Shaun Curtis v National Fleet Administrative Services Pty Ltd T/A Kings Transport

[2014] FWC 5490

[2014] FWC 5490

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shaun Curtis
v
National Fleet Administrative Services Pty Ltd T/A Kings Transport
(U2014/11271)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 13 AUGUST 2014

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

[1] On 29 July 2014 WestSide Lawyers (WestSide Lawyers) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), on behalf of its client, Mr Curtis, in relation to the termination of his employment with National Fleet Administrative Services Pty Ltd T/A Kings Transport (Kings Transport).

[2] That application advised that Mr Curtis’ dismissal took effect on 4 July 2014. It advised that the Fair Work Commission (FWC) should take into account the following information in considering whether to accept the application out of time.

“1. The applicant contacted the Fair Work Commission on Monday 7 July 2014, being the first business day after his dismissal;

2. The Fair Work Commission referred the applicant to WestSide Lawyers for legal advice.

3. The applicant telephoned WestSide Lawyers and was referred to the Southern Community Justice Centre which was closer to the applicant’s address.

4. The applicant was advised either by WestSide Lawyers or Fair Work Commission that he had 21 days to lodge a claim.

5. The applicant made an appointment with the Southern Community Justice Centre.

6. At that appointment the applicant was advised to contact Safework SA in relation to the incident rather than to lodge an unfair dismissal claim.

7. The applicant contacted Safework SA. The applicant was referred back to the Fair Work jurisdiction.

8. The applicant made a further appointment with Southern Community Justice Centre for further advice.

9. The applicant then contacted WestSide Lawyers and made an appointment for the first available time, being at the after-hours advice service on Thursday 24 July 2014.

10. At this appointment, the applicant was advised on the claim by a volunteer (pro-bono) solicitor and told that he was already out of time to lodge an application, however, WestSide Lawyers would review his file and telephone him.

11. WestSide Lawyers reviewed the applicant’s file and contacted the applicant on Monday 28 July 2014 and advised the applicant that the time limit had appeared to lapse on Friday 25 July 2014.

12. The delay of two business days in lodging the claim cannot have caused significant prejudice to the employer.” 1

[3] The application was referred to me for consideration. On 30 July 2014 my Associate advised the respondent of the application and advised both parties that it appeared that the application had been lodged outside of the legislated 21 day time frame. The parties were provided with substantial background information relative to the application and extension of time issue. This advice informed the parties that the extension of time issue would be considered through a telephone conference on 11 August 2014. Mr Curtis was required to provide a witness statement and a copy of any document relied upon, by 4 August 2014.

[4] The Employer’s Response (Form F3) to the application confirmed that Kings Transport objected to an extension of time.

[5] Mr Curtis provided material to the Fair Work Commission (FWC) and to Kings Transport. This consisted of witness statements made out by Mr Curtis and by Ms de Almeida of WestSide.

[6] The extension of time issue was considered through a telephone conference on 11 August 2014. A sound file record of this conference was kept. Mr Curtis participated in this conference but was represented by Mr Bayne, of counsel. Kings Transport was represented by its Operations Manager-Contracts, Mr Collett and by Ms Boyce and Mr McCormack.

[7] I have taken all of the material before me in considering the extension of time issue.

[8] The information my Associate provided to the parties included a copy of s.394 and advised of the factors I am required to take into account in considering this matter.

[9] Section 394 states:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[10] In terms of s.394(2) I am satisfied that Mr Curtis received advice of the termination of his employment on 4 July 2014. His affidavit confirmed this. The application was lodged on 29 July 2014. Consequently the application was lodged four days outside of the 21 day time limit.

[11] Mr Curtis advised that he spoke with the Fair Work Commission (FWC) on 7 July 2014 and was referred to WestSide Lawyers. He subsequently spoke to WestSide Lawyers that same day and was advised that, as a possible alternative, he could contact another community legal service closer to his home. He also did that on 7 July 2014. In one of those discussions, Mr Curtis agrees that he was made aware of the 21 day time limit. He met with Southern Community Justice Centre (SCJC) on 8 July 2014. Mr Curtis advised that, in that meeting he confirmed his challenge to the basis for his dismissal and was then referred to Safework SA. He contacted Safework SA on 8 July 2014 who suggested that his concerns were more properly considered by the FWC. Mr Curtis then contacted Westside Lawyers again before arranging another appointment at Southern Community Justice Centre on 23 July 2014. Mr Curtis advised that, at that appointment he was told that he could not be further assisted. He then arranged to see WestSide Lawyers on 24 July 2014. At that meeting he was told time for lodgement of the application had passed but he may still be able to pursue the matter. He advised that WestSide Lawyers told him they would review his file and call him the following day. Mr Curtis advised that he did not receive a telephone call until 28 July 2014 and that he then instructed Westside Lawyers to lodge his application. The application was lodged on the following day. A further factor relied upon by Mr Curtis was his understanding that he needed to have a lawyer lodge the application on his behalf. Mr Curtis advised that:

