Shane Harris v GM Holden Ltd T/A Holden

[2015] FWC 4702

[2015] FWC 4702 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Harris
v
GM Holden Ltd T/A Holden
(U2015/8299)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 13 JULY 2015

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

[1] Ms Fox has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) on behalf of her partner, Mr Harris. The application relates to the termination of employment of Mr Harris by GM Holden Ltd T/A Holden (Holden). At a telephone conference convened on 10 July 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] The application was lodged on 8 June 2015. In that application Ms Fox advised that Mr Harris’ employment was terminated with effect from 1 May 2014. Ms Fox asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept the application out of time:

“ - Shane is currently in remand @ Mt Gambier Prison, therefore he hasn’t been able to respond to the termination or apply himself within 21 days.

- He has been in remand since 21/03/15; he is yet to receive bail. He has not been convicted as yet.

- I Stacey Fox, have attempted to seek assistance and advice from the union (AMWU). Today, 4/6/15, they advised me they are unable to help in the matter.

- Given Shane is in remand, without a conviction, he is unable to make contact himself. He has not chosen to make himself unavailable for work.” 1

[3] On 18 June 2015 my Associate wrote to both Mr Harris and Holden and advised that the extension of time issue would be considered through a telephone conference on 10 July 2015. Substantial information about the extension of time issue was provided to the parties. Mr Harris was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 3 July 2015.

[4] A statement was received from Ms Fox on behalf of Mr Harris on 2 July 2015. This advised:

“Shane requests an extension of time to make the Unfair Dismissal Application as he is in remand at Mt Gambier Prison. Communication from the prison is limited and timely, therefore I have agreed to assist Shane with his application.

We were advised by letter dated 1/05/2015 and received on the same date that Shane’s employment has been terminated effective immediately (1/05/2015). I attempted to contact Ashley Battye immediately on the office number provided to discuss, however he did not answer his phone; no message facility was available. I attempted to contact him again on 4/05/2015 via his office and mobile. I left a message but did not receive a response to this. On 6/05/2015 I attempted to contact him again on both contact numbers with no answer. However he did return my call on 6/05/2015.

On 6/05/2015 I contacted Scott Batchelor of the Union (AMWU) via telephone to seek their assistance. I emailed the history and all the documents to him on 7/05/2015; he confirmed he received the email on the same day.

On 22/05/2015 I contacted Scott via email to follow up a response. Via reply email of the same date Scott advised there is no avenue to help but he will call me to discuss in further detail. He failed to call me. I followed up via telephone on 4/06/2015. It was during this call he confirmed the Union will not take the case on as it appears Shane has abandoned his employment.

Given Shane is in remand, and the above mentioned timeline, we were unable to lodge the Unfair Dismissal Application within the designated time frame. We request consideration to an extension of time to be granted. We are in hope this is sufficient to substantiate an extension of time.

Stacey Fox, for Shane Harris
2/07/2015”

[5] The Employer’s Response to the application objected to the application on the basis that it opposed any extension of time and also argued that Ms Fox had not established that she had the capacity to pursue an application on behalf of Mr Harris.

[6] Ms Fox participated in the telephone conference. Ms Anderson, Ms Swan and Mr Battye from Holden also participated in this conference. Ms Fox was given the opportunity to expand on the information provided in this statement and to respond to the advice provided in the Employer’s Response.

[7] 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.

[8] 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.”

[9] On the information before me I am satisfied that the application was made some 17 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 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.”

[10] In considering the reasons for the delay in the lodgement of the application, I have taken both Mr Harris’ circumstances and those of Ms Fox into account. I have accepted Ms Fox’s advice that she acted in concert and on behalf of Mr Harris and have, in this respect, applied the considerations that would normally have been relevant to an applicant, to her. I have concluded that the reasons for the delay in the lodgement of the application were primarily the result of delays on the part of Ms Fox in actioning and pursuing that application. Whilst those delays were understandable, I am not satisfied that they can be regarded as exceptional.

[11] Ms Fox has proposed a number of reasons for the delay. These relate, firstly, to the extent to which she was not aware of the 21 day time limit until she made enquiries on 4 June 2015. That lack of awareness of the legislative time limit cannot be taken as an acceptable reason for the delay or as indicative of an exceptional circumstance. Further, Ms Fox advised of the difficulties associated with her communications with Mr Harris whilst he is in prison. In this respect she advised that she generally had telephone contact with him twice weekly. Ms Fox has not established to me that these contact arrangements were such that she was therefore unable to lodge the application within the statutory time limit. Ms Fox advised that Mr Harris requested that she take action to dispute the termination of his employment on 4 June 2015. Ms Fox’s explanation of the delay between 4 June and 8 June 2015 was that she was busy at work and at home.

