Patrick Dyer v Aarya Alliance Pty Ltd T/A Mona Lisa Cafe Bar Restaurant

[2010] FWA 8895

[2010] FWA 8895

FAIR WORK AUSTRALIA

DECISION

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

Patrick Dyer
v
Aarya Alliance Pty Ltd T/A Mona Lisa Cafe Bar Restaurant
(U2010/11508)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 25 NOVEMBER 2010

Unfair dismissal - extension of time for lodgement of application - ignorance of the law - whether exceptional circumstances.

[1] On 12 August 2010, Mr Patrick Dyer (the applicant) lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] The application indicated that Mr Dyer was dismissed from his employment at the Mona Lisa Cafe Bar Restaurant on 7 July 2010. As such, the applicant’s claim was lodged some 22 days out of time.

[3] A hearing was subsequently held on 19 November 2010 to deal with the question of extension of time. At the hearing, the applicant was represented by Mr Sharify of the Surry Hills Legal Centre, and Mr Sapkota appeared for the respondent.

Background

[4] Mr Dyer indicated on his application form that a few days after his dismissal he contacted Fair Work Australia (FWA) about his rights. He was advised to submit a “Wages and Conditions Complaint Form”. He submitted such a form on 23 July 2010. He also wrote a letter to the respondent on that day. The letter sought unpaid wages, including a claim for payment in lieu of notice.

[5] According to Mr Sharify, Mr Dyer then contacted his social worker, who referred him to the Redfern Legal Centre. After contacting the Redfern Legal Centre on 2 August 2010 to arrange an appointment, he met with a solicitor on 10 August 2010, when he was given legal advice relating to his claim for unfair dismissal and the time limitation for lodgement. His application for unfair dismissal was filed on 12 August 2010.

Legislative framework

[6] Section 394 of the Act provides FWA with a discretion to extend time for lodgement of an unfair dismissal application, as set out below:

“394 Application for unfair dismissal remedy

...

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[7] The meaning of “exceptional circumstances” was considered by Lawler VP in Mr Christopher Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery. 1After a discussion of the case law, the Vice President adopted the approach of Whelan C in Parker v Department of Human Services,2which referred to a Federal Court decision which endorsed the following statement by Lord Bingham of Cornhill CJ (in R v Kelly (Edward) [2001] 1 QB 198 at 208) as follows:

“[31] ... 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.

[Mann v Minister for Immigration and Citizenship [2009] FACFC 150]”

[8] I have also adopted this approach.

Consideration

[9] I have considered the factors that are set out in s.394(3) of the Act and am not persuaded that the reasons for the applicant’s delay in lodging his application to FWA are sufficient to render the circumstances exceptional.

[10] Mr Sharify submitted that an employee who is ignorant of the legislation and of the 14 day limitation period should be given additional latitude in seeking an extension of time. He explained that the applicant took reasonable, prompt and bona fide steps in seeking legal representation and advice in lodging his application and that his unfamiliarity with industrial relations and his financial circumstances were such that it would be unreasonable to expect the applicant to have taken further steps to obtain the relevant advice.

[11] In making these submissions, Mr Sharify sought to rely upon the decision of Macdonald C in Mr Colin Pulver v Sandvik Mining & Construction Australia Pty Ltd (Pulver), 3where an extension of time was granted by reason of the action taken by the applicant in contacting his employer to dispute his termination and indicate to him that he would be pursuing legal action. In that case, the applicant had contacted his lawyer prior to the expiry of the limitation period; however, for circumstances outside his control, he was unable to arrange a meeting with his lawyer until a date falling outside the time limit. In the view of the Commissioner, such action demonstrated that the applicant had taken “pro-active steps to challenge his termination before the expiry of the limit.”4

[12] The circumstances in Pulver are clearly distinguishable from those in the current proceedings. Mr Dyer took no action to challenge his dismissal before the expiry of the 14 day time period. The only action he took (shortly after the end of the 14 day period) was to lodge a claim for under payment of wages and a failure to pay notice in lieu. This was, on his own evidence, after a discussion with FWA.

[13] In relation to Mr Dyer’s ignorance of the Act and the 14 day limit, Mr Sharify also sought to rely upon the reasoning of Cambridge C in Ms Helen Wemyss v Mission Australia Employment Services, 5 specifically where he stated that:

“[23] ... Ignorance of the time limit or for that matter ignorance of the Act more generally, is a matter which can be given due consideration in the exercise of the discretion to extend any prescribed time.”

[14] In reaching this conclusion, Cambridge C referred to a decision of the New South Wales Industrial Relations Commission (NSWIRC), Hurrell and Queensland Cotton Corporation Limited. 6 That decision was made in the context of a different statutory scheme than that contained in s.394 of the Act. In particular, the test for an extension of time that the NSWIRC was dealing with made no reference to “exceptional circumstances”. Any suggestion that ignorance of the law relating to unfair dismissal can constitute “exceptional circumstances” should be treated with caution. For an ordinary layperson to have limited knowledge of the legal remedies that are available to them following the termination of their employment is neither unusual nor uncommon, rather (perhaps sadly) it is a situation that is quite frequently encountered. The fact that Mr Dyer was unaware of his rights in respect of his termination of employment in these circumstances is not exceptional.

[15] In relation to the remaining criteria that I am required to consider I am satisfied that there was no dispute over the date of termination of Mr Dyer’s employment nor would there be any prejudice to the employer if the extension was granted. Section 394(3)(f) is irrelevant to my consideration.

[16] In respect to the merits of the case, Mr Sharify submitted that the applicant was not given reasons for his dismissal, nor offered procedural fairness including the opportunity to contest the allegations made against him by his employer. While this was strongly denied by the respondent I am unable to conclude that Mr Dyer’s application is without merit.

[17] Taking into account all the factors set out in s.394(3) of the Act, I am not satisfied that there are exceptional circumstances that warrant the extending of time for lodgement of this application and therefore, refuse the application.

SENIOR DEPUTY PRESIDENT

Appearances:

S. Sharify, for the applicant.

N. Sapkota, for the respondent.

Hearing details:

Sydney.

2010.

19 November.

 1 [2010] FWA 1394 PR994029

 2 [2009] FWA 1638 PR991722

 3   [2010] FWA 3895 PR997359

 4   PR997359 para [66]

 5   [2010] FWA 1798 PR994610

 6 [2003] NSWIRComm 139

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