Philip Catton v De Grandi Cycle & Sport Pty Ltd

[2015] FWC 2361

[2015] FWC 2361

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Philip Catton
v
De Grandi Cycle & Sport Pty Ltd
(U2015/2424)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 7 APRIL 2015

Application for relief from unfair dismissal.

[1] Mr Philip Catton lodged an application alleging that he was forced to resign on 24 December 2014 and hence his dismissal was unfair. Mr Catton stated that his resignation took effect on 9 January 2015 and hence his unfair dismissal application lodged on 16 January 2015 was lodged within 21 days of the date of his dismissal

[2] De Grandi Cycle & Sport Pty Ltd (De Grandi) objected to Mr Catton’s application because he resigned his employment on 24 December 2014 with immediate effect and his application lodged on 16 January 2015 was not lodged within 21 days.

[3] The application was set down for a hearing to determine if Mr Catton required an extension of time to lodge his application.

[4] At the hearing, I granted permission for De Grandi to be represented by a legal practitioner. It was submitted that the matter being a jurisdictional matter involved some complexity. While extension of time matters are generally not complex, in this case, while the facts are not in dispute, the legal issues gave rise to some complexity and I determined that representation would enable the matter to be dealt with more efficiently.

[5] Mr Catton gave evidence that on 23 December 2014 he had a fall on his bicycle which prevented him from attending work. He advised his employer by email at 9.27am and asked to be able to take a day in lieu that was owing. There was an exchange of emails on that day including that De Grandi would arrange for the van in Mr Catton’s possession to be picked up. In response, Mr Catton asked what bike and vehicle he would have over his break. In answer to a question about whether he needed a vehicle over the break, Mr Catton advised that he needed the vehicle that day to attend an appointment.

[6] 24 December 2014 was Mr Catton’s first day of annual leave. He sent an email to De Grandi in which he said:

“Good morning Shane, I would like to thank you for the last 4 years of employment at De Grandi Cycle and Sport.

However I feel the time has come to pursue other avenues.

I hereby would like to tender my resignation today, the 24th December 2014.”

[7] Mr Shane De Grandi, the company director, replied as follows:

“Hi Phil, I accept your resignation. Could you please advise when you will return the van/roadbike/crossbike/phone with password if applicable/laptop - with password if applicable/AMEX card/stock/samples.”

[8] Mr De Grandi said that because some equipment was not returned, Mr Catton’s pay was not processed until 7 January 2015, when he was paid for all time worked up to 24 December 2014 plus entitlements.

[9] Mr Catton had approved annual leave until 12 January 2015. He did not return to work for De Grandi but commenced a new position at the conclusion of his leave.

[10] Mr Catton had attended a meeting with the new employer on 23 December 2014, though he said he had not accepted employment with this employer until after he resigned his employment.

[11] Ms Melissa Hercus, the Finance and Administration Manager for De Grandi, said she had been told by Mr Mark Isaacs, who had previously been employed in the position now occupied by Mr Catton, that he had done a hand over to Mr Catton on 23 December 2014.

[12] I do not accept Mr Catton’s submission that he gave notice on 24 December 2014 and that his employment ended on 12 January 2015. There was nothing in the resignation email to suggest that he was doing anything other than resigning his employment that day. Further, it is clear that his resignation was accepted that day.

[13] It was his evidence that he did not return post holidays because it would cause him further stress. However, the reason Mr Catton did not return to work after his annual leave was because he had resigned with effect on 24 December 2014 and he had accepted another job which started upon his return from annual leave.

[14] As Mr Catton’s employment ended on 24 December 2014, his application was not lodged within 21 days of the termination taking effect.

[15] 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.

[16] 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;

[17] Mr Catton said he did not file the application because he did not understand the legal effect of the email which advised his employer of his resignation. He said he assumed that the holidays were his notice period. He said that whilst he was on holidays he did not have access to his email or a mobile phone. However, Mr Catton had until 14 January 2015 to lodge his application and he had by that time returned to Melbourne as he had commenced his new job.

[18] Mr Catton’s explanation for the delay is not convincing. While I accept that he did not have access to email and a telephone whilst he was on holidays at Port Fairy, there was no suggestion by Mr Catton that he considered lodging his application during this time. Further, he had a number of days after his return from Port Fairy to lodge his application. I consider the reason for the delay to be a neutral factor in determining whether there are exceptional circumstances.

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

[19] Mr Catton was aware that he had resigned his employment. He however, for reasons set out above, said he was not aware that it had taken effect on 24 December 2014. For the same reasons I consider this criterion to be a neutral factor in determining there are exceptional circumstances.

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

[20] Mr Catton took no steps to dispute his dismissal. This weighs against a finding of exceptional circumstances.

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

[21] There was no submission that there was any prejudice to the employer if an extension of time were granted. This weighs in favour of finding exceptional circumstances.

(e) the merits of the application;

[22] Mr Catton resigned his employment. To be protected from unfair dismissal he will need to establish that he was forced to do so because of conduct or a course of conduct engaged in by his employer.

[23] De Grandi stated that Mr Catton resigned his employment because he had another job and he was not forced to resign by any conduct of his employer.

[24] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. In those circumstances, I consider this criteria to be neutral

(f) fairness as between the person and other persons in a similar position.

[25] No submissions were made on this criterion.

Conclusion

[26] I am not satisfied that there are exceptional circumstances warranting the granting of an extension of time.

[27] Mr Catton’s application for an extension of time is dismissed and consequently his application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

P. Catton on his own behalf.

A. Galbraith for the Respondent.

Hearing details:

2015.

Melbourne:

27 March.

 1   [2011] FWAFB 975.

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