Ray Taylor v Port Lincoln Football League Inc T/A Port Lincoln Football League
[2017] FWC 5812
•6 NOVEMBER 2017
| [2017] FWC 5812 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ray Taylor
v
Port Lincoln Football League Inc T/A Port Lincoln Football League
(U2017/10295)
| Commissioner Platt | ADELAIDE, 6 NOVEMBER 2017 |
Application for relief from unfair dismissal – extension of time – application dismissed.
Mr Ray Taylor 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 Port Lincoln Football League T/A Port Lincoln Football League (Port Lincoln Football League) which his Form F2 Unfair Dismissal Application advised took effect on 12 August 2017.
The application was lodged on 21 September 2017.
Mr Taylor’s application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:
“The Applicant lives in remote South Australia.
The Applicant is over the age of 70 years old.
The Applicant was not aware of the 21 day time limit, does not have internet access and had limited ability to inform himself.
The Applicant contacted a local lawyer in mid August 2017 who advised that he did not specialise is (sic) employment law. The Applicant was not advised to contact the Fair Work Commission.
The Applicant continued to make enquiries regarding why he was dismissed.
On 21 September 2017, the Applicant contacted the Legal Services Commission and subsequently WK Lawyers.
On advisement of the timeframe for filing his unfair dismissal application, the Applicant instructed WK Lawyers to file an unfair dismissal application.”
On 2 October 2017, Port Lincoln Football League lodged a Form F3 Employer Response which indicated that the dismissal occurred on 12 August 2017 but did not raise any jurisdictional objection. Port Lincoln Football League subsequently filed a Form F4 Objection to Unfair Dismissal Application on 18 October 2017 identifying that the application had been lodged out of time.
On 18 October 2017, my Associate corresponded with Mr Taylor and Port Lincoln Football League and advised that the extension of time issue would be considered at a telephone conference on 6 November 2017. 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 Taylor was directed to provide a statement concerning the extension of time and any documents to be relied upon by 27 October 2017. Port Lincoln Football League was invited to file any material in reply by 2 November 2017.
On 23 October 2017, the Commission received a Form F54 Notice of Representative Ceasing to Act from WK Lawyers.
As there is no email listed for Mr Taylor, my Associate attempted to contact Mr Taylor via telephone at 4.24pm on 27 October 2017 to advise that the submissions were overdue, Mr Taylor could not be reached.
On 30 October 2017 at 9.11am, my Associate contacted Mr Taylor via telephone and advised him that his submissions were late. Mr Taylor informed my Associate that he received the correspondence from the Commission late due to his rural location and would prepare and forward submissions as soon as possible.
Mr Taylor provided a written submission on 31 October 2017 which is summarised as follows:
·He is a pensioner and lives in a remote location 50kms northwest of Port Lincoln, South Australia where mail is received three times a week.
·He received the dismissal letter on 4 August 2017.
·On 5 August 2017 whilst working at the Wangary Football oval he spoke to his solicitor who requested that he provide a copy of the dismissal letter to him.
·He only travels to Port Lincoln fortnightly or monthly and therefore delivered the dismissal letter to his solicitor’s office on 11 August 2017.
·The solicitor wrote a letter to Mr Taylor on the same day and sent it via post, however due to the postal system the letter was not received until 18 August 2017.
·He can only recharge his prepaid mobile phone credit when in Port Lincoln. On 24 August 2017, he travelled to Port Lincoln and recharged his mobile phone credit. He telephoned Fair Work Ombudsman (13 13 94) who referred him to the Fair Work Commission (1300 799 675) who advised him to call South Australia Legal Services (8342 1800) who advised him to call the Legal Services Commission (1300 366 424) at which stage he ran out of mobile phone credit. He then had to wait until his next pay day on 7 September 2017.
·Mr Taylor was not sure of the date in September 2017 when he contacted Westside Lawyers who advised him to call WK Lawyers.
·He then suffered with the flu for several days.
·On 21 September 2017, he spoke with WK Lawyers who advised him of the 21 day time limit, this was the first time he had been advised of the time limit.
·He believed that the 21 days would begin after he received a separation certificate which he has still not received.
