Richard Rowe v Reece Pty Ltd

[2015] FWC 423

[2015] FWC 423

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Rowe
v
Reece Pty Ltd
(U2014/15406)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 16 JANUARY 2015

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

[1] Mr Rowe has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Reece Pty Ltd (Reece). At a telephone conference convened on 16 January 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion

[2] Mr Rowe’s application was lodged on 24 November 2014. In that application Mr Rowe advised his employment termination took effect on 17 November 2014. Mr Rowe asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept his application out of time:

“(a) Upon my resignation from Reece I sought help from the Fair Work Commission and Legal Aid. I was advised that Reece had changed the contract without notice and could be in breach of contract in both February and October 2014.

(b) I was hopeful of sourcing other work and was reluctant to raise this claim as my son works with Reece and I did not wish to compromise his future prospects.

(c) I believe the actions could be viewed as “constructive dismissal” and I am now forced to seek some closure.” 1

[3] On 5 January 2014 my Associate corresponded with both Mr Rowe and Reece and advised that the extension of time issue would be considered through a telephone conference on 16 January 2015. Substantial information about the extension of time issue was provided to the parties. Mr Rowe was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 9 January 2015.

[4] On 12 January 2015 Mr Rowe confirmed that he relied upon the advice provided in his application and would not provide further information relative to the extension of time issue.

[5] The Employer’s Response to the application advised that Reece objected to an extension of time and objected to the application on the basis that it advised that Mr Rowe had resigned his employment.

[6] Mr Rowe participated in the telephone conference. Mr Sampson from Reece also participated in this conference. My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[7] 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.”

[8] On the information before me I am satisfied that the application was made some three (3) days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 2 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.”

[9] Mr Rowe acknowledged at the outset that he sought advice from the Fair Work Commission about the potential to make an application of this nature, but elected not to pursue this application within the 21 day time limit because of his concerns about the potential impact of it on his son who was also an employee of Reece. Additionally, Mr Rowe sought to obtain other work but ultimately pursued this application when he was unable to do so. I am not satisfied that Mr Rowe has established the exceptional circumstances necessary for an extension of time. It is clear from Mr Rowe’s application that he was aware of the termination of his employment on 17 November 2014 when that employment termination took effect. I am not satisfied that, after that employment termination, Mr Rowe took action to challenge the termination of his employment other than through the lodgement of this late application. I am not satisfied that an extension of time of this magnitude would prejudice the Respondent but this, of itself, does not provide a basis for an extension of time.

[10] In terms of the merits of the application, I have noted that Mr Rowe acknowledges that he resigned his employment when he thought it likely that he would be demoted. No demotion or alternative employment proposition was put to him before he resigned. In these circumstances I consider that it is unlikely that Mr Rowe’s application would be successful.

[11] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[12] On balance, I have concluded that the material before me does not establish that Mr Rowe’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR560156) giving effect to this decision will be issued.

Appearances (by telephone):

R Rowe on his own behalf.

G Sampson for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

January 16.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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<Price code C, PR560155>