Robert Weatherall v TAFE NSW - Riverina Institute - Albury Campus

[2015] FWC 40

[2015] FWC 40

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Robert Weatherall
v
TAFE NSW - Riverina Institute - Albury Campus
(U2014/15292)

DEPUTY PRESIDENT SAMS SYDNEY, 5 JANUARY 2015

Termination of employment - application for remedy for unfair dismissal - application made ‘out of time’ - extension of time - no ‘exceptional circumstances’ - application dismissed.

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to section 394 of the Fair Work Act 2009 (the ‘Act’). Mr Robert Weatherall (the ‘applicant’) was dismissed from his employment with TAFE NSW - Riverina Institute - Albury Campus (the ‘respondent’) on 20 October 2014. The applicant was dismissed for alleged misconduct involving breaches of the respondent’s Code of Conduct and the Acceptable Use of Communication Devices Guidelines. The applicant lodged an application for an unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 19 November 2014. His application was therefore lodged 9 days outside the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Application for Unfair Dismissal lodged by the applicant (Form F2) and the response filed by the respondent (Form F3) on 5 December 2014. The Commission wrote to the applicant on 21 November 2014 outlining the matters I am required to consider under s 394(3) of the Act and asking him to provide a statement addressing these matters within 14 days. The applicant provided a brief statement on 22 November 2014. Having considered this material, I issued an Order refusing an extension of time and dismissed the application on 18 December 2014. These are my reasons for doing so.

[3] The relevant legislative framework, guiding the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’) where a Full Bench of the Commission said:

‘[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. [Endnotes not reproduced]’

[5] It is plain from the above extract in Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established to warrant the exercise of the Commission’s discretion to extend the time for filing of an unfair dismissal application.

Reason for the delay (s 394(3)(a))

[6] The applicant set out the reason for the delay in his application as follows:

‘The reason I believe I should be granted the extension of time is because I was seriously let down by the legal world. I was told by legal aid they can’t take me on. The law society said they can’t refuse me. I then was told to go back to legal aid. And if refused they must give me a letter. Stating why. So I had to wait for that appointment. During this time I chased endless lawyers. Who wanted anything from $192 an hour to $600 an hour. Which I don’t have. Since my wife is unemployed since her job was sent overseas.. So again legal aid said I didn’t qualify since I haven’t been in prison or have a mental problem or homeless. I then went back to law society who put me on the Pro Bono list. I also found a company called employee assist who got my paperwork in too late and drop me like a hot potato. All these so called no win no fee are nothing but false advertising. Everyone has let me down. I have been through 11 years of hell. All I want is justice. I was fired by corrupt people. This is the very last chance for me. I have been refused by I.C.A.C, Human rights commission, discrimination board, the minister of education, Tafe corruption unit, I was bullied, victimised, harassed 4 sham investigations,. I no suffer from adjustment disorder with depressive moods. Which in the last 2 years has become full on depression. This is the VERY last chance for me.’

[7] The applicant subsequently sent correspondence to the Commission on 7 December 2014 indicating that he had received the employer’s response and that he had an appointment with a lawyer on 8 December 2014. The applicant did not communicate with the Commission after this date, nor has there been medical evidence filed to demonstrate the applicant’s alleged adjustment disorder/depression.

[8] I am unable to conclude that the reasons cited by the applicant constitute ‘exceptional circumstances' within the meaning of s 394(3) of the Act. Legal assistance or representation is not required to file an application for a remedy for unfair dismissal and, indeed, parties frequently represent themselves in such matters before the Commission. Moreover, the applicant’s Form F2 application was completed by him, seemingly without difficulty or misunderstanding. I note that the relevant form (Form F2) provided by the Commission is straightforward and extensive guidance is provided on the Commission’s website as to the lodgement of such an application. Given these circumstances, the Commission cannot be satisfied that the applicant’s explanation for filing his application ‘out of time’ constituted ‘exceptional circumstances’ as contemplated by the statute.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[9] The applicant did not specifically address this criterion in his statement, although in his Form F2, he identified 20 October 2014 as the date on which he was notified of his dismissal. This date was also cited by the respondent in the employer’s Form F3. Accordingly, I find that the applicant became aware of his dismissal on 20 October 2014.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[10] The applicant referred to having contacted a number of legal and government bodies in relation to his employment with the respondent, though it appears that the only concrete action he took to dispute his dismissal was the lodgement of this application. Given his apparent ability to make numerous complaints to so many Government authorities, it beggars belief that he would not have filed a simple application for his alleged unfair dismissal, within time. These circumstances weigh against a finding of ‘exceptional circumstances’ in this case.

Prejudice to the employer (s 394(3)(d))

[11] The applicant did not respond to this criterion. However, I am satisfied that there would be prejudice to the respondent caused by accepting this application. This is so because of the significant amount of time and cost the respondent and its officers have been engaged in, in investigating the applicant’s complaints and conducting two disciplinary investigations. This included the cost of engaging an external investigator. Prejudice to the employer is a factor weighing against the grant of an extension of time.

The merits of the application (s 394(3)(e))

[12] The applicant did not specifically address this criterion in his statement, although he referred to being ‘fired by corrupt people’. In his Form F2, the applicant made a number of unsubstantiated allegations, in general terms, in relation to ‘corrupt behaviour’ by persons in his workplace, a failure by the respondent to adequately investigate his claims and that he had been dismissed for making these claims. In its Form F3, the respondent denied that the applicant was dismissed for making complaints. He was dismissed for misconduct (see para [1] above).

[13] It is relevant to note that a consideration of the merits of an application at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis. Nevertheless, in this case I am able to make a prima facie assessment that the merits of the application are not particularly strong.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))
[14] The applicant did not address this criterion in his statement or elsewhere. It is a neutral factor in my decision.

[15] Having considered all of the matters which the Commission is required to take account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 18 December 2014.

DEPUTY PRESIDENT

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