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).

[2] The relationship between Mr Regan and Ceres Agricultural Company Pty Ltd (the respondent) ended on 8 July 2015. Mr Regan attempted to lodge his application by post on 22 July 2015 but that application was not received by the Fair Work Commission (the Commission). Mr Regan lodged a second application at the Commission on 8 September 2015. That application was lodged 42 days outside the statutory time limit.

[3] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Regan. The explanation provided by him for late lodgement of his application at paragraph 1.4 is set out below:

"I originally posted a copy of my application on the 22-07-2015 and have been waiting to hear back from someone. After over a month I realised something must have been wrong and tried contacting the FWC by phone with no luck, as it continued saying that all lines to this area were busy. I then sent an email to see if I could find out some information. I was later contacted by the FWC Registry Office (Melissa Rees) telling me they didn't have my application and told me to resubmit it. I have contacted Australia Post and it can't be found. I am happy to sign a stat declaration saying this."

[4] Johns C wrote to Mr Regan on 17 September 2015 outlining the matters the Commission required to consider by the Act and asked him to provide a statement addressing these matters within 14 days. Mr Regan provided a comprehensive statement on 29 September 2015. This is extracted below:

"Hi I am replying to your message about my unfair dismissal claim. As I stated in my form I don't have an excuse or made up explanation for my lodgement being late as I my first claim within the 21 day period. As I have never made a claim I was unsure on how long it would take for the FWC to get back to me. When I realised there was something wrong and I hadn't heard from anyone there I called and emailed the FWC. I was then told that they hadn't received my claim as yet and that I was to fill another claim out and send it in stating what had happened. I contacted the Australia Post in person to see if there was anyway of recovering the original form, they informed me that as it was not registered there would not be able to recover it. I am happy to do whatever it takes to get this processed. Please let me know if there is anything else you may need that can help as I don't want this company doing this to anyone else, as I know they have done it to people in the past. Thank you Josh Regan."

[5] Further enquiries as to the posting of the application resulted in further correspondence from Mr Regan on 29 October 2015 extracted below:

"Hi how would you like me to do so I've been to the post office and they can't find it. But will try again."

[6] I wrote to the respondent on 20 November 2015 as follows:

"A search of the records of the Fair Work Commission has revealed that Mr Regan is likely to have lodged his application by post on 22 July 2015. It did not arrive but Mr Regan checked upon its arrival by email on 1 September 2015.

In the circumstances I am inclined to extend the time for lodgement of Mr Regan's application. If you are opposed to the extension of time please file a submission in opposition within 7 days.

In the absence of a submission in opposition I will determine this application on the papers already before me, without notice to the respondent."

[7] The respondent provided a detailed submission on 27 November 2015 setting out its objection to an extension of time for lodgement providing references to previous decisions of the Commission where difficulties with postage had resulted in a refusal to exercise the Commission's discretion to extend the time for lodgement.

[8] The relevant legislative framework for the exercise of the Fair Work 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.

[9] 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]

[10] 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.

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

[12] I issued an Order on 3 December 2015 allowing Mr Regan's application for an extension of time for lodgement.

[13] I considered all of the matters to which my attention is directed by the Act.

[14] The reason Mr Regan provided for his delay in lodgement was the failure of the application posted by him to arrive.

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

[15] Mr Regan became aware of the end of his relationship with the respondent on 8 July 2015.

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

[16] Mr Regan disputed his dismissal by lodging this application.

[17] I was satisfied that there would be no greater prejudice to the respondent caused by Mr Regan's 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 Regan 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] I considered the submissions of the applicant and the respondent and, in the circumstances of this application, having considered the factual circumstances, I decided to exercise my discretion to extend the time for lodgement of the application. I determined there was a basis on which to grant an exception to the time limit for lodgement.

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