1
Fair Work Act 2009
s.365—General protections
Todd Perry
v
Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine
(C2015/6627)
DEPUTY PRESIDENT KOVACIC MELBOURNE, 12 MAY 2016
Application to deal with contraventions involving dismissal – whether application was made
within the statutory timeframe – application made out of time - extension of time – no
exceptional circumstances warranting allowing a further period for the making of an
application - application dismissed.
[1] Mr Todd Perry (the Applicant) made an application on 16 November 2015 under s.365
of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Rio Tinto
Shipping Pty Ltd T/A Rio Tinto Marine (Rio - the Respondent) on 26 October 2015 in
contravention of the general protections provisions in the Act.
[2] Rio in its Form 8A – Response to general protections application raised a
jurisdictional objection, contending that Mr Perry had been terminated with effect from
1 October 2015 and that his application had therefore been lodged 25 days outside the 21 day
statutory timeframe for lodgement specified in s.366(1) of the Act.
[3] The Fair Work Commission (the Commission) issued Directions on 9 December 2015
requiring the parties to file an outline of submissions and any evidentiary material they
intended to rely on regarding whether the application was made within the 21 day timeframe
or the alternate position that an extension of time be granted. Amended Directions were issued
on 12 January 2016.
[4] Those issues were the subject of a telephone hearing on 4 February 2016. At the
hearing, Mr Eddy Gisonda of Counsel appeared with permission for the Applicant, while
Mr Simon Dewberry appeared with permission for Rio. Mr Perry gave evidence on his own
behalf, while Rio did not lead any witness evidence.
[5] For the reasons set out below, I have concluded that the effective date of Mr Perry’s
dismissal was either 1 or 4 October 2015 and that his application was therefore lodged either
25 or 22 days outside the statutory timeframe. I have further concluded that I am not satisfied
that there were exceptional circumstances warranting the granting of a further period for the
making of an application under s.365 of the Act. Accordingly, Mr Perry’s application is
dismissed.
[2016] FWC 2972 [Note: This decision has been quashed - refer to Full
Bench decision dated 28 September 2016 [2016] FWCFB 6963]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb6963.htm
[2016] FWC 2972
2
Background
[6] Mr Perry commenced employment with Rio in August 2006 and on 11 February 2013
commenced a three year assignment in Singapore as Manager Business Analysis, Marine.
Mr Perry contended that he was given assurances prior to taking up the Singapore assignment
that the period of his assignment would not be cut short as a result of a restructure of Rio’s
marine operations.
[7] On 10 March 2015 Rio wrote to Mr Perry advising him that his position was to be
made redundant. Among other things the letter stated:
“This letter is to confirm that, as a result of the current organizational review; your
position of Manager Business Analysis within Rio Tinto Marine has been affected and,
as a consequence, will no longer be required. You will be repatriated to Melbourne in
accordance with the repatriation agreement.
Given the broader organisational changes it is expected there will be limited
opportunities for redeployment. Your interest in redeployment, and any opportunities
we are able to identify, will be discussed further with you.
In the event that you are unable to be redeployed, your last day of employment with
the Company will be 1 June 2015 or as later agreed. In accordance with the Rio Tinto
Retrenchment Policy: Australian-based staff, you will receive a termination payment
with respect to contractual notice which may or may not be worked, additional notice
and a service related payment…”1
[8] Following further discussions between the parties a revised timeline for Mr Perry’s
termination was agreed. The revised timeframe involved 10 March 2015 as the date when
Mr Perry was given notice of the impending termination of his employment, Mr Perry
commencing a period of “gardening leave” on 28 June 2015 and 1 October 2015 being the
end of that period of gardening leave, i.e. the termination date. Rio wrote to Mr Perry again on
9 April 2015, with the letter stating:
“Further to the notification letter dated 10 March 2015, this letter is to confirm that, as a
result of the current organizational review; your position of Manager Business
Analysis within Rio Tinto Marine has been affected and, as a consequence, will no
longer be required.
…
It is intended that you will be repatriated to Melbourne in accordance with the
repatriation agreement. Should you not wish to be repatriated to Melbourne kindly
discuss this with your leader or HR contact.
If you do wish to be repatriated, as discussed with you, at this stage you will not be
required to attend work from 1 July to 1 October 2015. However, if any relevant
project work arises we will contact you and you will be required to perform that work.
