Simon Mabil v Rew Bros Pty Ltd T/A Rew Bros Cleaning Pty Ltd

[2017] FWC 6278

[2017] FWC 6278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Mabil
v
Rew Bros Pty Ltd T/A Rew Bros Cleaning Pty Ltd
(U2017/11205)

COMMISSIONER PLATT ADELAIDE, 28 NOVEMBER 2017

Application for relief from unfair dismissal – extension of time – application granted.

Summary

[1] Mr Simon Mabil has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Rew Bros Pty Ltd T/A Rew Bros Cleaning Pty Ltd (RBC) which his form F2 Unfair Dismissal Application advised took effect on 18 August 2017.

[2] The application was lodged on 19 October 2017.

[3] Mr Mabil’s application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

“I have filled the wrong form (General Protections application involving dismissal) which is not correlated with my case. I did not know the different (sic) between unfair dismissal application and the General Protections application involving dismissal. I thought the General Protections application involving dismissal is including Unfair dismissal application. Matter number is 2017/5017. I send an email to Fair Work Commission on 21 August 2017. The FWC team member send me Form f2 and Form f8. I just opened form f8 and filled the application online. I came to realize after the resolution of the matter.”

[4] On 24 October 2017, RBC lodged a form F3 Employer Response which indicated that the dismissal occurred on 18 August 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time and that Mr Mabil “has already had this matter reconciled as an unlawful dissmissal (sic) case”.

[5] On 9 November 2017, my Associate corresponded with Mr Mabil and RBC and advised that the extension of time issue would be considered at a telephone conference on 28 November 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Mabil was directed to provide a statement concerning the extension of time and any documents to be relied upon by 17 November 2017. RBC was invited to file any material in reply by 23 November 2017.

[6] Mr Mabil provided a written submission which is summarised as follows:

•  On 21 August 2017, he sent an email to the Fair Work Commission, the Commission sent through a form F2 and form F8. He opened the form F8 and filed the application online on 8 September 2017 (matter number C2017/5017).

•  At the conciliation, he became aware that he had filed the incorrect form when the conciliator asked him to answer question 3.2, s.351 of the general protections application involving dismissal. His dismissal was not because of discrimination.

•  He believed that the general protections application involving dismissal would cover the unfair dismissal matter.

•  He filed the incorrect form (general protections application involving dismissal) which does not correlate with his case.

•  He was unaware of the difference between an unfair dismissal application and a general protections application involving dismissal.

•  In relation to the merits, he was called to the office on 18 August 2017 and asked to sign a written warning letter otherwise he would be fired. He refused to sign the written warning letter as he believed that he had done nothing wrong. He was subsequently dismissed.

[7] Mr Mabil also provided the following documents:

•  Employment Separation Certificate

•  Payslip for Mr Mabil for the pay period 13 August 2017 to 19 August 2017

[8] RBC relied on the documents it provided for the conciliation conference which include:

•  Handwritten notes titled ‘Last Tool Box Meeting Tuesday 25/7/17’

•  A bundle of emails to and from Simon from 16 – 18 August 2017

•  The form F3 Employer Response

•  The form F8A Employer Response

•  A statement of Chris Rew

•  A statement of Brandon O’Leary

•  A statement of Steven Burns

•  4x Payslips

•  Employment Separation Certificate

[9] A hearing was conducted by way of telephone conference on 28 November 2017. A sound file record of the telephone conference was kept. Mr Mabil represented himself and Mr Phil Rew represented RBC.

[10] Mr Mabil relied on the material filed and contended he filed the unfair dismissal application after he became aware that the general protections application was not the appropriate vehicle.

[11] RBC relied on the documents filed and further contended that the merits weighed in favour of the respondent.

Matter C2017/5017

[12] On 8 September 2017, Mr Mabil lodged a form F8 General Protections Application Involving Dismissal.

[13] On 18 September 2017, RBC lodged a form F8A Employer Response. The matter was conciliated by a Conciliator of the Commission on 18 October 2017. The Commission’s electronic files records the dispute as resolved (non-monetary) on 18 October 2017, this characterisation applies to matters where the claim is withdrawn. The matter was closed on 19 October 2017.

[14] On 19 October 2017, Mr Mabil emailed the Commission the following:

“I am writing to you regarding of Unfair Dismissal application form. I filled General Protections Application involving Dismissal on 08/09/2017 and FWC matter number is C2017/5017. Its appeared that I have filled wrong form, which is not help in my case. I want to fill the Unfair dismissal form and it stated that in the form that I should be within 21 days of dismissal. I my not allowed to filled?” (sic)

[15] The electronic file records a telephone conversation on 19 October 2017 between the Commission and Mr Mabil and notes that it was explained to Mr Mabil that he may lodge an Unfair Dismissal Application despite the application being late.

Consideration

[16] 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.”

[17] This unfair dismissal application by Mr Mabil was made 41 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[18] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ 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.”

[19] I make the following findings.

[20] I find that Mr Mabil disputed the basis of his dismissal 21 days after the dismissal took effect by lodging a general protections application. Mr Mabil attended a general protections conciliation conference on 18 September 2017 to further pursue his claim.

[21] I accept that Mr Mabil first became aware of the difficulties in pursing this matter as a general protections claim at the general protections conciliation conference.

[22] Mr Mabil lodged this unfair dismissal claim the day following the general protections conciliation conference.

[23] I accept that Mr Mabil is unfamiliar with this jurisdiction and did not know the difference between a general protections and unfair dismissal claim at the time the original application was filed.

[24] I find that Mr Mabil took reasonable steps to dispute the dismissal.

[25] The applicant needs to provide a credible explanation for the entire period of the delay, 2 and has done so.

[26] The delay in this matter is considerable, however whilst I accept it presents prejudice to RBC, it is not determinative in this matter.

[27] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.

[28] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[29] For the reasons I have set out above, I am satisfied that Mr Mabil’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and directions will be issued for the filing of material in relation to the merits. An Order³ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr S.Mabil the Applicant.

Mr P.Rew on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

November 28.

1 [2011] FWAFB 975

 2   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

3 PR598133

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