Shane Colreavy v Hiddlestone Electrics Pty Ltd T/A Hiddlestone Electrics

[2017] FWC 4364

[2017] FWC 4364

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Colreavy
v
Hiddlestone Electrics Pty Ltd T/A Hiddlestone Electrics
(U2017/7151)

COMMISSIONER PLATT ADELAIDE, 22 AUGUST 2017

Application for an unfair dismissal remedy – extension of time – application dismissed.

[1] Mr Shane Colreavy 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 Hiddlestone Electrics Pty Ltd T/A Hiddlestone Electrics (Hiddlestone) which his form F2 Unfair Dismissal Application advised took effect on 12 June 2017.

[2] The application was lodged on 4 July 2017.

[3] Mr Colreavy’s application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

“I am the solicitor for the Applicant. I received instructions from the Applicant on 30 June 2017. I reviewed the documentation and misread the date of termination as being 21 June and not 12 June. This error resulted in this application being only 1 day out of time and it is submitted that there is no prejudice to the Respondent.”

[4] On 11 July 2017, Hiddlestone lodged a form F3 Employer Response which indicated that the dismissal occurred on 12 June 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[5] On 31 July 2017 Hiddlestone lodged a form F4 Objection to Unfair Dismissal Application and raised an additional jurisdictional objection that the Small Business Fair Dismissal Code applied.

[6] This decision only deals with the extension of time issue.

[7] On 3 August 2017, my Associate corresponded with Mr Colreavy and Hiddlestone and advised that the extension of time issue would be considered at a telephone conference on 21 August 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 Colreavy was directed to provide a statement concerning the extension of time and any documents to be relied upon by 10 August 2017. Hiddlestone was invited to file any material in reply by 17 August 2017.

[8] Mr Colreavy provided a written submission which is summarised as follows:

● He had worked for Hiddlestone for 34 years at the time of the dismissal and, since 2014, has been a director and 24.75% shareholder.
● He became involved in a dispute with Hiddlestone on 21 May 2017 where he was accused of serious misconduct and was required to ‘show cause’ by close of business 22 May 2017.
● Mr Colreavy took steps to protect his interests as an employee and director.
● On 23 May 2017, Mr Colreavy engaged the law firm Jackson McDonald.
● Mr Colreavy denied the allegations made against him and made a without prejudice settlement offer to Hiddlestone.
● On 12 June 2017, Hiddlestone dismissed Mr Colreavy without notice.
● Mr Colreavy took some time to consider his options and seek alternative work.
● On 20 June 2017, Mr Colreavy decided he could not afford representation by Jackson McDonald and approached his current representative, Mr Bowyer from Solve Legal Pty Ltd.
● On 30 June 2017, he instructed Mr Bowyer to lodge an unfair dismissal claim.
● Mr Bowyer misread the termination date of 12 June as 21 June and believed he had time to lodge the claim the following week.
● On 4 July 2017, Mr Bowyer became aware of his error and lodged the application that day, one day out of time.

[9] No statement was submitted from Mr Colreavy.

[10] Hiddlestone’s submission is relevantly summarised as follows:

● It is relevant that Mr Colreavy engaged a law firm on 23 May 2017.
● The actions of Mr Colreavy were insufficient and contributed to the delay.
● The seeking of a cheaper representative was not an ‘exceptional circumstance’.
● The representative’s error is not a sufficient basis to grant an extension of time. 1

[11] A hearing was conducted by way of telephone conference on 21 August 2017. A sound file record of the telephone conference was kept. Mr Bowyer, of counsel, represented Mr Colreavy. Mr Carlisle from Master Electricians Australia represented Hiddlestone. Permission was granted pursuant to s.596(2)(a) of the Act.

