Tholka Wijesiriwardena v The Golden Key Pty Ltd ATF the Golden Key Unit Trust T/A the Keystone Restaurant

[2020] FWC 3052

[2020] FWC 3052

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tholka Wijesiriwardena
v
The Golden Key Pty Ltd ATF The Golden Key Unit Trust T/A The Keystone Restaurant
(U2020/7293)

COMMISSIONER PLATT ADELAIDE, 11 JUNE 2020

Unfair dismissal application – refusal of application to extend time – application dismissed.

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether I should exercise my discretion to allow Mr Tholka Mudalige Don Rumesh Wijesiriwardena a further period for his unfair dismissal application (Application) to be made against The Golden Key Pty Ltd ATF The Golden Key Unit Trust T/A The Keystone Restaurant (Keystone Restaurant).

Background

[3] Mr Wijesiriwardena has lodged an application pursuant to s.394 the Act in relation to the termination of his employment with the Keystone Restaurant which he advised took effect on 1 April 2020.

[4] The application was lodged on 26 May 2020.

[5] The application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

“The reason as to why the applicant is filing this application out of time is because of the following:

1. The applicant was the primary income earner of his family and as a result of the unfair dismissal, the Applicant’s wife was required to take on extra shift work in her position as a Nurse, which simultaneously happened through the COVID-19 pandemic.

2. The Applicant was required to be the full-time carer of his two children who are 5 and 3 years of ages, respectively.

3. Due to COVID-19, the Applicant was required to home school his children whilst applying for new jobs. The Applicant did not have the time to seek legal advice and or lodge an application with Fair Work Commission.

4. Kindly see supporting Affidavit dated 26 May 2020.”

[6] On 2 June 2020, my Associate corresponded with Mr Wijesiriwardena and Keystone Restaurant and advised that the extension of time issue would be considered at a telephone conference on 10 June 2020. 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 Wijesiriwardena was directed to provide a statement concerning the extension of time and any documents to be relied upon by 4 June 2020. Keystone Restaurant was invited to file any material in reply prior to the hearing.

[7] Mr Wijesiriwardena provided a written affidavit dated 4 June 2020 and attachments which is summarised as follows:

•  He was dismissed on 1 April 2020.

•  He contended that the dismissal was a disproportionate response to his conduct, that he was denied procedural fairness and the merits weighed in favour of an extension of time.

•  He had little experience or knowledge about the Fair Work ‘avenue’ until he engaged his lawyer to represent him on 26 May 2020.

•  His wife was a nurse and he was responsible for the care of their children as she was working long hours during the COVID-19 Pandemic. As a result, he could not seek legal advice.

•  Between 1 April and 25 May 2020, he disputed the dismissal in his communications with the Keystone Restaurant and requested that he be registered for JobKeeper so that he could keep his job. Copies of a number of text messages were provided.

•  His application was lodged immediately after he obtained legal advice

[8] The Keystone Restaurant did not provide a submission.

Hearing

[9] A hearing was conducted by way of telephone conference on 10 June 2020. A sound file record of the telephone conference was kept. Mr Wijesiriwardena was represented by Mr Patrick Said (of counsel) with permission being granted pursuant to s.596 of the Act. The Keystone Restaurant was represented by Mr Farid Masoud and Mr Pan Troung.

[10] Mr Said reiterated the written submissions and drew my attention to the decision in Dundas-Taylor v The Cuisine Group Pty Ltd. 3 Mr Said provided a copy of a text message between the Applicant and Mr Troung on 19 May 2020. Whilst paragraphs [23] to [26] of this decision provide useful guidance on the treatment of the merit criterion in extension of time applications, the factual circumstances were vastly different.

[11] The Respondent confirmed that the dismissal occurred on 1 April 2020 but did not make any further submission.

Applicable Law

[12] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:

“(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.”

[13] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.⁴

[14] 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 Ltd⁵ 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.”

