Timothy Oldham v City of Stirling

[2017] FWC 1826

[2017] FWC 1826

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Timothy Oldham
v
City Of Stirling
(U2017/1175)

COMMISSIONER PLATT ADELAIDE, 30 MARCH 2017

Application for relief from unfair dismissal – extension of time – application dismissed.

[1] Mr Oldham has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with City of Stirling which took effect on 15 September 2016.

[2] This application was lodged on 5 February 2017.

[3] Mr Oldham’s application explained the failure to lodge the application within 21 days from the dismissal as follows:

“I was advised I would be sent out the correct paper work in a day or so. It wasn’t until the 28^th September that I rang up to find out where it was. I was told it was on its way and I did not receive it until Monday the 3^rd of October 2016. To which it left me little time to speak to my lawyer for legal advice and pursue action. As a result the dead line was missed. My lawyer advised I had to go through the required unfair dismissal steps first. I then sent in emails to the Fair Work Commission and the Fair Work Ombudsman. (on their respective website) And received no reply. Christmass and new year were then upon us. I then called the Fair Work Commission for advice and I was advised to seek legal advise to which I have and then fill out unfair dismissal form 2 and explain why I missed the dealine. (sic)”

[4] On 16 March 2017, my Associate corresponded with Mr Oldham and the City of Stirling and advised that the extension of time issue would be considered at a telephone conference on 30 March 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 Oldham was directed to provide a statement concerning the extension of time and any documents to be relied upon by 23 March 2017. City of Stirling was invited to file any material in reply by 28 March 2017.

[5] City of Stirling filed a F3 Employer Response and a F4 Objection to Unfair Dismissal Application on 8 March 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time and the parties had executed a Deed which prevents this application from being made. This decision deals with the extension of time issue only.

[6] Mr Oldham provided a written submission summarised as follows:

• He had been seeing a psychologist, authorised by the City of Stirling and had taken a period of stress leave.



• On 15 September 2016, there was a meeting with HR. Mr Oldham believed he would either be sacked or could resign, so he resigned. During the meeting he was presented with documents that he did not agree to, he feels he was bullied into accepting the agreement.



• He advised that he could not afford to leave unless an agreement was made which included the payment of his sick leave and payment of tax on his final payout. The City of Stirling agreed to this and a deed was executed. He was advised that he would be sent out the correct paperwork the following day.



• On 28 September 2016, the next pay day, he telephoned to find out where the paperwork was. At this time, he advised the HR Manager that his final pay did not reflect the agreed amount. He reminded her that there was an agreement in place and she advised that the City of Stirling would not be following through with it.



• He received the paperwork on 3 October 2016, which left him with little time to speak to his lawyer about his options in pursuing legal action.



• The withholding of the paperwork was a deliberate act of the City of Stirling who had the intention of preventing Mr Oldham from filing within the 21 day time limit.



• He sent emails to the Fair Work Commission and the Fair Work Ombudsman, through the respective websites, and then Christmas and New Year arrived.



• He telephoned the Fair Work Commission and was advised to seek legal advice and fill in the F2 Unfair Dismissal Application form explaining the delay in filing.



• The application was lodged on 5 February 2017.

[7] On 28 March 2017, City of Stirling filed a number of documents, including:

• Correspondence concerning an investigation into a number of incidents involving Mr Oldham for the period of 16 November 2015 to 6 April 2016;



• A Deed of Settlement executed by Mr Oldham and the City of Stirling on 15 September 2016;



• A Statement of Service dated 15 September 2016;



• A letter confirming acceptance of Mr Oldham’s resignation dated 21 September 2016 detailing accrued entitlements and a gratuity payment;



• A letter confirming acceptance of Mr Oldham’s resignation dated 28 September 2016 detailing accrued entitlements;



• An internal resignation/termination form dated 15 September 2016; and



• A termination payment report dated 27 September 2016.

[8] A hearing was conducted by way of telephone conference on 30 March 2017. A sound file record of the telephone conference was kept. Mr Peter Oldham (brother) represented Mr Timothy Oldham and Ms Martina Ivanovski of Chamber of Commerce & Industry of Western Australia represented the City of Stirling.

