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[2013] FWC 2513
DECISION
Fair Work Act 2009
s 394—Unfair dismissal
Melissa Fagone
v
Hilton Hotels of Australia Pty Ltd t/as Hilton Sydney
(U2012/16792)
DEPUTY PRESIDENT SAMS SYDNEY, 2 MAY 2013
Application for unfair dismissal remedy - whether application ‘out of time’ - ‘exceptional
circumstances’ - reasons for delay - misinterpretation of the law - resignation of applicant -
no ‘exceptional circumstances’ - prospects of success remote - application dismissed.
BACKGROUND
[1] Ms Melissa Fagone, (the ‘applicant’) filed an application, pursuant to s 394 of the Fair
Work Act 2009 (the ‘Act’), claiming that she had been forced to resign (constructively
dismissed) from her employment as a security officer with Hilton Hotels of Australia Pty Ltd
t/as Hilton Sydney (the ‘respondent’). In her F2 application, she identified 21 December 2011
as the date of commencement of her employment and the date of her dismissal as 27
November 2012.
[2] The respondent has raised two jurisdictional objections to the application being further
considered by the Fair Work Commission (the ‘Commission’) as to its merits. These
objections are:
(a) The application was lodged with the Commission (at that time Fair Work
Australia (FWA)) outside the then statutory time limit of 14 days (now 21 days, by
virtue of the commencement of the Fair Work Amendment Act 2013 on 1 January
2013); and
(b) There was no termination of the applicant’s employment at the initiative of the
employer. The applicant had resigned for personal reasons unrelated to her
employment.
AUSTRALIA FAIR WORK COMMISSION
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[3] These two objections sit comfortably within the four preliminary matters the
Commission must decide, pursuant to s 396 of the Act, before considering the merits of the
application. The relevant provisions are subsections (a) and (b) of s 396 and are expressed as
follows:
‘396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order
under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.’
[4] For completeness ss 396(c) and (d) are not relevant to this application. The respondent
employs over 500 employees and, accordingly, the Small Business Fair Dismissal Code
obviously does not apply. There was no submission put that the applicant’s termination of
employment was a case of genuine redundancy.
THE EVIDENCE
Applicant’s Evidence
[5] The evidence in this matter is relatively straightforward and uncomplicated. However,
there is a factual contest about what was said at the time the applicant submitted her
resignation. I will come back to this conflict of evidence shortly. The Commission was
provided with a numerous email exchanges between the applicant and the respondent’s
supervisors and managers and other employees. The applicant also relied in this case on a
statement made in pursuance of a workers’ compensation claim. It appears the applicant
provided to the Commission whatever material she had collected surrounding her
employment, without due care as to its relevance or concern as to its capacity to cloud the real
issues before the Commission. That is not necessarily to be critical of the applicant, but
reflected the fact that she was largely operating as an unrepresented litigant; notwithstanding
she claimed to have advice from a specialist HR person.
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[6] In any event, I have decided to accept all of this material and have weeded out for
myself, that which is irrelevant. I might not have otherwise done so, given the matter really
concerns the discrete question of whether the application should be accepted as ‘out of time’.
However, Mr P Ryan of the Australian Hotels Association (AHA) for the respondent, felt
obliged to respond to the applicant’s claims of a forced resignation with evidence from the
management involved at the time. This was a perfectly understandable course of action. Given
that one of the elements to be taken into account under s 394 of the Act is the merits of the
application, I am now in a much firmer position to make findings than I might otherwise be,
on whether the applicant was forced to resign or did so willingly, without any pressure from
the employer.
[7] Interestingly, the evidence also revealed that the applicant’s letter of resignation was
actually amended at her request and according to her express wishes. It was addressed to Mr
Dean Maka, the respondent’s Security Risk manager in these terms:
’27 November 2012
[Address Supplied]
Dear Dean
Notice of Resignation
I wish to formally notify you that I am resigning from my position as Safety and
Security Officer with The Hilton Sydney, with immediate effect.
I served my last day of employment on the above date. I also kindly request that due to
my personal circumstances, I be paid the final two (2) week notice period up until 11
December 2012, without actually working this period.
I can be contacted on [phone number supplied] if you require any further information.’
[8] On 4 December 2012, the applicant emailed Mr Maka, as follows:
‘I was wondering if you had a chance to speak with Kate in regards to my request.’
Mr Maka responded a few hours later:
‘Good evening Melissa,
I hope you and your family are well.
[2013] FWC 2513
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Despite your personal circumstances, unfortunately your request to be paid the
required period of 4 weeks notice has been denied because you did not give or work
the required notice period.
Please be aware that as you were a salaried EA team member and you failed to give or
work the required 4 week notice period, the Hilton was actually in a position to
withhold the 4 week period of notice from your final pay. However in light of your
situation, we have elected to pay you out to your last shift including any outstanding
annual leave.
This payout will be processed as part of the normal pay run.
Please let me know if you have any further questions or need anything else.
