Robert Furniss v MLG Oz Pty Ltd T/A MLG Oz

[2017] FWC 1169

[2017] FWC 1169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Furniss
v
MLG Oz Pty Ltd T/A MLG Oz
(U2016/14897)

COMMISSIONER PLATT ADELAIDE, 28 FEBRUARY 2017

Application for relief from unfair dismissal – extension of time – application dismissed.

[1] Mr Furniss 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 MLG Oz Pty Ltd T/A MLG Oz (MLG) which he contends took effect on 29 October 2016. MLG contend that the dismissal took effect on a date between 29 October and 1 November 2016.

[2] This application was lodged on 14 December 2016.

[3] Mr Furniss’ application explained the failure to lodge the application within 21 days from the dismissal as follows:

“I had taken holidays that I was approved for by senior management in Kalgoorlie.
When I arrived home I found a letter from one of their human resources personel stating that they have terminated my employment due to abandonment of employment as described in the MLG Oz Enterprise Agreement 2012. This was incorrect I was simply on holidays that I was approved for. Unfortunately I was not directly informed by phone or email otherwise I could have started this process a lot earlier and when I opened the letter It was nearly a month after it had been written and posted. Hence the late application. In the meantime I have started the dispute resolution process with MLG Oz Pty Ltd as per section 26 of the MLG Oz Enterprise Agreement 2012. My contact that I have been assigned to there is Mr Jeff Lewis HR manager.” (sic)

[4] On 10 February 2017, my Associate corresponded with Mr Furniss and MLG and advised that the extension of time issue would be considered at a telephone conference on 28 February 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, was provided to the parties. Mr Furniss was directed to provide a statement concerning the extension of time and any documents to be relied upon by 20 February 2017. MLG was invited to file any material in reply by 24 February 2017.

[5] MLG filed a F3 Employer Response on 16 January 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[6] Mr Furniss provided a written submission summarised as follows:

• On 31 October 2016 he flew to the Philippines.



• Prior to boarding the plane on 31 October 2016, the supervisor called him to ask what he was doing to which he responded that he was about to board a flight to the Philippines to marry his now wife. The supervisor became angry and yelled into the telephone, demanding that he resign in writing to which he responded “I shouldn’t have to resign to take holidays”. The supervisor kept demanding the resignation to which he repeatedly refused, the supervisor then hung up the telephone.



• He denies the contention from MLG that the supervisor called him on 31 October 2016 to ensure commencement of his rostered shift.



• On 28 November 2016, he arrived home after being stranded in the Philippines for two extra days due to a typhoon.



• Upon arriving home, he was ill with a gastro intestinal problem. A medical certificate confirms that he was unfit for work from 28 November to the 31 November 2016 or 1 December 2016. The medical certificate appears the have had the end date modified, however this has little bearing on the matter.



• On or about 29 November 2016, Mr Furniss received the termination letter dated 14 November 2016 written by Ms Djhoanna King and on that day called her, and asked what was going on. She said she would look into it and call him back.



• Mr Furniss did not hear from Ms King for a few days and emailed her on 1 December 2016 to ask how things were proceeding with his dispute.



• At 4.53pm on 1 December 2016, a reply was received from Mr Jeff Lewis who reported MLG’s version of the events and advised that the termination will stand.



• On 12 December 2016, and after some internet problems, he emailed a seven page response to Mr Lewis.



• On 14 December 2016, the unfair dismissal application was lodged.



• Mr Furniss was unaware of the 21 day time limit.

[7] MLG filed an Outline of Submissions and the following documents:

• MLG Leave Request Form dated 14 October 2016;



• Supervisor telephone records; and



• Supervisor diary entry for 14 October 2016 and 31 October 2016.

[8] A hearing was conducted by way of telephone conference on 28 February 2017. A sound file record of the telephone conference was kept. Mr Furniss did not attend the conference, my Associate unsuccessfully tried to contact Mr Furniss by telephone and email. MLG was represented by Mr Jeffrey Lewis (Human Resources) with Mr Steve Fender (Site Supervisor) and Mr Vinnie Fischer (General Manager). The conference concluded at 12:20pm ACST. Whilst the conference was proceeding, Mr Furniss sent an email to my chambers advising that he was not within phone range. Mr Furniss telephoned my chambers once the conference had concluded. He was informed by my Associate that the conference had proceeded in his absence and that the matter would be determined on the material that he had submitted.

