Tyson Griffiths v GaP Solutions Pty Ltd
[2020] FWC 469
•31 JANUARY 2020
| [2020] FWC 469 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tyson Griffiths
v
GaP Solutions Pty Ltd
(U2019/13904)
COMMISSIONER PLATT | ADELAIDE, 31 JANUARY 2020 |
Application for relief from unfair dismissal – extension of time – application dismissed.
Summary
[1] Mr Tyson Griffiths 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 GaP Solutions Pty Ltd (the Respondent or GaP Solutions) which his form F2 Unfair Dismissal Application advised took effect on 1 November 2019.
[2] Mr Griffiths filed his unfair dismissal application in the Fair Work Commission (the Commission) on 11 December 2019. Mr Griffith’s application identified that the application was not being made within 21 calendar days of the dismissal taking effect and provided the following reason for the delay:
“Was not aware of any timelines in regards to this, was also struggling with some personal depression that was triggered by the termination of my employment.”
[3] On 18 December 2019, GaP Solutions lodged a form F3 Employer Response which indicated that the application was filed out of time. This decision only deals with the extension of time issue.
[4] On 24 December 2019, correspondence was sent to the parties advising that the extension of time issue would be considered at a telephone conference on 31 January 2020. 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 Griffiths was directed to provide a statement concerning the extension of time and any documents to be relied upon by 17 January 2020. GaP Solutions was invited to file any material in reply by 24 January 2020.
[5] The matter was subsequently allocated to me on 14 January 2020.
[6] A hearing was conducted by way of telephone conference on 31 January 2020. A sound file record of the telephone conference was kept. Mr Griffiths represented himself and Mr Puczkowski represented GaP Solutions.
[7] Mr Griffiths provided a written submission and gave evidence at the hearing, his position is summarised as follows:
• He acknowledges that the application was made 19 days after the statutory timeframe.
• He was ignorant of the requirement to submit the application within 21 days of being dismissed.
• He was struggling with mental health following the dismissal.
• He did not want to have anything to do with GaP Solutions due to the way he was treated.
• The reason for termination provided for in the Termination Letter dated 1 November 2019 and the reasons provided in the Separation Certificate dated 12 September 2019 are inconsistent.
[8] GaP Solutions did not file any written submissions, however, at the Hearing indicated its opposition to the Application and that Mr Griffiths did not provide any medical evidence in support of his claim and accepted that a literal reading of the Termination Letter and the Centrelink Separation Certificate indicated that the reasons were not consistent, and the reference to the Applicant’s unsuitability for work, was GaP Solutions referring to Mr Griffiths unsatisfactory work performance.
[9] Mr Griffiths in reply to GaP Solutions submission referred to a Doctors Certificate dated 14 January 2020 from EBM Family Medical Practice which referred Mr Griffiths to a specialist for management of his major depression. The attached mental health treatment plan did not provide any further information as to the effect of Mr Griffiths medical condition on his capacity to lodge an application. Mr Griffiths was invited to respond to the other issues raised by GaP Solutions but did not take the opportunity to do so.
Applicable Law
[10] Section 394 of the Act 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.”
[11] 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 Ltd1which 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
[12] This unfair dismissal application by Mr Griffiths was made 19 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.
[13] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.
The reason for the delay
[14] Ignorance of the timeframe for lodgement is not an exceptional circumstance. 2
[15] It is understood that shock and trauma may result from a dismissal and that this alone is not an exceptional circumstance. 3
[16] The medical information provided in support of the Applicant’s claim that his failure to lodge in a timely manner was as a result of his medical condition does not provide sufficient information to determine the impact of that medical condition.
[17] Mr Griffiths contends that the reason for termination provided for in the Termination Letter dated 1 November 2019 and the reasons provided in the Separation Certificate dated 12 September 2019 are inconsistent and suggests this explains the delay. I accept that the reasons for the dismissal were expressed differently but insofar as the Centrelink document provided new information, Mr Griffiths did not act upon it for approximately one month.
[18] In my view, the Applicant has not explained the reason for the delay.
Whether the person first became aware of the dismissal after it had taken effect
[19] Mr Griffiths was aware of the dismissal on 1 November 2019. This factor (s 394(3)(b)) weighs against a finding that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
[20] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.4
[21] There was no other action taken to contest the dismissal and this factor is a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay)
[22] Prejudice to the employer will weigh against granting an extension of time.5 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.6 A long delay gives rise “to a general presumption of prejudice”.7
[23] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.8
[24] There was no submission that GaP Solutions was prejudiced by the late lodgement.
The merits of the application
[25] 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.
Fairness as between the person and other persons in a similar position
[26] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd9 considered this criterion and said (at [41]):
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
[27] I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
[28] Having considered and weighed each of the factors under s.394 of the Act, I am not satisfied that Mr Griffith’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is dismissed. An Order10 reflecting this Decision will be issued.
COMMISSIONER
Appearances (by telephone):
Mr T.Griffiths the Applicant.
Mr M.Puczkowski on behalf of the Respondent.
Hearing (Conference) details:
2020.
Adelaide:
January 31.
Printed by authority of the Commonwealth Government Printer
<PR716263>
1 [2011] FWAFB 975
2 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975
3 Rose v BMD Constructions[2011] FWA 673
4 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
5 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
6 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
7 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
8 Jervis v Coffey Engineering Group Pty Limited (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) PR927201 at [16]
9 [2016] FWCFB 6963
10 PR716264
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