am not satisfied that Mr Collier’s personal situation is a satisfactory explanation for the delay in lodging his application. This weighs against extending time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[14] Mr Collier knew of his dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against extending time.

(c) any action taken by the person to dispute the dismissal;

[15] Mr Collier did not take any steps to dispute the dismissal. While he followed up about his unpaid notice he did not take any steps other than to lodge this claim to dispute his dismissal. This weighs against extending time.

(d) prejudice to the employer (including prejudice caused by the delay);

[16] Sunraysia submitted that it would be prejudiced if the extension of time were granted. It submitted that it was a small community organization that had already put a lot of time into this and it had done nothing wrong. While I accept that Sunraysia would be required to defend this application if an extension of time were granted, I am not satisfied that any prejudice weighs against extending time.

(e) the merits of the application;

[17] Mr Collier’s employment was terminated for serious misconduct. I note however the separation certificate stated the reasons for the termination were unsatisfactory work performance- breach of policy.

[18] While there was a discussion about Mr Collier’s options before this decision was made it is not necessary to make any findings about those discussions.

[19] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However, as I am unable to conclude that Mr Collier’s claim has no prospects of success, this weighs in favour of granting an extension of time.

(f) fairness as between the person and other persons in a similar position.

[20] As no submissions were made about this criterion, I consider it to be a neutral consideration.

Conclusion

[21] I am not satisfied that there are exceptional circumstances warranting an extension of time. Mr Collier’s application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

N. Collier on his own behalf.

M. Luehman and L. Townsend for the Respondent.

Hearing details:

2015.

Melbourne, by telephone:

21 April.

 1   [2011] FWAFB 975

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