[9] Mr Oldham’s position is summarised as follows:

• He relied upon his written submissions.



• He disputed some of the contents in the investigation material submitted by the City of Stirling.



• Whilst his mental state was adversely impacted by his interaction with the City of Stirling and he was on medication, his medical condition did not prevent the lodgement of his application.



• He attempted to lodge an online application prior to Christmas 2016.



• He lodged inquiries through the Fair Work Commission and Fair Work Ombudsman website but could not produce any receipt or correspondence evidencing this fact.



• He was ignorant of the 21 day time limit until he spoke to his lawyer which he recalls as being sometime in October 2016.



• Mr Oldham submitted that his position was such that ‘exceptional circumstances’ existed.

[10] At the telephone conference, the City of Stirling contended that;

• Mr Oldham was aware that his employment had been terminated on 15 September 2016.



• Mr Oldham had not provided a reason for the delay after 3 October 2016, the date he alleges to have received the paperwork.



• The employment was not terminated at the employer’s initiative.



• There is no evidence of action that was taken by Mr Oldham to dispute the dismissal.



• Mr Oldham had executed a deed which prevented him from instituting the proceedings.



• The explanation provided by Mr Oldham did not comprise ‘exceptional circumstances’.

[11] 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.”

[12] The unfair dismissal application by Mr Oldham was made 122 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] From the material before me it appears that Mr Oldham was the subject of disciplinary processes prior to the cessation of his employment.

[15] A Deed of Settlement signed 15 September 2016 was filed by the City of Stirling. The deed provides for the employment to cease through mutual agreement. Mr Oldham states the deed was executed under duress. The issue of whether the deed was executed voluntarily or under duress is not a matter which I can determine and is not relevant to the granting of an extension of time.

[16] Despite the dispute over the validity of the deed, I find that Mr Oldham’s employment ceased on 15 September 2016 and that he was aware of it on that date.

[17] Mr Oldham contends that he was unable to lodge his application until he received some ‘paperwork’. This appears to be a reference to the information contained in the letters dated 21 and 28 September 2016 and a copy of the deed.

[18] Mr Oldham received much of this information on 3 October 2016, and spoke to a lawyer in that month. He contends that he was ignorant of the timeframe until advised by his lawyer.

[19] With respect to action taken to contest the dismissal, Mr Oldham stated that after speaking with his lawyer in October 2016, he contacted the Fair Work Commission and the Fair Work Ombudsman seeking advice and tried to lodge an online application around Christmas 2016. According to the Commission’s records, no application from Mr Oldham was received prior to 5 February 2017. No evidence was submitted which supported Mr Oldham’s contentions.

[20] No satisfactory explanation was given in respect of the delay in between the attempted lodgement around Christmas 2016 and the successful 5 February 2017 lodgement.

[21] Mr Oldham has not satisfactorily explained;

● why he took 3 months after receiving legal advice including information about the time limit to lodge his application;
● why he took 6 weeks to follow-up on his unsuccessful attempt to lodge an online application prior to Christmas 2016.

[22] Putting Mr Oldham’s case at its highest, he has failed to prosecute his claim, having been informed of the time limit by his legal advisor at a relatively early stage. The repeated delays are not satisfactorily explained by his account. The applicant needs to provide a credible explanation for the entire period of the delay, 2 but has not done so.

[23] The delay in this matter is considerable, however I believe that any prejudice to the City of Stirling is a neutral factor.

[24] In terms of the merits of the application, in light of the dispute over the validity of the Deed of Settlement and disputes over the disciplinary processes, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits as a neutral factor.

[25] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[26] For the reasons I have set out above, I am not satisfied that Mr Oldham’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 Order 3 reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

P.Oldham on behalf of the Applicant.

M.Ivanovski of the Chamber of Commerce and Industry of Western Australia on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

March 30.

1 [2011] FWAFB 975

 2   Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

 3   PR591478

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<Price code C, PR591477>