Fair Work Act 2009_

s.394 - Unfair dismissal

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was heard in person in Sydney on 1 July 2016.

[2] The relationship between Mr Ayub and the respondent ended on 14 January 2016. Mr Ayub lodged his application at the Fair Work Commission (the Commission) on 8 February 2016. His application was lodged 4 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Ayub. I wrote to Mr Ayub on 7 April 2016 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters.

[4] There was a difference between the parties as to what should be determined to be the date of termination of employment. When the respondent's internal review was commenced Mr Ayub was advised in correspondence how the date of his termination of employment would be determined if the review determined that his employment should be terminated.

[5] I was satisfied that the date of Mr Ayub's termination of employment was 14 January 2016.

[6] Receipt of the notice of termination was delayed, and Mr Ayub did not receive it until 19 January 2016. Mr Ayub therefore had less time to consider his options on termination of employment than he would have had if his notice of termination been served promptly. I considered that situation.

[7] At the hearing of this application I suggested that Mr Ayub should provide an explanation for the time taken to lodge his application i.e. 19 January 2016 until 8 February 2016.

[8] I issued a Finding and Order refusing Mr Ayub's application for an extension of time and dismissed his application on 6 July 2016.

[9] The relevant legislative framework for the exercise of the Commission's discretion in relation to applications of this kind is set out below:

(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:

(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

(f) fairness as between the person and other persons in a similar position.

[10] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 where the Full Bench said:

"[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] HCA 39; (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] HCA 45; (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) [1999] UKHL 4; [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." [Endnotes not reproduced]

[11] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.394(3) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[12] I considered the various criteria to which my attention is directed by s.394(3) of the Act.

[13] The only reason Mr Ayub provided for his delay in lodgement was the late service of the notice of termination of employment.

[14] I was not persuaded that Mr Ayub's difficulties were out of the ordinary, unusual or uncommon.

whether the person first became aware of the dismissal after it had taken effect-s.394(3)(b)

[15] Mr Ayub became aware of the end of his relationship with the respondent on 19 January 2016.

any action taken by the person to dispute the dismissal-s.394(3)(c)

[16] Mr Ayub disputed his dismissal by engaging in an internal appeal process and by lodging this application.

[17] I was satisfied that there would be no greater prejudice to the respondent caused by this application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

[18] Merit was a neutral issue in my consideration of this application.

fairness as between Mr Ayub and other persons in a similar position-s.394(3)(f)

[19] There was no issue of fairness in relation to any other person in a similar position.

[20] Having considered all of the matters to which my attention is directed by the Act I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. Mr Ayub's circumstances were not out of the ordinary course, unusual, special or uncommon.

P Livers, Slattery Thompson Solicitors for Mr Mohammed Ayub

A Woods, Henry Davis York Lawyers with P Thompson, NSW Trains

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