Vincent Young v Climate Technologies Pty Ltd

[2015] FWC 8197

[2015] FWC 8197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vincent Young
v
Climate Technologies Pty Ltd
(U2015/14886)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 27 NOVEMBER 2015

Application for relief from unfair dismissal - extension of time not granted.

[1] Mr Young has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Climate Technologies Pty Ltd (Climate Technologies). At a telephone conference convened on 26 November 2015 I advised that I had concluded that the application was lodged outside of the time limit specified in that section and that I was not satisfied that this time limit should be extended. These reasons for decision set out the basis upon which I reached that conclusion.

[2] Mr Young’s application was lodged on 6 November 2015. In that application Mr Young advised that he first became aware of the termination of his employment on 12 October 2015 and that the letter advising of that employment termination indicated that it took effect from 2 October 2015. Mr Young asserted that his application was lodged within the 21 day time limit.

[3] On 11 November 2015 my Associate corresponded with both Mr Young and Climate Technologies and advised that the extension of time issue would be considered through a telephone conference on 27 November 2015. Substantial information about the extension of time issue was provided to the parties. Mr Young was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 19 November 2015.

[4] Despite two further requests to this effect, no further information was received from Mr Young.

[5] The Employer’s Response to the application asserted that the termination of Mr Young’s employment took effect on 2 October 2015 and that he was notified of this on 8 October 2015. This response indicated that Climate Technologies opposed any extension of time and also asserted that the application lacked merit. Climate Technologies asserted that the termination of Mr Young’s employment followed a substantial unauthorised absence from work.

[6] Mr Young did not participate in the telephone conference. Shortly before the conference commenced he forwarded an email in the following terms:

“From: vincent young [mailto:[email protected]]
Sent: Thursday, 26 November 2015 10:07 AM

….

Hi Denise
Unfortunately I have to been called into work and will have to reschedule the phone appointment today at 12:30pm with Climate Technilogies. Due to my situation I am in no position to turn down work and will not get an appropriate break to call today. Is there any possibility in making the phone appointment for another day.

Sorry for any inconvenience.

Sincere apologies
Vincent Young” (sic)

[7] My Associate responded to this email in the following terms:

“Mr Young,

I have referred your email below to the Senior Deputy President (SDP).

The SDP is not prepared to reschedule the listing for today and also notes that you have not provided any material in support of your extension of time request consistent with the direction in correspondence to you dated 11 November 2015 and the subsequent reminder dated 23 November 2015.

Consequently, the matter will proceed this afternoon.
….
Associate to Senior Deputy President O'Callaghan”

[8] Ms Gleeson represented Climate Technologies in this conference. I note that a sound file record of this telephone conference was kept.

[9] 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.”

[10] I have concluded that there is no dispute that the termination of Mr Young’s employment took effect on 2 October 2015. Consequently, the application was made some 10 days outside of the 21 day time limit and can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 1 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.”

[11] Mr Young was clearly on notice about the conference arrangements and the extent to which, a failure to comply with the instructions provided to him meant that the matter may be determined on the material before me. The correspondence sent to him on 12 November 2015 set out the requirement that he provide a statement and any document upon which he relied by close of business 19 November 2015. It continued, to state:

“10. In the event of a failure to comply with these instructions, the Senior Deputy President may determine the matter on the material before him.”

[12] Given that Mr Young did not comply with the direction to provide material in support of his extension of time position and his late notice of his non-attendance, I do not consider that the matter required relisting and have considered the extension of time issue on the minimal material before me.

[13] There is simply no information before me which provides a reason for the delay, an explanation of Mr Young’s actions or supports the merits of his application.

[14] Consequently, whilst I have considered all of the material before me, I am not satisfied that any form of exceptional circumstance is apparent here.

[15] No reason for the delay has been promulgated. Absent any such reason or an explanation of Mr Young’s actions relative to the termination of his employment prior to the lodgement of the application this clearly does not support an exceptional circumstance finding.

[16] To the extent that Mr Young was made aware of the termination of his employment some days after the date upon which it took effect, this is a factor which may favour the grant of an extension of time.

[17] There is nothing that indicates that, apart from the late lodgement of this application, Mr Young took other action to dispute the termination of his employment.

[18] I do not think that an extension of time of this magnitude would prejudice the Respondent but I have not founded my decision in this matter on that premise.

[19] In terms of the merits of the application, I have noted Mr Young’s apparent assertion that he provided advice Climate Technologies on 18 September 2015 to the effect that he would be away from work as a result of sickness for a further four weeks. He advised that he did not return to work on his doctor’s orders and asserted that his doctor’s receptionist had undertaken to provide medical certificates for this extended absence to Climate Technologies. The information provided to me by Climate Technologies does not support that version of events. The latest doctors’ certificate provided to me by the parties was completed on 11 September 2015 and covered the period 29 August to 17 September 2015. An email from Mr Gleeson to various other operational Climate Technologies personnel is dated 18 September 2015 and records that Mr Young had telephoned to advise that he would be away from work until 2 October 2015 and that he would send his doctors certificates to the appropriate person within Climate Technologies. This email records that Mr Gleeson advised Mr Young that once he had a clearance from his doctor, he would be required to undertake a functional capacity assessment before he could return to work. Absent any information from Mr Young to support his version of events, I do not consider his position to be credible. Consequently, I do not consider that the merits of the application support an extension of time.

[20] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[21] Consequently, I have concluded that the material before me does not establish that Mr Young’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application must be dismissed accordingly and an Order (PR574454) giving effect to this decision will be issued.

Appearances (by telephone):

A Gleeson for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

November 26.

 1   [2011] FWAFB 975

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