Tom Hoogenboom v Urana Shire Council

[2015] FWC 1030

[2015] FWC 1030

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Tom Hoogenboom
v
Urana Shire Council
(U2015/2362)

DEPUTY PRESIDENT SAMS SYDNEY, 18 FEBRUARY 2015

Application for relief from unfair dismissal - application lodged ‘out of time’- consideration of ‘exceptional circumstances’ - legal and other advice not taken up - ‘exceptional circumstances’ not made out - possible wrong jurisdiction - application dismissed.

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394(3) of the Fair Work Act 2009 (the ‘Act’). Tom Paul Hoogenboom (the ‘applicant’) was dismissed from his employment with Urana Shire Council (the ‘respondent’) on 22 December 2014. The applicant lodged an application for an unfair dismissal remedy with the Fair Work Commission (the ‘Commission’) on 14 January 2015. The Act mandates a 21 day time limit for initiating an application for a remedy for unfair dismissal. His application was therefore lodged at least 2 days outside the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for Unfair Dismissal and the various documents attached to the application. The Commission wrote to the applicant on 16 January 2015 outlining the matters I am required to consider under s 394(3) of the Act, and asking him to provide a statement addressing these matters within 14 days. The applicant provided a statement of two pages. Having considered this material, I issued an Order refusing an extension of time and dismissed the application on 5 February 2015. These are my reasons for doing so.

RELEVANT STATUTORY PROVISIONS AND PRINCIPLES
[3] The relevant legislative framework, guiding the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘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.’

[4] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, the Full Bench of the Commission 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:

‘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] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].’

[5] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not ‘exceptional circumstances’ have been established. Even if ‘exceptional circumstances’ are established, this is merely the jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for filing of an unfair dismissal application. Put another way, ‘exceptional circumstances’ may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application ‘out of time’; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia[2014] FWCFB 2288 succinctly described the Commission’s decision making process under 394(3) of the Act as: ‘The test for granting an extension of time involves both a broad discretion and a high hurdle of ‘exceptional circumstances.’ I now turn to each of the criteria under s 394(3) of the Act.

CONSIDERATION

Reason for the delay (s 394(3)(a))

[6] The applicant contends that the reason for the delay in filing his application was due to the timing of his dismissal; that is at the start of the Christmas holiday period. The applicant asserted that a series of unfortunate events, over which he had ‘no control’, further exacerbated his delay in filing his application. The applicant provided a chronology of events leading up to the lodgement of his unfair dismissal application. This chronology is outlined below:

‘1. 22nd December, 2014 approx 3-15 pm handed termination of employment notice by General Manager Urana Shire Council Adrian Butler.
2. 23rd December, 2014 Rang Slater and Gordan Solicitors for appointment for unfair dismissal. Informed first appointment available was after the Christmas break 5th January, 2015. Advised to contact FairWork Commission and request unfair dismissal application forms be mailed.
3. 3rd (sic) December, 2014 Rang FairWork Commission answered with tape recorded message “UnfairWork (sic) Commission is currently operating with skeleton staff at present please go to our web. Site for any information etc. etc. Our offices will resume full services on the 5th January 2015” or words to that effect. I am not contected (sic) to the internet due to the location of the property and poor reception of satilite (sic) services available by internet providers. (Was connected for a period of time but gave up).
4. 3rd January, 2015 Local resident of Urana offers to down load (sic) unfair dismissal application forms. 54ks. Round trip.
5. 5th January Attended appointment at Slater and Gordon. 280ks round trip. Advised had a strong case to dispute termination of employment. Cost of legal representation could be as much as $20,000-00 to $25,000-00. Advised to make unfair dismissal application myself. Solicitor offered to prepare responses to Criteria for considering harshness and a Statement of Tom Hoogenboom (free of charge).
6, 8th January, 2015 Drove to Urana to pick up mail containg (sic) paper work sent by Slater and Gordon solicitors. 54Ks round trip.
7. 8th January, 2015 typed 5 pages of paper work titled “Additional Information” and sent with original application
8. 9th January 2015 2pm Drove to Urana and purchased “Express post” satchel (copy of receipt enclosed) 54Ks round trip.
9. 10th January, 2015 7-30am Drove to Corowa hoping the FairWork Commission would receive my unfair dismissal application in time, as Urana Post Office is a privately owned and operated Lienced (sic) Post Office. 210ks round trip. (your letter dated 16th January, 2015 was received by me on the 20th January 2015, Express Post ?’

