Russell Penttila v Woolworths Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Petrol
[2017] FWC 5422
•19 OCTOBER 2017
| [2017] FWC 5422 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Russell Penttila
v
Woolworths Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Petrol
(U2017/7344)
COMMISSIONER PLATT | ADELAIDE, 19 OCTOBER 2017 |
Application for an unfair dismissal remedy - extension of time – application dismissed.
[1] Mr Russell Penttila 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 Woolworths Limited and Woolworths (South Australia) Pty Limited T/A Woolworths Petrol (Woolworths) which his form F2 Unfair Dismissal Application advised took effect on 15 June 2017.
[2] The application was lodged on 7 July 2017.
[3] Mr Penttila’s application did not recognise that it was made beyond 21 days from the date of dismissal.
[4] On 17 July 2017, Woolworths lodged a form F3 Employer Response which indicated that the dismissal occurred on 15 June 2017. Woolworths raised a jurisdictional objection on the basis that the application was lodged out of time.
[5] On 25 August 2017, Woolworths lodged a Form F1 seeking that the application be dismissed pursuant to s.399A. That matter was determined by Deputy President Clancy and a decision was issued on 22 September 2017 declining to dismiss the matter.1
[6] The matter was then allocated to me.
[7] On 5 October 2017, my Associate corresponded with Mr Penttila and Woolworths and advised that the extension of time issue would be considered at a telephone conference on 19 October 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Penttila was directed to provide a statement concerning the extension of time and any documents to be relied upon by 13 October 2017. Woolworths was invited to file any material in reply by 18 October 2017.
[8] Mr Penttila did not provide any written submission.
[9] On 16 October 2017 at 4.34 pm my Associate sent Mr Penttila an email advising that he had failed to comply with my directions and advised that the material was to be submitted by 9.00am on 17 October 2017. The applicant was advised that in the absence of any response the hearing would proceed on Thursday 19 October 2017.
[10] On 17 October 2017, Ms Alexandra Thompson from Minter Ellison filed a notice of commencing to act Form F53.
[11] On 18 October 2017, Woolworths filed an outline of submissions and Ms Thompson filed written submissions seeking permission to appear pursuant to s.596(2) of the Act.
[12] A hearing was conducted by way of telephone conference on 19 October 2017. A sound file record of the telephone conference was kept.
[13] Mr Penttila did not attend the hearing. My Associate left a message on the telephone number provided and sent an email advising that the hearing would commence at 10.05am and proceed in his absence, should he not attend.
[14] Ms Thompson appeared with Ms Victoria Harris from Woolworths Employee Relations. Ms Thompson sought to represent Woolworths pursuant to s.596(2) on the basis outlined in written submission. Ms Thompson also advised that the matter was made more complex by a s.399A application which had been filed. This application had not been received by my Chambers and was not before me at this time.
[15] I determined that this matter was not sufficiently complex that Woolworths could not be represented by in-house employee relations personnel, and a grant of permission to be represented by a lawyer or paid agent was refused.
[16] Ms Harris represented Woolworths from that point onwards.
[17] Mr Penttila’s application did not identify his s.394 application was made out of time and recorded the date of dismissal as 15 June 2017.
[18] Mr Penttila has not subsequently provided any submissions or other communication which details why his application was late, despite the directions issued and follow-up by my Associate.
[19] At the hearing Ms Harris relied on Woolworths written submissions which contended:
● Mr Penttila was dismissed on 15 June 2017
● The application was lodged on 7 July 2017, 22 days after the dismissal.
● There are no exceptional circumstances to justify an extension.
● Mr Penttila has not provided any reason for the delay.
● There is no suggestion that the applicant was not aware of the dismissal on the day if took effect (15 June 2017).
● Mr Penttila did not take any action to dispute the dismissal other than the lodgement of this application.
● Woolworths has suffered prejudice as a result of the costs incurred in responding to this application.
● The merits of the application weigh in favour of Woolworths.
● Fairness as between Mr Penttila and other persons in a similar position is not a relevant consideration in this matter.
[20] 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.”
[21] I note that the date of dismissal and its effect is not in dispute and I find that the unfair dismissal application by Mr Penttila was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[22] 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 Ltd2 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.”
[23] I make the following findings:
● Mr Penttila has not made a formal request for an extension of time.
● Mr Penttila has failed to provide any explanation as to the reasons for delay in filing his application.
[24] The applicant needs to provide a credible explanation for the entire period of the delay,3 but has not done so.
[25] Woolworths contend that the delay has resulted in prejudice in that it has to go to the expense of defending the claim. With respect I do not find that such a position presents prejudice to Woolworths and it is not determinative in this matter.
[26] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.
[27] Consideration of fairness relative to other persons in similar positions is a neutral factor.
Conclusion
[28] For the reasons I have set out above, I am not satisfied that Mr Penttila’s 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 Order4 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
No appearance on behalf the Applicant.
Ms Victoria Harris on behalf of the Respondent.
Hearing (Conference) details:
2017.
Adelaide:
October 19.
1 [2017] FWC 4486
2 [2011] FWAFB 975
3 Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403
4 PR596951
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