Rishabh Sharma v Naval Military and Air Force Club of South Australia Inc
[2015] FWC 7256
•27 OCTOBER 2015
[2015] FWC 7256
The attached document replaces the document previously issued with the above code on 27 October 2015.
Paragraphs have been renumbered, from page 4 onwards.
Denise Jelfs
Associate to Senior Deputy President O’Callaghan
Dated 28 October 2015
| [2015] FWC 7256 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rishabh Sharma
v
Naval Military & Air Force Club of South Australia Inc
(U2015/13371)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 27 OCTOBER 2015 |
Application for relief from unfair dismissal - extension of time granted.
[1] Mr Sharma 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 Naval Military & Air Force Club of South Australia Inc (The Club). At a telephone conference convened on 27 October 2015 I advised the parties to this matter that I was satisfied that the time for lodgement of Mr Sharma’s unfair dismissal application should be extended and that, the application would be referred for conciliation. These reasons reflect the background and reasons for that decision.
[2] The application was lodged on behalf of Mr Sharma by Mr S Bourne, of counsel.
[3] That application advised that Mr Sharma’s dismissal took effect on 14 September 2015 and further, that the application was made within time.
[4] On 8 October 2015 my Associate corresponded with both Mr Sharma and The Club and advised that the extension of time issue would be considered through a telephone conference on 27 October 2015. Substantial information about the extension of time issue was provided to the parties. Mr Sharma was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 20 October 2015.
[5] The Employer’s Response to the application indicated that The Club opposed the extension of time and asserted that Mr Sharma’s application completely lacked merit.
[6] On 20 October 2015, Mr Bourne provided an outline of submissions relative to the extension of time issue, a witness statement and a witness statement made out by Mr Sharma. This material was to the effect that an extension of time should be granted as any delay was the result of representative error, and, in the alternative, no extension of time was required. These positions were put on the basis that the application was made within time because it was lodged on 6 October 2015 which was the day after a South Australian public holiday. On this basis, Mr Bourne asserted that the provisions of the Acts Interpretation Act 1901 should be applied so as to not count this day for the purposes of the statutory 21 day time limit. Secondly, in terms of the reason for any delay, Mr Bourne asserted that the delay was the result of his error in belatedly lodging the application and should not be visited on the applicant.
[7] Mr Sharma participated in the conference on 27 October 2015 but was represented by Mr Bourne of counsel. Whilst Ms Lawton-French of the Club participated in the conference, Mr Manetta, of counsel represented The Club. Permission was granted in both instances as I was persuaded that because of the representative error issue associated with the application, the matter may assume some complexity. I note that a sound file record of this telephone conference was kept.
[8] I have considered the extension of time issue on the material before me.
[9] The information provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.
[10] 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.”
[11] Notwithstanding Mr Bourne’s submissions, I have concluded that Mr Sharma’s employment application was made one day outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. Monday, 5 October 2015 was a public holiday in South Australia but it was not a public holiday throughout Australia.
[12] In concluding that the application outside of the time limit in s.394(2) of the Act, I took the following factors into account.
ACTS INTERPRETATION ACT 1901 - SECT 36(1)
Calculating time
(1) A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:
Calculating periods of time | |||
| Column 1 | Column 2 | |
1 | is expressed to occur between 2 days | includes both days. | |
2 | is expressed to begin at, on or with a specified day | includes that day. | |
3 | is expressed to continue until a specified day | includes that day. | |
4 | is expressed to end at, on or with a specified day | includes that day. | |
5 | is expressed to begin from a specified day | does not include that day. | |
6 | is expressed to begin after a specified day | does not include that day. | |
7 | is expressed to end before a specified day | does not include that day. | |
Example 1: If a claim may be made between 1 September and 30 November, a claim may be made on both 1 September and 30 November.
Example 2: If a permission begins on the first day of a financial year, the permission is in force on that day.
Example 3: If a licence continues until 31 March, the licence is valid up to and including 31 March.
Example 4: If a person’s right to make submissions ends on the last day of a financial year, the person may make submissions on that day.
Example 5: If a variation of an agreement is expressed to operate from 30 June, the variation starts to operate on 1 July.
Example 6: If a decision is made on 2 August and a person has 28 days after the day the decision is made to seek a review of the decision, the 28-day period begins on 3 August.
Example 7: If a person must give a notice to another person at any time during the period of 7 days before the day a proceeding starts and the proceeding starts on 8 May, the notice may be given at any time during the 7-day period starting on 1 May and ending on 7 May.
(2) If:
(a) an Act requires or allows a thing to be done; and
(b) the last day for doing the thing is a Saturday, a Sunday or a holiday;
then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.
Example: If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April.
(3) In this section:
"holiday" , in relation to the time for doing a thing, means:
(a) a day that is a public holiday in the place in which the thing is to be or may be done; and
(b) if the thing is to be or may be done at a particular office or other place--a day on which the place or office is closed for the whole day.”
[13] In Mr Sharma’s circumstances, s394(2)(a) of the FW Act requires that the application must be made within 21 days after the dismissal took effect.
[14] Section 36(1) of the Acts Interpretation Act as set out above indicates that if a thing is to be done on a holiday the thing may be done on the next day.
