Paul Houston v Id Fabrication

[2016] FWC 2170

[2016] FWC 2170

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Houston
v
ID Fabrication
(U2016/5326)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 7 APRIL 2016

Application for relief from unfair dismissal - extension of time granted.

[1] Mr Houston 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 York Civil Investments Pty Ltd t/a ID Fabrication (ID Fabrication). At a telephone conference convened on 7 April 2016 I advised that I would extend the time for lodgement of this application. These reasons for decision detail the basis upon which I reached that conclusion.

[2] On 12 March 2016 Mr Houston lodged with the Fair Work Commission (the FWC) material through an electronic lodgement made at 12:22 am. A covering email was sent by the friend who assisted him in lodging this application and stated:

“My apologies for submitting this form perhaps twice. I am assisting a friend who is quite overwhelmed and stressed by this whole situation.
I believe the deadline is midnight on 11^th March 2016? An email lodging this application was sent within the deadline to the address ([email protected]) provided to me by a representative of FairWork SA on the telephone. This email was rejected resulting in my having to go to your website and obtain the correct address. I hope the few minutes spent ensuring that the form was sent to the correct address will not result in the claim ebing rejected due to lateness.

….” 1

[3] I note that Mr Houston’s application asserted that the application had been lodged within the 21 day time limit. In his application, Mr Houston asserted that he had been dismissed because the employer erroneously concluded he had been fishing from under the wharf where he was working. He advised that he had not been given any prior warnings.

[4] The Employer’s Response to the application (Form F3) advised that ID Fabrication considered that the application was lodged outside of the 21 day time limit on the basis that the termination of Mr Houston’s employment took effect on 19 February 2016. That Form F3 also advised that Mr Houston, and other employees had been specifically advised that they were not permitted to fish from the wharf and that this behaviour would result in employment termination. The Form F3 advised that Mr Houston’s actions had resulted in ID Fabrication losing that project work.

[5] On 16 March 2016 my Associate sent correspondence to both Mr Houston and ID Fabrication and advised that the extension of time issue would be considered through a telephone conference on 7 April 2016. Substantial information about the extension of time issue was provided to the parties. Mr Houston was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 31 March 2016.

[6] Further information was received from Mr Houston in the following terms:

“I am writing in regards to the Application for relief from unfair dismissal.
On Friday 11 March 2016, my partner called Fair Work Commission to confirm the deadline for lodging Form F2. She was advised the deadline was midnight on 11 March 2016 and was given the email address to send the application to. [email protected]

After completing the F2 Application we emailed it within the deadline to the email address provided by a representative of Fair Work SA on the telephone. The email was rejected, so we re-sent it for the second time only to have it return again. After the email being rejected twice and not knowing why, we then went onto your website and realised that we had 1 letter incorrect which is easily done over the telephone eg. being f and s. With then having the correct address we re-sent the application for the 3rd time.
I hope the few minutes which was spent resending the email and ensuring the form was sent to the correct address, will not result in my claim being rejected due to the lateness.
Please find attached snapshot of the email attempts made to the incorrect email address, which resulted the application to appear as being lodged outside of the legislated timeframe. Registered as being lodged 12 March 2016, rather than 11 March 2016.

Regards
Paul Houston” (sic)

[7] Mr Houston participated in the telephone conference. Mr Ffrench, the General Manager of ID Fabrication and Ms Doyle also participated in the conference. 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.

[8] 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.”

[9] The application is taken as having been lodged 22 minutes after the expiry of the statutory time limit. Consequently, it was lodged outside of that 21 day time limit and can only be pursued if this time limit is extended.

[10] The advice clearly establishes that Mr Houston attempted to lodge an unfair dismissal application within the 21 day time limit. It appears that the incorrect email address being utilised was either the result of impreciseness on the part of the person advising Mr Houston or whether it is simply the case that he misheard the email address given to him.

[11] I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd² 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.”

[12] I have concluded that Mr Houston requested that Mr Ffrench review the termination of his employment on or around 25 February 2016 but was aware from that time that he remained dismissed. Mr Houston asserts that the subsequent delay in lodging the application was because he was seeking other employment. Notwithstanding this, the application would have been lodged within time had it not been sent to the wrong email address. I am not able to reach a conclusion about the source of the error in that regard. I have noted that the delay was of some 22 minutes. Given the uncertainty about the email advice, I consider that there is an acceptable reason for the delay in the lodgement of the application and that the reason for the delay is consistent with an exceptional circumstance.

[13] It is clear from Mr Houston’s application that he was aware of the termination of his employment on the day it took effect.

[14] Mr Houston asserts that he had three meetings with Mr Ffrench following the termination of his employment. He acknowledges that these meetings were primarily directed at his complaint about employment termination payments. However, he asserts that on, or around 25 February 2016, he asserted that his employment termination was unfair. I have accepted that Mr Houston took some action to challenge the termination of his employment before lodging this application.

[15] I do not consider 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.

[16] In terms of the merits of the application, the information before me does not enable a definite conclusion. Accordingly, I have regarded the merits of the application as a neutral factor relative to the extension of time. That said, I have indicated to Mr Houston that, if the assertions set out in the Employers Response (the Form F3) are made out, Mr Houston is unlikely to be successful in this matter. Accordingly, if, on reflection, Mr Houston acknowledges the validity of the employer position, he should immediately review his continued pursuit of the application.

[17] Considerations of fairness relative to other persons in similar positions do not provide a definitive position relative to an extension of time.

[18] Taking all of the circumstances into account, I have concluded that the material before me establishes that Mr Houston’s circumstances can be regarded as exceptional so as to warrant an extension of time. The time for lodgement of the application will be extended on this basis and an Order (PR578780) giving effect to this decision will be issued and the application will be referred for conciliation.

Appearances (by telephone):

P Houston on his own behalf.

D Ffrench for the Respondent.

Hearing (Conference) details:

2016.

Adelaide:

April 7.

 1   Email from Michelle Kasenkow, dated 12 March 2016 (12:22 AM), provided with Form F2 application

2 [2011] FWAFB 975

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