Aaron Webber v Apex Steel Supplies [2018] FWC 885

[2018] FWC 885 The attached document replaces the document previously issued with the above code on 9 February 2018. References to 8 March 2018 in paragraphs 13, 14, 15 and 17 are amended to 8 February 2018. Associate to Commissioner Platt 9 February 2018 -- 1 of 11 -- -- 2 of 11 -- 1 Fair Work Act 2009 s.394—Unfair dismissal Aaron Webber v Apex Steel Supplies (U2017/13890) COMMISSIONER PLATT ADELAIDE, 9 FEBRUARY 2018 Application for an unfair dismissal remedy – extension of time – application dismissed. [1] Mr Aaron Webber has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Apex Steel Supplies (Apex) which his form F2 Unfair Dismissal Application advised took effect on 27 November 2017. [2] The application was lodged on 28 December 2017. [3] Mr Webber’s application did not recognise that it was made beyond 21 days from the date of dismissal. [4] On 5 January 2018, Apex lodged a form F3 Employer Response which indicated that the dismissal occurred on 27 November 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time. This decision only deals with the extension of time issue. [5] On 19 January 2018, my Associate corresponded with Mr Webber and Apex and advised that the extension of time i ssue would be considered at a telephone conference on 2 February 2018. 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 Webber was directed to provide a statement concerning the extension of time and any documents to be relied upon by 30 January 2018. Apex was invited to file any material in reply by 31 January 2018. [6] On 30 January 2018, Mr Webber sent the following submission via email: “When I lost my job I contacted your office to find out what forms need to be done. I completed them and posted to your office at the end of November I put the mail in to the Semaphore post office with all correspondence, as I was advised to do. I call ypur (sic) office and was told thst (sic) it was being looked at but the person I need to talk to was away. My next correspondence eas (sic) when I received a letter stating I was late. I know it was posted as my mother posted with christmas (sic) card mail and that was [2018] FWC 885 DECISION -- 3 of 11 -- [2018] FWC 885 2 received. So Im not sure what has happened with the mail or the information I was told on the phone. I dont have a excuse as I believed that my claim was already in your office and being dealt with, I feel like a victim and I did everything that was asked of me, and I still believe that I did not warrant being sacked.” [7] In response to an email from my Chambers recommending that Mr Webber provide the dates that he undertook the events in his submission, Mr Webber provided the following: “Hey, I sent my form in on the 30th of November. I rang on the 9th of december (sic) and the person in charge of case got sick and i (sic) got a call 2 days after the 21 day period saying she was sick.” [8] Apex was invited to file a written submission but did not do so. [9] A hearing was conducted by way of telephone conference on 2 February 2018. A sound file record of the telephone conference was kept. Mr Webber represented himself and was accompanied by his mother Ms Sandra Webber as a support person and Mr Toby Richardson represented Apex. [10] Mr Webber gave evidence at the hearing, where he put the following position:  He was dismissed on 27 November 2017 and was aware of the dismissal on that date.  The first action he took to contest the dismissal occurred on 10 December 2017 when he contacted Dismissals Direct.  On 14 December 2017 he was advised by Rebecca Williamson at Dismissals Direct that he had a good case.  Mr Webber believes that Ms Williamson then became unwell.  On 20 December 2017 he was advised by a person, which he later advised was John Bingham, at Dismissals Direct that they could lodge an application on his behalf and make the out of time application for a set fee. The email requested Mr Webber to sign the documentation attached and return it.  Mr Webber did not provide any evidence as to any response by him to the Dismissals Direct communication. [11] Mr Webber’s evidence as to dates of communications was inconsistent and I have relied on the dates detailed on the written communications provided rather than Mr Webber’s recollection. It also appears that Mr Webber confuses the Commission and Dismissals Direct in his submissions. [12] Having received Mr Webber’s explanation and discussed the correspondence provided, I asked Mr Webber to explain why having lodged his application in late November, early December, he was considering instructing a representative to lodge an out of time application as per the email of 20 December 2017. Mr Webber’s connection to the conference then dropped out and when my Associate reconnected the call, Mr Webber could be heard -- 4 of 