Simon Hill v One World Led Pty Ltd

[2016] FWC 2625

[2016] FWC 2625

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Hill
v
One World LED Pty Ltd
(U2016/5909)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 26 APRIL 2016

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

[1] Mr Hill has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with One World LED. In a telephone conference convened on 4 April 2016 I advised that I had concluded that the application was lodged outside of the statutory time limit and that I was not prepared to extend that time limit. This decision sets out the basis for my conclusions about those matters.

[2] Mr Hill lodged his application on 4 April 2016. In his application, Mr Hill asserted that he had lodged the application within time. Nevertheless he provided the following advice:

“This form was completed & lodged on the 16th Feb 2016 after receiving no reply I contacted the Commissions who informed me that it had not been received.” 1

[3] On 6 April 2016 my Associate corresponded with both Mr Hill and One World LED and advised that the extension of time issue would be considered through a telephone conference on 26 April 2016. Substantial information about the extension of time issue was provided to the parties. Mr Hill was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 18 April 2016.

[4] Mr Hill provided two medical advices in the following terms:

“This is to state that I have seen Simon as a patient for many years.

I am able to state that in my medical opinion the loss of employment from One World LED on 29/1/2016 at 5 pm, where Simon was working 12-16 hours a day for two years, and which he states was ‘his life’ to the detriment of his personal relationships was a significant factor in his mental health decline.” 2

[5] The second was a letter from Mr Hill’s Clinical Psychologist which stated:

“I am writing a letter of support for Simon Hill in his application to address his unfair dismissal. Mr Hill was referred to me on the 23rd February 2016 by Dr Alison George for psychological therapy to address depression and grief in the context of a relationship breakdown and associated difficulties related to this event.

I have seen Simon hill on 08/03/2016, 23/03/2016 and 6/04/2016. The initial session involved assessment of Simon’s current symptoms of sleep disturbance, lowered mood and agitation. It is evident from discussion with Simon that the impact of his dismissal from work in January without being able to address any concerns and without any warning, severely impacted on his mood and ability to cope with the many stressors he is facing in his life. He has engaged well in therapy and is eager to address the difficulties he is facing however his sudden loss of a job impacts on his ability to move forward psychologically in a positive way.

….” 3

[6] The Employer’s Response to the application confirmed that One World LED opposed the extension of time and argued that it was a small business and that the termination of Mr Hill’s employment was a genuine redundancy. One World LED asserted that Mr Hill incorrectly recorded its name in the application and that the application was entirely without merit and had been lodged simply to create a nuisance.

[7] Mr Hill participated in the telephone conference. Mr Rafizadeh appeared for One World LED. I note that a sound file record of this telephone conference was kept. At the conference I utilised the discretion in s.596 of the FW Act to amend the application so as to correctly identify One World LED.

[8] Section 394 relevantly 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.”

[9] There is no dispute that the termination of Mr Hill’s employment took effect on 29 January 2016. Consequently, the application was made some 45 days outside of the 21 day time limit and 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 Ltd⁴ 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] Mr Hill accepts that his application was lodged late but he advised that he only became aware of the termination of his employment on 12 February 2016 because he was in jail between 29 January 2016 and 12 February 2016. He advised that his then partner lodged an application on his behalf electronically on 16 February 2016 but that he did not have a copy of that application and was unable to talk with his then partner about it because of a legal constraint on him. Mr Hill advised that between 16 February 2016 and 4 April 2016, he made numerous attempts to talk with Fair Work Commission personnel about this application, before he lodged this application on 4 April 2016. Additionally, Mr Hill advised that his mental health over this time was such that it contributed to the delay. Mr Hill agrees that, on 14 February 2016 he posted information on his Facebook site to the effect that he had gained alternative employment. He advised that this was an unpaid job which he did not take up for some time and asserted that it reflected advice provided to him by correctional facility personnel.

[11] I have noted that there is a significant dispute about the extent that Mr Hill was aware of the termination of his employment. Firstly, Mr Rafizadeh advised that he had a telephone discussion with Mr Hill about the termination of his employment on 30 January 2016. Further, that Mr Hill came into the One World LED Office on 1 February 2016 to collect his Employment Separation Certificate.

[12] I prefer the advice provided to me by Mr Rafizadeh in this respect. Irrespective of this, I am not satisfied that Mr Hill has established a credible reason for the late lodgement of the application. Even if I accepted that Mr Hill was in jail until 12 February 2016 and that he understood that an application had been lodged on his behalf on 16 February 2016, I am not satisfied that he has adequately explained what steps he took to pursue that application until he decided to lodge this application on 4 April 2016. I accept that Mr Hill is likely to have had mental health issues over this time but his own assertions do not enable me to conclude that his health prevented him from pursuing this application at an earlier time.

[13] Consequently, I am not satisfied that Mr Hill has established a credible reason for the delay or that his reasons for the delay can be regarded as meeting the exceptional circumstance requirements necessary for an extension of time.

[14] In terms of s.394(3)(b), I think it most likely that Mr Hill was aware that the termination of his employment took effect on 29 January 2016. However, even if I accepted that Mr Hill did not become aware of the termination of his employment until 12 February 2016 when he advises that he was released from jail, the long delay in this matter is not satisfactorily explained.

[15] I am not satisfied that Mr Hill took any other action to challenge the termination of his employment. In this respect I have noted that Mr Hill advises that he made numerous attempts to contact One World LED, but, as I have already indicated I prefer the One World LED evidence about that contact.

[16] I consider that, given the downturn in trade which led to the termination of Mr Hill’s employment, an extension of time of this magnitude would prejudice One World LED. Notwithstanding this, I have not founded my decision in this matter on this issue.

[17] In terms of the merits of the application, the information before me does not enable a definite conclusion. Consequently, I have regarded the merits of the application as a neutral factor relative to the extension of time.

[18] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[19] I have concluded that the material before me does not establish that Mr Hill’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application has been dismissed on this basis and an Order (PR579472) giving effect to this decision will be issued.

Appearances:

S Hill on his own behalf.

S Rafizadeh for the Respondent.

Hearing details:

2016.

Adelaide:

April 26.

 1 F2 Application form para 1.4

 2   Medical certificate provided by applicant

 3   Letter from S Floreani, Clinical Psychologist, dated 11 April 2016

4 [2011] FWAFB 975

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<Price code C, PR579471>