Nelson Lucenada v Baravi Enterprises Pty Ltd T/A Metro Joinery

[2015] FWC 1988

[2015] FWC 1988

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nelson Lucenada
v
Baravi Enterprises Pty Ltd T/A Metro Joinery
(U2015/765)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 26 MARCH 2015

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

[1] Mr Lucenada 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 Baravi Enterprises Pty Ltd T/A Metro Joinery (Metro Joinery). At a telephone conference convened on 25 March 2015 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 Lucenada's application was lodged on 24 February 2015. In that application Mr Lucenada advised his employment was terminated on 30 January 2015. Mr Lucenada asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept his application out of time:

I was reluctant, at first, to file the complaint because they paid me the amount of which i am entitled to (5 days worked during that week, annual leaves, and two weeks pay in leail of notice) and also I am confident that they will classify my employment separation as ‘retrenchment or ‘redundant’ (the company has not have a new project or struggling to get some). However, it all changed when I was trying to get a employment certificate from them. What I got is a copy of a Centrelink form and it says the reason for separation was ‘unsuitable for this type of work), they issued the certificate 24 Feb 2015.” (sic) 1

[3] On 6 March 2015 my Associate corresponded with both Mr Lucenada and Metro Joinery and advised that the extension of time issue would be considered through a telephone conference on 25 March 2015. Substantial information about the extension of time issue was provided to the parties. Mr Lucenada was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 18 March 2015.

[4] Additional information was received from Mr Lucenada on 20 March 2015. That advice stated:

First of all I would like to apologise for not being able to meet the Wednesday deadline, I misread the email as I really thought I have already provided the information with regards to extension of time issue in my first email to the commission. Again, it is my mistake for the inaction.

I would like to request from your good office for an extension of time on my Unfair Dismissal issue. The primary reason was that I have was not fully aware of the details of the Employment Separation Certificate that the company gave on the 24th of February 2014. I have good faith in the company that they would give me this certificate on my last day or even on the day I visited them a week later. To my chagrin, I didn't receive a copy of the certificate, much like my job contract, until I asked it from them. To add insult to injury, they tick in "unsuitability to this type of work" in the certificate, hindering me a chance of acquiring employability from another company.

I am hoping that you would consider my extension of time as this type of irregularities by my former company, I reckon, must be looked at and dealt by the commission.

....” (sic)

[5] The Employer’s Response to the application confirmed the correct name of the business. I have used the discretion available to me to amend the application accordingly. That Employers' Response also confirmed that Metro Joinery objected to the extension of time request.

[6] Mr Lucenada participated in the telephone conference. Mr Bonbenre and Ms Vette from the Respondent also participated in this conference. Notwithstanding that Mr Lucenada did not comply with the direction to provide additional material by 18 March 2015, he was given an opportunity to provide that information in the conference. The information he provided was consistent with the advice in his application. 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.

[7] 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.”

[8] On the information before me I am satisfied that the application was made some 4 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.”

[9] Mr Lucenada's reasons for the delay related to the late receipt of his Employment Separation Certificate but, fundamentally, that he disagreed with the reasons for the termination of his employment set out in the Employment Separation Certificate provided to him. That Certificate is not related to this application. Delays in the receipt of that Certificate or the advice provided on it simply cannot form the basis for an extension of time request. If Mr Lucenada considered that the termination of his employment was unfair, he should have acted to pursue this application in a more timely fashion. I do not consider that the reasons he has proposed represent exceptional circumstances. It is clear from Mr Lucenada's application that he was aware of the termination of his employment on the day this termination took effect. I am not satisfied that, apart from the late lodgement of this application, Mr Lucenada pursued other actions so as to challenge the termination of his employment. I am not satisfied that an extension of time of this magnitude would prejudice the Respondent but this, of itself, does not provide a basis for an extension of time.

[10] In terms of the merits of the application, information which allows a definitive conclusion in this respect is not before me and I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

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

[12] Accordingly I have concluded that the material before me does not establish that Mr Lucenada's 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 (PR562314) giving effect to this decision will be issued.

Appearances (by telephone):

N Lucenada on his own behalf.

D Bonbenre and S Vette for the respondent.

Hearing (conference) details:

2015.

Adelaide:

March 25.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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<Price code C, PR562313>