11 -- [2018] FWC 885 3 ranting in the background and his support person Ms Sandra Webber explained he would not return to the telephone and was stressed out by the process. Ms Webber advised me that she filled out the application, got Mr Webber to sign it, and posted it on a Friday or Saturday at the end of November or early December. This appears to corroborate the version of Mr Webber’s evidence where he states that the application was completed on 28 November 2017 and posted late November, early December 2017. [13] As a result of Mr Webber not being available to provide any explanation as to the inconsistent version of events, I proposed to adjourn the matter to 12.00pm on the same day and requested that Mr Webber attend the Commission in person to continue giving evidence. Shortly after this was agreed, Ms Webber telephoned back and advised that Mr Webber had a Centrelink appointment at 12.00pm in Port Adelaide and thus could not attend the Commission. I re-convened the conference and adjourned the matter to the mutually agreed time and date of 9.30am 8 February 2018. [14] Mr Webber was directed to provide the following documents prior to the hearing on 8 February 2018:  Complete copies of correspondence with any regulatory authority, the employer and any representative in respect of contesting his dismissal.  Complete copies of all emails between himself and any person from Dismissals Direct.  Correspondence from Dismissal Direct which supported his contentions that his application was delayed due to the illness of Ms Williamson [15] Mr Webber was also advised that if he did not attend at 9.30am on 8 February 2018 to continue giving evidence that the matter would proceed in his absence and may be determined on the material currently before the Commission. [16] Mr Webber subsequently provided the following documents:  An email dated 30 November 2017 from Dismissals Direct to Mr Webber stating the following: “Dear Aaron, Thank you for your enquiry to Unfair Dismissals Direct. To speed up the processing of your matter, please provide the following by return email: 1. A copy of your termination letter 2. Details of any complaints you have made in relation to your employment 3. Details of any leave you have recently taken, including medical certificates 4. A recent payslip 5. A detailed timeline of the events leading up to your dismissal 6. Any additional information you feel is relevant to your claim. Thank you for contacting Unfair Dismissals Direct.” -- 5 of 11 -- [2018] FWC 885 4  An email dated 1 December 2017 forwarding the above email from his own email address to his mother’s email address.  An email to Dismissals Direct on 10 December 2017 from Mr Webber addressed to Rebecca at Dismissals Direct, attaching the termination letter, medical certificates, recent payslip and advising that he would send the other information in another email. He sought any response be to his email as he had been using his mother’s email. The attachments were not provided to the Commission.  An email dated 13 December 2017 from Mr Webber’s mother’s email address to Dismissals Direct requesting that someone confirm that the paperwork had been received.  An email dated 15 December 2017 directed to Dismissals Direct asking Rebecca what is happening with his unfair dismissal claim.  A partial screenshot of an email from Dismissals Direct to Mr Webber on 20 December 2017. The email thanks Mr Webber for his time on the telephone on the same day and states that they could assist with the out of time application to the Fair Work Commission and details their fee and seeks that the paperwork in the attachment be completed by Mr Webber. The attachments were not provided to the Commission.  An email dated 2 February 2018 from Mr Webber to Dismissals Direct where Mr Webber sought to obtain information to support his claim. Ms Rebecca Williamson from Dismissals Direct responded that Dismissals Direct did not receive their terms and conditions from Mr Webber, and therefore they were never engaged to represent him. The email response from Ms Williamson did not corroborate Mr Webber’s assertion that illness delayed the submission of Mr Webber’s application.  An email dated 6 February 2018 from Mr Webber to Dismissals Direct requesting that they confirm the sequence of events concerning the interactions between him and Dismissals Direct. No response from this email was provided. [17] The matter was reconvened on 8 February 2018, Mr Toby Richardson represented Apex. Mr Webber did not appear despite my Associate leaving telephone messages for him. [18] Apex’s position is summarised as follows:  The application for an extension of time is opposed.  Mr Webber has failed to justify his request for an extension of time.  