Pill Shin v Samsung C&T Corporation Australia T/A Samsung C&T

[2015] FWC 2299

[2015] FWC 2299

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pill Shin
v
Samsung C&T Corporation Australia T/A Samsung C&T
(U2015/3088)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 1 APRIL 2015

Application for relief from unfair dismissal.

[1] Mr Pill Shin alleged that the termination of his employment by Samsung C&T Corporation Australia on 23 December 2014 was unfair.

[2] Mr Shin’s unfair dismissal application lodged on 13 February 2015 was not made within 21 days of the date of the dismissal.

[3] On 16 February 2015, Mr Shin advised that he was going overseas and would return on 16 March 2015 but he would be contactable by email whilst overseas.

[4] On 17 February 2015, Mr Shin was sent a letter advising that his application had not been lodged with 21 days and he was directed to complete an outline of argument in support of an extension of time within ten days of receipt of the email.

[5] Mr Shin did not reply to that correspondence and on 6 March 2015 a further letter was sent by email and post giving him until 17 March 2015 to respond.

[6] On 18 March 2015, a further email was sent to Mr Shin giving him to 20 March 2015 to contact the Commission.

[7] Telephone messages were left with Mr Shin on 26 March 2015 and 27 March 2015. To date, Mr Shin has not contacted the Commission.

[8] The 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.

[9] 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;

[10] In his application Mr Shin advised that he did not lodge his application because he needed to get advice from the Citizens Advice Bureau. He further advised that as his last pay was due on 28 January 2015 he was concerned that he would not be paid if he made the application. Mr Shin did not explain why he then took until 13 February 2015 to lodge his application.

[11] It is not unusual for employees to have difficulty obtaining legal advice in the short time frame provided in the Fair Work Act 2009 for lodging an application. Mr Shin’s explanation of why he waited until after 28 January 2015 may have been reasonable but it does not explain the whole of the delay. Mr Shin’s reasons for the delay do not weigh in favour of a finding that there are exceptional circumstances.

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

[12] Mr Shin was aware of the dismissal when it took effect. He had the full 21 days to lodge his application. This weighs against a finding of exceptional circumstances.

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

[13] There is no evidence that Mr Shin took any action to dispute his dismissal. This weighs against a finding of exceptional circumstances.

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

[14] I will for the purpose of this decision assume that there is no prejudice to the employer. This weighs in favour of finding exceptional circumstances.

(e) the merits of the application;

[15] Mr Shin’s termination letter advises that his position was redundant. Mr Shin says there was no reason for his position to be made redundant as he was employed to work until the first shipment which is not due until September 2015.

[16] I am not able to make any assessment of the merits as Mr Shin’s claim that his dismissal was unfair has not been tested. However, as I am unable to conclude that Mr Shin’s claim has no prospects of success, this weighs in favour of finding exceptional circumstances.

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

[17] No submissions were made in relation to this criterion therefore I will treat this criterion as neutral.

Conclusion

[18] I have determined this application for an extension of time based on the material provided by Mr Shin. There are no factual disputes so it is not necessary to have a hearing/conference.

[19] I am satisfied that Mr Shin has been given an opportunity to put material before the Commission. Despite advising the Commission that he could be contacted by email he has not responded to the numerous attempts by the Commission to contact him. After the date he was due to return to Australia, he has not responded to attempts to contact him.

[20] I find that there are no exceptional circumstances warranting the granting of extension of time. While some factors weighed in favour of such a finding they were not so strong as to outweigh the lack of a reasonable explanation for the whole of the delay.

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

DEPUTY PRESIDENT

<Price code C, PR562723>

 1   [2011] FWAFB 975

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