Romuald Jastrzebski v Knoll Consultants & Investments Pty Ltd T/A Barossa Fine Foods

[2015] FWC 1983

[2015] FWC 1983

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Romuald Jastrzebski
v
Knoll Consultants & Investments Pty Ltd T/A Barossa Fine Foods
(U2015/3673)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 26 MARCH 2015

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

[1] Mr Jastrzebski 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 Knoll Consultants and Investments Pty Ltd T/A Barossa Fine Foods (Barossa Fine Foods). At a telephone conference convened on 25 March 2015 I advised that I had concluded that the application was lodged outside of 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 Jastrzebski's application was lodged on 5 March 2015. In that application Mr Jastrzebski's daughter Ms Jastrzebski advised, on behalf of her father, that his employment was terminated on 9 January 2015. Ms Jastrzebski asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept her father's application out of time:

“I am lodging this form on behalf of my Father, Romuald Konrad Jastrzebski who’s permanent contract was terminated with no notice from Barossa Find foods. After 19 years of service and while still on work cover, his employment was terminated with no notice or prior written warning.

My Father was ashamed of the circumstances of the termination of his employment and subsequently didn’t disclose it to me for 6 weeks after the event. He was only made aware of his rights to dispute the termination on the grounds of unfair dismissal when he attended a follow up appointment by a work cover appointed GP (in March) after which he disclosed it to me.” 1

[3] On 12 March 2015 my Associate corresponded with both Mr Jastrzebski and Barossa Fine Foods and advised that the extension of time issue would be considered through a telephone conference on 25 March 2015. Substantial information about the extension of time issue was provided to the parties. Mr Jastrzebski was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 18 March 2015.

[4] Additional information was received from Ms Jastrzebski on behalf of her father on 23 March 2015. This advice stated:

“Konrad Jastrzebski's employment of 19 years was terminated on the 9th of January 2015 when he was issued with a letter stating the termination was effective from the same date. He was not aware that he was entitled to a period of notice in the lead up to a termination, nor that an employee should not be dismissed while on work cover. English is Konrad's second language and he was genuinely unaware of his rights until he visited the work cover GP with whom he had an appointment after the termination. The GP informed Konrad of his rights, at which time he disclosed the matter to me. Unfortunately this occured outside of the 21 day notification period. I lodged the complaint with the FWC at the earliest opportunity thereafter. Please see the attached letter of termination indicating the date of termination on the same day as it was issued."

[5] The Employer’s Response to the application confirmed the accurate name of the employer's business. I have utilised the discretion available to me to amend the application accordingly. That response also confirmed that Barossa Fine Foods objected to the extension of time.

[6] Mr and Ms Jastrzebski participated in the telephone conference. Ms Windsor, of counsel represented Barossa Fine Foods through an unopposed grant of permission made under s.596(2)(a). Mr Knoll from Barossa Fine Foods also participated in this conference. Substantial elements of the conference were translated into Mr Jastrzebski’s native Polish. Ms Jastrzebski provided further information in support of the extension of time request. That information was consistent with the information provided in the application. 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.

[7] 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.”

[8] On the information before me I am satisfied that the application was made some 34 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 2 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.”

[9] I have considered each of the reasons for the delay put on behalf of Mr Jastrzebski. Firstly, to the extent that he was so upset by the termination of his employment that he did not disclose it to his family for some 6 weeks I note that medical evidence to support an inability to lodge the application has not been provided to me. Whilst I can understand his concerns in this respect, I am unable to regard this circumstance as exceptional. To the extent that Mr Jastrzebski was unaware of his rights until he visited his General Practitioner I am unable to conclude that this represents an acceptable reason for the delay, or an exceptional circumstance. Finally, to the extent that Ms Jastrzebski asserts that English is her father’s second language, I am again unable to conclude that this represents an exceptional circumstance. It is clear from Mr Jastrzebski's application that he was aware of the termination of his employment on the day this termination took effect. I am not satisfied that, apart from the late lodgement of this application, Mr Jastrzebski pursued other actions so as to challenge the termination of his employment. The duration of the delay favours a finding that an extension of time of this magnitude would prejudice Barossa Fine Foods but given that no submission in this respect has been made I have regarded this as a neutral issue.

[10] In terms of the merits of the application, information which allows a definitive conclusion in this respect is not before me and I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

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

[12] Accordingly I have concluded that the material before me does not establish that Mr Jastrzebski's circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR562307) giving effect to this decision will be issued.

[13] It is appropriate that I confirm that I have recommended that both parties seek specialist legal advice with regard to the workers compensation implications of the termination of Mr Jastrzebski’s employment, given that, at the time of the termination of his employment, he had an open and uncontested workers compensation claim.

Appearances (By telephone):

R (and N) Jastrzebski on his own behalf.

J Windsor counsel for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

March 25.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR562306>

 1   Form F2, para 1.4

 2   [2011] FWAFB 975