Robert Walmsley v Crown Equipment T/A Crown Equipment

[2015] FWC 4165

[2015] FWC 4165

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Walmsley
v
Crown Equipment T/A Crown Equipment
(U2015/5526)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 22 JUNE 2015

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

[1] Mr Walmsley 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 Crown Equipment Pty Ltd (Crown). At a telephone conference convened on 22 June 2015, I advised that I had concluded, on the material before me, that the application was lodged outside 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 Walmsley’s application was lodged on 21 May 2015. In that application, Mr Walmsley advised that the termination of his employment took effect on 15 April 2015. Mr Walmsley sought that the following information be taken into account in considering the late lodgement of his application:

“I apologise for the late application. My Doctor (Dr Prasanna Ramachandran) has been on annual leave from late April until 18 May 2015. I needed to see my Doctor in order to get my Workcover Medical Certificate updated to reflect the results of my FCE (Functional Capacity Evaluation). This evaluation was only completed after I had been Detached from the Company.” 1

[3] The Employer’s Response to the application confirmed that the termination of Mr Walmsley’s employment took effect on 15 April 2015. Accordingly, Crown asserted that the application was lodged out of time.

[4] On 1 June 2015, my Associate corresponded with both Mr Walmsley and Crown and advised that the extension of time issue would be considered through a telephone conference on 22 June 2015. Substantial information about the extension of time issue was provided to the parties. Mr Walmsley was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 15 June 2015.

[5] Further information was received from Mr Walmsley on 12 June 2015 when he provided a witness statement, together with a WorkCover Medical Certificate. In that witness statement, Mr Walmsley provide information about the circumstances under which he injured his back in June 2014. In terms of the extension of time issue, Mr Walmsley stated:

“I am seeking an Extension of Time for my Unfair Dismissal claim as my Doctor was away on annual leave during the 21 day deadline. I thought that I would need all my evidence while submitting my claim. I do not know if you can submit a claim and then provide the evidence at a later date. I also wanted confirmation that I was still medically suitable for employment with Crown. I apologise for this claim being outside of the 21 day deadline.

I was confused because I had the results of my FCE (Functional Capacity Evaluation) and as I read this I thought I was able to complete medium to heavy work. The Physiotherapist who completed the FCE (Melissa Hoggins) also told me this on the day of the test. Andrew McCrone (WorkCover SA), who completed a Detachment Review, had also stated that as he read it I should be doing medium to heavy work. He advised I speak with my Doctor first to see what she recommended in regards to capacity and any restrictions. Yet when I spoke with Sandy Warming, my Case Manager from EML (Employers Mutual), she stated that I should be looking for a sedentary (4kg max) type role. I needed to see the Doctor as I felt she was the only one who could clarify the situation and write my capacity on the WorkCover Medical Certificates. This appointment took place on the 19th May 2014; please see attached Current Medical Certificate.” 2

[6] Mr Walmsley participated in the telephone conference. Mr Quick, Mr Holmes, and Ms Ross from Crown also participated in this conference.

[7] 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.

[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] On the information before me, I have concluded that the application was made 15 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 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.”

[10] Mr Walmsley’s reasons for the delay go to the extent to which he asserts he was unable to visit his doctor, because of his doctor’s absence, and considered that visit to be necessary in order to obtain evidence in support of this application. To the extent that the delay in the lodgement of the application was due to Mr Walmsley’s erroneous understanding that he needed to attach medical evidence to support his arguments, I do not consider this represents an acceptable reason for the delay or an exceptional circumstance. The medical assessment which determined that Mr Walmsley was fit to return to modified duties from 19 May 2015 to 31 July 2015 may be relevant to work that Mr Walmsley could undertake during that time, but I am not satisfied that it adequately explains the delay in lodging this application. Mr Walmsley’s application is made on the basis that he asserts that the termination of his employment was unfair and I am not satisfied that his explanation for the delay is consistent with the basis upon which the application is made. Accordingly, I am not satisfied that Mr Walmsley has established that the reasons for the delay represent circumstances which should be regarded as realistic or exceptional for the purposes of an extension of time.

[11] Apart from the late lodgement of this application, Mr Walmsley advised that he commenced some form of application under the WorkCover system. I do not consider that this represents an action directed at challenging the termination of employment so as to support the extension of time which is now sought.

[12] I am not satisfied that an extension of time of this magnitude would prejudice Crown but this, of itself, does not provide a basis for an extension of time.

[13] In terms of the merits of the application, information which would enable a definitive conclusion is not before me. Accordingly, I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

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

[15] Accordingly I have concluded that the material before me does not establish that Mr Walmsley’s circumstances can be regarded as exceptional so as to warrant an extension of time. An Order (PR568549) giving effect to this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

M Walmsley on his own behalf.

P Holmes for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

June 22.

 1   Form F2, para 1.4

 2   Applicant’s Witness Statement, paras 3 and 4

 3   [2011] FWAFB 975

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<Price code C, PR568548>