Paul Andrews v Concept Eleven Pty Ltd T/A B MacLean Haulage

[2012] FWA 3406

[2012] FWA 3406

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Andrews
v
Concept Eleven Pty Ltd T/A B MacLean Haulage
(U2011/11417)

COMMISSIONER ROBERTS SYDNEY, 7 MAY 2012

Application for unfair dismissal remedy - extension of time.

[1] On 20 April 2012 I made a decision in transcript refusing an extension of time for the lodgement of Mr Andrews’ application for relief pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair dismissal of his employment by Concept Eleven Pty Ltd T/A B MacLean Haulage (the Company). I now publish my reasons for the decision.

Background

[2] Mr Andrews commenced employment with the Company as an interstate truck driver on or about 22 July 2005. A letter of termination dated Friday 15 July 2011 was sent to Mr Andrews by registered post advising him that his position with the Company had been made redundant and his employment would end on 19 August 2011, after a period of 5 weeks notice. Due to a work related injury, Mr Andrews had not been assigned any work by the Company since 9 January 2011.

[3] The letter of termination was received by Mr Andrews on Tuesday 19 July 2011, when he picked it up as registered mail from his local post office. He said he did not read it until Thursday 21 July. He attempted to contact his solicitor but he was not available. He did not leave any message. He proceeded to travel to the United Kingdom on 25 July and returned to Australia on 31 August. Mr Andrews had previously advised the Company on Thursday 14 July of his intention to travel.

[4] Mr Andrews met with his solicitor on 6 September and the s.394 application was filed on the same day. Mr Andrews’ application was therefore filed some 4 days outside the 14 day time limit prescribed by the Act. The Company opposed an extension of time.

[5] Mr Andrews’ application for an extension of time was heard before me in Sydney on 20 April 2012. Mr Andrews was represented by Mr W Purdon, solicitor of William Purdon Solicitor and the Company by Mr N Chadwick, solicitor of Chadwick Workplace Law.

Evidence

[6] Mr Andrews gave sworn evidence and submitted a witness statement 1. It was Mr Andrews’ evidence that during his employment with the Company, he suffered significant work related injuries on four occasions between 2007 and 2010. Attached to his witness statement was a copy of a WorkCover Medical Certificate issued by his doctor on 4 January 2011 stating that he was unfit for work between 4 January and 9 January 2011. The certificate further stated that Mr Andrews was fit for suitable duties from 10 January until 31 January 2011.

[7] Mr Andrews said that the Company had refused his request to return to work. According to Mr Andrews, the following conversation took place between himself and the Company’s Director, Mr R MacLean:

“Mr MacLean: I can’t take you back until you can provide a Certificate which gives you full clearance on your back with no limitations.

Mr Andrews: I have already been working for you without such a limitation since 2009.

Mr MacLean: Go and work for someone else and I might be able to take you back when you can get a clearance.

Mr MacLean: I have already told you my doctor said he cannot give such a clearance.”

[8] He received a letter from the Company by registered mail on 19 July 2011 and did not realise that it was a termination letter until he opened and read it on 21 July 2011. “I did not open the letter straight away because I had received a considerable amount of correspondence from the worker’s compensation insurer and it was shortly before I was to fly to the United Kingdom on annual leave to see my family. I believed at the time the letter was related to my worker’s compensation. ... I attempted to contact my solicitor but he was not available and I could not take the matter any further at that stage because the said termination of my employment was not to take place until 19th August 2011 when I was to be in the United Kingdom.”

[9] Mr Andrews said that he returned to Australia late on 31 August, telephoned Mr Purdon’s office on or about 2 September and arranged an interview with Mr Purdon for 6 September. An application for relief was then filed on 6 September 2011.

Legislative Framework

[10] Subsections 394(2) and (3) of the Act provide:

“(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(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.”

Submissions

[11] In brief summary, it was Mr Purdon’s submission that the Company was aware from 14 July 2011 that Mr Andrews was to travel overseas on or about 25 July 2011 and that the issuing of a notice of termination during the period between 14 and 25 July was unreasonable. It was further submitted that as the termination of employment was not scheduled to take effect until 19 August 2011, it was reasonable for Mr Andrews not to attend to this matter prior to his scheduled return to Australia on 31 August 2011.

[12] Mr Chadwick submits, in essence, that Mr Andrews took no reasonable steps to file his application, or arrange for his application to be filed by Mr Purdon, despite having time to do so before he left for overseas and further that Mr Andrews did not take any expeditious action on his return. No exceptional circumstances are evident which would justify an extension of time being granted.

