Shaun Mason v Wirrillah Partnership

[2014] FWC 5596

[2014] FWC 5596

The attached document replaces the document previously issued with the above code on 20 August 2014.

Paragraphs [5] and [6] have been removed from the decision as they are not relevant to the outcome.

Associate to Senior Deputy President Drake

21 August 2014

[2014] FWC 5596

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shaun Mason
v
Wirrillah Partnership
(U2014/6852)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 20 AUGUST 2014

Application for relief from unfair dismissal.

[1] Mr Mason lodged his application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (the Act) on 28 April 2014.

[2] Mr Mason's mother, who represented him in these proceedings, submitted that he first became aware of the termination of his employment on 7 March 2014 when he was told of it by a friend. Around 6 April 2014 Mr Mason received a message on Facebook from the respondent advising him that it was packing up his gear. On his return to the premises of the respondent on 15 April 2014 Mr Mason found a letter from his employer, directed to him, dated 25 February 2014 stating that his employment had been terminated as a result of the drought.

[3] For the purpose of considering Mr Mason's application for an extension of time for lodgement I have treated the date of termination of employment as 7 March 2014. The respondent based its submission on the same date of termination of employment.

[4] The respondent submitted that it is a small business employer; that Mr Mason was employed pursuant to the Pastoral Employees Award 2010; that it advised Mr Mason verbally that his position was redundant; that it confirmed that position in writing in late February 2014; that there was no dismissal; and that Mr Mason's position was genuinely redundant. It opposed the extension of time for lodgement

[5] A recent Full Bench 1 of the Fair Work Commission (the Commission) discussed the principles applicable to appeals from unfair dismissal applications as follows:

“[11] In unfair dismissal matters, permission to appeal can be granted only if the Commission considers that it is in the public interest to do so: s.400(1) of the Act. The way in which the public interest may be attracted has been described as follows:

“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.”

[12] The decision under appeal is a discretionary one. Such a decision can be successfully challenged on appeal only if it is shown, for instance, that the discretion was not exercised correctly. It is not open to an appeal bench to substitute its view on the matters that fell for determination before the Commissioner in the absence of error of an appealable nature in the decision at first instance. As the High Court said in House v The King:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”” [Endnotes not reproduced]

[6] This is the approach I have applied.

[7] The relevant legislative framework for the exercise of the 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 s.394 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 s.394(3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[10] No explanation has been provided for Mr Mason's delay in seeking a remedy after he became aware of his termination of employment. There was no impediment to his lodging an application from that date onwards.

[11] He took no steps to confirm the advice of his friend that his employment had been terminated or lodge an application in the Commission. According to his application Mr Mason attended the respondent’s premises in April to pack his gear.

[12] Mr Mason submitted that he was not in a position to contest the termination of his employment because he is unable to contact the respondent. I am not in a position to resolve that issue. It was therefore a neutral consideration in my determination.

[13] There was no prejudice to the respondent. This was a neutral consideration in my determination.

[14] It was not possible for me to draw a conclusion about the merits of the application. This was a neutral consideration in my determination.

[15] There was no issue of fairness between Mr Mason or any other person in a similar position.

[16] In considering Mr Mason's application I took into account the various factors to which my attention is directed by the Act when determining whether or not there are exceptional circumstances sufficient to support an exception. After a consideration of these factors I was not satisfied that exceptional circumstances existed.

SENIOR DEPUTY PRESIDENT

 1   Baker v Patrick Projects Pty Ltd 2014 FWCFB 2293 [PR549389]

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