Philip Kuhndt v A & S Bryson

[2014] FWC 4711

[2014] FWC 4711

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Philip Kuhndt
v
A & S Bryson
(U2014/10448)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 15 JULY 2014

Application for relief from unfair dismissal - extension of time not granted.

[1] On 14 July 2014 I advised the parties to this matter that the application would be dismissed. These reasons reflect the background and reasons for that decision.

[2] On 1 July 2014 Mr Kuhndt lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which he sought relief in relation to the termination of his employment with A & S Bryson.

[3] In that application, Mr Kuhndt advised that his dismissal took effect on 30 May 2014. He advised that the Fair Work Commission (FWC) should take into account, the following information in considering whether to accept his application out of time.

“I had been dealing with a representative from Workplace Advocacy. I did not realize until my phone call from one of your employees this morning that they were not in your department. I was not well informed by them of the process of lodging a claim and therefore my 21 days had elapsed. I made a phone call to Fair Work on Thursday 26/06/2014 to make a complaint and was told to put it in writing and email it to [email protected]. After speaking to your employee this morning I have now been told to send this form to Adelaide.

Attached is a copy of the email sent to [email protected]

I hope this is sufficient for you to reconsider claim.” 1

[4] For the sake of completeness I have set out below the attachment to Mr Kuhndt’s application.

“I wish to make a complaint regarding the lack of clarity and direction by the Fair Work representative in the advice given to me in my endeavour to make a claim for Unfair Dismissal.

I first contacted Fair Work online Saturday 10/05/2014 and received notice that someone would contact me on Monday. They apparently tried to call but could not get through so I contacted them.

In that initial conversation with the Fair Work representative I was told that nothing could be done until my employment had finished. I advised the Fair Work representative that I did not want to leave my employment.

I was then advised by the Fair Work representative to reply to the letter of termination and ask that my employer reconsider my termination and I be reinstated. The Fair Work representative asked that I send the draft copy through to him to proofread prior to forwarding to my employer. Several minor alterations were made. I received it back from Fair Work and forwarded it on to my employer on the 14/05/2014. I did not receive any reply or recognition from my employer for my letter.

On the 26th May I sent an email to Fair Work confirming my termination day was to be 4pm on 30/05/2014 and that we had until 4/06/2014 to vacate the premises (a house was part of my employment package).

Fair Works response was "lets touch base after 30th May".

On Monday 2nd June I sent an email to Fair Work stating that I wished to proceed with the Unfair Dismissal but would prefer to wait until after our furniture was removed on the Wednesday. In this email I also asked about the process of the claim and when should I receive my final pay.

The reply was that Fair Work would start preparing the application and had until the 20th June to file it. A conciliation would take place via Phone and if not resolved it would then go to court. The email was finished with - "should receive your final pay within 1-2 weeks - how often were you paid?"

I read this email that the Fair Work representative would file the application when it was prepared and the remark regarding final pay as a statement of "if you got paid weekly you should have it in a week or if fortnightly payments you should receive it within 2 weeks etc".

I heard no more from Fair Work.

On Wednesday 25/06/2014 I contacted Fair Work again asking on the progress of my claim. Their reply was "haven't carried out any work as yet - waiting for a reply to the question in the previous email". On checking the previous email, I understood the only question was regarding the final payment, which I thought had been answered. I immediately informed the Fair Work representative of this.

I was contacted the same day by the Fair Work representative who informed me that the time had expired for lodging the claim- the deadline was 20/06/2014.

I email the Fair Work representative again explaining that I was waiting for Fair Work to get back to me as I thought they would be filing the claim at some stage before the 20/06/2014.

The reply I received this time was that I wanted them to wait until the furniture was removed prior to filing the claim, which was correct. They were previously informed that this date would be Wednesday 4/06/2014. I was also told the claim could not be lodged without specific instructions from me.

I had previous sent an email on the 2/06/2014 stating that I wanted to proceed with the claim presuming that would be sufficient as notice of intent.

Fair Work then replied that they could not prepare anything "without me signing a Cost Agreement and have a telephone conference with instructions," therefore they could not assist me any more.

This was the conversation I had with the Fair Work representative on the 25/06/2014. Each time I feel I was given a different excuse as to why the claim had not been processed/lodged.

No where in any of the communication from Fair Work was I asked to confirm with them that the furniture was removed or that I needed to give more specific instructions to proceed with the case. I have never done this before so am not familiar with the process.

I am very disappointed with the way this has been handled. I feel I was not made aware of the full process and I was not kept up to speed of where my claim was at any particular time. I was not aware of any forms to be signed or the Telephone Conference.

I wish for this matter to be looked into and to have my claim submitted as I feel it I have been unfairly dealt with.

I give permission for my partner xxxx xxxxxx to talk to you on my behalf. Her contact number is xxxx xxx xxx. Please call me on xxxx xxx xxx if you need verbal authorisation from me.