[12] Mr Colreavy gave evidence at the hearing, his position is summarised as follows:

● In the week following his dismissal he spoke with Jackson McDonald who advised they did not provide unfair dismissal services.
● His wife contacted Mr Bowyer.
● Around 20 June 2017, he contacted Mr Bowyer who suggested going to Fairwork. Mr Colreavy was still contemplating what to do.
● On 30 June 2017, he instructed Mr Bowyer to lodge a claim. Mr Bowyer informed him that he needed to get it in by next week.
● After 30 June 2017, he contacted Mr Bowyer approximately every third day so as to work out how to best put the case forward.

[13] Hiddlestone relied on its submissions and further contended:

● It conceded that the period between 30 June 2017 and 4 July 2017 was explained by representative error.
● The balance of the period had not been adequately explained.
● The merits weighted heavily in Hiddlestone’s favour.
● No submissions were made as to prejudice as a result of the short period of the delay.
● The fairness considerations under s.394(3)(g) were not relevant to this matter.

[14] In reply Mr Colreavy submitted that the merits weighed in his favour.

[15] 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.”

[16] This unfair dismissal application by Mr Colreavy was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[17] 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.”

[18] I make the following findings.

[19] The applicant appears to have had one conversation with Jackson McDonald in the week after his dismissal. I am not aware of what was discussed other than the advice that that law firm does not practice in the unfair dismissal area. I note that there is no corroboration for this submission and I treat it with caution. I further note that a different explanation was offered in Mr Colreavy’s written submissions but I accept the explanation given by Mr Colreavy at the hearing.

[20] Mr Colreavy first spoke with his current representative on 20 June 2017. After that meeting he contemplated what he should do.

[21] Ten days later, on 30 June 2017, Mr Colreavy instructed Mr Bowyer to lodge an unfair dismissal claim.

[22] I accept that, from this point, Mr Bowyer was responsible for the delay based on his misunderstanding of the date of dismissal. Mr Colreavy appropriately followed him up during this period. I accept this part of the delay as representative error.

[23] There is no evidence of any other action taken to context the dismissal other than the lodgement of this application.

[24] The issue here is whether the delay in instructing Mr Bowyer to lodge the application contributed to the delay. I do not propose to hold Mr Colreavy responsible for the period between the dismissal and when Jackson McDonald advised him that he should seek an alternative lawyer to lodge an unfair dismissal claim. It does tell me, however, that Mr Colreavy was alive to the lodgement of an unfair dismissal claim.

[25] The issue here, however, is the 10 day delay in between Mr Colreavy seeking advice from his representative and deciding to proceed. Mr Colreavy’s prevarication gave Mr Bowyer just one working day to lodge his claim within time.

[26] This situation is similar to the facts in Diotto v Lenswood Cold Stores Co-op Society T/A Lenswood Organic. 3 This was a case where the applicant did not instruct her representative to lodge a claim until 17 days after the dismissal and Senior Deputy President O’Callaghan determined that account must be taken of the overall circumstances and conduct of the applicant, and found that the lack of action on the part of Ms Diotto simply left it too late to request the assistance of her representative. The decision was appealed but not disturbed.4

[27] I find that the 10 day delay prior to instructing Mr Bowyer to submit the claim contributed to the delay. In essence, Mr Colreavy left it until the last minute before he instructed his representative to lodge the application.

[28] The applicant needs to provide a credible explanation for the entire period of the delay, 5 but has not done so.

[29] There is no submission that the granting of an extension of time represents prejudice to Hiddlestone.

[30] 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.

[31] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[32] For the reasons I have set out above, I am not satisfied that Mr Colreavy’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 Order⁶ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr K.Bowyer of counsel on behalf of the Applicant.

Mr J.Carlisle of Master Electricians Australia on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

August 21.

 1   Cheval Properties Pty Ltd T/A Penrith Hotel Motel v Smithers (2010) 197 IR 403

2 [2011] FWAFB 975

 3   [2015] FWC 7659

 4   [2016] FWCFB 349.

 5   Cheval Properties Pty Ltd T/A Penrith Hotel Motel v Smithers (2010) 197 IR 403

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