Wayne Faralla v Game Traffic and Contracting T/A Game

[2017] FWC 3569

[2017] FWC 3569

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wayne Faralla
v
Game Traffic and Contracting T/A Game
(U2017/3381)

COMMISSIONER PLATT ADELAIDE, 5 JULY 2017

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

[1] Mr Wayne Faralla 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 Game Traffic and Contracting T/A Game (Game) which his Form F2 Unfair Dismissal application advised took effect on 2 March 2017.

[2] This application was lodged on 28 March 2017.

[3] Mr Faralla’s application did not recognise that it was made beyond 21 days from the date of dismissal.

[4] On 21 April 2017, Game lodged a Form F3 Employer Response and raised a jurisdictional objection on the basis that the application was lodged out of time and the minimum employment period requirement had not been met. This decision only concerns the extension of time issue.

[5] The Fair Work Commission (the Commission) issued a number of listings and directions prior to the matter being allocated to my Chambers.

[6] Mr Faralla provided a written statement and submissions which are summarised as follows:

● Mr Faralla had been employed as a casual Traffic Controller since 23 March 2015.
● He travelled overseas to the Philippines from 19 November 2016 to 26 February 2017 and was absent from work from 19 November 2016 to 2 March 2017.
● On 28 February 2017, Mr Faralla’s step-sister committed suicide.
● On 2 March 2017, he telephoned Mr Leslie to follow up on an agreement to be placed back on the roster upon his return to Australia.
● Mr Leslie, on behalf of Game, terminated his employment on 2 March 2017.
● On or around 4 March 2017, Mr Faralla travelled to stay with his father and the rest of his family in regional Victoria and returned on or around 20 March 2017.
● The funeral was held on 14 March 2017.
● On or around 20 March 2017, Mr Faralla sent a copy of a form with his details on it by mail to the Commission. He believed that he was making an unfair dismissal application and was unaware that the form (a general protections Federal Circuit Court form) was incorrect.
● On or around 22 March 2017, he received a telephone call from the Commission advising that he had filed the incorrect form and that the correct form would be mailed to him. This information was confirmed in writing by post.
● On 24 March 2017, Mr Faralla received the correct form.
● He completed the correct form and filed it on 28 March 2017.
● Mr Faralla submits that the merits of the application weigh in favour of granting an extension of time as he was dismissed for an alleged conflict with another employee, no action was taken against the other employee and because procedural fairness was not afforded to him.
● Firstly, Mr Faralla seeks the Commission to exercise its discretion under s.586(b) of the Act to waive an irregularity in the form filed on or around 20 March 2017. Alternatively, Mr Faralla has asked that the Commission dispense with the requirement to comply with rule 8(2) of the Fair Work Commission Rules 2013 and allow the form filed on or around 20 March 2017 to be the relevant application made within 21 days.
● Finally, if the Commission finds that the application is made out of time, then Mr Faralla submits that there are exceptional circumstances being the death of his step sister and the lodging of the incorrect form within 21 days.

[7] Game provided a written submission which is summarised as follows:

● Mr Faralla has not been employed with Game since his last day of work on 17 November 2016.
● In relation to the request to waive an irregularity with the form pursuant to s.586(b) of the Act, Game submits that in the absence of unequivocal evidence to the contrary, the Commission must conclude that Mr Faralla knew that he was applying for a general protections remedy and not an unfair dismissal remedy.
● Despite the death of his step sister, Mr Faralla telephoned Mr Leslie on 2 March 2017 and was therefore capable of engaging in important matters at the time.
● Mr Faralla did not travel to be with his family until 4 March 2017 and therefore could have filed an unfair dismissal application on 2 or 3 March 2017.
● Mr Faralla has not provided a credible reason for not being able to file an unfair dismissal application during the time spent providing care and support to his family.
● Mr Faralla has not provided sufficient details about the discussion with the unnamed Fair Work Commission officer who advised him that he had filed the incorrect application form.
● Mr Faralla has not provided an explanation as to the reason he waited a further 4 days, until 28 March 2017, to file the unfair dismissal application allegedly received on 24 March 2017 with a Fair Work Commission letter dated 22 March 2017.
● Granting an extension of time would prejudice the employer because over six months has elapsed since Mr Faralla was employed.
● The application lacks merits and is unlikely to succeed.

[8] A hearing was conducted by way of telephone conference on 9 June 2017. A sound file record of the telephone conference was kept. Mr Faralla was represented by Ms McIntosh of Ashurst under the Commission’s pro-bono scheme. It should be noted that representation under that scheme does not remove the need for pro-bono representatives to seek a grant of permission under s.596 of the Act. Mr Maguire of Maguire Consulting represented Game. Permission was granted to both representatives pursuant to s.596(2)(a) of the Act.

Consideration

[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] Mr Faralla has sought the Commission use its discretion to waive any irregularities and effectively amend the general protections court application (made on a Federal Circuit Court form) into an unfair dismissal application. In Ioannou v Northern Belting Services Pty Ltd 1 a Full Bench determined that an application under s.394 of the Act could not be regarded as an application under s.365 of the Act. In this case I am asked to perform the reverse. I do not believe it is within my power to do so. The power to waive irregularities is not such as to change the character of the application. I have the same view as my power to vary the nature of the application by dispensing with the Fair Work Commission Rules 2013.

[11] Accordingly I find that the unfair dismissal application by Mr Faralla was made on 28 March 2017, some 5 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[12] 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 Ltd² 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.”

[13] I make the following findings.

[14] I accept that Mr Faralla was impacted by the death of his step-sister in tragic circumstances. Mr Faralla spent time with his family in the period leading up to the funeral on 14 March 2017 and travelled home on 20 March 2017. On 20 March 2017, Mr Faralla lodged an application on an incorrect form which challenged the dismissal. The Commission communicated the error with Mr Faralla, he received the correct application form on Friday 24 March 2017 and filed it on Tuesday 28 March 2017.

[15] The applicant needs to provide a credible explanation for the entire period of the delay, 3 and has done so.

[16] The delay in this matter is relatively short and I am not convinced that prejudice to the employer can be considered as anything other than a neutral factor.

[17] In terms of the merits of the application, there is insufficient evidence before me to make an assessment of the competing positions and, accordingly, I have regarded the merits as a neutral factor.

[18] Based on the information before me consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[19] For the reasons I have set out above, I am satisfied that Mr Faralla’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and an Order 4 reflecting this decision will be issued. The matter will be referred for conciliation.

COMMISSIONER

Appearances (by telephone):

Ms O.McIntosh of Ashurst on behalf of the Applicant.

Mr P.Maguire of Maguire Consulting on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

9 June.

 1   [2014] FWCFB 6660

2 [2011] FWAFB 975

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

 4   PR594334

Printed by authority of the Commonwealth Government Printer

<Price code C, PR594333>