Peter Nearmy v Murray River Expeditions Pty Ltd T/A Proud Mary

[2015] FWC 3699

[2015] FWC 3699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Nearmy
v
Murray River Expeditions Pty Ltd T/A Proud Mary
(U2015/7497)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 1 JUNE 2015

Application for relief from unfair dismissal - extension of time granted

[1] Mr Nearmy 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 Murray River Expeditions Pty Ltd T/A Proud Mary (Proud Mary).

[2] Mr Nearmy’s application was lodged on 11 May 2015. In that application Mr Nearmy confirmed that the application was not made within 21 days of the termination of his employment taking effect and sought that the following information be considered relative to any extension of time:

“The Manager, Dennis Sims, originally phoned me on the 5 March 2015 to inform me that I was not required for my next rostered swing beginning 6 March 2015. He indicated that he needed to try somebody else out and that he would be back in touch. I’ve not heard from Dennis Sims again.

I contacted the AIMPE for advice and AIMPE spoke to Dennis Sims who said that he would discuss the situation with me in the following fortnight. Dennis Sims has not made contact and has not offered me any work but I have not been advised in writing that I have been dismissed.” 1

[3] The incomplete Employer’s Response (Form F3) to the application advised that the correct name for the employer was Murray River Expeditions Pty Ltd T/A Proud Mary. I have utilised the discretion in s.586 of the FW Act to amend the application accordingly. The Form F3 also provided the following advice about the termination of Mr Nearmy’s casual employment:

“1.3 What date did you notify the Applicant of their dismissal?

The applicant has been for the time being taken off the roster I personally spoke with Peter and advised I needed more flexibility and one of our captains who is responsible for the roster Cameron spoke to him after.

1.4 What date did the dismissal take effect?

March 2015.” 2

[4] On 13 May 2015 my Associate corresponded with both Mr Nearmy and Proud Mary and advised that the extension of time issue would be considered through a telephone conference on 28 May 2015. Substantial information about the extension of time issue was provided to the parties. Mr Nearmy was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 21 May 2015.

[5] Further information was received from Mr Nearmy on 20 May 2015 when he provided advice in the following terms:

“1. I did not receive a letter of termination. In relation to the 21 Day time limit for applications it is difficult to nominate an effective dismissal date.

2. I was phoned on the 5th March 2015 by Dennis Sims that I was not required for my rostered swing beginning 6th March 2015. He advised me that he needed to try somebody else out and that he would be back in touch. From this conversation I was not aware that I had been dismissed. The Roster for 2015 indicated that I had further swings on 21 & 23 March and 4 April. I had anticipated hearing from Dennis Sims concerning those rostered swings. These dates complicate trying to establish an effective date of termination from which 21 Days would begin. I attach a copy of the Roster to this Statement.

3. I have not heard from Dennis Sims since that date.

4. After a couple of weeks I contacted my Union, the Australian Institute of Marine 7 Power Engineers (AIMPE) to get advice regarding my situation. I was told that I should have received a notice of termination if I had been dismissed.

5. Nathan Niven from AIMPE rang me to discuss the situation on 14th April 2015. After speaking with me Mr Niven contacted Dennis Sims on 14th April who advised him that I was a casual and had not been needed since early March because he needed to try out somebody else. Mr Sims informed Mr Niven that he would contact me in the next fortnight to discuss the situation.

6. Mr Sims did not advise the AIMPE that I had been dismissed.

7. After the next fortnight expired I had a further discussion with Mr Niven explaining the difficulties I was having with Centrelink attempting to claim benefits as I had not received a letter of termination. Mr Niven advised me that even though I was casual I had certain rights because I had been engaged on a regular and systematic basis, being a regular roster, since October 2011. As such I was covered by the Fair Work Act including the Small Business Fair Dismissal Code.

8. After not hearing from Mr Sims and the advice from Centrelink and AIMPE I decided to pursue an Unfair Dismissal Application as I felt that I had been abandoned by my employer and unfairly put in a situation where I was being denied welfare benefits because I had received no formal written advice concerning the situation.

9. When completing the F2 Application for Unfair Dismissal form I received assistance from Mr Niven. At 1.3 What date did your dismissal take effect? Mr Niven advised me to state that I had not been rostered to work since 6 March 2015. At 1.4 Are you making this application within 21 Days of your dismissal taking effect? Mr Niven advised me to mark No and to provide a reason why which I did ant which is consistent with this Statement.