Consideration

[15] This unfair dismissal application by Mr Wijesiriwardena was made 34 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[16] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). 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.

Paragraph 394(3)(a) - reason for the delay

[17] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period. 6 In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,7 the Full Bench explained the correct approach by reference to the following example:

“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[18] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters: 8

“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

…

[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”

[19] As to acceptable explanations for a delay or part thereof, ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance. 9

[20] Mr Wijesiriwardena‘s explanation for the delay appears to be his lack of understanding of the unfair dismissal legislation including its time limits, together with his family responsibilities which he asserts prevented him from obtaining legal advice. Mr Wijesiriwardena did not detail precisely how his family responsibilities prevented him from seeking legal advice for 34 days. The fact that he contends he was ignorant of the unfair dismissal jurisdiction including its time limits is not an exceptional circumstance of itself. When I consider the number of communications that Mr Wijesiriwardena was able to make with his ex-employer in his circumstances, and the enquiries he had made in respect of the operation of the JobKeeper scheme, I am not persuaded that Mr Wijesiriwardena did not have an opportunity to seek legal advice or file his application at a much earlier time.

[21] Mr Wijesiriwardena has not explained the delay. This factor weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[22] Mr Wijesiriwardena was aware of the dismissal on the date that it occurred.

[23] This factor weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

[24] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 10

[25] Mr Wijesiriwardena contended that his text message exchanges with Mr Masoud and Mr Troung represented an attempt to dispute the dismissal.

[26] A review of these messages reveals an unsuccessful attempt by Mr Wijesiriwardena to convince the Keystone Restaurant to contrive a situation whereby he would be entitled to a JobKeeper payment. The text message to Mr Troung, submitted at the hearing, contained a statement by Mr Wijesiriwardena that he had no intention of [re]joining the Keystone Restaurant at all.

[27] In my view these messages cannot be properly considered as disputing the dismissal. It appears that Mr Wijesiriwardena was simply seeking to improve his finances at the expense of the Commonwealth Government.

[28] Mr Wijesiriwardena was also said to have had conversations with the Keystone Restaurant but no evidence of the content of these conversations was submitted.

[29] In my view Mr Wijesiriwardena did not take any action to contest the dismissal other than the lodgement of this application. This is a neutral consideration.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

[30] Prejudice to the employer will weigh against granting an extension of time. 11 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.12

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

Paragraph 394(3)(e) - merits of the application

[32] In terms of the merits of the application, there is a contest with some evidence that Mr Wijesiriwardena refused a lawful direction (as can be seen from the text messages) and the Applicant’s contentions that the dismissal was procedurally flawed and a disproportionate response. There is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

[33] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd¹³ considered this criterion and said:

“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[34] I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.

Conclusion

[35] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded that there are exceptional circumstances warranting the granting of an extension of time and, accordingly, I decline to exercise my discretion to so order. In reaching this conclusion, I am particularly (but not solely) influenced by the fact that, in my evaluative assessment, the Applicant did not have an acceptable explanation for the delay.

[36] Accordingly, the application for an extension of time is refused. The jurisdictional objection is upheld and the substantive Application for an unfair dismissal remedy is dismissed.

[37] An Order¹⁴ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr P Said of counsel on behalf of the Applicant.

Mr F Masoud and Mr P Troung on behalf of the Respondent.

Hearing (Conference) details:

2020.
Adelaide:
June 10.

Printed by authority of the Commonwealth Government Printer

<PR720099>

 1   Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)

 2 Section 394(3) of the Act

 3   [2011] FWAFB 6008

4 It was originally contended that the dismissal took place on 31 March 2020

5 [2011] FWAFB 975

 6   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]

 7   [2016] FWCFB 349

 8   [2018] FWCFB 3288 at [35]-[45]

 9   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]

 10   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 11   Ibid

 12   Ibid

13 [2016] FWCFB 6963

14 PR720100