Samuel Giannakakos v SA Water Corporation

[2015] FWC 7585

[2015] FWC 7585

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Samuel Giannakakos
v
SA Water Corporation
(U2015/13685)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 6 NOVEMBER 2015

Application for relief from unfair dismissal - extension of time granted.

[1] Mr Giannakakos 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 South Australian Water Corporation (SA Water). At a telephone conference convened on 6 November 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section but that I was satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion.

[1] Mr Giannakakos’ application was lodged on 19 October 2015. In that application Mr Giannakakos advised that the termination of his employment took effect on 4 September 2015 and he was notified of it on that same day. Mr Giannakakos provided the following explanation for the late lodgement of his application:

“Originally applied through the Industrial Relations Commission of S.A. as per instruction from fair work website. Opted as a ‘state government’ employee and advised I was not eligible to apply through the commission. Deputy Predint Bartel sighted the process and can confirm the misleading direction given by the website.” (sic) 1

[1] On 19 October 2015 my Associate corresponded with both Mr Giannakakos and SA Water and advised the extension of time issue would be considered through a telephone conference on 6 November 2015. Substantial information about the extension of time issue was provided to the parties. Mr Giannakakos was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 30 October 2015.

[2] Substantial additional information was received from Mr Giannakakos. This information went to both the reasons for the delay and the merits of his application. In terms of the reason for the delay, Mr Giannakakos advised that his decision to initially lodge an application in the South Australian Industrial Relations Commission followed advice provided to him through the Fair Work Commission (FWC) website which advised that, as he was a State Government employee he was not covered by the FW Act. Mr Giannakakos also advised that this advice had been confirmed through the Fair Work Commission telephone service. Mr Giannakakos advised that the FWC website had subsequently been amended but that, in the meantime, he had proceeded to lodge an application in the South Australian tribunal. That matter had been before Deputy President Bartel who had advised him that, with respect to SA Water, the FWC website was not correct and that he was employee for the purposes of the FW Act. In terms of the merits of his application, Mr Giannakakos attached a substantial quantity of material which related to various substantial absences he had from work over the 15 months of his employment, his allegations of bullying and harassment and concerns with respect to the disciplinary process instituted by SA Water. Whilst I have not detailed all of this material, I have taken it into account in this matter.

[3] The Employer’s Response to the application indicated that SA Water opposed the extension of time. Further, SA Water provided further extensive written submissions relative to the extension of time issue on 4 November 2015. These submissions were to the effect that Mr Giannakakos’ circumstances were not exceptional. SA Water referred to the extent to which Mr Giannakakos waited until 21 days after his dismissal took effect before filing an application in the South Australian Industrial Relations Commission. Further, that he did not act to withdraw that application having been advised by SA Water that his first application was without a jurisdictional basis. SA Water disputed Mr Giannakakos’ contention that the FWC website was misleading. SA Water contended that the application had little, if any merit, which weighed against an extension of time.

[4] Mr Giannakakos participated in the telephone conference. Mr Love, of counsel was granted permission to represent SA Water pursuant to s.596(2)(a). That permission was granted on an agreed basis. Ms Christian and Ms Maxwell, of SA Water also participated in the conference. I note that a sound file record of this telephone conference was kept.

[5] 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.”

[6] I have concluded that the application was made some 24 days outside of the 21 day time limit and 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.”

[7] Mr Giannakakos has identified a single and fundamental reason why his application was lodged outside of the statutory time limit. He advised that he acted to pursue an unfair dismissal application within the time limit on the basis of advice provided through the FWC website and telephone service. I have accepted that advice could well have been construed as suggesting that SA Water is not designated as a national system employer and hence is not covered by the FW Act. I am satisfied that this reason for the delay represents an exceptional circumstance. There are relatively few organisations effectively owned by the South Australian Government which fall into this category and I am satisfied that Mr Giannakakos was entitled to construe the advice provided by the FWC as indicating that SA Water was not a national system employer. It was not until after he lodged this initial application that Mr Giannakakos was made aware of the standing of SA Water. In considering Mr Giannakakos’ circumstances, I have noted that he did indeed wait until the 21^st day before lodging his initial application. Nevertheless, that application was made within time. Secondly, I have noted that, on 14 October 2015, SA Water put Mr Giannakakos on notice that it did not consider that the South Australian Industrial Relations Commission had the jurisdiction to determine that application. Mr Giannakakos waited until this advice was confirmed by that South Australian Industrial Relations Commission on 19 October 2015 before lodging this, second application. In this respect, I consider his actions are understandable. I have also noted that this application was lodged on the same day that definitive confirmation of futility of his initial application was provided to him. I consider that the reason for the delay is consistent with an exceptional circumstance.

[1] Mr Giannakakos became aware of the termination of his employment on the day upon which it took effect.

[2] I am satisfied that, apart from the late lodgement of this application, Mr Giannakakos took action to dispute the termination of his employment by the initial application lodged with the South Australian Industrial Relations Commission. When the flaw in his initial application was confirmed, Mr Giannakakos then acted promptly to pursue this application.

[1] Given the earlier application I do not think that an extension of time of this magnitude would prejudice the Respondent. This was confirmed by SA Water. However, I have not founded my decision in this matter on that premise.

[1] In terms of the merits of the application, the information before me does not enable a definite conclusion relative to the merits of the application. Consequently, I have regarded the merits of the application as a neutral factor relative to the extension of time issue. Notwithstanding this, I am concerned that the material before me does not indicate that Mr Giannakakos has a strong case and the potential exists for this matter to involve significant costs and potential reputational damage. Accordingly, it seems to me that a common-sense commitment to the resolution of Mr Giannakakos’ application should be pursued. I stress that this observation is simply based on the limited material provided to me.

[1] Considerations of fairness relative to other persons in similar positions support an extension of time.

[2] Accordingly I have concluded that the material before me establishes that Mr Giannakakos’ circumstances should be regarded as exceptional so as to warrant an extension of time. The application will accordingly be referred for conciliation and an Order (PR573598) giving effect to this decision will be issued.

Appearances (by telephone):

S Giannakakos on his own behalf

J Love of counsel for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

November 6.

<Price code C, PR573597>

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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