1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Gregory Stedman
v
Transdev NSW Pty Ltd T/A Transdev Buses
(U2014/1950)
SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 15 DECEMBER 2014
Application for relief from unfair dismissal.
A. The decision issued by the Fair Work Commission on 7 November 2014 [[2014] FWC
7893 PR557466] is corrected as follows:
The document has been edited to correct an error in paragraph 2 by deleting 2 September and
replacing it with 2 June and deleting 9 in the third line and replacing it with 2. By deleting 9
from paragraph 14 and replacing it with 10.
[1] This decision arises from an application for an extension of time for lodgement of an
application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009
(the Act).
[2] The relationship between Mr Stedman and the respondent ceased on 9 May 2014. Mr
Stedman lodged his application before the Fair Work Commission (Commission) on 2 June
2014. His application was lodged 2 days outside the statutory time limit.
[3] When determining this application I had before me the Application for Unfair
Dismissal lodged by Mr Stedman. In that application he set out the matters he considered the
Commission should take into account when deciding whether or not to accept his application
out of time. This is set out below:
“21 calendar days ended 30 may 2014. Today is 02 June 2014.
I was discouraged by my former employer to lodge and application for unfair
dismissal, and was not aware, nor advised I had only 21 calendar days to lodge.
I lodged an appeal to my former employer by lengthy letter dated 13 may 2014.
I was telephoned by Mr Len Kidd, general Manager, Friday 23 May 2014 and
informed they (Transdev) would not reverse their decision to summarily dismiss me
on 09 May 2014.”
[4] The respondent lodged an Employer Response which contained its objections to the
extension of time. They are set out below.
[2014] FWC 7893
CORRECTION TO DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 7893
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“1. The Company refutes the allegation made by the Applicant that he was discouraged
from making an application for unfair dismissal.
2. The Applicant was informed by the Deputy MD/GM Service Delivery Manager on
23 May 2014 the Company would not be reversing its decision to terminate his
employment. At the conclusion of the call the Applicant indicated he would be
pursuing the matter further.
3. After this meeting the Applicant had seven (7) days before the 21 day period lapsed
to submit his application.
4. It is not the responsibility of the Company to advise the Applicant of the 21 day
time limit for lodging an unfair dismissal application.”
[5] On 4 August 2014 Mr Stedman made the following submission:
“I sent an Email to the Respondent seeking dialogue in order that the FWA resources
may be spared in settling my grievance. However, Transdev have informed me by
return Email that they prefer to utilise the FWA framework to deal with this matter.
I verily believe, as do all Applicants I suppose, that my claim is rational and
reasonable, and I will contend very strongly that lodgment of my application ‘out of
time’ should not deny me natural justice. The 21st day was the Friday, and my
application was filed electronically on the Monday. In the interim I wrote a lengthy
appeal to Transdev seeking review of their decision, to be acknowledged with a
telephone call to me on 22 May advising in the negative. Hence, I believe some
latitude could be afforded me by FWA in this regard.
Moreover, Transdev took their time responding – one month. Furthermore, there are
many factual inaccuracies with the Respondents contentions as well as other issues
raised that I have no knowledge of, and I verily believe there were (are) less severe
remedies available in lieu of Summary Dismissal. This matter is serious and must be
heard by an independent party / adjudicator – such as FWA.
Hence, despite my efforts not to tie up FWA resources, we are now committed to the
process, and I would appreciate any further assistance / direction FWA can provide
me.”
[6] I heard this application in Sydney on 12 September 2014. Mr Stedman appeared on
his own behalf. A pro bono solicitor was in attendance to assist the Commission in relation to
Mr Stedman’s application. Mr Stedman provided a detailed written submission. He raised the
failure of the employer to provide him with a Fair Work Information Statementi.
[7] I adjourned the application to allow the respondent a further opportunity to address
the merit of Mr Stedman’s substantive application. That submission was received on 22
September 2014. Mr Stedman responded on 1 October 2014.
[8] Despite Mr Stedman's detailed submissions the final factual position was that Mr
Stedman could have filed on time but did not do so. There was no impediment to his
travelling to the city to lodge his application or lodging on line or by telephone. His reasons
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for not doing so were insufficient to persuade me to grant an exception to compliance with the
time limit. I issued an Order refusing the application for an extension of time and dismissed
Mr Stedman’s application on 1 October 2014ii.
[9] The relevant legislative framework for the exercise of the Commission’s discretion in
relation to applications of this kind is set out below:
394 Application for unfair dismissal remedy
...
(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.
[10] 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/Her 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
[2014] FWC 7893
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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]
[11] For exceptional circumstances to arise as contemplated by s394 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
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the factors outlined in s394 (3) must be considered and weighed when deciding whether or not
exceptional circumstances, circumstances sufficient to support an exception, exist.
[12] I considered the various criteria to which my attention is directed by s.394 (3) of the
Act.
reason for the delay-s.394(3)(a)
[13] I was not persuaded that Mr Stedman’s difficulties were out of the ordinary, unusual
or uncommon.
whether the person first became aware of the dismissal after it taken effect-s.394(3)(b)
[14] Mr Stedman became aware of the cessation of his relationship with the respondent on
10 May 2014.
any action taken by the person to dispute the dismissal-s.394(3)(c)
[15] Mr Stedman disputed his dismissal by writing to the respondent appealing the
dismissal on 13 May 2014 and telephoning on 23 May 2014. This was unsuccessful and he
then pursued this application.
prejudice to the employer-s.394(3)(d)
[16] There would be no greater prejudice to the respondent caused by Mr Stedman
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.394(3)(e)
[17] Merit was as a neutral issue in my consideration of this application.
fairness as between Mr Stedman and other persons in a similar position-S.394(3)(f)
[18] There was no issue of fairness in relation to any other person in a similar position.
[19] I was not satisfied that there were exceptional circumstances which would warrant my
granting an exception to the statutory time limit and on that basis dismissed the application.
SENIOR DEPUTY PRESIDENT
SEAL OF FAIR THE AUSTRA ORK COMMISSION
[2014] FWC 7893
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Printed by authority of the Commonwealth Government Printer
Price code C, PR559052
i Exhibit Mr Stedman 1
ii PR556146
