Patrick (Ross) Hinds v The Trustee for Advanced Group Unit Trust T/A Advanced Pest Control

[2017] FWC 724

[2017] FWC 724

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patrick (Ross) Hinds
v
The Trustee for Advanced Group Unit Trust T/A Advanced Pest Control
(U2016/14281)

COMMISSIONER PLATT ADELAIDE, 3 FEBRUARY 2017

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

[1] Mr Patrick (Ross) Hinds lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with The Trustee for Advanced Group Unit Trust T/A Advanced Pest Control (APC) which took effect on 4 November 2016.

[2] The application was lodged on 29 November 2016.

[3] A representative lodged the application on behalf of Mr Hinds, and indicated that the dismissal date was 10 November 2016, which if correct would have been within the 21 day time limit.

[4] APC filed an F3 Employer’s Response on 6 December 2016 advised that the date of dismissal was 4 November 2016 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[5] On 15 December 2016, my Associate corresponded with Mr Hinds and APC and advised that the extension of time issue would be considered at a telephone conference on 31 January 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Hinds was directed to provide a statement concerning the extension of time and any documents to be relied upon by 20 January 2017. APC was invited to file any material in reply by 20 January 2017.

[6] Mr Hinds provided a written submission which is summarised as follows:

• He was provided with four weeks’ notice of the dismissal.



• On 4 November 2016, he sought advice from an industrial relations specialist.



• On 5 November 2016, he telephoned the industrial relations specialist and advised him to proceed with the application.



• Mr Hinds provided details of conversations he had with a Mr Eaton and Mr Jones. These conversations do not appear to be relevant to the extension of time issue, other than as they relate to the merits of the matter.

[7] On 25 January 2017, APC filed a submission and opposed the extension of time application.

[8] APC’s written submission is summarised as follows:

• The circumstances of Mr Hind’s case are not exceptional circumstances and therefore the application should be dismissed.



• It would be prejudiced as a result of the cost and inconvenience of defending the application.



• No independent evidence has been provided to support Mr Hinds’ assertions.

[9] On 27 January 2016, Mr Hinds responded to APC’s submission and advised;

• The reference to 10 November 2016 as the dismissal date in his application, was an error made by his representative, as he was dismissed on 4 November 2016.



• He presumed his lawyer was pursuing the application, and therefore the late submission was a matter outside of his control.



• There was not a lot of communication between his lawyer and himself.

[10] A hearing was conducted by way of telephone conference on 31 January 2017. A sound file record of the telephone conference was kept. Mr Hinds represented himself and consented to Mr Talbert appearing on behalf of APC. A grant of permission was given to APC pursuant to s.596(2) of the Act.

[11] At the telephone conference Mr Hinds expanded on the material filed and advised;

• He contacted his representative prior to the dismissal and then instructed him to proceed on the day after the dismissal.



• He was asked to provide a statement of facts but was unable to do so as his laptop computer was broken and it took him 10 days to purchase a new one. Mr Hinds had a copy of the purchase receipt and would supply the same within 24 hours to the Commission.



• He was unable to compose and email a statement on his mobile device, and whilst his son had a computer, it did not have word processing software installed and the unfair dismissal information was too complex to be sent as an email.



• On 18 November 2016, he submitted the information sought by his representative by email and he could supply a copy of the same to the Commission.



• On 21 November 2016, he rang his representative to follow up the progress of that email.



• He took no further action in respect of the matter.



• He was unfamiliar with the unfair dismissal application process.



• He was suffering from health issues.

[12] At the telephone conference APC reiterated its written submission and further contended;

• There was no independent evidence to support the claims of representative error put at the conference.



• Mr Hinds’ ignorance of the unfair dismissal lodgement requirements was not an exceptional circumstance.



• Mr Hinds had access to other computers and should have had the capacity to lodge his application on time.



• The medical evidence did not support his contention of not being able to file his application on time.

[13] At the conclusion of the telephone conference Mr Hinds committed to providing copies of the email correspondence with his representative and a copy of the receipt of the purchase of the new computer by 9:00am the following day. APC was provided with a further 24 hours to make any submission in relation to the information received. The Commission further advised Mr Hinds that a failure to provide the information could have an adverse impact on the outcome of his application.

[14] Mr Hinds subsequently provided a copy of Progress Notes from Dr Gajapur dated 18 November 2016 which recorded Mr Hinds was in “a state of panic attack with tremors” as a result of the dismissal. Mr Hinds reported disturbed sleep and an inability to concentrate. Dr Gajapur advised Mr Hinds to seek counselling but this was refused and some medication was prescribed.

[15] The other material provided by Mr Hinds did not relate to the process of preparing his application; the material provided concerned email exchanges which occurred post lodgement and had no relevance to the extension of time application.

[16] APC responded drawing my attention to the failure to supply the supporting evidence and contended that the medical evidence was not such to support a finding that exceptional circumstances existed.

[17] Mr Hinds’ failure to provide the documentation which would have independently supported his submission of the breakdown of his computer and representational error, despite his advice that he had those documents in his possession, requires an adverse inference to be drawn against Mr Hinds.

[18] 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.”

[19] Mr Hinds’ unfair dismissal application was made 4 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[20] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ 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.”

[21] Mr Hinds’ main submission at the hearing was that the lateness in filing the application was a result of representational error. Mr Hinds advised that on 5 November 2016 he instructed his representative to lodge an application, he then prepared and emailed the supporting information on 18 November 2016, and followed up on the lodgement of the claim on 21 November 2016. Had Mr Hinds provided independent evidence he purported to possess which supported that submission, I may have been minded to extend the time to lodge the unfair dismissal application. However, his failure to provide this information and the evidence of the purchase of the computer, leads me to the question of truthfulness of this account. It is all too easy to blame a representative who is not present at the conference.

[22] In respect of the suggestion that Mr Hinds’ medical state prevented the lodgement of the application, I do not accept that Mr Hinds’ medical state was such that it prevented him from completing an application in a timely manner. I also note that it is inconsistent with the account above Mr Hinds asks me to accept. If Mr Hinds was able to instruct his representative and prepare an account of what happened, why could he not lodge his application?

[23] The applicant needs to provide a credible explanation for the entire period of the delay, 2 but has not done so.

[24] APC submitted that the granting of an extension of time represents prejudice as a result of the requirement to defend a claim which has been lodged out of time, in my view this prejudice is a neutral factor.

[25] In terms of the merits of the application, there is insufficient evidence before me to make a finding and, accordingly, I have regarded the merits as a neutral factor.

[26] Consideration of fairness relative to other persons in similar positions does not support an extension of time.

Conclusion

[27] For the reasons I have set out above, I am not satisfied that Mr Hinds’ circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order 3 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr Hinds, on his own behalf.

Mr Talbert of counsel, on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

January 31.

1 [2011] FWAFB 975

 2   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

 3   PR589974

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