10. It is my view that as a long term regular casual employee I am entitled to a letter of termination and that without such it is difficult to be accurate as to the effective date of my dismissal and therefore determining when a 21 day period would commence from. Mr Sims never mentioned to me or AIMPE that I had been terminated but as I have not heard back from Mr Sims I can only assume that the employment has ceased.

11. The harsh and unfair treatment I have experienced has prejudiced me from claiming entitlements under Centrelink or Income Protection Insurance.”

[6] Mr Nearmy participated in the telephone conference but was represented by Mr Niven of the Australian Institute of Marine & Power Engineers. Mr Sims from Proud Mary also participated in this conference.

[7] 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] On the information before me I have accepted Mr Nearmy’s advice in his application that he did not receive correspondence confirming the termination of this employment. I have concluded that Mr Nearmy acknowledges that he was a regular casual employee and that this is consistent with the advice provided by Proud Mary. Mr Nearmy worked, until 6 March 2015, under a roster which clearly specified that he was rostered to work again on 7 March 2015 (this roster is attached to Mr Nearmy’s statement of 20 May 2015). Mr Nearmy’s advice was that he was telephoned by Mr Sims on 5 March 2015 and was advised that he had been removed from the roster pending the trial of a new employee. As Mr Nearmy has not worked since that time, I have concluded that the termination of his employment took effect from that date, such that the application was made some 46 days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 3 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.”

[10] Mr Nearmy’s reasons for the delay go, firstly, to the extent to which he appears to assert that he was unaware of the termination of his employment. Given that Mr Nearmy acknowledges that he was a regular casual employee and that work for which he was rostered on specified dates up to the time of the lodgement of this application was not made available to him, I think it is abundantly clear that he was removed from the regular roster on 5 March 2015. A quite separate issue relates to whether Mr Nearmy could have reasonably understood that he could be returned to the roster in the foreseeable future. Mr Nearmy asserted that, on 5 March 2015 Mr Sims told him that someone would be in touch with him about future arrangements. That is consistent with Mr Sims’ position. Mr Sims also confirmed that, on 5 March 2015 he had not told Mr Nearmy that he was dismissed. Mr Nearmy advised that, on 19 March and 4 April 2015 he spoke with another senior Proud Mary Officer, Captain Matthews, who confirmed that no final decision relative to his inclusion on future rosters had been made. On 1 May 2015 Mr Nearmy had a discussion with another senior Officer, Captain Farren, which again, did not clarify his position. I have concluded that a significant reason for the delay in lodging this application related to Mr Nearmy’s uncertainty about whether he would be returned to the roster and the lack of any clear advice from Proud Mary in this regard.

[11] Additionally, Mr Nearmy asserts that, two weeks after 5 March 2015, he contacted his union, the Australian Institute of Marine & Power Engineers to get advice. I have taken this submission to indicate that, to a significant extent, Mr Nearmy then acted on the advice of his union in waiting to receive notice of his dismissal. Mr Niven’s advice in this regard is not particularly helpful in determining just what action the union took on behalf of its member. Nevertheless, I have concluded that Mr Niven contacted Mr Sims about Mr Nearmy’s standing on 14 April and was advised that further contact would be made with Mr Nearmy with respect to his employment standing in the next fortnight. I am satisfied that contact was not made. It is equally clear that Mr Nearmy did not take substantial actions to clarify his position.

[12] I have concluded that the combination of uncertainty created by the absence of clear advice about future work opportunities for Mr Nearmy and somewhat tardy action by his union, represent a reason for the delay consistent with the concept of an exceptional circumstance.

[13] Apart from the late lodgement of this application, I have noted that Mr Nearmy sought advice and assistance from his union so as to challenge the termination of employment.

[14] I am not satisfied that an extension of time of this magnitude would prejudice Proud Mary but this, of itself, does not provide a basis for an extension of time.

[15] Information which would enable a definitive conclusion about the merits of the application is not before me so that I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

[16] Considerations of fairness relative to other persons in similar positions support an extension of time.

[17] Accordingly, I have concluded that the material before me establishes that Mr Nearmy’s circumstances can be regarded as exceptional so as to warrant an extension of time. An Order (PR567927) giving effect to this decision will be issued.

Appearances (by telephone):

Mr Niven for the applicant

Mr Sims for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

May 28.

 1   Form F2, para 1.4

 2   Form F3, paras 1.3 and 1.4

 3   [2011] FWAFB 975

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