Thomas Wiley v Martin Craft Ceilings Pty Ltd T/A Martin Craft Gyprock Specialists
[2017] FWC 635
•31 JANUARY 2017
| [2017] FWC 635 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Thomas Wiley
v
Martin Craft Ceilings Pty Ltd T/A Martin Craft Gyprock Specialists
(U2016/13263)
COMMISSIONER PLATT | ADELAIDE, 31 JANUARY 2017 |
Application for relief from unfair dismissal – extension of time application – application dismissed.
[1] Mr Thomas Wiley lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Martin Craft Ceilings Pty Ltd T/A Martin Craft Gyprock Specialists (Martin Craft).
[2] The date Mr Wiley’s employment ceased is not clear, lying somewhere between 19 July 2016 and 1 November 2016. Mr Wiley lodged his application on 3 November 2016.
[3] On 14 November 2016, Ms Lucy Kozulin, Director, filed a Form F3 Employer’s Response and raised a jurisdictional objection on the basis that the application was lodged out of time, and the business was a small business and the dismissal was consistent with the Small Business Fair Dismissal Code. This decision only relates to the extension of time issue.
[4] On 15 December 2016, my Associate corresponded with Mr Wiley and Martin Craft and advised that the extension of time issue would be considered at a telephone conference on 30 January 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 Wiley was directed to provide a statement concerning the extension of time and any documents to be relied upon by 20 January 2017. Martin Craft was invited to file any material in reply by 25 January 2017.
[5] Mr Wiley provided a written submission which together with the information in his Form F2 Unfair Dismissal application are summarised as follows:
● He was employed as a fulltime carpenter.
● His entitlement to remain in Australia was subject to a 457 Visa.
● He went on annual leave between 12-19 July 2016.
● Upon his return he was not offered work.
● He contacted Martin Craft daily until 24 July 2016 but was not given work.
● He was not able to transfer to another employer as a result of the 457 Visa and as a result waited until 31 October 2016 when he considered that his employment had ceased.
[6] Martin Craft did not file a submission but its Form F3 Employer Response advised that Martin Craft was having financial issues and during the time when Mr Wiley was on leave it determined not to offer him further work. On or about 24 July 2016, Mr Wiley was informed that Martin Craft had stopped operating and his final date of employment would be 24 July 2016.
[7] A hearing was conducted by way of telephone conference on 30 January 2017. Mr Wiley attended. No person represented Martin Craft. A sound file record of the telephone conference was kept.
[8] At the telephone conference Mr Wiley expanded on the material filed and advised;
● He worked as a carpenter and gyprocker.
● In the 18 months prior to 12 July 2016 he worked 40-50 hours per week, Monday to Friday and sometimes on Saturday.
● He was offered no work after 19 July 2016.
● He rang seeking to be advised where he was required to work every day for the first two weeks, but was not advised of any work.
● This type of break had not occurred in his previous 18 months employment with Martin Craft.
● On 18 August 2016, Mr Wiley contacted the Fair Work Ombudsman.
● As he was on a 457 Visa, which restricted his capacity to find alternative work, he waited in vain until 31 October 2016 before giving up on getting work with Martin Craft and lodging his application.
[9] 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.”
[10] A key issue in this matter is when Mr Wiley’s employment ceased. Having regard to his previous work arrangements, I do not believe that Mr Wiley can reasonably contend that he was not aware that the employment contract had been brought to an end until some 3 months had passed. In my view, even a generous person would have come to the belief that the employment had ceased within 2 weeks of not being offered any work. Whilst I note that Martin Craft contends Mr Wiley was advised on 24 July 2016 that there was no work, I was not able to test that submission in their absence.
[11] Whilst I am unsure of the dismissal date, I find that Mr Wiley should have been aware that he was dismissed by 29 July 2016.
[12] On this basis, Mr Wiley’s unfair dismissal application was made 76 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[13] 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.”
[14] Mr Wiley explains the delay by him not being away that his employment with Martin Craft had ceased and holding out hope of future work. There are no facts upon which a reasonable person would come to that view. Mr Wiley had no contact or response from Martin Craft and he was not being paid.
[15] The applicant needs to provide a credible explanation for the entire period of the delay.2
[16] I am unable to accept the explanation given by Mr Wiley for the delay.
[17] There is no submission that the granting of an extension of time represents prejudice to Martin Craft.
[18] 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.
[19] Consideration of fairness relative to other persons in similar positions does not support an extension of time.
Conclusion
[20] For the reasons I have set out above, I am not satisfied that Mr Wiley’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 Order3 reflecting this decision will be issued.
COMMISSIONER
Appearances (by telephone):
Mr Wiley on his own behalf.
No appearance on behalf of the Respondent.
Hearing (Conference) details:
2017.
Adelaide:
January 30.
1 [2011] FWAFB 975
2 Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403
3 PR589840
Printed by authority of the Commonwealth Government Printer
<Price code C, PR589839>
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