Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - extension of time - operation of s.36 of Acts Interpretation Act 1901 (Cth) as at 25 June 2009 - application in time - if incorrect application of s.36 of Acts Interpretation Act 1901 (Cth) then exceptional circumstances - representative error - extension of time granted.

[1] Mr Springfield has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by Hegele Logistics Australia P/L (HLA) on 9 April 2017 in contravention of the general protections provisions of the Act.

[2] This application was lodged on 2 May 2017.

[3] Mr Springfield's application explained the failure to lodge the application within 21 days from the dismissal as follows:

"The Applicant's termination was effective 9 April 2017. Therefore, the Application was due to be lodged 21 days after the date of termination which is 1 May 2017. As the 1 May 2017 in Queensland was a Public Holiday we are lodging the Application the following day 2 May 2017."

[4] HLA filed a F8A Employer Response on 13 June 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[5] On 16 June 2017, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 3 July 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Springfield and HLA were directed to provide an outline of argument by no later than noon 26 June 2017.

[6] Mr Springfield provided a written submission summarised as follows:

• The general protections application was lodged outside of the 21 day time frame as a result of an error by his then representative Ms Sarah Lock.

• Ms Lock appears to have believed that the Queensland Public Holiday on 1 May 2017 was such that it was acceptable to file the application the following day.

• The late lodgement of the application was as a result of this representative error and Mr Springfield is blameless and cannot be said to have contributed to the delay.

• Mr Springfield took active steps to ensure that his representative had lodged the application within the 21 day time frame.

• The late lodgement of the application will not disadvantage HLA, there is no greater prejudice caused by the delay.

[7] Mr Springfield also provided a witness statement summarised as follows:

• He was advised on 27 March 2017 that his employment with HLA would terminate on 9 April 2017.

• On 29 March 2017, he contacted Shine Lawyers to seek legal advice in relation to his dismissal. He spoke to someone who recorded the basic details of his matter.

• On 13 April 2017, he received a confirmation email that a consultation had been booked with Ms Sarah Lock (a solicitor who was then employed by Shine Lawyers) for 18 April 2017.

• Mr Springfield met with Ms Lock on 18 April 2017, provided relevant documents and discussed the matter. Mr Springfield was made aware of the time limit.

• Mr Springfield spoke with Ms Lock three times after that meeting.

• Mr Springfield sought to speak with Ms Lock and left many messages for her which went unanswered.

• On 24 April 2017, Mr Springfield sent a statement to Shine Lawyers.

• Mr Springfield was not provided with a copy of the application and did not receive the Commission's correspondence dated 3 May 2017 as he had moved to a different address.

• Mr Springfield then followed up the issues raised with Shine Lawyers.

[8] HLA filed a submission which contended that:

• The application was filed out of time.

• The complete application was not filed until 7 June 2017 and this should be the date that the Commission regards the application to have been filed (37 days late).

• No adequate reason has been given to explain the whole of the delay.

• No action was taken to contest the dismissal prior to 2 May 2017.

• The merits should be regarded as a neutral factor.

• HLA will be prejudiced by the inconvenience and costs in defending the matter.

[9] A hearing was conducted by way of telephone conference on 3 July 2017. A sound file record of the telephone conference was kept. Mr Preston, of counsel, represented Mr Springfield and Ms Ferrier, of counsel, represented HLA. Permission was granted pursuant to s.596(2) of the Act.

[10] HLA principally relied on the submissions filed and contended that there were no exceptional circumstances on the basis that Mr Springfield had not explained the whole of the delay, in particular the period between 23 May 2017 and 7 June 2017.

[11] HLA contend that as the Form F8 application filed on 2 May 2017 was incomplete, and a more detailed application was lodged on 7 June 2017, that I should find the date of lodgement to be 7 June 2017.

[12] The Form F8 application lodged on 2 May 2017 identified the respondent, representative details, the date of commencement, explained the fact it may be considered out of time, detailed the remedy sought and the workplace right (s.340) alleged to be breached.

[13] In terms of the reasons for dismissal (paragraph 1.3 of the application) the application referred to a termination letter which had purportedly been annexed but was not.

[14] In terms of the response to paragraphs 3.1 and 3.3, the application referred to annexures that were not attached.

