REASONS FOR DECISION

Fair Work Act 2009
s.365—General protections

Freeman King
v
Hartway Galvanizers
(C2016/5078)

Application to deal with contraventions involving 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.365 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr King and the respondent ended on 14 July 2016. Mr King lodged his application at the Fair Work Commission on 25 August 2016. Mr King’s application was lodged 21 days outside the statutory time limit.

[3] The application was listed for hearing by transcribed telephone link on 29 September 2016. Mr King represented himself. The respondent was represented by Mr Farrell of the Chamber of Commerce and Industry of Western Australia (Inc) who appeared with his client Mr Paul Edmondson.

[4] When determining this application I had before me the General Protections Application lodged by Mr King, the Response to General Protections Application lodged by the respondent and the respondent’s Written Submissions.

[5] I issued an Order allowing Mr King’s application for an extension of time on 21 October 2016.

[6] 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:

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

[7] 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) 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.” [Endnotes not reproduced]

[8] For exceptional circumstances to arise 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.366 (2) must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[9] In reaching my decision I considered the various criteria to which my attention is directed by s.366 (2) of the Act.

reason for the delay-s.366(2)(a)

[10] Mr King originally lodged an application pursuant to s.773 of the Act. His application pursuant to s.773 of the Act was lodged within the 21 days prescribed by the Act for an application pursuant to s.365. He submitted that when pursuing this remedy he conducted research on his own account and took advice from Legal Aid.

[11] When the application pursuant to s.773 of the Act was listed before Commissioner Cloghan the Commissioner advised him that instead of that application, he ought to have lodged an application pursuant to s.365 of the Act. Following the advice received from Commissioner Cloghan Mr King lodged this application on the same day.

any action taken by the person to dispute the dismissal-s.366(2)(b)

[12] Mr King disputed his dismissal by lodging a prior application and then this application.

prejudice to the employer-s.366(2)(c)

[13] 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.

the merits of the application-s.366(2)(d)

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

fairness as between Mr King and other persons in a similar position-S.366(2)(e)

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

[16] Mr Farrell submitted that the respondent was identified as a company on the contract of employment. He also submitted that the applicant would have been able to identify from his research that, pursuant to the public record, the respondent was owned by a trust and the custody of that trust resided in the company. With that information Mr King should have been able to properly identify the jurisdictional basis of his claim. He also submitted that ignorance of the provision was no defence.

[17] Mr Farrell further submitted that there was no evidence except Mr King’s own statement, that Mr King had received any advice from Legal Aid. I asked Mr Farrell whether he was happy for Mr King to affirm his statement that he had received advice from Legal Aid. Mr Farrell objected on the basis that the respondent would not have an opportunity to investigate, verify and respond to that evidence.

[18] I asked Mr King how he came to obtain advice from Legal Aid. He responded as follows:

“MR KING:  Yes.  Well, from dismissal I was placed in severe hardship financially.  I haven't been able to get any representation, legal advice from many sources that I have rung.  I did ring the Employment Law Centre of Western Australia, and because it's limited resources every time I was unsuccessful.  I did contact Legal Aid WA where I was advised that they only have one employment lawyer which was very limited, and this is where I was told from the receptionist, I was asked for the ABN and the previous employer who I was employed by, and this is where I was told that they were in fact a State system employer and which application I was to lodge and so I went from there and I did a lot of research on just the internet, the Fair Work page on my phone because that's all I've been able to use.  I haven't had any income to provide, like, to get any legal representation or – like, I'm just repeating myself there, but, yes, I haven't been able to do anything really without any income to provide to get any legal help.

THE SENIOR DEPUTY PRESIDENT:  Thank you.  I only wanted to hear about how it is you came to be getting advice from Legal Aid.

MR KING:  Well, I just rang Legal Aid off my mobile and from the Employment Centre of WA website page.  That's where I found their contact number and that's how I come about ringing Legal Aid WA.” 1

[19] I gave Mr Farrell the opportunity to apply for an adjournment to verify that evidence or give some thought to his response and make further submissions 2. He declined that opportunity. He made an oral submission in response3.

[20] I was satisfied that Mr King had done his best to research his entitlements, a task outside his usual skill level. When advised of the section pursuant to which he should have proceeded he attended to lodgement immediately.

[21] Having considered all of the matters to which my attention is directed by the Act I was satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis I allowed the application. I was satisfied that Mr King’s circumstances were out of the ordinary course, unusual, special or uncommon.

SENIOR DEPUTY PRESIDENT

 1   Transcript PN87-PN89

 2   Transcript PN90

 3   Transcript PN91

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