[9] At the telephone conference, MLG relied on the submissions filed and contended that there were no exceptional circumstances on the basis that;

• Mr Furniss was a road train operator with MLG from 1 April 2016.



• On 14 October 2016, Mr Furniss submitted a leave application requesting two weeks annual leave and two weeks leave without pay which was rejected by his supervisor. The supervisor explained to Mr Furniss that he could only have his accrued leave balance owing, being two weeks. Mr Furniss was advised of the rejection verbally and in writing.



• The reason why leave without pay was rejected was because of the increased hauling tonnages required to be moved as per the haulage contract.



• Mr Furniss alleged that he needed the time off as he was getting married, this was the first occasion that MLG was aware that Mr Furniss was proposing to get married and take leave.



• On 31 October 2016, Mr Fender conducted his normal phone around to remind all operators (including Mr Furniss) of their forthcoming night shift on 1 November 2016 as per the roster.



• Mr Furniss answered the telephone call and stated “I am at the Perth airport and about to fly out to Bali”. The supervisor advised Mr Furniss that he had not been approved for leave and that he must commence work on 1 November 2016. Mr Furniss was also advised that if he did not commence work it would be considered as an abandonment of his employment in accordance with the enterprise agreement. Mr Furniss said “We will see about that”, the supervisor reiterated that if he did not turn up for duty he would be unemployed, Mr Furniss then ended the telephone call.



• Mr Furniss lodged his unfair dismissal application 44 days after the above “verbal notification” on 31 October 2016 and 30 days after the date of the “written notification” being the termination letter which was drafted and sent on 14 November 2016.



• Mr Lewis submitted that the date of dismissal recorded in the letter dated 14 November 2016 incorrectly stated 29 October 2016, when it should have been 1 November 2016.



• The claim that Mr Furniss did not know about the termination until he collected his mail is a fabrication of the facts.



• Mr Furniss made the choice to abandon his employment.

[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] This unfair dismissal application by Mr Furniss was made 20 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[12] 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 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.”

[13] On the basis of the evidence before me, I have made the following findings;

• The dismissal occurred on 1 November 2016, being the first shift where Mr Furniss failed to attend. I do not regard the conversation between Mr Fender and Mr Furniss on 31 October 2016 just prior to him leaving Australia as a dismissal; it was a warning that if Mr Furniss failed to attend for his rostered shift his employment would cease. It was possible, although unlikely, that Mr Furniss could have changed his mind. Whilst the termination letter, F2 Unfair Dismissal application and F3 Employer Response refer to 29 October 2016 as the dismissal date, nothing happened on that day that changed the employment relationship.



• Mr Furniss first became aware of his dismissal on 29 November 2016 when he received the letter of dismissal dated 14 November 2016 which had been mailed to him whilst overseas.



• Mr Furniss raised the issue of his termination upon receipt of the dismissal letter but took no further action until after 1 December 2016 when MLG stated that the dismissal would stand.



• Mr Furniss has not explained why he took no action after 1 December 2016 other than to say he was unaware of the 21 day limit. This is not an exceptional circumstance.

[14] The applicant needs to provide a credible explanation for the entire period of the delay, 2 but has not done so.

[15] As to prejudice, MLG has not made any submission that the delay presents prejudice, and I find that this is a neutral matter.

[16] Consideration of fairness relative to other persons in similar positions is a neutral factor.

[17] In terms of the merits of the application, there is a dispute between the parties concerning the approval of the leave. There is no evidence before me that corroborates Mr Furniss’ position that the leave was approved. It appears that Mr Furniss was advised that his leave was not approved and was on notice that his failure to attend for work would result in his dismissal. Accordingly, I have regarded the merits as a factor which weighs against the extension of time issue.

Conclusion

[18] For the reasons I have set out above, I am not satisfied that Mr Furniss’ 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):

No Appearance on behalf of the Applicant.

Mr Lewis on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

February 28.

1 [2011] FWAFB 975

 2   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

 3   PR590590

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