Vuthen Kong v Ingham Enterprise Bolivar

[2016] FWC 2930

[2016] FWC 2930

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vuthen Kong
v
Ingham Enterprise Bolivar
(U2016/5765)

COMMISSIONER PLATT ADELAIDE, 10 MAY 2016

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

[1] Mr Kong 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 Inghams Enterprises Pty Ltd (Inghams).

[2] Mr Kong’s application was lodged on 29 March 2016. Mr Kong advised that his employment was terminated in September 2014. Inghams contended that the employment was terminated on 17 September 2014.

[3] In respect of the extension of time application, the application stated that delay was due to Mr Kong’s failure to understand the law and that he was unaware of the Fair Work Commission and its role. Mr Kong was advised by a teacher at TAFE to contact the Fair Work Commission.

[4] On 5 April 2016, my Associate corresponded with both Mr Kong and Inghams and advised that the extension of time issue would be considered at a telephone conference on 4 May 2016. Substantial information about the extension of time issue was provided to the parties. Mr Kong was directed to provide a witness statement and a copy of any document to be relied upon relative to the extension of time issue by 20 April 2016.A reminder was sent also sent to Mr Kong on 26 April 2016. Inghams was required to submit a Form F3 (Employer Response).

[5] No additional information was received from Mr Kong prior to the hearing.

[6] Inghams opposed the extension of time application.

[7] Mr Kong participated in the telephone conference. Inghams was represented by Mr Story, Group Industrial Relations Manager. An interpreter was used to assist Mr Kong. A sound recording of the teleconference was kept.

[8] Mr Kong submitted that his English comprehension was poor, he did not understand what was required by the directions and that was why he did not file any material. I accept this explanation.

[9] Mr Kong’s submissions relevant to the out of time considerations are summarised as follows:

● his employment was terminated without warning and this was unfair;
● he approached the National Union of Workers after the termination but they did not assist him;
● his English was poor and he did not understand his capacity to make a claim until he spoke to a TAFE lecturer sometime in 2015 who advised him that the Fair Work Commission could assist him; and
● he researched the Internet and lodged the application on 29 March 2016.

[10] Inghams position can be summarised as follows:

● Mr Kong has failed to demonstrate exceptional circumstances within the meaning of s.394(3) of the Act and the application should be rejected;
● the termination was performance based and Mr Kong has been afforded procedural fairness; and
● the employer would be prejudiced by the 16 month delay.

[11] At the conclusion of the conference, I advised that Mr Kong had not established that there were exceptional circumstances and accordingly that the application would be dismissed. My detailed reasons for this decision follow.

Discretion to extend time

[12] Section 394(3) of the FW Act states:

“(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] I have considered the provisions of s.394(3) 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.”

[14] Mr Kong submitted that he was ignorant of the law and his ability to contest the termination until sometime in 2015. He could not be more precise with the date.

[15] The delay in this matter is extreme and Mr Kong’s submission does not explain why, having become aware of the capacity to challenge the termination in December 2015 (at the latest), the application was not lodged for another 3 months.

[16] The duration of the delay is considerable and favours a finding that an extension of time of this magnitude would prejudice Inghams however, I have not taken this into account in determining this matter.

[17] In terms of the merits of the application, information which allows a definitive conclusion in this respect is not before me and therefore, the merits of the application have been regarded as a neutral factor relative to the extension of time issue.

[18] Considerations of fairness, relative to other persons in similar positions, is not relevant in this matter.

[19] I have concluded that the material before me does not establish that Mr Kong’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order² giving effect to this decision will be issued.

COMMISSIONER

Appearances (by telephone):

V Kong, on his own behalf.

D Story, on behalf of Inghams.

Hearing (Conference) details:

2016.

Adelaide:

May 4.

1 [2011] FWAFB 975.

2 PR580193.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR580192>