In the event that you are unable to be redeployed, your last day of employment with
1 Form F8 – General Protections Application Involving Dismissal at Annexure 3
[2016] FWC 2972
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the Company will be 1 October 2015. This letter serves as notice that, if you repatriate,
your employment will end on 1 October 2015 unless you are redeployed to alternate
role.” (Underlining added)2
[9] On 15 June 2015 Mr Perry lodged a Fair Treatment System Issue Statement with Rio
in which he raised concerns regarding a number of issues which he had experienced
throughout his employment with Rio. Those issues included the duration of his Singapore
assignment. By way of background, Rio’s Fair Treatment System documentation states that
the purpose of the policy is as follows:
“The purpose of this policy is to provide employees with an authorised process for
raising concerns. This concern can relate to:
The decision of a Leader; or
The behaviour of another employee or contractor, or
The effect of a company policy
which are work related, impacts on the employee and which the employee thinks is
unfair.”3
[10] The documentation also sets out the Fair Treatment System process and states that
“This process will cease to apply at the point at which the matter is taken externally.”4
[11] Rio responded to Mr Perry’s Fair Treatment System Issue Statement on 9 September
2015. The letter included the following concluding remarks:
“I have carefully reviewed all points raised in your fair treatment claim and consider the
fair treatment claim to be concluded. I hope that this provides you clarity in relation to
the points that you have raised.”5
[12] Mr Perry was dissatisfied with Rio’s response and on 4 October 2015 wrote to Rio
stating among other things that “Unfortunately, your response has not fully addressed my
concerns, therefore I am seeking further clarity and to escalate my Fair Treatment Claim (as
per the policy) …”6 Later in that correspondence, Mr Perry also stated “I also feel the three
month review of my Fair Treatment claim (despite two follow ups regarding status/progress)
and subsequent inadequate, high-level response, as addressed above, was a deliberate ploy by
the Company to “run down the clock” prior to my termination date.”7
[13] On 26 October 2015, Rio responded to Mr Perry’s escalation request providing further
clarification in respect of its Fair Treatment Claim Response. The letter included the
following:
2 Attachment to Form F8A – Response to general protections application
3 Applicant's Outline of Submissions as to Jurisdiction at Appendix 1
4 Ibid
5 Ibid at Appendix 2
6 Ibid at Appendix 3
7 Ibid
[2016] FWC 2972
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“3. Dates referred to in Section 5 of your response
It’s important to re-clarify this as some of the statements in your response refer to
incorrect dates of events.
On 10 March 2015 you were notified of your role becoming redundant. The original
date that the redundancy was to take effect was presented as 1 June 2015.
You requested an extension to your end date to 1 July 2015, and this was agreed.
The 3 month integration period then commenced from 1 July to 1 October.
Your end date of employment is therefore 1 October 2015, and not 10 March 2015.”
(Underlining added)
[14] As previously noted, Mr Perry’s general protections application was lodged with the
Commission on 16 November 2015. In his application, Mr Perry contended that his dismissal
took effect on 26 October 2015, the date to be received the above correspondence from Rio,
and alleged that he was dismissed in contravention of s.340 of the Act which deals with
protection concerning the exercise or otherwise of a workplace right. On the other hand, Rio
contended that Mr Perry’s dismissal took effect on 1 October 2015. If that date is relied upon
as the termination date, Mr Perry’s application was lodged 25 days outside the 21 day
statutory timeframe. If however, Mr Perry’s dismissal took effect on 26 October 2015 his
application was lodged on time.
When did Perry’s employment cease?
[15] In order to determine whether Mr Perry’s application was made within the statutory
timeframe specified in s.366 of the Act it is first necessary to determine when Mr Perry’s
employment ceased.
[16] As noted by the Full Bench in Hewitt v Topero Nominees Pty Ltd t/as Michaels
Camera Video Digital 8:
“[35] ... Except in relation to an extension of time application, there is nothing in the
Subdivision [Part 3-1, Division 8, Subdivision A of the Act] which contemplates the
receipt of evidence by the Commission or the making of a determination requiring
findings of fact.”
