Phillip LangevSouth Australian Water Corporation T/A SA Water

[2019] FWC 5060

[2019] FWC 5060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Phillip Lange
v
South Australian Water Corporation T/A SA Water
(U2019/5104)

COMMISSIONER PLATT ADELAIDE, 23 JULY 2019

Application for an unfair dismissal remedy – extension of time – representative error – application granted.

Summary

[1] Mr Phillip Lange has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with South Australian Water Corporation T/A SA Water (SA Water) which his form F2 Unfair Dismissal Application advised took effect on 15 March 2019.

[2] Mr Lange filed his Unfair Dismissal Application in the Fair Work Commission on 6 May 2019. The application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

“The Original application was made with the South Australian Employment Tribunal (SAET) on the 2nd April dismissal was on the 15th March.

This application was made by the Australian Manufacturing Workers Union.

The SAET website it refers you can make an unfair dismissal application if:

You can make an unfair dismissal application if you were employed by the State Government, a State Government business enterprise, or the local government sector. SA Water is a State Government business but is not in the jurisdiction of the SEAT.

A hearing was set at SAET on the 06/05/2019. The Commissioner ruled that he had no jurisdiction to hear the matter. (sic)”

[3] 4 June 2019, SA Water lodged a form F3 Employer Response which indicated that the dismissal occurred on 15 March 2019 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[4] On 1 July 2019 a Directions Hearing was held. Mr Lange was represented by Mr Miller from the AMWU, Mr Love (or counsel) represented SA Water with permission being granted pursuant to s.596 on the basis of complexity and efficiency without objection from the Applicant. Directions were issued advising that the extension of time issue would be considered at a Hearing on 11 July 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Lange was directed to provide a statement concerning the extension of time and any documents to be relied upon by 8 July 2019. SA Water was invited to file any material in reply by 11 July 2019.

[5] The parties complied with the Directions.

[6] A Hearing was conducted by way of telephone conference on 11 July 2019. Mr Lange was represented by Mr Miller and Mr Love represented SA Water.

[7] Mr Lange provided a statement 1 as well as Mr Gordon2 (Assistant State Secretary of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU). Neither witness was required for cross-examination.

[8] Mr Lange’s position is summarised as follows:

•  He was dismissed on 15 March 2019 and was aware of the dismissal on that day.

•  After his dismissal he wanted to contest it, and sought advice from Mr Gordon.

•  He instructed Mr Gordon to lodge a claim.

•  Mr Lange did not see a copy of the application (which was lodged by the AMWU on 2 April 2019 with the South Australian Employment Tribunal (SAET).

•  On 29 April 2019 SA Water lodged its response to the SAET application and raised the issue of jurisdiction.

•  Mr Lange attended a SAET conciliation on 6 May 2019 and whilst he did not understand the discussion, noted that everyone agreed that the application had been lodged in the wrong jurisdiction.

•  This application was filed at 5:02pm on 6 May 2019.

•  Mr Gordon’s statement advised that he researched the matter and genuinely understood that SA Water was subject to the State jurisdiction and that despite the Employer’s response continued to believe that he had filed in the correct jurisdiction. It was not until the conciliation with Commissioner McMahon at the SAET on 6 May 2019 that he accepted he had filed in the wrong jurisdiction.

•  Mr Lange was the victim of “representative error” and this explained the whole of the delay.

•  Mr Lange did not contribute to the delay, and this was an exceptional circumstance.

•  The filing of the SAET application was action taken to dispute the dismissal.

•  Prejudice was not more than normal.

•  The Commission should regard the merits as a neutral factor as some of the facts are in dispute and the surrounding circumstances are not before the Commission.

•  The circumstances are such as to warrant an extension of time.

[9] SA Water filed a submission which is summarised as follows:

•  The dismissal occurred on 15 March 2019.

•  This application was filed 21 days late.

•  A chronology which matched the evidence presented by Mr Lange.

•  Mr Lange is a union delegate and has been involved in negotiations on behalf of SA Water employees for Agreements made under the Act.

•  Despite being put on notice as to the incorrect jurisdiction claim on 29 January 2019, no action was taken until 6 May 2019.

•  Mr Lange must share some blame for the error.

•  Action taken by the employee to contest the dismissal should be a neutral criterion.

•  SA Water has been put to the time and expense defending two applications which represents prejudice.

•  The merits weigh against the Applicant.

•  Consideration of fairness is not a factor in this case.

•  No “exceptional circumstances” have been demonstrated.

Applicable Law

[10] Section 394 of the Act 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.”

[11] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd³which 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 every day 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.”

Consideration

[12] There is no dispute that the dismissal occurred on 15 March 2019.

[13] This Unfair Dismissal Application by Mr Lange was made 21 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[14] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[15] Mr Lange contends that the delay occurred as a result of the conduct of his representative and that he did not contribute to same. I accept that Mr Lange (despite his activities as a union delegate) is not familiar with the nuances of the correct State/Federal characterisation of what was once a State Government body. I accept that he relied on the (incorrect) advice of Mr Gordon, his AMWU representative. I accept that it was not until the conduct of the SAET conciliation that Mr Gordon (and subsequently Mr Lange) was convinced that he had made an error.

[16] The facts in this case reveal “representative error” and that explains the entirety of the delay.

[17] If there is a credible explanation for the entirety of the delay then this weighs more heavily in favour of a finding that there are exceptional circumstances. 4

Whether the person first became aware of the dismissal after it had taken effect

[18] Mr Lange was aware of the dismissal on the day that it occurred.

Any action taken by the person to dispute the dismissal

[19] Mr Lange’s action in lodging the SAET claim was an action to contest the dismissal.

[20] This factor weighs in favour of a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

[21] Prejudice to the employer will weigh against granting an extension of time. 5 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.6 A long delay gives rise “to a general presumption of prejudice”.7

[22] SA Water has incurred extra costs in defending this matter, which represents prejudice to the Respondent, and therefore this is a factor which weighs against the granting of the application.

The merits of the application

[23] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.

Fairness as between the person and other persons in a similar position

[24] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd 8 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[25] It was put to me that the issue of fairness as between the Mr Lange and other persons in a similar position is not a relevant consideration in this matter. I accept this position and because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[26] Having considered and weighed each of the factors under s.394 of the Act, I am satisfied that Mr Lange’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and the application has accordingly been listed for Hearing as to merit and Directions have been issued. An Order⁹ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr G Miller (AMWU) on behalf of the Applicant.

Mr J Love (or Counsel) on behalf of the Respondent.

Hearing (Conference) details:

2019.

Adelaide:

July 11.

Printed by authority of the Commonwealth Government Printer

<PR710530>

 1   Exhibit A1.

 2   Exhibit A2

3 [2011] FWAFB 975.

 4   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.

 5   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

 6   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

 7   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

 8   [2016] FWCFB 6963.

9 PR710532.