[12] In terms of the earlier component of the delay, Ms Fox confirmed that, in a telephone discussion with Mr Battye of Holdens on 6 May 2015, Mr Battye suggested that she could look at options relative to the FW Act and could also contact the AMWU. Accordingly, it is clear that Ms Fox had been given clear advice about her capacity to investigate and then initiate an application of this nature and that she elected not to act on that advice for some substantial time. Ms Fox sought assistance from an official of Mr Harris’ union on 6 May 2015 and again on 22 May 2015 and 4 June 2015. She advised that it was only on 4 June 2015 that the union official advised that he would not further assist Mr Harris. I am not satisfied that Ms Fox provided instructions to that union such that I could regard it as representing either her or Mr Harris. Whilst I have accepted that Mr Harris’ union could have come back to her at an earlier time, the application of the long standing approach to the consideration of representative error 3 requires that I take into account the entirety of the circumstances, and particularly the actions of the applicant. In this respect I have taken Ms Fox’s actions into account and I am unable to conclude that her actions in contacting Mr Harris’ union on 6 and 22 May 2015 and then 4 June 2015 reflected any apparent degree of urgency in this matter or that she provided express instructions to initiate this application.

[13] Ms Fox has also provided copies of correspondence which indicate that Mr Harris had been provided with legal advice and representation relative to the criminal charges which he is facing. Whilst I accept Ms Fox’s advice that Mr Harris’ criminal lawyer did not wish to represent him in this matter and that she and Mr Harris were unable to afford legal representation, I consider that the capacity to obtain advice about the time limit for the lodgement of the application existed.

[14] Given that Ms Fox has acted on Mr Harris’ behalf throughout the entirety of this matter, I am not satisfied that, Mr Harris’ imprisonment, of itself, represents an exceptional circumstance. Having taken the entirety of the circumstances of this matter into account, I am not satisfied that acceptable reasons for the delay have been demonstrated.

[15] It is clear from the application that Ms Fox and Mr Harris was aware of the termination of Mr Harris’ employment on the day it took effect and that she and Mr Harris were aware of the likelihood of that employment termination well before it occurred.

[16] I have taken into account the fact that, apart from the late lodgement of this application, Ms Fox sought advice from Mr Harris’ union and had access to the lawyer advising him in relation to the criminal charges against him. I have also noted that Ms Fox remained in contact with Holden management representatives. Whilst I have accepted that Mr Harris’ imprisonment has limited his capacity to take other actions to dispute the termination of his employment, I not satisfied that the actions, other than the lodgement of this application, taken by Ms Fox so as to challenge the termination of his employment, support an extension of time on the basis of an exceptional circumstance.

[17] I am not satisfied that an extension of time of this magnitude would prejudice the Respondent but this, of itself, does not provide a basis for an extension of time.

[18] In terms of the merits of the application, two issues become relevant. Firstly, I have noted Holden’s position to the effect that the application has not been properly made in that Ms Fox does not have the capacity to pursue this matter. Whilst it is not necessary that I determine this issue, I think it most likely that in these circumstances Ms Fox is able to act on behalf of Mr Harris. Secondly, Ms Fox provided additional information in support of the application on 12 June 2015. This information was provided in response to advice from the FWC to the effect that she had not fully completed the application form. In this additional advice Ms Fox stated:

“Given the unusual scenario, I would like a special consideration review of his termination. I believe he should be considered as an ‘ill or injured’ employee and be protected in a similar fashion to the legislation which protects ill or injured employees.

If possible, I would like consideration of his termination under any of provision which may be appropriate.” 4

[19] To the extent that Mr Harris was dismissed on the basis that he had not provided documentation relative to the reasons for his absence or any expected return to work date, his imprisonment without a conviction being recorded against him may give rise to an arguable case. Any decision on the merits of the application would require far more extensive consideration than that which is available on the material before me. In this regard, I have considered the merits of the application to be a neutral factor relative to the extension of time issue. I have, however noted that there is no information before me that goes to when Mr Harris may be able to participate in any hearing of an application of this nature.

[20] Considerations of fairness relative to other persons in similar positions where the reasons for the delay do not establish an exceptional circumstance, do not support an extension of time.

[21] Accordingly I have concluded that the material before me does not establish that Mr Harris’ 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 (PRx569306) giving effect to this decision will be issued.

Appearances (by telephone):

S Fox on behalf of the applicant.

F Anderson representing the respondent.

Hearing (Conference) details:

2015.

Adelaide:

July 10.

 1   Form F2, para 1.4

2 [2011] FWAFB 975

 3   See Clark v Ringwood Private Hospital, (1997) 74 IR 413

 4   Additional information provided to FWC by email on 12 June 2015 12:43 PM, paras 8 and 9

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<Price code C, PR569305>