Robert Curzon v Trident Plastics (SA) Pty Ltd
[2015] FWC 6558
•23 SEPTEMBER 2015
| [2015] FWC 6558 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Robert Curzon
v
Trident Plastics (SA) Pty Ltd
(U2015/11268)
SENIOR DEPUTY PRESIDENT O’CALLAGHAN | ADELAIDE, 23 SEPTEMBER 2015 |
Application for relief from unfair dismissal - extension of time granted.
[1] Mr Curzon 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 Trident Plastics (SA) Pty Ltd (Trident Plastics). At a telephone conference convened on 23 September 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section but that I was satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion.
[2] Mr Curzon’s application was lodged on 25 August 2015. In that application Mr Curzon advised that he became aware of the termination of his employment on 20 August 2015 on his return from overseas. Mr Curzon provided the following explanation for the late lodgement of his application:
“The reason for the delay in submitting an application is I have only become aware of my termination on the 20th August 2015 after returning from overseas. I returned to a letter dated 28th July 2015 advising a letter was sent by registered post on the 16th July requesting contact be made within 10 days. This request was not feasible as they were aware I was overseas at this time.” 1
[3] On 2 September 2015 my Associate corresponded with both Mr Curzon and Trident Plastics and advised that the extension of time issue would be considered through a telephone conference on 23 September 2015. Substantial information about the extension of time issue was provided to the parties. Mr Curzon was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 16 September 2015.
[4] Additional information was received from Mr Curzon in which he asserted that:
“My name is Robert Curzon and I’m writing to you regarding my application for unfair dismissal which was lodged on the 25th August 2015.
I acknowledge my application is outside the 21 days however as I was overseas at that time I was unaware my employment had been terminated until my return on the 20th August 2015.
As soon as I was aware my employment had been terminated, I immediately commenced investigating my rights and submitting my application to the Fairwork Commission.
As stated by the respondent in Form F3, Trident Plastics (SA) Pty Ltd was aware I was overseas and therefore in full knowledge I would be unable to respond to the initial letter sent by registered post on the 16th July 2015 seeking a response within 10 days. As my employment was terminated effective 28 July 2015, an application to the Fairwork Commission was not going to be possible within the required time frame.
I have never sighted the original leave of absence from since submitting it which apparently was denied on the 15 January 2015.
I have attached a copy of my flight details that verifies the dates I was out of the country.
I trust this meets the requirements at this stage.”
[5] I note that the attached material confirms Mr Curzon’s scheduled return to Australia on 20 August 2015.
[6] The Employer’s Response to the application indicated that Trident Plastics opposed the extension of time.
[7] Mr Curzon participated in the telephone conference. Ms Hinton, of Business SA, of whom Trident Plastics is a member employer, appeared for Trident Plastics, together with Ms Evans. I note that a sound file record of this telephone conference was kept.
[8] 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.”
[9] Trident Plastics provided written confirmation of the termination of Mr Curzon’s employment on 28 July 2015. This advice confirmed that his employment had been terminated at the initiative of Trident Plastics, as of 28 July 2015. Mr Curzon was paid his outstanding entitlements up to and including that date. In Makenja v Baptist Community Services 2 and in various other decisions of the Fair Work Commission and its predecessors, consideration has been given to the extent to which a termination of employment would not take effect before it was communicated to the employee concerned. However, I consider that the advice provided to Mr Curzon of 28 July 2015 makes it very clear that Trident Plastics considered that he was dismissed as of that date. The adoption of an approach which required that, in circumstances such as this, a termination of employment could not take effect until it was communicated to an employee seems to run quite counter to the requirement in s.394(3)(b) to take into account whether the person first became aware of the dismissal after it had taken effect. Consequently, I have concluded that the termination of Mr Curzon’s employment took effect on 28 July 2015.
[10] Consequently, the application was made some 7 days outside of the 21 day time limit and 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 3 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.”
[11] There are two reasons why the application was not lodged until 25 August. Firstly, there is the period from 28 July 2015 to 20 August 2015 when Mr Curzon returned to Australia. Secondly, there is the period from 20 August 2015 to 25 August 2015 when the application was actually lodged. In terms of the first period, the decision in Makenja is again relevant. In that matter the applicant was also overseas and did not become aware of the termination of her employment until she returned to Australia. Notwithstanding subsequent changes to the legislation, I consider that Mr Curzon’s circumstances in that he was overseas until 20 August 2015 and was not aware of the termination of his employment should be regarded as exceptional. In terms of the second period, I am satisfied that, on his return to Australia Mr Curzon acted promptly in order to progress the application.
[12] In this matter the reason for the delay is synonymous with the requirement in s.394(3)(b) that I take into account whether Mr Curzon first became aware of the termination of his employment after it had taken effect.
[13] Mr Curzon did not take action to dispute the termination of his employment, other than through the lodgement of this application. However, given the reason for the delay, this is an understandable position.
[14] I do not think that an extension of time of this magnitude would prejudice the Respondent but I have not founded my decision in this matter on that premise.
[15] In terms of the merits of the application, the information before me does not enable a definite conclusion. It appears clear that the merits of the application will be heavily dependent on consideration of whether Mr Curzon‘s behaviour in taking leave represents misconduct or an abandonment of his employment or whether he had a legitimate basis upon which to take that leave. This is going to depend on the evidence presented in this matter. Whist that evidence is not before me at the present and cannot be fully considered in this extension of time proceeding, if Trident Plastics establishes that Mr Curzon was clearly advised, in January 2015, that his request for leave was refused and that he was told not to take leave, and that formal leave approval processes were generally applied within Trident Plastics, a finding that there was a valid reason for the termination of Mr Curzon’s dismissal may well follow. In those circumstances, and depending on the evidence, Mr Curzon’s continued pursuit of the matter could leave him exposed to a costs application. Consequently, I have recommended that Mr Curzon should obtain advice on the merits of the application before taking his application further. Notwithstanding this concern, I have regarded the merits of the application as a neutral factor relative to the extension of time.
[16] Considerations of fairness relative to other persons in similar positions lend support to an extension of time.
[17] Accordingly I have concluded that the material before me establishes that Mr Curzon’s circumstances can be regarded as exceptional so as to warrant an extension of time. The time for lodgement of the application will be extended to the date of lodgement on this basis and an Order (PR572198) giving effect to this decision will be issued. The application will be referred for conciliation.
Appearances (by telephone):
R Curzon on his own behalf.
V Hinton for the respondent.
Hearing (Conference) details:
2015.
Adelaide:
September 23.
1 Form F2, para 1.4
2 [2007] AIRCFB 38
3 [2011] FWAFB 975
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