Tim Gratton v National Trust NSW

[2016] FWC 8608

[2016] FWC 8608

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Tim Gratton
v
National Trust NSW
(U2016/8175)

SENIOR DEPUTY PRESIDENT DRAKE BRISBANE, 9 DECEMBER 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 date that Mr Gratton’s dismissal took effect is in dispute. The respondent contends the relationship ended on 14 June 2016 when it emailed and posted a letter of termination to Mr Gratton. Mr Gratton contends the relationship ended on 17 June 2016 when he received and opened the hardcopy termination letter.

[3] Mr Gratton lodged his application at the Fair Work Commission (the Commission) on 6 July 2016. Depending on the date on which Mr Gratton’s dismissal took effect, Mr Gratton’s application was either lodged within the statutory time limit or was lodged one day outside the statutory time limit.

[4] I wrote to Mr Gratton on 28 July 2016 outlining the matters I was required to consider by the Act and requesting that he respond within 14 days. The Commission subsequently received a response from Mr Gratton on 8 August 2016, which stated in part:

“Attached is a copy of the letter posted to me from the National Trust dated 14 June 2016 where they finalised my employment. However I didn’t receive this letter until Friday 17 June when the post was delivered. At the time I was still living at Dundullimal Homestead and Australia Post only delivers mail twice a week to this address”.

[5] I heard this matter in Sydney via video-link to Dubbo on 27 October 2016.

[6] The relevant legislative framework for the exercise of the Fair Work Commission’s discretion in relation to applications of this kind is set out in s.394 of the Act:

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. The Full Bench 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.”
[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. The factors outlined in s.394(3) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

The date the dismissal took effect

[9] The email of 14 June 2016 sent to Mr Gratton stated as follows:

“Subject: Finalisation of Employment with the National Trust

Dear Tim,

Attached please find a letter finalising your employment with the National Trust. A hard copy has also been posted to you.

Regards

Brian”.

[10] This email was forwarded by Mr Gratton from his personal email to his wife’s personal email on 14 June 2016 at 6:18PM AEST.

[11] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 1 Mr Gratton accepted that he received the email of 14 June 2016. The email referred to the termination of his employment in the body of the email. Mr Gratton was aware that the letter of termination (as referred to in the body of the email) was attached to the email. He did not open the attachment and forwarded the email and attachment to his wife on 14 June 2016. He did not receive a hard copy of the letter of termination until it was received in the post on 17 June 2016.2 Mr Gratton accepted that it was fairly clear what the attachment to the email was, even if he did not open it.3

[12] I am satisfied that Mr Gratton read the body of the email sent to him on 14 June 2016, and did so on 14 June 2016. I do not consider it relevant whether Mr Gratton read this email before or after close of ordinary business hours on this day. I find that the termination of Mr Gratton’s employment was communicated to Mr Gratton on 14 June 2016 and that the dismissal took effect on this day. Mr Gratton’s application is therefore one day out of time and requires an extension of time before it can proceed.

[13] I will now consider the various criteria under s.394(3) of the Act.

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

[14] Mr Gratton gave evidence that he suffered distress over the emotional and social consequences of being terminated, including the distress of his wife, as they had to move out of their residence. 4

[15] Although I accept that Mr Gratton suffered distress and also felt the distress of his wife at her termination of employment, especially due to the to move residence, I do not find this circumstance unique or exceptional.

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

[16] I have found that Mr Gratton’s dismissal took effect on 14 June 2016 and that he was aware of the dismissal on this date.

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

[17] After receiving the hardcopy of the termination letter from National Trust NSW, Mr Gratton stated he consulted an agent 5 and lodged his application.

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

[18] I am satisfied that there would be no greater prejudice to the respondent caused by Mr Gratton’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)

[19] Mr Gratton raises a number of matters in respect of his dismissal that would need to be determined at a subsequent hearing should an extension of time be granted. Merit was a neutral issue in my consideration of this application.

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

[20] There was no issue of fairness in relation to other persons in a similar position.

[21] I am not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit. Mr Gratton’s circumstances were not out of the ordinary course, unusual, special or uncommon. The application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

S. Gratton and T. Gratton on their own behalf.

A.Weinman for the National Trust of Australia (NSW)

Hearing details:

2016.

Sydney:

27 October.

 1   Burns v Aboriginal Legal Service of Western Australia (Inc) (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 at [24].

 2   PN212 to PN214.

 3   Ibid, PN184.

 4   Transcript, 27 October 2016, PN212.

 5   Transcript, 27 October 2016, PN195

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