Fair Work Act 2009_

s.773 - Application to deal with an unlawful termination dispute

South Coast Medical Service Aboriginal Corporation

[1] On 20 January 2015 Mr D Matcham (the applicant) lodged an application pursuant to section 773 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (FWC) to deal with an unlawful termination dispute. His former employer, and the respondent to the application, is South Coast Medical Service Aboriginal Corporation (the Respondent).

[2] The application revealed that the date of termination was 11 May 2007. In a letter dated 28 January 2015 I advised the applicant of the requirement in section 774 of the Act that such applications must be made within 21 days after the termination of employment or within such further period as the FWC allows. The letter set out the terms of section 774(2).

[3] I advised the applicant that, in order for his application to proceed, he would need an extension of time. I requested him to provide a written submission explaining why such an extension should be given and directed his attention to the specific issues set out in section 774(2). The applicant was informed that, unless he requested a hearing in person or by telephone or video, the matter would be decided on the basis of the written material he provided.

[4] The applicant provided a written statement on 31 January 2015. In the statement the applicant addressed the circumstances of his dismissal and various issues which had arisen during his period of employment. The applicant stated that, following his dismissal, he had requested to meet with the Board and to address a meeting of the Members of the Corporation. He had also made several requests for mediation as he disputed his dismissal.

[5] The applicant provided a second written statement dated 2 February 2015. Much of this statement was in the same terms as the earlier one. There was some additional material concerning what was said at the time of the dismissal, concerns and issues which the applicant had raised during the course of his employment as well as information about the respondent's revenue for 2013/14.

[6] The applicant noted that he had spent $6,613.20 in legal costs to obtain payment of his accrued annual leave. He also noted that legal advice provided to him at that time did not contain any detail in relation to the FWC or time limits for applying to any Industrial Commission. The applicant emphasized that his dismissal was very harsh and unfair, has caused him much personal stress and has tarnished his good name.

[7] There has been no request for the matter to be dealt with in a hearing whether in person, by video or by telephone.

[8] As noted earlier, the applicant's dismissal took place on 11 May 2007. The application was lodged on 20 January 2015 which is more than 7� years outside the statutory time frame of 21 days as required in section 774. I note that the equivalent provision in the predecessor legislation which was in force at the date of termination, also required such applications to be lodged within 21 days after the date on which a termination took effect.

[9] The question of whether to allow additional time for the making of an application of this type is governed by section 774(2) which is in the following terms:

"(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) any action taken by the employee to dispute the termination; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position."

[10] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) 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 the 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." [Footnotes not reproduced]

[11] I note that Nulty dealt with the provisions of section 366(2) rather than section 774(2) as is relevant in this matter. However, the provisions are relevantly in the same terms and I adopt and follow the approach of the Full Bench in this regard.

[12] The reasons provided by the applicant for the very lengthy delay in lodgement are:

● His repeated requests for meetings with the Board and the Members of the Community to discuss his termination;

● His repeated requests for mediation to address the termination; and

● The fact that the legal advice he received did not contain any information about the time limits or the FWC.

[13] I am not persuaded that these reasons when considering separately or together demonstrate any circumstances which are out of the ordinary, unusual, special or uncommon.

[14] The applicant attempted to dispute his termination by requesting meetings and mediation as noted earlier. He also took legal action in relation to his leave entitlements.

[15] There is nothing before me about prejudice to the respondent however I note that because of the length of time since the end of the employment relationship there may be some difficulties in witness availability and/or recollections of events.

[16] I do not have sufficient material before me on which to form any view about the merits of the claim. I note that in the Form 9A, Employer's Response to Application, the respondent claims that the applicant resigned. I also note that in his letter of resignation dated 11 May 2007 which was attached to the response the applicant states that it amounted to a "constructive dismissal".

[17] There is no issue of fairness as between the applicant and other persons in a similar position.

[18] I have taken into account the factors set out in section 774(2). I am not satisfied that there are exceptional circumstances in this matter which would justify the grant of an extension of time. The application is dismissed. An order to that effect is issued with this decision.

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