Thomas v Breezway Australia Pty Ltd

[2016] FWC 2469

[2016] FWC 2469

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Robert Thomas
v
Breezway Australia Pty Ltd
(U2016/5011)
SENIOR DEPUTY PRESIDENT DRAKE	SYDNEY, 18 APRIL 2016
Application for relief from unfair dismissal.

[1]        This decision arises from an application for an extension of time for lodgement of an

application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the

Act).

[2]        The relationship between Mr Thomas and the respondent ended on 3 November 2015.

Mr Thomas lodged his application at the Fair Work Commission (the Commission) on

2 March 2016. Mr Thomas’s application was lodged 70 days outside the statutory time limit.

[3]        When determining this application I had before me the Application for Unfair

Dismissal lodged by Mr Thomas. In that application Mr Thomas provided the following

explanation for his delay in lodgement:

“1.	Because in both cases the employer wrote to my home address even though
aware I was being held in custody;
2.	I wrote to my union twice which took time for their replies;
3.	Wrote to fair work without this application;
4.	Although contacted union no action was taken by them as they said I had no
case which I strongly disagree.”

[4]        I wrote to Mr Thomas on 15 March 2016 outlining the matters I was required to

consider by the Act and asked him to provide a statement addressing these matters within 14

days. Mr Thomas provided a comprehensive statement on 17 March 2016. His response is set

out below:

“…I would ask that it be taken into account that in my view I was on one month’s

th

leave at the time of termination, that Breezway knew on the 28 of October that I was

th

arrested and being held in custody yet the letters they say they sent on the 28 of

nd

October 2015 and 2 of November 2015 were sent to my home address. I also ask that

[2016] FWC 2469

postage and processing be taken into account with letter sent to the general manager of

Breezway, the AMWU on two occasions and to Fair Work Qld once, Victoria twice

and now to Sydney. Please also take into account that I was and still am being held in

custody so had no way of knowing the facts or in a position to reply for some time. I

would also ask you to understand the great difficulty with no money to call or write to

anybody or even to obtain the correct address whilst in jail. The facts are as follows, at

10:30am on 26-10-15 I called Breezway advising a medical condition and be taking

one months’ leave effective immediately then on the 28-10-2015 I was arrested at the

shop 200 metres from Breezway. This was on all the news and newspapers and

detectives informed my work that day. I arrived her on the 2-11-2015 and after two

weeks roughly the 16-11-15 I wrote to Breezway general manager David Brogan

advising that I would be fighting these charges and requesting a further 9 weeks leave

without pay. I waited two weeks then asked my sister Wendy Thomas who contacted

the production supervisor Rick Roderer who informed that I had been terminated for

abandoning my work and that I wouldn’t be entitled to any accrued long service or

severance pay. Only after that call did Breezway send me the letters already provided.

I asked by letter for the AMWU to take my case to Fair Work and in letters I’ve also

given to Fair Work they state I would not be successful. With no outline of their

reasons this process took 7-8 weeks only then I sent the help from Fair Work directly.

I wrote to Fair Work Queensland who replied with the proper application forms with a

Victorian return address. I filled in the form and attached a detailed letter and

supporting documents from Breezway, the union and a copy of a police statement. I

outlined the reasons I feel it was a harsh termination and why I’d be asking for an

extension. This is all new to me. I do not have a solicitor acting on my behalf. I only

have the truth and Fair Work to see through Breezway try to get away with their

lies….”

[5]        I considered Mr Thomas’s response. I issued an Order refusing Mr Thomas’s

application for an extension of time and dismissed his application on 7 April 2016.

[6]        The relevant legislative framework for the exercise of the Commission’s discretion in

relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy

...

(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.

[7]        The meaning of “exceptional circumstances” was considered in Nulty v Blue Star

Group Pty Ltd [2011] FWAFB 975 where the Full Bench said:

[2016] FWC 2469

“[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

[2016] FWC 2469

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.”

[Endnotes not reproduced]

[8] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not

necessary that the applicant for that extension of time be overtaken by a catastrophic event.

Reasons for delay in the category of extreme events are not necessary to meet the test. All of

the factors outlined in s.394(3) of the Act must be considered and weighed when deciding

whether or not exceptional circumstances, circumstances sufficient to support an exception,

exist.

[9] I considered the various criteria to which my attention is directed by s.394 (3) of the

Act.

reason for the delay-s.394(3)(a)

[10]      I was not persuaded that Mr Thomas’ difficulties were out of the ordinary, unusual or

uncommon.

whether the person first became aware of the dismissal after it had taken effect-

s.394(3)(b)

[11]      Mr Thomas became aware of the end of his relationship with the respondent on

3 November 2015.

[2016] FWC 2469

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

[12]      Mr Thomas disputed his dismissal by speaking to the respondent and by lodging this

application.

prejudice to the employer-s.394(3)(d)

[13]      I was satisfied that there would be no greater prejudice to the respondent caused by

Mr Thomas’s application being listed now than there would have been had it been lodged in

time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[14]      Merit was a neutral issue in my consideration of this application.

fairness as between Mr Thomas and other persons in a similar position-s.394(3)(f)

[15]      There was no issue of fairness in relation to any other person in a similar position.

[16]      Having considered all of the matters to which my attention is directed by the Act I was

not satisfied that there were exceptional circumstances which would warrant my granting an

exception to the statutory time limit and on that basis dismissed the application. Mr Thomas’s

circumstances were not out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, PR579224>