Shane Lidgard v Rotech Products Pty Ltd

[2016] FWC 3366

[2016] FWC 3366

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Lidgard
v
Rotech Products Pty Ltd
(U2016/1660)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 26 MAY 2016

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr Lidgard and the respondent ended on 29 January 2016. Mr Lidgard lodged his application at the Fair Work Commission on 9 April 2016. Mr Lidgard’s application was lodged 50 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Lidgard. The reasons he provided in his application are set out below:

“I was shocked and cried when I was dismissed in Ron’s Office. I am 53 years old; I begged to keep my job as I have a wife and 2 kids, 10 and 6 years old to provide for. For 2 days afterwards I was devastatated from losing my job. I contacted Beyondblue (31/1/2016) and they recommended I seek immediate help from Mindspot; as the counsellor was worried about my mental health and possible self harm. I contacted Mindspot on the 31/1/2016 and completed an online Assessment (Mindspot confirmation email attached). I received an Assessment Report from Mindspot (copy attached), and started an 8 week Wellbeing Course for depression and anxiety disorders on 1/2/2016. My counsellor was concerned about my safety, and advised me not to get involved with my employer about my dismissal; as this could affect my mental health; it was more important for me to get better first. I’m still struggling to cope to this day, and knowing that I have to deal with Rotech about outstanding issues does not help my disorders. I also had to lodge a claim with Centrelink for myself and my wife (Junko is Japanese and struggles with Centrelink) which I found very difficult. When I finally started to talk about Rotech and my Dismissal to Centrelink, the employee advised me to call the Fair Work Ombudsman.

I contacted the Fair Work Ombudsman; Customer Reference Number: 528859866 about questions involving not being payed for various entitlements. Fair Work Ombudsman consultant asked me to get all my information together from the relevant award: Manufacturing and Associated Industries and Occupations Award 2010: and then try to resolve my issues through Dispute Resolution with Rotech before involving the Ombudsman. I was informed by the Ombudsman’s consultant that there was no time limit for claiming for entitlements. When I wasn’t feeling down, I would spend time looking through the relevant Awards. When I realised that I had grounds to make an application for Unfair Dismissal I contacted the Fair Work Ombudsman (7/4/2016), and was directed to the Fair Work Commission. I called the Fair Work Commission (7/4/2016); and was directed to fill out the form. The consultant informed me that I should still apply if I could fill out this section relating to question 1.4.

I’m sorry I haven’t been able to apply earlier because of my mental health problems. I would really appreciate it if the Commission takes my circumstances into account and accepts my out of time application.”

[4] I wrote to Mr Lidgard outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters within 14 days. Mr Lidgard provided a comprehensive statement with annexures in April 2016.

[5] In his response Mr Lidgard provided two additional reasons for his delay in lodgement. He advised that he endured extended periods of exposure at work to toxic fumes resulting in physical and mental health disorders and following his termination of employment he had a mental breakdown result in severe depression and anxiety. He also stated that his mental difficulties played a part in his failure to locate all relevant information in a timely manner. The medical certificate provided to me referred to a temporary exacerbation of a permanent condition incapacitating Mr Lidgard for work.

[6] I considered Mr Lidgard’s submission and issued an Order refusing his application for an extension of time and dismissed his application on 18 May 2016.

[7] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(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] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench said:

“[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.” [Endnotes not reproduced]

[9] For exceptional circumstances to arise as contemplated by s394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s394 (3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[10] I considered the various criteria to which my attention is directed by s.394 (3) of the Act.

reason for the delay-s.394(3)(a)

[11] The reasons Mr Lidgard provided for his delay in lodgement related to his mental incapacity, shock, anxiety and depression.

[12] While sympathetic to these circumstances I was not persuaded that Mr Lidgard’s difficulties were out of the ordinary, unusual or uncommon and I considered that he took an unreasonably long period to lodge.

whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)

[13] Mr Lidgard became aware of the end of his relationship with the respondent on 29 January 2016.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[14] Mr Lidgard disputed his dismissal by lodging this application.

prejudice to the employer-s.394(3)(d)

[15] I was satisfied that there would be no greater prejudice to the respondent caused by Mr Lidgard’s application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[16] Merit was a neutral issue in my consideration of this application.

fairness as between as to Mr Lidgard and other persons in a similar position-S.394(3)(f)

[17] There was no issue of fairness in relation to any other person in a similar position.

[18] Having considered all of the matters to which my attention is directed by the Act I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. Mr Lidgard’s delay of 50 days was an extensive one. Mr Lidgard’s circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

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