Terry Dittman v Jambo Security

[2018] FWC 7517

[2018] FWC 7517

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Terry Dittman
v
Jambo Security
(C2018/6470)

COMMISSIONER PLATT ADELAIDE, 19 DECEMBER 2018

Application to deal with contraventions involving dismissal – extension of time – application dismissed.

Summary

[1] Mr Terry Dittman has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment with Jambo Security (Jambo) ceased on 25 August 2018 in contravention of the general protections provisions of the Act.

[2] This application was lodged on 16 November 2018.

[3] The application identified that it was made beyond the 21 days from the date of dismissal and advised it was “Due to Solicitor off sick”. The application also contends that Mr Dittman resigned. This decision only deals with the extension of time issue.

[4] On 20 November 2018 the Commission corresponded with the parties and advised that it appeared that the application had not been lodged within the 21 day statutory time limit, and sought consent for the conduct of a Conciliation conference. Consent was not received and the matter was allocated to my Chambers.

[5] On 28 November 2018, the parties were sent a notice that the extension of time issue was listed for a Hearing via telephone at 1:00pm on 10 December 2018 and provided information about the matters that would be considered by the Commission. Mr Dittman was advised that his material in support of his extension of time application was to be provided by 4:00pm on 4 December 2018 and any submission by the Respondent by 4:00pm on 7 December 2018.

[6] At 11:04am on 4 December 2018 my Associate emailed a reminder to Mr Dittman that his material was due by 4:00pm that day.

[7] At 1:40pm on 4 December 2018 Mr Dittman telephoned my Associate and advised he could not file his material due to him being in the country and not having a car. Mr Dittman sought information about what he needed to lodge and was advised he could file his material by email. Mr Dittman indicated he would review the Directions and provide the material.

[8] No material was received from Mr Dittman by 4:00pm on 4 December 2018 and the matter was listed for a Non-compliance with Directions Hearing at 12:00pm on 5 December 2018.

[9] Mr Dittman and the Respondent attended the Directions Hearing. Neither party was represented. Mr Dittman gave a commitment that he would file his material (including a statement from his solicitor, by 4:00pm that day).

[10] Mr Dittman did not file any material or contact my Chambers.

[11] The application to dismiss was listed for 10:00am on Monday 10 December 2018. The Respondent attended, but due to technical difficulties the Conference was abandoned. My Associate sent a text message to Mr Dittman advising him to contact her urgently regarding his non-attendance. The dismissal application was adjourned until 1:00pm on 10 December 2018 (the original listing) in case the technical issues had prevented Mr Dittman from attending. Mr Dittman was informed of the adjournment by email and text message.

[12] Mr Dittman did not attend the Hearing at 1:00pm on 10 December 2018. Mr Mohamed (Director) attended on behalf of the Respondent and sought that the application be dismissed as a result of the failure of Mr Dittman to file any material or attend the Hearings.

[13] Mr Dittman has not filed any material in support of his application for an extension of time. There is no evidence to support his contention that his solicitor was sick, how that impacted on the lodgement of the application, or any steps taken by Mr Dittman to address this issue.

[14] Jambo has also not provided any written submissions but seeks that the application be dismissed.

Applicable Law

[15] Section 366 of the Act relevantly states:

“Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[16] I have considered the provisions of s.366(2) 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 every day 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.”

Consideration

[17] Jambo has made an application to dismiss Mr Dittman’s application pursuant to s.399A of the Act, however this application is restricted to claims of unfair dismissal.

[18] I have determined to deal with the extension of time application based on the material before me.

[19] This general protections application by Mr Dittman was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[20] Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[21] The only reason for delay contained in the application is that Mr Dittman’s solicitor was off sick. No supporting evidence has been provided.

Any action taken by the person to dispute the dismissal

[22] No evidence of any other action to dispute the dismissal has been provided.

Prejudice to the employer (including prejudice caused by the delay)

[23] There is no submission that the granting of an extension of time represents prejudice to Jambo.

The merits of the application

[24] 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.

Fairness as between the person and other persons in a similar position

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

Conclusion

[1] I have considered all the material before me and I am not satisfied that the Mr Dittman’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order 2 reflecting this decision will be issued.

COMMISSIONER

Appearances:

No appearance of Mr Dittman.

S Mohamed on behalf of the Respondent.

Hearing details:

2018.

Adelaide.

5 & 10 December.

Printed by authority of the Commonwealth Government Printer

<PR703048>

1 [2011] FWAFB 975.

 2   PR703049.