Regards

Philip Kuhndt”

[5] The application was referred to me for consideration. On 7 July 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 17 July 2014. Mr Kuhndt was required to provide a witness statement and a copy of any document relied upon, by 11 July 2014. The conference was rescheduled to 14 July 2014 to accommodate A & S Bryson.

[6] No Employer’s Response (Form F3) to the application has been received.

[7] Mr Kuhndt provided material to the Fair Work Commission (FWC) and to A & S Bryson on 10 July 2014.

[8] The extension of time issue was considered through a telephone conference on 14 July 2014. A sound file record of this conference was kept. Mr Kuhndt attended this conference and A & S Bryson was represented by Mr Bryson.

[9] I have considered the extension of time issue on the material before me.

[10] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[11] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[12] In terms of s.394(2) I am satisfied that the application was made outside of the specified 21 day time limit. The application was lodged some 10 days outside of the 21 day time limit and can only be pursued if an extension of time is granted pursuant to s.394(3). I have considered whether Mr Kuhndt’s circumstances can be regarded as exceptional for the purposes of this subsection.

[13] The information Mr Kuhndt has provided confirms that he was provided with substantial notice of the termination of his employment. It confirms that he contacted an entity described as “Workplace Advocates” some 20 days before the termination of his employment. He engaged in e-mails with Workplace Advocates about the termination of his employment. On 2 June 2014 Workplace Advocates confirmed to Mr Kuhndt that his application had to be filed by 20 June 2014. On 25 June 2014 Mr Kuhndt enquired as to progress with respect to his unfair dismissal claim. Workplace Advocates advised that no action had been taken as at that date as it was still waiting for Mr Kuhndt to provide information requested on 2 June 2014. In his submissions in support of the extension of time Mr Kuhndt advised that:

“I first contacted what I thought was Fair Work via online Saturday 10/05/2014 and received notice via email that I would be contacted on Monday 12/05/2014. On Monday 12th May I received an email from a Workplace Advocate representative stating that they had tried to call but could not get through so could I please contact them. I immediately called back and spoke to the representative.

During the period 10/05/2014 until 26/06/2014 I believed I was in discussion with Fair Work.

I believed that the Fair Work Advocate was working with Fair work Commission and was guiding me in my lodgement of claim.

In that initial conversation I was told that nothing could be done until my employment had finished. I told the Workplace Advocate that I did not want to leave my employment.”

[14] Mr Kuhndt effectively proposes three reasons for the delay. Firstly he asserts that he understood that Workplace Advocates was the Fair Work Commission and, secondly that the delay was the fault of Workplace Advocates.

[15] I do not consider that Workplace Advocates purported to be the Fair Work Commission and have concluded that Mr Kuhndt was obviously mistaken if he had that opinion. I do not consider that his mistaken belief that the entity referred to as Workplace Advocates was the Fair Work Commission represents an acceptable reason for the delay or an exceptional circumstance. It simply reflects an error on the part of Mr Kuhndt. Secondly, and in any event, I am not satisfied that the delay in lodging the application was the fault of Workplace Advocates in that Mr Kuhndt has not established that he acted with any degree of urgency to progress his application even though he was made aware, on 2 June 2014 that it had to be lodged by 20 June 2014.

[16] Thirdly, Mr Kuhndt advises that over this time he was busy moving house. Whilst I appreciate his position in this respect, I am not satisfied that this represents an adequate reason for the delay.

[17] Whilst I have considered each of these reasons for the delay, I am not satisfied that Mr Kuhndt has established to me a satisfactory reason for the delay.

[18] On the information provided in Mr Kuhndt’s application, I am satisfied that he was made aware of the termination of employment decision on 24 April 2014. He then engaged in discussions with A & S Bryson about the termination date which ultimately took effect on 30 May 2014.

[19] Apart from pursuing this application Mr Kuhndt did not otherwise contest the termination of his employment.

[20] I do not consider that the granting of an extension of time would prejudice the respondent in this matter. This does not, however, form a basis for an extension of time.

[21] In terms of the merits of the application, the information provided by Mr Kuhndt and the absence of an Employer’s Response means that I am unable to reach even a preliminary conclusion in this respect. Accordingly, I have regarded the merits of the application as a neutral factor in considering the extension of time issue.

[22] Considerations of fairness relative to persons in similar circumstances to Mr Kuhndt do not support an extension of time.

Conclusion

[23] In Nulty v Blue Star Group Pty Ltd 2 a Full Bench considered the concept of “exceptional circumstances” in the following terms:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[24] I have adopted this approach. For the reasons I have set out above, Mr Kuhndt’s circumstances do not support an extension of time. Those circumstances cannot be regarded as exceptional for the purposes of s.394(3). Mr Kuhndt’s asserted confusion between the Fair Work Commission and Workplace Advocates was a confusion of his own making and did not arise from any misleading advice. Further, Mr Kuhndt is not blameless in terms of the delay which simply cannot be attributed to representative error. The request for an extension of time is refused and, accordingly, the application is dismissed. An Order (PR553112) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

P Kuhndt on his own behalf.

A Bryson representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

July 14.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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