Ty Debnam-Dodd v Ceduna Tyres and Batteries Pty Ltd

[2017] FWC 1528

[2017] FWC 1528

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ty Debnam-Dodd
v
Ceduna Tyres and Batteries Pty Ltd
(U2017/1488)

COMMISSIONER PLATT ADELAIDE, 16 MARCH 2017

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

[1] Mr Ty Debnam-Dodd 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 Ceduna Tyres and Batteries Pty Ltd (CTB) which took effect on either 16 or 19 January 2017.

[2] This application was lodged on 13 February 2017 by Mr Gavin Haynes of the Ceduna Aboriginal Corporation on Mr Debnam-Dodd’s behalf.

[3] Mr Debnam-Dodd in his F2 Unfair Dismissal Application explained the failure to lodge the application within 21 days from the dismissal as follows:

“I was not aware that I may have been wrongfully treated until speaking with Gavin Hayes at Ceduna Aboriginal Corporation on 7/2/17 and it has taken a few days to put this application together”

[4] CBT filed a F3 Employer Response and F4 Objection to Unfair Dismissal Application on 22 February 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time and that the applicant was not dismissed. This decision only deals with the out of time issue.

[5] On 24 February 2017, my Associate corresponded with Mr Debnam-Dodd and CBT and advised that the extension of time issue would be considered at a telephone conference on 15 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 Debnam-Dodd was directed to provide a statement concerning the extension of time and any documents to be relied upon by 7 March 2017. CBT was invited to file any material in reply by 10 March 2017.

[6] Mr Debnam-Dodd provided a written submission summarised as follows:

• He was a young aboriginal man with no understanding of unfair dismissal processes.



• Following the dismissal he felt quite depressed and left Ceduna for a few days to clear his head and better understand his predicament.



• About a week after his dismissal he discussed the matter with his mentor.



• His mentor then had a discussion with Mr Gavin Haynes of the Ceduna Aboriginal Corporation.



• Mr Debnam-Dodd was then contacted by his father and advised to speak with Mr Haynes.



• Mr Debnam-Dodd first spoke to Mr Haynes on 7 February 2017 who advised him to contact Fair Work Australia. Mr Haynes agreed to represent Mr Debnam-Dodd.



• It took Mr Haynes a few days to lodge the application.



• Mr Debnam-Dodd was not aware he could lodge an application, let alone any statutory time restraints.

[7] Mr Haynes provided a statement which confirmed he had a conversation with Mr Debnam-Dodd on 7 February 2017 and that he agreed to be his representative and lodged an application on his behalf.

[8] CBT filed a detailed submission opposing the extension of time. The submissions are summarised as follows;

• On 16 January 2017, Mr Debnam-Dodd left the workplace due to a personal injury which prevented him from performing work.



• On 19 January 2017, Mr Debnam-Dodd returned and verbally resigned.



• The application was lodged out of time based on either of the termination dates.



• Mr Debnam-Dood did nothing to contest the claim until 7 February 2017.



• There is no evidence which support representational error, as Mr Debman-Dodd took no steps to ensure his application had been lodged.



• The facts do not reveal any exceptional circumstances.



• CBT relied on numerous authorities to support its submission.



• The merits of the case (in so far as the dismissal was not at the employer’s initiative) weighed against the granting of an extension of time.

[9] A hearing was conducted by way of telephone conference on 15 March 2017. A sound file record of the telephone conference was kept. Mr Debnam-Dodd did not attend and could not be contacted by my worthy Associate. Mr Haynes was contacted by my Associate and advised he was not representing Mr Debnam-Dodd at the conference. CTB was represented by Mr Darren Walmsley. The conference proceeded at approximately 10:10am in the absence of Mr Debnam-Dodd.

[10] At the telephone conference, CBT relied on the submissions previously filed.

[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] This unfair dismissal application by Mr Debnam-Dodd was made either 4 days late (based on a dismissal date of 16 January 2017) or 7 days late (based on a dismissal date of 19 January 2017) and therefore, can only be pursued if this time limit is extended.

[13] Putting Mr Debnam-Dodd’s position at its highest, I have determined this matter based on a dismissal date of 19 January 2017.

[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.”

Consideration

[15] I find that the applicant did nothing to pursue his claim until 20 days after the dismissal.

[16] No medical evidence has been adduced to support Mr Debnam-Dodd’s claim that he was depressed or that this impacted on his capacity to lodge an unfair dismissal application.

[17] I do not have any information which supports a claim of representative error. Other than the fact the application was lodged 6 days after Mr Debnam-Dodd met with Mr Haynes, Mr Debnam-Dodd did not appear to take any action after his meeting on 7 February 2017 to ensure the application was lodged.

[18] That Mr Debnam-Dodd was inexperienced in unfair dismissal law and was unaware of the time limit is not exceptional.

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

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

[21] 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.

[22] Consideration of fairness relative to other persons is a neutral issue in this matter.

Conclusion

[23] For the reasons I have set out above, I am not satisfied that Mr Debnam-Dodd’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):

No appearance on behalf of the Applicant.

Mr Walmsley on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

15 March 2017.

1 [2011] FWAFB 975

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

 3   PR591066

Printed by authority of the Commonwealth Government Printer

<Price code C, PR591065>