Tobe Makuaj v Toxfree

[2017] FWC 6409

[2017] FWC 6409

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tobe Makuaj
v
Toxfree
(U2017/10515)

COMMISSIONER PLATT ADELAIDE, 1 DECEMBER 2017

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

[1] Mr Tobe Makuaj 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 Toxfree which his form F2 Unfair Dismissal Application advised took effect on 7 September 2017.

[2] The application was lodged on 28 September 2017.

[3] Mr Makuaj’s application did not recognise that it was made beyond 21 days from the date of dismissal.

[4] On 17 October 2017, Toxfree lodged a form F3 Employer Response which indicated that the dismissal occurred on 31 August 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[5] On 17 November 2017, my Associate corresponded with Mr Makuaj and Toxfree and advised that the extension of time issue would be considered at a telephone conference on 1 December 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 Makuaj was directed to provide a statement concerning the extension of time and any documents to be relied upon by 24 November 2017. Toxfree was invited to file any material in reply by 29 November 2017.

[6] Mr Makuaj provided a written submission which is summarised as follows:

•  His last day of work was 7 September 2017.

•  He also supplied a payslip for 23 November 2017 which related to a different employer.

[7] Toxfree provided documentation which is relevantly summarised as follows:

•  A statement by Mr Clive Young which contended that he had a conversation with Mr Makuaj on 31 August 2017 where he advised him that his employment would cease by way of redundancy and that he provided a letter confirming the same.

•  A copy of a termination letter dated 31 August 2017 signed by Mr Young.

•  A copy of a redundancy pay calculation which referred to the termination date as 31 August 2017.

•  A copy of a payslip which indicated that Mr Makuaj was paid his redundancy entitlements on 4 September 2017.

[8] A hearing was conducted by way of telephone conference on 1 December 2017. A sound file record of the telephone conference was kept. Mr Makuaj represented himself and Ms Chloe Gogan represented Toxfree.

[9] Mr Makuaj gave evidence at the hearing, his position is summarised as follows:

•  On the day of his dismissal he had a conversation with Mr Young who advised him that he was redundant and gave him the termination letter.

•  He did not work after the day on which he received the letter.

•  Mr Makuaj could not explain why he would have been paid his entitlements prior to being dismissed.

•  Other than the lodgement of this application no other action was taken to contest the dismissal.

•  Mr Makuaj submitted that the redundancy was not genuine as other persons were doing his work.

[10] Toxfree relied on its submissions.

[11] The key factual dispute in this matter is whether Mr Makuaj received the dismissal on 31 August 2017, the day the letter was dated, or whether he received on 7 September 2017.

[12] 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.”

[13] On the basis of the material before me, in particular the letter of termination and the date upon which the entitlements were paid, I find that Mr Makuaj was dismissed on 31 August 2017. This unfair dismissal application was made 7 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[14] 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.”

[15] I make the following findings.

[16] As stated above, I have found that the dismissal took effect on 31 August 2017 and Mr Makuaj’s entitlements were paid to him on 4 September 2017.

[17] I prefer the submissions of Toxfree and note that the applicant did not put forth any reason for the delay, his sole contention being that he was dismissed on 7 September 2017.

[18] The applicant needs to provide a credible explanation for the entire period of the delay, 2 but has not done so.

[19] There is no submission that the granting of an extension of time represents prejudice to Toxfree.

[20] 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.

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

Conclusion

[22] For the reasons I have set out above, I am not satisfied that Mr Makuaj’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 T.Makuaj the Applicant.

Ms C.Gogan on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

December 1.

1 [2011] FWAFB 975

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

3 PR598307

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