Mr Perry’s Case
[17] Mr Perry submitted that the conclusion of the Fair Treatment System process on
26 October 2015 was the date that he was notified by Rio that a final decision regarding his
retrenchment had been made. In his oral submissions, Mr Perry contended that in this case the
employment relationship did not come to an end until Rio had told him that his employment
had ended, paid him his final termination payment, provided him with advice on notice about
that payment and given him notice that the Fair Treatment System process was at an end,
adding that this combination of factors was not satisfied until 26 October 2015 or 30 October
2015, i.e. the date that Mr Perry received his termination payslip. Drawing on the decision in
8 (2013) 238 IR 42
[2016] FWC 2972
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Galati v Veneto Club9 (Galati), Mr Perry contended that a dismissal did not take effect unless
and until it was communicated to the employee who had been dismissed.
[18] In his witness statement10 Mr Perry deposed, inter alia, that:
in lodging his Fair Treatment System Issue Statement on 15 June 2015 he considered
that he was, among other things, clearly challenging the date upon which his
employment was to be terminated;
he received Rio’s response to his Fair Treatment System Issue Statement on
10 September 2015;
on 4 October 2015 he wrote to Rio regarding its response to his Fair Treatment
System Issue Statement and also signed a Redundancy Checklist which cited
1 October 2015 as the termination date, adding that he annotated the checklist with
the words “Note: On the basis that Fair Treatment claim and finalisation of
termination pay is still outstanding”11;
on 9 October 2015 he received his final payment from Rio, though he was not
provided with a payslip in relation to that payment;
on 10 October 2015 he received an email from Rio stating that there were no further
avenues of escalation within the Fair Treatment System but that nevertheless his
response of 4 October 2015 would be reviewed with a HR Business Partner;
on 26 October 2015 he received a formal response from Rio which confirmed that
there were no further avenues of appeal within Rio and that the end date of his
employment was 1 October 2015;
until he received that letter he believed there was a possibility that his complaints
would be upheld, including that he might be offered an alternative permanent role
within Rio; and
on 30 October 2015 he received his termination payslip.
[19] In his oral evidence, Mr Perry attested among other things that he did not consider
himself employed after 1 October 2015 and that he did not present for work after that date.
Mr Perry also attested that he did consider whether he should utilise Rio’s Fair Treatment
System process or initiate an external application to address his concerns but that he
ultimately decided to go with the Fair Treatment System process.
Rio’s Case
[20] Rio submitted that Mr Perry’s dismissal took effect on 1 October 2015, adding that all
the relevant documentation supports that view. In support of that contention, Rio highlighted,
among other things, that:
its letter of 9 April 2015 to Mr Perry clearly and unequivocally stated that his
employment would end on 1 October 2015; and
on 4 October 2015 Mr Perry wrote to Rio and acknowledged the termination of his
employment.
9 [2015] FWCFB 1830
10 Exhibit G1
11 Ibid at Annexure 1
[2016] FWC 2972
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[21] Rio further submitted that there was no evidence supporting Mr Perry’s assertion that
the termination date was ever changed from 1 October 2015 or that it was ever contemplated
that it would change from that date, adding that there was nothing in the Fair Treatment
System policy or the process that followed that had the effect of changing the date that
Mr Perry’s dismissal took effect. Beyond this, Rio submitted that nothing prevented Mr Perry
exercising his statutory rights under the Act at any time prior to 1 October 2015, e.g. seeking
an injunction to prevent his termination taking effect, or challenging the termination of his
employment within the statutory timeframe.
[22] At the hearing, Rio submitted that there was no doubt that Mr Perry’s dismissal took
effect on 1 October 2015, highlighting that the letter of 9 April 2015 gave notice to Mr Perry
that his employment would end on 1 October 2015. With regard to the decision in Galati, Rio
reiterated that based on the letters of 10 March and 9 April 2015 it was clear that Mr Perry’s
dismissal took effect on 1 October 2015.
Consideration of the issues
[23] An analysis of the material before the Commission indicates that:
Mr Perry was given notice by Rio in its letter of 9 April 2015 that unless he was
redeployed his employment would end on 1 October 2015;
Mr Perry was not subsequently redeployed;
on 9 September 2015 Rio wrote to Mr Perry stating inter alia that it considered his
“fair treatment claim to be concluded”;
Mr Perry did not consider himself employed after 1 October 2015 and did not
present for work after that date;
on 4 October 2015 Mr Perry signed a Redundancy Checklist which cited 1 October
2015 as his termination date, albeit that he annotated the document as outlined
above; and
also on 4 October 2015 Mr Perry sought to escalate his Fair Treatment System
complaint and in doing so accused Rio of deliberately running down the clock prior
to his termination date.