“I did not lodge a claim as I waiting for the call, and I thought the claim was out of time. Further, I did not know that I could lodge the claim myself and thought that a lawyer had to do it.” 2

[12] Ms de Almeida’s affidavit explained the process followed by WestSide Lawyers and her review of Mr Curtis’ file on 28 July 2014 where she concluded that the advice provided to him by WestSide Lawyers on 24 July 2014 to the effect that the 21 day time period had already elapsed was incorrect. She consequently contacted Mr Curtis and obtained instructions to lodge the application.

[13] I have considered the actions that Mr Curtis took after the termination of his employment but I consider that the delay was due to his own actions rather than a failing within WestSide Lawyers. Mr Curtis confirmed he was aware of the 21 day time limit within three days of the termination of his employment. He bears the responsibility to act within that time and cannot now say that the delay is properly characterised as representative error. It is appropriate that I note that representative error is not, of itself, a basis for an extension of time. Appropriate account must be taken of the overall circumstances and the conduct of the applicant. 3 Consequently, the actions taken by Mr Curtis are central to the question of whether there is an acceptable reason for the delay. In this respect I have noted that Mr Curtis could have issued an instruction to pursue the matter on numerous occasions before 28 July 2014. Even if I accept that Mr Curtis was referred to Safework SA in error, as of 8 July he was aware of both the time limit for this application and the need to pursue his grievance in the FWC. He was also aware that he could progress the matter through WestSide Lawyers. Instead, he chose to accept an appointment with SCJC for a time which was very close to the expiry of the 21 day time limit. To the extent that he asserts that the delay was because of the erroneous advice provided to him or his unawareness of his own capacity to make an application within the 21 day time limit, I do not consider this to represent an acceptable reason for the delay or an exceptional circumstance. Clearly, Mr Curtis should have known on 24 July 2014 that the 21 day time limit had not expired and should have either raised this matter with WestSide Lawyers or have acted to lodge the application.

[14] I am not satisfied that Mr Curtis has established to me an acceptable reason for the delay such that it assists him in establishing the necessary exceptional circumstances situation.

[15] In terms of the actions taken by Mr Curtis to dispute his dismissal I accept that he sought to challenge that dismissal through contacting the two community legal centres and Safework SA. This is a factor which mitigates in favour of an extension of time.

[16] I am not satisfied that the granting of an extension of time would prejudice the respondent in this matter but this, of itself, cannot represent a basis for an extension of time.

[17] In terms of the merits of the application, the information before me indicates that Mr Curtis is unlikely to be successful in challenging the termination of his employment. Nevertheless, because this information has not been tested and is disputed, I have regarded the merits of his application as a neutral factor in relation to the extension of time issue.

[18] Considerations of fairness relative to persons in similar circumstances to Mr Curtis do not support an extension of time.

Conclusion

[19] In Nulty v Blue Star Group Pty Ltd 4 a Full Bench considered the concept of “exceptional circumstances” in the following terms:

“[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[20] I have adopted this approach. Having considered all of the circumstances, I am not satisfied that Mr Curtis’ circumstances support an extension of time. I am unable to regard those circumstances as exceptional for the purposes of s.394(3). The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order (PR554192) reflecting this decision will be issued.

SENIOR DEPUTY PRESIDENT

Appearances (by telephone):

M Bayne counsel representingthe applicant.

A Collett, K Boyce and J McCormack representing the respondent.

Hearing (Conference) Details:

2014.

Adelaide:

August 11.

 1   Form F2, para 1.4

 2   Applicant’s Affidavit, para 24

 3   see for example Clark v Ringwood Private Hospital Print S5279 and Comcare v O’Hearn [1993] 119 ALR 85

 4   [2011] FWAFB 975

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<Price code C, PR554191>