Steven Dolphin v Monaghans (SA) Pty Ltd

[2015] FWC 6586

[2015] FWC 6586

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Dolphin
v
Monaghans (SA) Pty Ltd
(U2015/11446)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 24 SEPTEMBER 2015

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

[1] Mr Dolphin 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 Monaghans (SA) Pty Ltd (Monaghans). At a telephone conference convened on 24 September 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion.

[2] Mr Dolphin’s application was lodged on 31 August 2015. In that application Mr Dolphin advised that he became aware of the termination of his employment on 1 July 2015. Mr Dolphin provided the following explanation for the late lodgement of his application:

“Tried on many occasions to get through via telephone, as could never get some-one to talk too. Once I started at new job, HR officer Emma Henningsen at “Bargain Steel Centre” helped me with application and getting on to speak to right person. She even found it hard to get some-one to speak with. We eventually spoke with some-one and are now filling out appropriate paper work.” 1

[3] On 2 September 2015 my Associate corresponded with both Mr Dolphin and Monaghans and advised that the extension of time issue would be considered through a telephone conference on 24 September 2015. Substantial information about the extension of time issue was provided to the parties. Mr Dolphin was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 17 September 2015.

[4] Additional information was received from Mr Dolphin in which he advised that:

“Please note the following reason in to which why I require an extension of time to the date of issue for this claim:

I was unaware that there was a cut of time in which to lodge my unfair dismissal paperwork to “Fair Work Commission”
I have no access to a computer until I starting working at Bargain Steel Centre in which Emma Henningsen, HR officer at the company helped me with my inquiry.
I would try and ring but always be put on hold. As I was working g at new job 8am until 6pm I could only ring at my lunch break and only hold for 30min before I would have to get back to work.
Both Emma Henningsen and I tried to contact someone at “Fair Work Commission and “Fair Work Ombudsman” to resolve this matter. We would be put on hold or told to ring another number. Fair work Commission would advise us to speak with Fair work Ombudsman and visor versa.”

[5] The Employer’s Response to the application indicated that Monaghans opposed the extension of time and also asserted that it was a small business and that the termination of Mr Dolphin’s employment was consistent with the Small Business Fair Dismissal Code.

[6] Mr Dolphin participated in the telephone conference. Ms Lane, of Employsure sought permission to represent Monaghans. That permission was not granted, in that I was not persuaded that any of the factors specified in s.596(2) were satisfied. Accordingly, Monaghans was represented by Mr Monaghan. I note that a sound file record of this telephone conference was kept.

[7] 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.”

[8] I have concluded that the application was made some 40 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 Ltd 2 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.”

[9] Mr Dolphin has identified three reasons why his application was lodged outside of the statutory time limit. Firstly, he advised that he was unaware of the time limit until shortly before he lodged the application. In this respect his lack of awareness of that time limit cannot be taken to be an exceptional circumstance. Secondly, he advised that he did not have access to a computer for some time. Again, this cannot be regarded as an exceptional circumstance as there are numerous means by which information about employee rights can be accessed. Finally, Mr Dolphin advises that he was unable to contact anyone at the Fair Work Commission or the Fair Work Ombudsman’s office by telephone as he was continually placed on hold. It may well be the case that Mr Dolphin was placed on hold but, again, there are numerous other means by which he could have obtained further information and I am not satisfied that this explanation of the delay represents an exceptional circumstance.

[10] Mr Dolphin became aware of the termination of his employment on the day upon which it took effect.

[11] I am not satisfied that, apart from the late lodgement of this application, Mr Dolphin took other action to dispute the termination of his employment.

[12] I do not think that an extension of time of this magnitude would prejudice the Respondent but I have not founded my decision in this matter on that premise.

[13] In terms of the merits of the application, I have noted that Mr Dolphin advises that he was dismissed because Monaghans alleged that he had smoked marijuana at work but that evidence of this did not exist. I have noted the Monaghans’ position that, consistent with the Small Business Fair Dismissal Code, it had an appropriate basis upon which to conclude that Mr Dolphin’s behaviour was serious misconduct. However, the information before me does not enable a definite conclusion relative to the merits of the application. Consequently, I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

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

[15] Accordingly I have concluded that the material before me does not establish that Mr Dolphin’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application must be dismissed accordingly and an Order (PR572235) giving effect to this decision will be issued.

Appearances (by telephone):

S Dolphin on his own behalf.

P Monahan for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

September 24.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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