[24] The above analysis supports a finding that either 1 October 2015 or 4 October 2015 is
the date on which Mr Perry’s dismissal took effect. The latter date is cited on the basis that it
would have been clear to Mr Perry from that date, based on the Redundancy Checklist he
signed, that Rio considered his employment to have ceased on 1 October 2015. Irrespective of
which of these dates is relied upon as the termination date, Mr Perry’s application was made
outside the 21 day statutory timeframe specified in s.366(1) of the Act. As previously
mentioned, if 1 October 2015 is relied upon as the termination date, Mr Perry’s application
was received 25 days outside the statutory timeframe, whereas if 4 October 2015 is relied
upon his application was made 22 days outside the statutory timeframe.
[25] Against that background, I now need to consider whether there are exceptional
circumstances warranting the Commission granting a further period for Mr Perry to make his
general protections application.
[2016] FWC 2972
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The Relevant Legislation
[26] Section 366 of the Act provides:
“366 Time for application
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.”
Whether to allow a further period for the application to be made
[27] In deciding whether to allow a further period for an application to be made the
Commission must take into account the matters set out in s.366(2) above. I will deal with each
of those matters separately.
(a) The reason for the delay
[28] The primary reason relied upon by Mr Perry for the delay in lodging his application
was that he did not consider his dismissal to have taken effect until 26 October 2015. Two
further reasons relied upon by Mr Perry were that:
(1) having consulted his lawyers on 27 October 2015 it took time for him to
prepare and collate all of the necessary documents to provide to his lawyers;
and
(2) at all times after September 2015 he was dealing with a major disruption to his
life caused by Rio and was also coping with stress, anxiety and illness caused
by Rio.
[29] Mr Perry deposed in his witness statement that until 26 October 2015 he held out hope
that his Fair Treatment System claim would be resolved in his favour and that as a
consequence the end date of his termination would be extended. Mr Perry also deposed that
from the time he had to leave Singapore he was very stressed and unwell and was therefore
not able to properly focus on everything that was happening. Other factors which he had to
deal with at the time included:
having to travel between Tasmania and Melbourne to manage the unpack,
inspection, repack and storage of long-term storage items at an alternate storage
location;
trying to find alternative employment;
[2016] FWC 2972
8
limited internet access resulting in him having to use the internet at a public library;
and
an inability to sleep during this period.
[30] Rio submitted that Mr Perry was aware that 1 October 2015 was the date his dismissal
took effect, adding that the Fair Treatment System process had no impact on the date that his
dismissal took effect for the purposes of the Act. Rio also submitted that:
it considered Mr Perry’s Fair Treatment System claim closed on 9 September 2015,
which was three weeks before the date his dismissal took effect;
Mr Perry took no further steps to challenge Rio’s view in this regard before the date
his dismissal took effect;
Mr Perry’s further correspondence regarding his Fair Treatment System claim
occurred after his dismissal had taken already effect;
Mr Perry received communication from Rio on 10 October 2015 confirming that
there was no further right of appeal in respect of his Fair Treatment System claim;
and
Mr Perry therefore should have reasonably and properly been pursuing a general
protections application from either 1 or 10 October 2015.
[31] Rio relied on the Full Bench decision in Gao v Department of Human Services12 (Gao)
in support of its submissions.
[32] The summary of the material before the Commission set out at paragraph [23] above is
equally relevant in considering the reason for the delay. What that material points to, as
previously noted, is that Mr Perry’s dismissal took effect on either 1 or 4 October 2015.
