Rajesh Chavan v Alsco Pty Limited

[2015] FWC 619

[2015] FWC 619

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Rajesh Chavan
v
ALSCO Pty Limited
(U2014/15407)

DEPUTY PRESIDENT SAMS BRISBANE, 23 JANUARY 2015

Application for relief from unfair dismissal - application made ‘out of time’ - priority given to workers’ compensation issues - no ‘exceptional circumstances’ - application dismissed.

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Mr Rajesh Chavan (the ‘applicant’) was given notice of the termination of his employment with ALSCO Pty Limited (the ‘respondent’) on 8 September 2014, effective 15 September 2014. The applicant lodged an application for an unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 21 November 2014. His application was therefore lodged 53 days outside of the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for Unfair Dismissal lodged by the applicant and the Form F3 Employer’s Response filed on 21 November 2014. The Commission wrote to the applicant on 28 November 2014 outlining the matters I am required to consider under s 394(3) of the Act and asking him to provide a statement addressing these matters within 14 days. He provided a two page response on 7 December 2014. On 19 December 2014, I also required the respondent to provide a submission in response. On 22 December 2014, Ms Allison Freeman, HR Advisor, provided a one page response which attached correspondence between the applicant and herself. I have also had regard to these written responses provided by the parties. Having considered this material, I issued an Order refusing an extension of time and dismissing the application on 14 January 2015. These are my reasons for doing so.

[3] The relevant legislative framework, guiding the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’) where a Full Bench of the Commission 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.

[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 [Endnotes not reproduced].

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing of an unfair dismissal application. In other words, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application ‘out of time’; See: Nulty at para [15]. A Full Bench of the Commission in Lombardo v Commonwealth of Australia [2014] FWCFB 2288 succinctly described the Commission’s decision making process under s 394(3) as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’

Reason for the delay (s 394(3)(a))

[6] In his written response, the applicant outlined the events leading up to his termination, which the respondent stated was due to the ‘withdrawal of suitable duties’ due to the applicant’s inability to perform the inherent requirements of the job. The applicant was on restricted duties working 20 hours per work following an injury he sustained in 2011. He was paid for four weeks in lieu of notice on 8 September 2014. He had asked the respondent what he could do after his termination, in particular in relation to workers’ compensation. The employer told him that he should take this matter up with the relevant insurer. The applicant complained that the respondent had not given him any information about unfair dismissal, whether intentionally or otherwise.

[7] The applicant claimed that he had called the Commission the same day of his dismissal. After waiting on hold for some time, a recorded message stated that the Commission’s staff could not give advice on whether a person’s dismissal was fair or unfair. This was subsequently confirmed by an officer of the Commission, who referred the applicant to LawAccess. He subsequently called LawAccess, who gave him a telephone number for free telephone advice between 12 and 2pm on Tuesdays and Saturdays. He tried calling this line a number of times, but he claimed it was never answered.

[8] The insurer subsequently informed the applicant that he was not entitled to weekly benefits and the applicant vigorously contested this rather than pursuing an unfair dismissal application. The insurer maintained its position. After a period of 6-8 weeks, the applicant attempted to contact employment law firms about his dismissal. However, he claimed they were all too expensive. One of them referred him to the Commission’s website and told him that he could lodge his unfair dismissal application online, for a fee. He then called the Commission to ask about how to apply for an unfair dismissal claim.

[9] Ms Alison Freeman, HR Advisor for the respondent said in her written response that it was unlikely that the applicant had been provided with any advice by the Commission and he had made no pro-active attempts to follow up the advice within the 21 days. It appeared that the decision to lodge his unfair dismissal claim was motivated by the insurers’ decision, which was not within the control of the employer.

[10] Ms Freeman attached correspondence to her written submission which she said demonstrated that the applicant was on restricted duties of 20 hours per week, rather than working full time at the time of his dismissal.

[11] Even on the applicant’s own materials, I am unable to conclude that the reasons cited by him constitute ‘exceptional circumstances’ within the meaning of s 394(3) of the Act. Legal assistance or representation is not required to file an application for a remedy for unfair dismissal and, indeed, parties frequently represent themselves in such matters before the Commission. Moreover, the applicant’s Form F2 application was completed by him, seemingly without difficulty. I note that the relevant form provided by the Commission is straightforward and extensive guidance is provided on the Commission’s website as to the lodgement of such an application.

[12] While it is true that it is inappropriate for staff of the Commission to provide advice on whether an individual applicant or potential applicant’s dismissal has been unfair and they do not do so, the staff are available to give advice on the process of lodging an application for unfair dismissal. In my opinion, the pursuit of a workers’ compensation claim would not have represented any barrier to the applicant lodging an unfair dismissal application. The fact that he had different priorities does not constitute ‘exceptional circumstances’.

[13] In addition, the extent of the delay in filing the application is a factor to be taken into account. 53 days outside the 21 day statutory time limit was not an insignificant period of delay.

[14] Given these circumstances, the Commission cannot be satisfied that the applicant’s stated reason/s for filing his application ‘out of time’ constitute ‘exceptional circumstances’ as contemplated by the statute.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[15] In his Form F2 application, the applicant identified 8 September 2014 as the date on which he became aware of his dismissal, which was corroborated in the respondent’s Form F3 Response and the applicant’s written reasons for the delay. In the respondent’s written response of 22 December 2014, the respondent identified the effective termination date as being 15 September 2014, notified on 8 September 2014. I find that the applicant first became aware of his dismissal on 8 September 2014.

Any action taken by the person to dispute his dismissal (s 394(3)(c)

[16] The applicant did make reference to pursuing workers’ compensation entitlements and, on his own admission, was motivated to lodge an unfair dismissal application when the respondent’s insurer notified him that he would not be receiving any ‘weekly benefits’. It does not appear that the applicant was taking any serious action to dispute his termination until this time; although I note that he claimed that he had called the Commission’s helpline on or near the date he was dismissed. I agree with the respondent’s view that the applicant was largely motivated by the actions of the respondent’s insurer and that his unfair dismissal application was an afterthought. These circumstances weigh against an extension of time in this case.

Prejudice to the employer (s 394(3)(d)

[17] Neither the applicant or the respondent specifically addressed this criterion. Given the length of the delay (53 days) and the circumstances of the case, prejudice to the employer weighs marginally against the grant of an extension of time.

Merits of the application (s 394(3)(e))
[18] Neither the applicant or respondent addressed the criteria set out at s 387 of the Act. The circumstances of the termination of the applicant’s dismissal appear to be that the respondent, having received advice that the applicant would not be able to return to his pre-injury role, had been unable to redeploy the applicant into an alternative position in accordance with the applicant’s work restrictions, abilities and comfort levels. The respondent claimed, in correspondence to the applicant on 8 September 2014, that it was no longer able to amend his existing role or hold it open for any further period of time. The applicant’s employment was therefore terminated on the grounds that he was unable to fulfil the inherent requirements of the job.

[19] It is relevant to note that a consideration of the merits of an application at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis. Given the circumstances, I am able to make a prima facie assessment that the applicant’s prospects of success are negligible.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))

[20] Neither party responded to this criterion. While I accept that the applicant is aggrieved by the decision to dismiss him, for the reasons I have given above, I do not consider that the applicant’s position in relation to another person in a similar position is unfair. It appears to be a conventional dismissal on the basis of an inability of an employee to perform the inherent requirements of the job.

[21] Having considered all of the matters which the Commission is required to take account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 14 January 2015.

DEPUTY PRESIDENT

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