Best regards Melissa’
[9] On 12 December 2012 the applicant sent Mr Maka the following email:
‘Hi Dean,
As discussed in an email sent to me on Tuesday December 4th regarding my final pay,
yourself and management have agreed to pay me my final shifts.
The Hilton Hotel has failed to do so. This is a final warning to the Hilton Hotel that if
this pay is not rectified then further legal action will be taken against the Hilton Hotel
The Hilton Hotel has 7 days to comply.
Kind Regards
Melissa Fagone’
[10] All in all, it was the oral evidence of the witnesses, particularly that of the applicant,
which elicited far more useful evidence which was of relevance to the issues to be determined
in the case. For example, in oral evidence, the applicant claimed that Mr Maka had agreed to
speak to Management as to whether her last day of employment would be 2 weeks after 27
November 2012 as per her request. She said the request was about ‘the outcome of my
employment’ rather than the payment of 2 weeks’ pay in lieu of notice.
[11] In cross examination, the applicant said she understood the purpose of the present
proceeding and what was required of her by way of directions issued by the Commission for
the filing of evidence and submissions on the ‘out of time’ issue. She had also sought advice
from someone at the Commission as to what she was required to do.
[2013] FWC 2513
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[12] Mr Ryan questioned the applicant on a three page statement she had signed on
14 March 2013. She acknowledged that nowhere in the statement did she address the reasons
why her unfair dismissal application was filed late. This was because she believed it was not
late and she wanted to deal with the facts and circumstances surrounding her ‘forced
resignation’.
[13] Subsequently, the applicant briefly addressed the ‘out of time’ issue in her email of 9
February 2013 to the Commission. She said that if the 14 day limit is exclusive of weekends,
then her application was made within 10 days. Even so, between 27 November and 11
December 2012 when she signed the application, there were exactly 14 days. Although the
date stamp of FWA was 13 December 2012, she had never seen that date stamp before.
[14] Alternatively, the applicant claimed she was not aware of the ‘outcome of her
employment’ until 4 December 2012, bringing the application back to within 10 days. She
believed her employment was ‘pending’ because of a verbal agreement she had had with
Mr Maka on 27 November 2012. This was despite her resignation being ‘effective
immediately’ and that she had served her last day of employment that day.
[15] The applicant noted that the resignation letter was not typed by her and she was in a
very emotional state that day. She had not been happy with the original wording and had
insisted on changes. It now reflected ‘exactly how I wanted it written’.
[16] In oral evidence, the applicant claimed that Mr Maka led her to believe she would be
able to withdraw her resignation. It was a verbal understanding that was not recorded
anywhere else in the materials filed with the Commission. She said it was just ‘human nature’
that one cannot remember everything, notwithstanding her earlier evidence that her statement
was true and correct.
[17] The applicant acknowledged that she did not return to work on any day subsequent to
27 November 2012. However, this was because she was waiting for Mr Maka’s response and
she was suffering from anxiety and depression. She explained that she did not know she had
to provide evidence of what had been said ‘word for word’ and had not expected Mr Maka to
lie.
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[18] The applicant denied she turned up to work on 27 November 2012 to resign. Rather,
she wanted to know what her options were and Mr Maka advised her that the stress and
bullying at work was not worth her mental health.
[19] The applicant denied that her request in the letter related solely to whether she would
be paid 2 weeks’ notice. It was her understanding she could withdraw her resignation. The
applicant said she posted her application on 11 December 2012 and added ‘Well the
legislation does not say it has to be processed within 14 days, just the form had to be filled out
within 14 days’.
[20] The applicant agreed with Mr Maka that she came to see him on 27 November 2012
after her boyfriend attempted suicide that morning. Nevertheless, she denied her boyfriend’s
attempted suicide was the catalyst for her decision to resign. She had indicated to Mr Maka
that her work commitments and personal pressure were too much. He had suggested it was
not worth it. She did resign, but on the understanding she could withdraw it. She later told Mr
Abdel El-Ayoubi and Mr Chris Hennekam that she had resigned for family reasons. She could
not mention the workplace issues to them because of Hilton’s insistence on confidentiality in
relation to workplace bullying investigations.
[21] The applicant acknowledged that after 27 November 2012 she took no action to
contest her alleged dismissal. She had been seeking an ex gratia two week payment and
outstanding wages. However, she did not regard that day as her last day of work.
Respondent’s evidence
Mr Abdel El-Ayoubi
[22] Mr El-Ayoubi was at the relevant time the respondent’s Safety and Security Officer.
He deposed that on 27 November 2012 around 3pm he was working in the Hilton’s Fire
Control Room when the applicant appeared at the door. Also present were Dean Maka and
Chris Hennekam. The applicant said ‘Hello Dean can we have a talk in private?” Mr Maka
and the applicant left the room and went to the office.
[23] A short time later they both returned and the applicant said:
‘Can you please contact Chris (Hennekam) as I have something to tell you.”