Further, Mr Perry in his oral evidence attested that he made a conscious decision to utilise
Rio’s Fair Treatment System to seek to address his concerns rather than initiate external
action. The applicant in Gao also exercised his rights under the respondent’s fair treatment
policy in that case, with the Full Bench in Gao concluding, among other things, as follows:
“[12] The third ground of appeal involves an allegation that DHS had encouraged
Mr Gao to believe that DHS was reviewing his dismissal under the DHS Fair
Treatment policy and that this had led him not to lodge an application until the review
had been completed and the result notified to him. It is sufficient if we indicate that it
was open to the Deputy President to take the view, as His Honour obviously did, that
any belief which Mr Gao had about the possibility of a favourable review under the
Fair Treatment policy did not provide an adequate excuse for delaying the lodgement
of the application until December 2010.” (Underlining added)
[33] Mr Perry in his submissions also cited a number of other factors which he contended
were also relevant considerations. I note that a number of those factors, e.g. having to look for
alternative work and suffering from anxiety, are not uncommon circumstances for someone
who is just lost their job. As to his medical condition, Mr Perry provided no evidence to
substantiate his claim in this regard.
[34] The above analysis, together with the decision in Gao, does not point to the existence
of exceptional circumstances.
12 [2011] FWAFB 5605
[2016] FWC 2972
9
(b) Any action taken by the person to dispute the dismissal
[35] Mr Perry submitted that he had disputed his dismissal by way of his Fair Treatment
System claim, adding that the requirement to take into account any such action by Mr Perry
was to be considered by reference to the period after the dismissal was finally communicated
and took effect: Annear v Centaurus Investments Pty Ltd t/a Bayside Day Procedure
Centre13(Centaurus).
[36] Rio submitted that it was clear from Mr Perry’s Fair Treatment System claim that he
had concerns about monetary payments due to him on being made redundant. Rio further
contended that Mr Perry’s general protections application therefore involved different issues
to those raised in his Fair Treatment System claim, adding that as a result the Commission
should find that Mr Perry took no action to challenge his dismissal.
[37] An analysis of Mr Perry’s 15 June 2015 Fair Treatment System Issue Statement
indicates that Mr Perry raised five issues. The issues raised by Mr Perry together with his
preferred outcome are set out below:
(1) Issue: Duration of the contract assignment; Preferred Outcome: That the term
of the assignment be paid out.
(2) Issue: Demotion; Preferred Outcome: Reporting lines be reinstated at least on
paper.
(3) Issue: Reduction in take home pay; Preferred Outcome: Reinstate me to the
same position I would have been in if my spendable income remained constant
(adjusted for increases in my salary) up until the termination of my
assignment.
(4) Issue: Obligation to provide maximum notice of termination; Preferred
Outcome: Pay compensation equal to 5 weeks’ salary.
(5) Issue: Integration period; Preferred Outcome: That the Term of the Assignment
Be Paid out five weeks contractual notice be paid out at the end of the three
month integration period.14
[38] None of the above appears to directly dispute Mr Perry’s impending retrenchment.
Similarly, Mr Perry’s 4 October 2015 request to escalate his Fair Treatment System claim
does not appear to directly dispute his dismissal. The closest that it comes to in that regard is
in the context of discussing the issue of the duration of Mr Perry’s Singapore assignment
(Issue 1 above) where Mr Perry’s request states as follows:
“I agree there was no absolute guarantee given as to the term of my assignment,
however, there was a guarantee that my assignment would not be cut short due to the
restructuring of my role. …
To conclude that no guarantee was given ignores the clear understanding created by
remaining silent.
13 [2015] FWCFB 5263 at [19]
14 Form F8 – General Protections Application Involving Dismissal at Annexure 2
[2016] FWC 2972
10
The reason given for the early termination of my assignment is the restructuring of the
Business Analysis function within Marine. I have been retrenched as a result. This is a
clear breach of the agreement struck.”15
[39] Mr Perry goes on later in his request 4 October 2015 to state:
“The Fair Treatment System policy is based on a number of principles, including “all
employees are entitled to be treated fairly and with dignity”. I have suffered a number
of indignities since Bold was appointed to the position of Managing Director
Marine…”16
[40] In short, the above extracts do not point to Mr Perry directly disputing his dismissal
through his Fair Treatment System claim. Relying on the decision in Centaurus, only
Mr Perry’s 4 October 2015 request to escalate his Fair Treatment System claim could be
relied upon as action to dispute his dismissal. Based on the above analysis, I consider that
possibility to be marginal at best.
[41] This does not point to the existence of exceptional circumstances.
