Peter Ristevski v South Coast Private Evolution Health Care

[2014] FWC 7534

[2014] FWC 7534

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Ristevski
v
South Coast Private - Evolution Health Care
(U2014/11846)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 23 OCTOBER 2014

Application for relief from unfair dismissal.

[1] This application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act) was determined by me following my consideration of the reasons provided in the application lodged by Mr Ristevski.

[2] The relationship between Mr Ristevski and the respondent ceased on 14 July 2014. Mr Ristevski lodged his application before the Fair Work Commission on 20 August 2014. His application was lodged 16 days outside the statutory time limit.

[3] When determining this application I only had before me the Application for Unfair Dismissal lodged by Mr Ristevski. I wrote to Mr Ristevski on 31 August 2014 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters within 14 days. He did not do so. I issued an Order refusing the application for an extension of time and dismissed Mr Ristevski's application on 1 October 2014 1.

[4] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(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.

[5] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 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]

[6] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[7] Mr Ristevski’s submission in his application was as follows:

“ The following provide the Commission with circumstances which may be taken into account upon considering whether a late application should be accepted or not:

1. Upon verbal termination, the applicant made an inquiry to the Law Society of New South Wales - as he was unsure as to who to contact or what to do about his position. The applicant states that this referral took a number of days. Attached is a letter from the Law Society dated 23 July, some 9 days after the termination date. Further, the applicant states that he did not receive this referral until after the 25 July 2014. The Law Society advised of three firms, to which he attended and sought estimates in relation to costs and was advised of his avenues.

2. The applicant attempted to explain his position post -termination and justify why termination based on the below circumstances was unfair.

3. The applicant was unable to find appropriate legal advice until after the time limit expired.

4. The applicant had conducted some preliminary research as to his options but was unsure what to do in respect of a claim, and was unsure whether he had any legal avenues available to him. He was unable to attend our office (Heard McEwan Legal Wollongong) until after the 21 days had elapsed, and subsequently lodges a late application.

5. The applicant has little - if no - familiarity with computers and/or the use of the internet. His options (and time) were limited to speaking to people about his situation and options, as well as family and friends. This put considerable strain on the applicants ability to swiftly and efficiently consider his options within the 21 day time limit.

6. The applicant asks that this be taken into consideration by the Commission.”

[8] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.

reason for the delay-s.394(3)(a)

[9] The reasons Mr Ristevski provided for his delay in lodgement were ignorance of the law and the time limit, delays in obtaining legal advice, familiarity with computers and unfamiliarity with the use of the Internet. While sympathetic to the circumstances I was not persuaded that his difficulties were out of the ordinary, unusual or uncommon.

whether the person first became aware of the dismissal after it taken effect-s.394(3)(b)

[10] Mr Ristevski became aware of the cessation of his relationship with the respondent when he resigned on 14 July 2014.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[11] Mr Ristevski disputed his dismissal by lodging this application.

prejudice to the employer-s.394(3)(d)

[12] There would be no greater prejudice to the respondent caused by this application being listed now than there would have been had it been lodged in time. To this extent prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[13] Merit was as a neutral issue in my consideration of the application.

fairness as between Mr Ristevski and other persons in a similar position-S.394(3)(f)

[14] There was no issue of fairness in relation to any other person in a similar position.

[15] I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application.

SENIOR DEPUTY PRESIDENT

 1   PN556146

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