[7] I am not persuaded that any of the reasons given by the applicant constitute an ‘exceptional circumstance’ within the meaning of s 394(3) of the Act. Indeed, the applicant’s reasons provide little explanation, if any, as to why he did not file his application within time. The applicant admits to consulting solicitors at Slater and Gordon the day after his dismissal on 23 December 2014 and states that he was advised to contact the Commission and request the relevant Unfair Dismissal Form (Form F2). Apparently, the applicant chose not to follow this advice. Even more remarkably, the applicant states that on 3 January 2015, a ‘local resident’ offered to ‘download’ the relevant Form F2 from the internet. The applicant provided no explanation as to why he did not accept that offer. On 5 January 2015, the applicant again sought legal advice from Slater and Gordon and was advised to make an unfair dismissal application on his own behalf. I am bewildered as to why, given these chronology of events, he did not lodge his application within time.

[8] Moreover, legal assistance or representation is not required to file an application for a remedy for unfair dismissal and, indeed, parties frequently represent themselves in such matters before the Commission. The applicant admits to obtaining legal advice on two occasions, and in that respect he was in an advantaged position to lodge his unfair dismissal application within the statutory time limit. Furthermore, the applicant had the right to nominate a representative (legal or otherwise) to lodge the application on his behalf, but chose not to exercise that prerogative.

[9] The applicant also asserted that he did not have access to the internet due to the isolation of his property. In response to this assertion, I note that the internet is not the only method available for filing an unfair dismissal claim. The Commission provides a number of means by which an unfair dismissal application can be lodged. In addition to electronic lodgement, an unfair dismissal application may be filed in person at the Commission’s registry or by post. An unfair dismissal application can also be made by phone; See: Fair Work Commission Rules 2013 Rule 9. The materials provided by the applicant disclose that he was aware of at least one alternate method of lodging his unfair dismissal application, that method being via post. Accordingly, I am unable to identify any sound reason for the applicant’s delay in filing his unfair dismissal application.

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

[10] The unfair dismissal application, lodged by the applicant, acknowledges that he was dismissed on 22 December 2014 and was aware of his dismissal on that date. This is a neutral factor in this case.

Any action taken by the person to dispute the dismissal (s 394(3)(c))

[11] In his letter to the Commission dated 21 January 2015, the applicant indicated that he issued a ‘leter (sic) of dispute of allegations to breaches of the Code of Conduct from Council’. This letter, disclosed in the materials before me, was dated 26 November 2014 and was drafted 26 days before the applicant’s dismissal. It is therefore irrelevant to this factor. The applicant did not reveal any other action to dispute his dismissal that was taken by him between the date of his dismissal and the filing of his unfair dismissal application. An assessment of this criterion weighs against the grant of an extension of time.

Prejudice to the employer (s 394(3)(d))

[12] Given that the application was lodged 2 days outside of the statutory time limit, I do not consider there is any significant prejudice to the employer, save for the usual prejudice of costs and time expended in defending the claim. This factor is a neutral factor in this case.

The merits of the application (s 394(3)(e))

[13] It is important to note that a consideration of the merits of an application, at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis. The applicant stated he was unfairly dismissed after breaching the respondent’s Code of Conduct (the ‘Code’). Subclause 6.7 the Code prohibit Council employees from interacting with councillors and administrators for purposes other than ‘broader workforce policy issues’. The materials supplied by the applicant, in support of his unfair dismissal application, disclose that he had received a warning from the respondent on 4 June 2014, after contravening subclause 6.7 of the Code. A ‘show cause’ letter was issued by the respondent on 21 November 2014 after the applicant was alleged to have again contravened subclause 6.7 of the Code by contacting an elected councillor Cr Lisa Rhodes. The applicant denied having breached the respondent’s Code, yet admitted to contacting Cr Rhodes regarding an allegation of trespass that had been made against three employees of the respondent. The applicant asserted that ‘management have attempted to manipulate the Code of Conduct for its own desired outcome’. A prima facie assessment of the applicant’s material would suggest that the applicant’s prospects of success are negligible. It appears that the applicant breached the respondent’s Code of Conduct on at least two occasions. I observe, from the relevant documentation provided by the applicant, that the respondent appears to have implemented a fair disciplinary process.

[14] One further issue requires some comment. On 20 January 2015, the General Manager of the respondent Council advised the Commission that as a local government employee, the applicant was not protected from Federal unfair dismissal laws. On its face, this would appear to constitute a further jurisdictional hurdle to the application being accepted by the Commission and the applicant should have filed an unfair dismissal application under the Industrial Relations Act 1996 (NSW). Given such circumstances, it is difficult to understand why his legal advice did not go to questioning the appropriate jurisdiction in which to file his application. While the NSW Act has a similar statutory time limit for the filing of unfair dismissal applications, it would appear to be open to the applicant to file an application in the State jurisdiction.

Fairness as between the applicant and other persons in a similar position (s 394(3)(f))
[15] The applicant did not specifically address this criterion. His dismissal was a conventional dismissal based on allegations of a breach of the employer’s Code of Conduct. This is a neutral factor in this case.

CONCLUSION

[16] Having considered all of the matters which the Commission is required to take into account under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 5 February 2015.

DEPUTY PRESIDENT

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