(c) Prejudice to the employer (including prejudice caused by the delay)
[42] Mr Perry submitted that Rio would not be prejudiced were an extension of time
granted, adding that this factor was a neutral consideration in this case. As to the departure of
Ms Pink and Mr Ruthven from Rio (see below), their relevance to these proceedings and any
prejudice that may result, Mr Perry submitted that neither was relevant to the adverse action
aspect of his application. Mr Perry also highlighted that Ms Pink remained within the broader
Rio group.
[43] Rio submitted that in circumstances where Mr Perry had chosen to pursue the Fair
Treatment System process as opposed to exercising his statutory rights, that it should not be
put to the cost and inconvenience of responding to an application which had been made out of
time. Rio also tendered two documents17 which indicated that two of its key personnel,
Ms Karen Pink and Mr Greg Ruthven, who were both involved in this matter, had left the
organisation.
[44] Given that neither Ms Pink nor Mr Ruthven was the decision maker in this case, I
consider this factor to be a neutral consideration.
(d) The merits of the application
[45] Mr Perry submitted that the substantive and operative reason for the decision to
retrench him was unable to be tested without a proper formal determinative process.
[46] Rio submitted that Mr Perry’s employment was terminated solely on the basis of a
genuine redundancy, disputing that Mr Perry was selected for redundancy on the basis that he
had made a number of complaints and enquiries regarding his employment. Rio further
15 Ibid at Appendix 3
16 Ibid
17 Exhibits D1 and D2
[2016] FWC 2972
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submitted that the decision maker in this case, Mr Baatar, did not consider at all that Mr Perry
had made complaints and enquiries, adding that Mr Baatar was only aware of Mr Perry’s
concerns about the 2014 change to his reporting lines. Accordingly, Rio contended that it was
impossible for Mr Baatar to have factored in Mr Perry’s complaints into his decision making.
Against that background, Rio submitted that the merits of Mr Perry’s application were weak
at best.
[47] A Full Bench of the then Australian Industrial Relations Commission observed as
follows in Kyvelos v Champion Socks Pty Limited18 (Kyvelos):
“[14] In considering whether to accept an application which has been lodged outside
the time prescribed … the Commission may consider whether, on the basis of the
material relied on by the parties, the applicant has a sufficient case on the merits
although the discretion should be exercised having primary regard to the circumstances
which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty
Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise
of an election under s.170CFA(8). It should be emphasised that in considering the
merits the Commission is not in a position to make findings of fact on contested issues,
unless evidence is called on those issues. Evidence is rarely called on the merits and
there are sound reasons why the Commission should not embark on a detailed
consideration of the substantive case … In particular, it is undesirable that parties be
exposed to the requirement to present their evidentiary cases twice.” (Underlining
added)
[48] In the absence of any witness evidence having been led by Rio, I am unable to form a
considered view as to the merits of the application. Against that background, and drawing on
the decision in Kyvelos, I consider this factor to be a neutral consideration.
(e) Fairness as between the person and other persons in a like position
[49] Mr Perry submitted that he was not aware of any claim that involved similar
circumstances to those existing in this case.
[50] Rio submitted that were the Commission to exercise its discretion to grant an
extension of time in this case it would create an unfair and inequitable difference between
Mr Perry and other persons in a like position, adding that persons in a like position should and
do pursue claims within the statutory timeframe notwithstanding continuing to contest issues
outside of the process.
[51] While I note Rio’s submission, I consider this factor to be a neutral consideration.
Conclusion
[52] The question of exceptional circumstances was dealt with by a Full Bench of the then
Fair Work Australia in the decision of Cheyne Leanne Nulty v Blue Star Group19(Nulty) in the
following way:
18 Print T2421
19 [2011] FWAFB 975
[2016] FWC 2972
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“[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.”
[53] Having considered all of the factors set out in s.366(2) and drawing on Nulty, I am not
satisfied that there are exceptional circumstances warranting the granting of a further period
for the making of an application under s.366(2).
[54] Accordingly, Mr Perry’s application will be dismissed. An order to that effect will be
issued with this decision.
Appearances:
E. Gisonda of Counsel for the Applicant.
S. Dewberry for the Respondent.
Hearing details:
2016.
Melbourne and Perth (telephone hearing):
February 4.
Printed by authority of the Commonwealth Government Printer
Price code C, PR580269
THE FAIR WORK COMMISSION AUSTRALIA. DEPUNPRESIDENT SEAL THE