The postal delay does not warrant an extension and the fact that Mr Webber delegated the task of posting the envelope to his mother does not constitute representational error or exceptional circumstances.  The signature of Mr Webber on the application does not match the signature that Mr Webber used on other documents held by Apex. Apex believes Mr Webber did not sign the application. -- 6 of 11 -- [2018] FWC 885 5  Mr Webber could have lodged the claim electronically but did not do so. [19] I have also taken into consideration the envelope that the application form was received in. A scanned copy of the envelope and pictures of the post office stamp were re- provided to the parties on 6 February 2018. The envelope was date stamped by the Adelaide Mail Centre in December. When reviewing both the date stamps, it is possible that the stamp was affixed on 21 December but I am unable to read the date with certainty. There is a notation on the front of the envelope which suggests that it may have been delivered to the incorrect post office box. There is a further notation that indicates the envelope had been opened by someone in error. [20] Section 394 relevantly states: “394 Application for unfair dismissal remedy .... (2) The application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (3). (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: (a) the reason for the delay; and (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 (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position.” [21] This unfair dismissal application by Mr Webber was made 10 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended. [22] I have considered the provisions of s.39 4(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd1 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 -- 7 of 11 -- [2018] FWC 885 6 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 -- 8 of 11 -- [2018] FWC 885 7 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.” [23] I make the following findings.  Mr Webber was dismissed on 27 November 2017 and was aware of the dismissal on that day.  The application was received by the Commission on 28 December 2017.  Whilst Mr Webber’s interactions with Dismissals Direct indicate some actions to contest the dismissal, these were not without delay (e.g. it took 10 days from his initial contact to provide the material to allow an assessment of his claim).  More troubling is the apparent inconsistency between his submission that he signed the form F2 application on 28 November 2017 and submitted it by post in late November, early December 2017 and then for some reason sought the assistance of Dismissals Direct to lodge an unfair dismissal application. It is possible that had Mr Webber answered my questions on this point he may have satisfactory explained this inconsistency, however despite the opportunity to submit further evidence and give additional oral testimony, Mr Webber failed to use those opportunities to explain the inconsistencies in his various submissions. -- 9 of 11 -- [2018] FWC 885 8  There is evidence before me that Mr Webber never engaged Dismissals Direct to represent him and that being the case I am unable to accept that their conduct can be characterised as representative error.  Mr Webber suggests that his application took four weeks to travel from Semaphore Post Office to the Adelaide CBD. Whilst I accept there has been some delay which can be attributed to the post office, I do not accept that the whole of the delay has been explained. The delivery date of 28 December 2017, even accepting some delay, is more consistent with a 21 December 2017 posting than an early December posting.  Finally there is the inconsistency between Mr Webber’s various explanations of the delay. First he relies on a postal delay, then he relies on the conduct of Dismissals Direct, despite submitting that he had already lodged the application. Overall, Mr Webber’s evidence was unconvincing and he has not satisfied me that exceptional circumstances exist. [24] The applicant needs to provide a credible explanation for the entire period of the delay,2 but has not done. [25] There is no submission that the granting of an extension of time represents prejudice to Apex. [26] 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. [27] Consideration of fairness relative to other persons in similar positions is a neutral factor. Conclusion [28] For the reasons I have set out above, I am not satisfied that Mr Webber’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order3 reflecting this decision will be issued. COMMISSIONER Appearances: -- 10 of 11 -- [2018] FWC 885 9 Mr A.Webber the Applicant. Mr T.Richardson on behalf of the Respondent. Hearing details: 2018. Adelaide: February 2 and 8. Printed by authority of the Commonwealth Government Printer <PR600292> 1 [2011] FWAFB 975 2 Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403 3 PR600293 -- 11 of 11 --