[15] Consequently, notwithstanding that the 21 day period ended on a public holiday in South Australia I am not satisfied that a proper construction of the Acts Interpretation Act permits an extension of the 21 day time limit to 6 October 2015 because I do not consider that 5 October 2015 meets the definition of a “holiday” in s.36(1) of that Acts Interpretation Act. The definition of a holiday in s 36(3) seems to me to refer to a day where the Fair Work Commission premises throughout Australia are closed. In this respect it must refer to a national public holiday rather than a regional holiday. In this case, there was no impediment to the application being lodged by email, or through the FWC website, or in a different area. The 21 day period for the lodgement of the application must be regarded as coming to an end on 5 October 2015.
[16] I note that, in reaching this conclusion, the advice provided through the FWC website and its Unfair Dismissal Benchbook appears inconsistent.
[17] Consequently, I have concluded that the application was lodged one day outside of the 21 day time limit and can only be pursued if an extension of time is granted. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd1 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.”
[18] Mr Bourne asserts that the delay was occasioned, in part, by representative error. Mr Sharma’s witness statement confirms that, after he was dismissed on 14 September 2015, he first sought advice with respect to the termination of his employment on 24 September 2015. He met with Mr Sharma on 28 September 2015 and instructed Mr Bourne to initiate correspondence to explore the possibility of settlement. In his witness statement, Mr Sharma stated:
“8. I asked my solicitor specifically about the time limitation date. On 29 September 2015, my solicitor email me a draft letter that he proposed to send to the Respondent on my behalf and advised that in light of the public holiday on Monday, 5 October 2015, we will have until Tuesday to file any necessary application in the Fair Work Commission. Attached and marked ‘A’ is a copy of that email from my solicitor.
9. I confirmed my instructions for my solicitor to propose an offer of settlement to the Respondent by return email on 29 September 2015.
10. By email dated 5 October 2015, my solicitor advised me that my offer of settlement had been rejected.
11. I wanted to speak with my solicitor by telephone before confirming my instructions for him to file an unfair dismissal application on my behalf.
12. As I understood my solicitor’s office was closed on 5 October 2015, it being a public holiday, I rang my solicitor’s office at about 10.00am on 6 October 2015.
13. I spoke with my solicitor later that day and confirmed my instructions for him to file an unfair dismissal application on my behalf.”
[19] The long standing approach 2 of the Commission is that representative error may represent an acceptable reason for the delay and, in terms of the current legislative requirement, an exceptional circumstance. That approach is founded on the principle that, if an applicant did not contribute to a delay caused by his or her representative, it would not be fair to hold that error against the applicant. Mr Sharma has not provided a coherent explanation for the delay, of some 10 days before he sought legal advice with respect to the termination of his employment. Notwithstanding this lack of action, which does not favour an extension of time, after he obtained legal advice on 28 September 2015, Mr Sharma took prompt and appropriate action with respect to his application and that the delay was due to a failing on the part of his representative. Whilst that delay is properly characterised as representative error I note that representative error is not, of itself, a basis for an extension of time. Appropriate account must be taken of the overall circumstances and the conduct of the applicant.3 Consequently, all of the actions taken by Mr Sharma are central to the question of whether there is an acceptable reason for the delay. A further factor relevant to the delay relates to the South Australian public holiday the day before the application was lodged and the uncertainty that has created relative to the 21 day count. I have balanced the absence of an appropriate explanation for Mr Sharma’s not seeking advice earlier, with the extent to which he acted on Mr Bourne’s specific instructions and gave Mr Bourne explicit instructions to lodge the application in a manner consistent with the advice about lodgement arrangements that had been provided to him. Mr Sharma was entitled to rely on Mr Bourne’s advice such that the reasons for the delay favour an extension of time in these circumstances.
[20] I have noted that the correspondence of 29 August 2015 from Mr Bourne to The Club confirms that correspondence seeking a settlement of the application, which I regard as an action separate to the lodgement of this application, had been initiated relative to termination of Mr Sharma’s employment.
[21] The granting of an extension of time does not prejudice the respondent in this matter but this, of itself, cannot represent a basis for an extension of time.
[22] In terms of the merits of the application, there is a substantial dispute over the merits of the application. I note that The Club has provided extensive material in support of its position that the application lacks merit. This may be a matter that Mr Sharma should take advice on, in that if he pursues an application in circumstances where he is acting without reasonable cause or where it should have been reasonably apparent to him that his application had no prospect of success, he may well face a future costs application. However, I am not satisfied that a necessarily limited consideration of the merits of the application in the context of this extension of time matter enables a conclusion to be drawn about the detailed merits of Mr Sharma’s application. Accordingly, I have regarded the merits of the matter as a neutral factor with respect to the extension of time issue.
[23] Considerations of fairness relative to persons in similar circumstances to Mr Sharma support an extension of time.
Conclusion
[24] For the reasons I have set out above, I am satisfied that Mr Sharma’s circumstances support an extension of time. I regard those circumstances as exceptional for the purposes of s.394(3). In this particular situation, the representative error should be regarded as an exceptional circumstance. The request for an extension of time is granted and, accordingly, the application will be relisted for conciliation and an Order (PR573154) reflecting this decision will be issued.
Appearances (by telephone):
S Bourne of counsel for the Applicant.
M Manetta of counselfor the Respondent.
Hearing (Conference) details:
2015.
Adelaide:
October 27.
1 [2011] FWAFB 975
2 amongst other matters, Clark v Ringwood Private Hospital (1997) 74 IR 413
3 see for example Clark v Ringwood Private Hospital Print S5279 and Comcare v O’Hearn [1993] 119 ALR 85
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