·The application was lodged by WK Lawyers on 21 September 2017.
Port Lincoln Football League did not file a written submission.
A hearing was conducted by way of telephone conference on 6 November 2017. A sound file record of the telephone conference was kept. Mr Taylor represented himself and Ms Faye Davis with Ms Robyn Rowsell represented the Port Lincoln Football League.
Mr Taylor gave evidence at the hearing consistent with his submissions and added:
·The letter from the Port Lincoln Football League dated 31 July 2017 dismissing him was received on 4 August 2017.
·Mr Taylor said he would use his personal vehicle for travel with a mate when he went to Port Lincoln.
·Mr Taylor was unaware of how he could recharge his Telstra mobile phone by telephoning Telstra.
·Mr Taylor did not depart from his usual practices in order to lodge his claim.
·Mr Taylor was short of funds during this period.
Ms Davis, in her role as Chairperson of the Port Lincoln Football League, gave evidence that:
·Mr Taylor was a casual gate-keeper employed by the Port Lincoln Football League.
·The Port Lincoln Football League engages gate-keepers at its three ovals as required during the football seasons (late April to mid-September). Football games are not played at each oval every week but as per a roster.
·It was determined that the number of gate-keepers would reduce.
·A letter dated 31 July 2017 was sent to Mr Taylor advising that he would no longer be required to perform work.
Section 394 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.”
I find that the dismissal occurred on 31 July 2017.
This unfair dismissal application by Mr Taylor was made 31 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
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 Ltd[1] which 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 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.”
I make the following findings:
·I find that the dismissal occurred on 31 July 2017.
·I find that Mr Taylor first became aware of the dismissal on 4 August 2017.
·I find that the only action taken to contest the dismissal was the lodgement of this application.
I accept that Mr Taylor has explained the delay between 31 July and 4 August 2017, when he first became aware of his dismissal.
I accept that Mr Taylor is not a man of means, did not have access to the internet and had less frequent access to mail deliveries (compared to persons living in larger towns and cities).
It appears that Mr Taylor has a fixed regime of travelling in to Port Lincoln, either fortnightly or monthly. Mr Taylor told me he had his own vehicle but sometimes travelled in with a mate.
Mr Taylor had a prepaid mobile phone plan with credit purchased in multiples of $20. I am not aware of how many minutes of calls this provides. Mr Taylor told me that he can only recharge his mobile phone by travelling about 50kms to Port Lincoln and was not aware of his capacity to recharge his mobile phone by ringing Telstra. Mr Taylor rang various agencies on 24 August 2017 but after his mobile phone credit ran out he then waited a further two weeks before he recharged his mobile phone and made more calls. This delayed his application for the period between 18 August to 21 September 2017 when he rang WK Lawyers who promptly lodged his claim.
Mr Taylor advised that several days of the delay was as a result of him suffering from the flu. No supporting medical advice was provided.
The majority of the delay arose from Mr Taylor’s unpreparedness to travel to Port Lincoln more frequently and delays in recharging his mobile phone. Mr Taylor advised that he did not change his routine in order to progress his unfair dismissal claim.
It appears to me that Mr Taylor took a very casual approach to prosecuting his claim, he appears to have made conscious decisions not to attend Port Lincoln with any urgency to provide his representative with information, or to recharge his mobile phone to allow him to speak with the Commission and/or his Adelaide legal representatives. These failures account for most of the delay.
Had Mr Taylor prioritised his transport arrangements and finances differently, he could have considerably expedited the process of contesting the dismissal.
The fact that Mr Taylor was not aware of the 21 day limit is not an exceptional circumstance.
The applicant needs to provide a credible explanation for the entire period of the delay,[2] but has not done so.
There is no submission that the granting of an extension of time represents prejudice to the Port Lincoln Football League.
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.
Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
For the reasons I have set out above, I am not satisfied that Mr Taylor’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order[3] reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
R.Taylor the Applicant.
F.Davis on behalf of the Respondent.
Hearing (Conference) details:
2017.
Adelaide:
November 6.
[1] [2011] FWAFB 975
[2] Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403
[3] PR597492
Printed by authority of the Commonwealth Government Printer
<Price code C, PR597491>
0
0
0