Paul Cooper v Crowtown Pty Ltd T/A Auto Masters Mindarie

[2015] FWC 1896

[2015] FWC 1896

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Cooper
v
Crowtown Pty Ltd T/A Auto Masters Mindarie
(U2015/2760)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Paul Cooper alleged that the termination of his employment by Crowtown Pty Ltd on 12 January 2015 was unfair.

[2] His unfair dismissal application lodged on 3 February 2015 was not made within 21 days of the date of the dismissal. His application was lodged one day late.

[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] Mr Cooper advised that his focus after he was dismissed was on finding another job. Further, he said he was not paid his proper entitlements. After 14 January 2015, he consulted Fair Work Australia who provided him with advice about his entitlements. He tried to follow these up with his employer. When he received no response, he contacted Fair Work Australia who advised him to send his employer an email, which he did the week before he was finally paid on 28 February 2015. Mr Cooper said he was unaware of the 21 day time limit. He said his financial hardship caused him to focus on getting his entitlements.

[6] It is not unusual for employees to be ignorant of the 21 day time limit. It is also not unusual for dismissed employees to need to focus on their financial position and this is made more difficult when the employer fails to pay the employee’s correct entitlements on termination. However, Mr Cooper was in contact with Fair Work Australia prior to the 21 days. Had he asked for advice about unfair dismissal, he would have been told how to make an application and been told there was a 21 day time limit. However, because he made no such inquires, he remained ignorant of the time limit.

[7] I do not consider that Mr Cooper’s explanation for the delay weighs in favour of granting an extension of time.

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

[8] Mr Cooper was aware of the dismissal when it took effect. He had the full 21 days to lodge the application. This weighs against extending time.

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

[9] Mr Cooper disputed the amount paid to him on termination. He did not take any steps other than lodging this application to dispute his dismissal. This weighs against extending time.

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

[10] There is no prejudice to the employer if the matter proceeds. This weighs in favour of granting an extension of time.

(e) the merits of the application;

[11] 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 Cooper’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.

[12] No submissions were made on this criterion.

Conclusion

[13] Mr Cooper’s reasons for not filing his application on time are not unusual. The other criteria that weigh in favour of granting an extension do not outweigh his lack of a reasonable explanation for the delay. As such, Mr Cooper’s application for an extension of time is dismissed and his application for an unfair dismissal remedy is also dismissed.

DEPUTY PRESIDENT

 1   [2011] FWAFB 975.

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