Reason for the delay

[13] I have noted Mr Andrews’ evidence on this point and the submission of Mr Purdon. I have no difficulty in accepting Mr Andrews’ evidence as being truthful but, on his evidence alone, it is clear that there are no exceptional circumstances attaching to the delay in his filing of an application for relief.

When the Applicant first became aware of the dismissal

[14] On his own evidence, Mr Andrews was aware on 21 July 2011 that his employment was to be terminated with effect from 19 August 2011.

Action to dispute the dismissal

[15] Mr Andrews does not appear to have taken any such action except to attempt to contact Mr Purdon prior to departing for the United Kingdom and again by arranging an appointment to see Mr Purdon after he returned from the UK.

Prejudice to the Respondent

[16] I am unable to discern any significant prejudice to the Company which would be caused by the granting of an extension of time but that factor in itself is not a reason to extend time. Any respondent faced with legal action of the type initiated by Mr Andrews will incur inconvenience and costs.

Merits of the application

[17] The reason for the termination of Mr Andrews’ employment is contested between the parties. I am unable to express a final view on merit and merit has been neutral in my consideration.

Fairness between the Applicant and other persons in a like position

[18] Nothing before me in this case indicates that this consideration is relevant. It has therefore been a neutral factor in my decision making.

Conclusion

[19] Section 394 of the Act requires me when considering whether to grant an extension of time to be “satisfied that there are exceptional circumstances ...”

[20] The concept of ‘exceptional circumstances’ was considered by Vice President Lawler in Johnson v Joy Manufacturing Co Pty Ltd 2. In that decision, his Honour considered the ordinary English meaning of the word ‘exceptional’3. In so doing, he referred to the decision of Commissioner Whelan in Parker v Department of Human Services4where the Commissioner said:

“Branson J in a decision of the Full Court of the Federal Court 5 described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision also noted that the expression had been considered by the courts on numerous occasions:

Although the expression ‘exceptional circumstances’ is not defined in the Regulations it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham Cornwall CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

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.  6”

[21] The Concise Oxford Dictionary 7 relevantly defines ‘exceptional’ as “forming an exception; unusual…” In my view, the word ‘exceptional’ does not carry with it connotations of meaning approximate to ‘extraordinary’ or ‘extreme’.8

[22] All in all, Mr Andrews was aware on 21 July 2011 that his employment was to be terminated by the Company. He then telephoned his solicitor and was informed, by a person other than Mr Purdon, that Mr Purdon would not be available to see him prior to Mr Andrews departing for the United Kingdom on 25 July 2011. Mr Andrews did not inform Mr Purdon’s office of the reason for his call and did not subsequently forward a copy of the Company’s termination letter to Mr Purdon. He did not contact Mr Purdon while in the UK. In this context, it is significant that Mr Purdon was already acting for Mr Andrews in workers compensation matters. If informed by Mr Andrews, Mr Purdon could (and I believe would) have filed an application for relief within time.

[23] It is clear from the totality of the evidence of Mr Andrews that getting to the United Kingdom was his priority and he was happy to leave the question of the termination of his employment until his scheduled return on 31 August 2011. Upon returning from the UK, Mr Andrews made a further telephone call to Mr Purdon’s office, again not advising that office that his employment had been terminated with effect from 19 August. He accepted a proposed appointment with Mr Purdon for 6 September. Mr Purdon then acted with speed and diligence to file an application for relief on 6 September 2011.

[24] Nothing in Mr Andrews’ evidence establishes any exceptional circumstance which would justify an extension of time. The sole relevant reason why the application was filed out of time was that Mr Andrews was dilatory in pursuing the making of an application.

[25] I therefore decline to extend time and it follows that Mr Andrews’ substantive application is dismissed also.

COMMISSIONER

Appearances:

W Purdon, solicitor, for Paul Andrews.

N Chadwick, solicitor, for Concept Eleven Pty Ltd T/A B MacLean Haulage.

Hearing details:

2012.
Sydney:
April 20.

 1   Exhibit A1.

 2   [2010] FWA 1394.

 3   Ibid, at paragraph 28.

 4   [2009] FWA 1638.

 5 Hewlett Packard Aust Pty Ltd v GE Capital Finance Pty Ltd (2003) FCAFC 256.

 6   Maan v Minister for Immigration and Citizenship (2009) FACFC 180.

 7   Oxford University Press, Oxford, 1982.

 8   Transcript PNs111-112.

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