[15] The Form F8 application filed on 7 June 2017 contained the following changes/additional information:

• It varied the name of the person employed by Shine Lawyers from Ms Lock to Mr Donaghy;

• It explained that the application was re-lodged as the previous version was incomplete;

• It attached the letter of dismissal referred to in paragraph 1.3;

• It added s.351 as an additional workplace right breached; and

• It provided a detailed response to paragraph 3.1 and 3.3.

[16] In my view the original application contained sufficient information to indicate the nature of the claim, the workplace right breached and the remedy sought. The fact that this application was incomplete, which may have been due to representative error by Ms Lock, does mean that application was not lodged.

[17] I find that the application was lodged on 2 May 2017.

Operation of s.36 of the Acts Interpretation Act 1901 (Cth)

[18] At the telephone conference, Mr Springfield reiterated and amplified his written submission and contended that as a result of s.40A of the Act, the provisions of the Acts Interpretation Act 1901 (Cth), as at 25 June 2009, applied and the effect of s.36 of that Act was such that the last day to file the application was 2 May 2017. Subsection 36(3) of the current Acts Interpretation Act 1901 (Cth) did not apply as it was inserted post 25 June 2009. Mr Springfield submitted that the reference to 'national public holidays' in the Commission's General Protections Benchbook was in error and that the proper application of the Acts Interpretation Act 1901 (Cth), as at 25 June 2009, would have extended the time to file by one day. I note that the Unfair Dismissal Benchbook uses the expression 'Public Holiday'. I also note that the Benchbooks' are provided for advice of parties as a general guide only, that it is not intended to be an authority to be used in support of a case at hearing and further that the commentary contained therein is not binding upon me, and that both the Benchbooks', according the Commission's website, are currently under review.

[19] Section 36 of the Acts Interpretation Act 1901 (Cth), as at 25 June 2009, reads as follows:

(1) Where in an Act any period of time, dating from a given day, act, or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned exclusive of such day or of the day of such act or event.

(2) Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place."

[20] It is not in dispute that but for the impact of s.36 of the Acts Interpretation Act 1901 (Cth), the last day to file in this matter was Monday 1 May 2017, which by virtue of the Holidays Act 1983 (Qld) was designated a public holiday, namely Labour Day. Mr Springfield contends that 1 May 2017 was a public holiday in the place (Queensland) in which the thing (the lodgement of an application in the Commission's Brisbane Registry) to be done.

[21] There is merit in Mr Springfield's submission and I find that Labour Day in Queensland is a public holiday for the purposes of s.36 of the Acts Interpretation Act 1901 (Cth). I find that on that basis the application was made in time and no extension is required.

[22] If I am wrong about the correct application of s.36 of the Acts Interpretation Act 1901 (Cth) applying in the case of public holidays, this general protections application by Mr Springfield was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[23] Section 366 of the Act relevantly states:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(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 person to dispute the dismissal; 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."

[24] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[1] 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] 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."

[25] It is a well-established principle that, depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.[2] In such a case, a distinction is drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.[3] The conduct of the applicant is a central consideration.[4]

[26] If the application has been made out of time, this is a case of representative error. Ms Lock's apparent lack of application appears to have resulted in the application not being lodged until the last minute. Mr Springfield did all that could have been expected of him, regularly and repeatedly following up prior to lodgement to ensure that his representative would complete the task. I am not satisfied that Mr Springfield contributed to the delay.

[27] At the hearing, HLA conceded that Mr Springfield had explained the delay up to 2 May 2017. As I have found that the application was lodged on 2 May 2017 and not 7 June 2017, I do not need to look at the delay past 2 May 2017.

[28] The applicant needs to provide a credible explanation for the entire period of the delay,[5] and has done so.

[29] The delay in this matter is short, and I do not find that it presents prejudice to HLA.

[30] Consideration of fairness relative to other persons in similar positions is a neutral factor.

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

[32] For the reasons I have set out above, if I am wrong about the application of s.36 of the Acts Interpretation Act 1901 (Cth), I would have been satisfied that Mr Springfield's circumstances can be regarded as exceptional so as to support an extension of time.

[33] An Order[6] reflecting this decision will be issued, and the application will be referred for conciliation.

Mr A.Preston of counsel on behalf of the Applicant.

Ms E.Ferrier of counsel on behalf of the Respondent.

[1] [2011] FWAFB 975

[2] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420

[3] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420

[4] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-420

[5] Cheval Properties Pty Ltd t/as Penrith Hotel v Smither [2010] FWAFB 7251; (2010) 197 IR 403

[6] PR594242

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