Peter Hermann v Australia and New Zealand Banking Group Limited T/A ANZ

[2014] FWC 8627

[2014] FWC 8627

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Peter Hermann
v
Australia and New Zealand Banking Group Limited T/A ANZ
(C2014/6733)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 2 DECEMBER 2014

Application to deal with contraventions involving dismissal - extension of time not granted.

[1] Mr Hermann has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with the Australia and New Zealand Banking Group Limited (the ANZ). At a telephone conference convened on 1 December 2014 I advised that I was not satisfied that an extension of the time limit specified in s.366 of the FW Act should be granted and that, accordingly, Mr Hermann’s application would be dismissed. These reasons for decision set out the basis for my conclusion.

[2] Mr Hermann’s application was lodged on 30 October 2014. In that application he confirmed that the termination of his employment took effect on 20 August 2014. In his application, Mr Hermann asserted that the ANZ had made errors in payments due to him and, presumably as a consequence of his concerns in this regard, had then not given him further work before finally dismissing him.

[3] The Employer’s Response (Form F8A) to the application confirmed that Mr Hermann commenced employment on a casual basis with the ANZ on, or around 30 June 2014. This response confirmed the ANZ position relative to the hours worked by Mr Hermann and the advance and interim arrangements which were made for payments to be made to him outside of normal pay cycles as a consequence of a combination of payroll issues and Mr Hermann’s failure to properly record the hours he had worked. The Form F8A recorded the ANZ position that Mr Hermann’s substantial absences from work reflected advice he provided on 18 July 2014 that his car was not working and hence he was unable to travel to work. The ANZ attached an email from Mr Hermann, sent on 24 July 2014 which stated:

“I, Peter Hermann, give notice of my intention to quit my position as casual teller due to the non-payment of my wages since I started work with ANZ on June 30. After 2 pay periods ANZ still didn’t have my LAN ID setup in the system so that I could put in for my wages. Under the enterprise agreement AE899281 clause 3.9, I should be getting paid every fortnight and as this isn’t happening ANZ is in breach of the agreement with the Fair Work Commission. Being told that I now have to wait till the next pay run is inexcusable. I have had to notify Centrelink that I have worked for this period of time which makes me ineligible for a payment from them so I do not have any money to buy the basics of food for the next fortnight. Also the fact that I was offered another job which was F/T and didn’t take it on due to the teller job I was offered by ANZ makes me even more angry about the fact ANZ isn’t able to pay my owed wages. If this is not sorted out by the end of the week I will get back in contact with the FSU and Fairwork Australia about the situation and let them fine ANZ if need be.

Thanks, Peter Hermann”

[4] The ANZ advised that Mr Hermann’s manager had eventually made contact with him on 30 July 2014 and had endeavoured to confirm his ongoing employment intention together with its requirement that he repay an amount of $1000 paid to him in advance. The ANZ advice was that Mr Hermann had terminated that telephone call.

[5] The ANZ provided a copy of its correspondence of 11 August 2014 in which it advised that Mr Hermann would not be offered further casual work.

[6] The ANZ advised that it opposed the application on its merits and also on the basis that it was lodged outside of the 21 day time limit specified in s.366.

[7] The application was the subject of a telephone conference pursuant to s.368 on 5 November 2014. At the outset, I noted the extension of time issue. The ANZ indicated that it was prepared to participate in the conference on the basis that, if the matter was not resolved, it requested that the extension of time issue was then addressed.

[8] Mr Hermann hung up on the conference after a short time. As a consequence, the matter was then listed for a further telephone conference on 1 December 2014 to enable consideration of the extension of time issue.

[9] On 5 November 2014 I issued Directions which confirmed these conference arrangements and relevantly stated:

“[5] The extension of time issue will be considered in a telephone conference listed for 11:30 am on 1 December 2014. A Notice of Listing to this effect is attached. The parties should be aware that a sound file record of this conference will be maintained.

[6] Mr Hermann has the onus of establishing that an extension of time is appropriate. The FAIR WORK COMMISSION DIRECTS Mr Hermann to provide the following material to the Commission and to Ms Manton of the ANZ at the address nominated in the Employer’s Response, by close of business 24 November 2014:

• a statement, signed by Mr Hermann which sets out his reasons for seeking an extension of time, and the basis for his conclusion that his employment was terminated by the ANZ,
• a copy of any document upon which he relies in these respects.

[7] An explanation of this information requirement is attached.

[8] The ANZ may elect to provide further evidence at this conference and to the extent that it elects to do so, the FAIR WORK COMMISSION DIRECTS the ANZ to provide that, in the form of a signed statement and/or a copy of any document, not already provided to the Commission by close of business 28 November 2014. The ANZ is not expected to provide any further material in the event that Mr Hermann does not provide material consistent with the directions above.

[9] I particularly draw Mr Hermann’s attention to my decision of 18 June 2014 ([2014] FWC 4023). A copy of that decision is attached. Mr Hermann should be aware that a failure to comply with my directions in relation to this General Protections application is very likely to result in an adverse finding relative to the extension of time issue.”

[10] Mr Hermann did not participate in the 1 December 2014 conference. As a result, I considered the extension of time issue on the material before me.

[11] Section 366 states:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[12] Mr Hermann’s application was not lodged within the 21 day time limit. I have considered each of these factors in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 1 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.”

[13] No reason for the delay has been made out to me.

[14] No information relative to action on the part of Mr Hermann, other than this belated application, has been put to me.

[15] I have concluded that the delay, and any extension of time, would prejudice the ANZ.

[16] I cannot discern any basis upon which Mr Hermann’s application could be successfully pursued on the merits. No contravention of a general protections provision of the FW Act has been identified and the termination of Mr Hermann’s employment appears to be something that he has bought on himself.

[17] In terms of fairness with persons in like positions, the approach generally followed by the FWC does not favour an extension of time.

[18] Consequently, I am not satisfied that an extension of time should be granted and the application will be dismissed accordingly. An Order (PR558450) to this effect will be issued.

Appearances (By Telephone):

K Manton appearing for the respondent.

Hearing (Conference) details:

2014.

Adelaide:

December 1.

 1   [2011] FWAFB 975

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