William Tweed v The Trustee for Furnlunga No 2 Trust T/A Harvey Norman Furniture Noarlunga

[2015] FWC 1681

[2015] FWC 1681 [Note: An appeal pursuant to s.604 (C2015/2297) was lodged against this decision - refer to Full Bench decision dated 26 May 2015 [[2015] FWCFB 3443] for result of appeal.]

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Tweed
v
The Trustee for Furnlunga No 2 Trust T/A Harvey Norman Furniture Noarlunga
(U2015/3081)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 12 MARCH 2015

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

[1] Mr Tweed 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 The Trustee for Furnlunga No 2 Trust T/A Harvey Norman Furniture Noarlunga (Harvey Norman). At a telephone conference convened on 12 March 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 Tweed's application was lodged on 16 February 2015. In that application Mr Tweed advised his employment was terminated with effect from 23 January 2015. Mr Tweed asked the Fair Work Commission (the FWC) to consider the following information in deciding whether to accept his application out of time:

“Day 22nd. On the first day of dismissal I rang Fair Work Australia whom advised me to seek legal advice through Southern Justice. Unfortunately they (Southern Justice) couldn’t see me till the 12th of Feb. After which they thought I had a case and refered me back to Fair Work Australia on the 13th I tried unsuccessfully to apply online. Due to time constraints I didn’t have supporting documents to submit.” 1 (sic)

[3] On 18 January 2015 my Associate corresponded with both Mr Tweed and Harvey Norman and advised that the extension of time issue would be considered through a telephone conference on 12 March 2015. Substantial information about the extension of time issue was provided to the parties. Mr Tweed was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 24 February 2015.

[4] No additional information was received from Mr Tweed despite a request to this effect.

[5] The Employer’s Response to the application objected to the application on the basis that it was lodged outside of the 21 day time limit. This response also advised of objections to the application on the basis that Harvey Norman had made Mr Tweed redundant consistent with s.399 of the FW Act and that the termination of his employment was consistent with the Small Business Fair Dismissal Code.

[6] Mr Tweed participated in the telephone conference. Mr Schubert, of counsel sought permission to represent Harvey Norman. Permission to appear was granted by consent pursuant to s.596(2) but I note that no comments or submissions were required from Harvey Norman. Mr Phan from Harvey Norman also participated in this conference. Notwithstanding the absence of any written material from Mr Tweed, he was given the opportunity to expand on the information provided in the application. This information was generally consistent with the explanation included in his application. Mr Tweed advised that he visited Southern Justice, which I understand to be a community legal aid provider, on 12 February 2015 and had expected that organisation to pursue his case. When he was advised to lodge the application himself, he had difficulty in completing the application and pursuing a waiver for the lodgement fee.

[7] My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[8] 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.”

[9] On the information before me I am satisfied that the application was made some three days outside of the 21 day time limit and hence, 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 2 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.”

[10] Mr Tweed's reasons for the delay relate to his difficulties in accessing legal advice, and his difficulties in lodging his application electronically. In terms of his difficulties in obtaining legal advice, I am not satisfied that this is an acceptable reason for the delay or that it constitutes any form of exceptional circumstance. In terms of Mr Tweed’s difficulties in lodging the application, I am not satisfied that he has established that those attempts were made in a timely fashion or that delays in this instance, relative to the electronic lodgement system, properly explain the delay. In these circumstances, I am not satisfied that Mr Tweed’s explanation for the delay represents an acceptable reason for the delay or that it is indicative of exceptional circumstances. It is clear from Mr Tweed's application that he was aware of the termination of his employment on the day it took effect. I am not satisfied that, apart from the late lodgement of this application, Mr Tweed pursued other actions so as to challenge the termination of his employment. I am not satisfied that an extension of time of this magnitude would prejudice Harvey Norman but this, of itself, does not provide a basis for an extension of time.

[11] Whilst I have noted the jurisdictional objections identified by Harvey Norman, information to enable a definitive conclusion about these issues, or the merits of the application is not before me, and I have consequently regarded the merits of the application and the capacity to pursue it further, as a neutral factor relative to the extension of time.

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

[13] Accordingly I have concluded that the material before me does not establish that Mr Tweed'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 Order (PR561883) giving effect to this decision will be issued.

Appearances (by telephone):

W Tweed on his own behalf.

D Schubert of counsel for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

March 12.

 1   Form F2, para 1.4

 2   [2011] FWAFB 975

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<Price code C, PR561881>