Thomson v Finook Industries Pty Ltd

[2016] FWC 1438

[2016] FWC 1438

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Roger Thomson
v
Finook Industries Pty Ltd
(U2015/16349)
SENIOR DEPUTY PRESIDENT DRAKE	SYDNEY, 4 MARCH 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 section 394 of the Fair Work Act 2009

(the Act).

[2]        The relationship between Mr Thomson and the respondent ended on 12 October 2015.

Mr Thomson lodged his application at the Fair Work Commission on 30 November 2015. Mr

Thomson’s application was lodged 28 days outside the statutory time limit.

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

Dismissal lodged by Mr Thomson. I wrote to him on 4 December 2015 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 Thomson provided a comprehensive statement and as a result of

subsequent enquires provided detailed medical evidence of his wife’s condition on which he

relied as a partial explanation for his delay. I refused Mr Thomson’s application for an

extension of time and issued an order dismissing his application on 26 February 2016.

[4]        The relevant legislative framework for the exercise of the Fair Work Commission’s

discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy

...

[2016] FWC 1438

(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.

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

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

“[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:
[2016] FWC 1438

‘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

[2016] FWC 1438

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]

[6] For exceptional circumstances to arise as contemplated by s394 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 s394 (3) must be considered and weighed when deciding whether or not

exceptional circumstances, circumstances sufficient to support an exception, exist.

[7]        For Mr Thomson’s application to have been filed in time it should have been lodged

by 2 November 2015. It was not lodged until 30 November 2015. Mrs Thomson’s wife was

discharged from hospital after treatment for a very serious admission on 23 October 2015. Mr

Thomson’s explanation for his delay in lodgement from 23 October 2015 to 30 November

2015 is set out below:

“The period of time for which the respondent claims I have given no explanation for

delay is the 23/10/15-30/22/15:

[2016] FWC 1438

Following my wife’s discharge from hospital on 23/10/15, I needed to drive her to

weekly appointments at the Royal North Shore Hospital. These appointments included

dressing changes (a very painful process) that would take up to tow hours each time.

We live 170 kilometres from Sydney and depending on traffic, travel time consisted of

up to three and a half hours each way. I would also need to try and organise family or

friends to be with the children after school on these days as we would often not return

home until early evening.

At home, Eleasha was mostly immobile and very emotional given that she could not

tend to her normal activities such as packing lunches, driving the kids to school or

sport training or any general household duties that she would’ve normally carried out.

She was physically unable to do such things as she was very uncomfortable and in

considerable pain. Hence, I was tending to Eleasha constantly not only to support her

emotionally, but also to help with specific dressing changes and bathing several times

each day that, with assistance, the Hospital had allowed her to do at home.

The children were very distressed seeing their mother in such a state, so I was

constantly trying to reassure them whilst not altering their usual routine for fear it

would upset them further. I had to attend meetings at both of their schools to keep

their teachers informed so as they could offer further support to the children as needed.

Obviously, I was tending to all the children’s needs and household chores i.e. packing

lunches, travel to and from sport training, helping with homework, preparing all meals,

washing, cleaning, grocery shopping and attempting to pay bills. I also spent a

considerable amount of time contacting service providers and various institutions to

request extensions on due dates for payment given we had no income at the time.

The respondent claims that I have pleaded ignorance to the 21 day time frame in

which to make an UDA – this is not true. Once informed, never did I ignore the fact

that there was a 21 day time limit to lodge an application, and I certainly never

claimed ignorance as an exceptional circumstance.

My priority was the health and well being of my family. This took all of my time and

energy during the period in question.”

[8] 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)

[9]        The reasons Mr Thomson provided for his delay in lodgement were:

	his wife’s very serious medical condition and treatment;
	his consequent matrimonial and childcare responsibilities and concerns;
	his consequent distraction; and

[2016] FWC 1438

	in his application, his ignorance of the requirement for lodgement within the
time frame.

[10]      While sympathetic to his circumstances I was not persuaded that Mr Thomson’s

difficulties were out of the ordinary, unusual or uncommon. In particular I was not satisfied

that his explanation for the extensive delay between his wife’s release from hospital and his

lodgement of the documents was sufficient to grant an exception. During this period he was

performing ordinary parental duties. Had the lodgement of his documents taken place closer

to the required date for lodgement I may have been persuaded. The time taken was excessive

given the requirements of the legislative test.

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

s.394(3)(b)

[11]      Mr Thomson became aware of the end of his relationship with the respondent on 12

October 2015.

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

[12]      Mr Thomson disputed his dismissal 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

Thomson 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 Thomson 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.

[2016] FWC 1438

[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

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

SENIOR DEPUTY PRESIDENT

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