[2013] FWC 2513
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When Mr Hennekam returned, the applicant said ‘I want to let you know that I have just
resigned effective immediately due to family reasons.’ Mr Hennekam gave her a hug and they
said goodbye. Mr El-Ayoubi provided a statement to the Director of Human Resources, Kate
Burgin, on 4 January 2013 in relatively similar terms to his evidence in this proceeding.
[24] In oral evidence, Mr El-Ayoubi agreed that on 27 November 2012 when he saw the
applicant, she was upset. He was not aware there had been any issues between the applicant
and another employee, Ms Moniquea Spiteri. In re-examination, Mr El-Ayoubi said that all of
the information the applicant supplied on 27 November 2012, was volunteered by her. He had
not sought, instigated or encouraged her resignation.
Mr Dean Maka
[25] Mr Maka’s version of the conversation with the applicant on 27 November 2012 was
as follows:
I said: “What’s wrong?’
She said: “I’ve been having some personal issues at home. This morning,
my boyfriend left me a note to say that he was committing suicide
and went missing. I spent all morning looking for him. He is
currently in hospital. With everything going on with family and
work commitments and now this, the pressure is becoming too
much and something has to give. I have come here today to
resign. I felt it was more professional to do this in person rather
than over the phone. I’m sorry for any inconvenience this will
cause.”
I said: “Don’t worry about that, try and concentrate on your
commitments at home. Did you bring a written notice of
resignation?”
She said: “No. Can you help me prepare one? I would also like to be paid
out my notice period without actually working.” ’
[26] Mr Maka said that he and the applicant then drafted her resignation letter together.
[27] In a second statement, Mr Maka dealt with a complaint by the applicant against
Ms Spiteri which resulted in an investigation by the respondent in early November 2012. The
investigation culminated in a meeting with the applicant on 26 November 2012 in which she
was informed of the investigation’s outcome. The applicant refused to accept the outcome -
[2013] FWC 2513
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which was that a small issue had ‘snowballed’ and all employees should be professional and
courteous to each other - and she had wanted Ms Spiteri sacked. Her response was ‘This is
bullshit. I’m sick of this process, it is a complete waste of fucking time’ and left the meeting.
[28] Mr Maka had waited for her to calm down and then asked her if she wanted to talk
about it. Mr Maka was rebuffed, because he would not disclose to the applicant what, if any,
disciplinary action had been taken by the Hotel against Ms Spiteri.
[29] Mr Maka denied that the applicant had ever said she had no choice but to resign
because HR was not going to assist her. He further denied that she had requested to go with
him to HR to discuss her request. Mr Maka added that he heard the applicant tell two other
staff: ‘I’ve just resigned for family reasons.’
[30] In oral evidence, Mr Maka said the applicant had requested a change of the wording
of her letter of resignation. It was his understanding that she had resigned her position that
day, but insisted on being paid a notice period of two weeks, without actually working. There
was no other arrangement or agreement about her employment. She did not turn up for work
the next day or any subsequent day.
[31] Later, in cross examination, Mr Maka denied that the applicant had told him her
boyfriend did not have to go to hospital as he was ok. He further denied she had mentioned
her mental health issues related to work.
[32] Mr Maka was asked about the applicant’s meeting with management on 26 November
2012, the day before her resignation. He said he was unaware the applicant was suffering
from anxiety and panic attacks. However, he was aware of ongoing issues between the
applicant and Ms Spiteri.
SUBMISSIONS
For the applicant
[33] The applicant understood that the 14 days time limit did not relate to processing, but to
the Form F2 just being filled out and sent. She claimed her HR advisor,
Ms Theresa Chrysostomou had also understood this to be the case. The applicant also claimed
that someone from the Commission told her that ‘as long as the form is within 14 days that’s
[2013] FWC 2513
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fine’. The applicant claimed that at the time she did not know she was eligible to claim
constructive dismissal or send her application via email.
For the respondent
[34] Mr Ryan submitted that even on the applicant’s own submissions, she had resigned on
27 November 2012 and her application was therefore filed 2 days late. He noted that the
applicant bore the burden of satisfying the Commission that ‘exceptional circumstances’ exist
for the discretion to be exercised by the Commission to extend the time for filing. He relied
on Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (‘Nulty’) as to the meaning of
‘exceptional circumstances’.
[35] Mr Ryan observed that the applicant claimed her application was not ‘out of time’ if
one excludes ‘weekends’ and/or she was not aware that her employment had come to an end
until 4 December 2012. Mr Ryan relied on Smith v KJM Contractors Pty Ltd [2010] FWA
5515 (‘Smith v KJM Contractors’) as to ‘weekends’ not being included in the 14 day
calculation.
[36] Mr Ryan rejected the claim that the applicant was not aware her employment had
come to an end until 4 December 2012, describing it as disingenuous. He noted that the
applicant had sought changes to the letter of resignation and it was in clear and unequivocal
terms. He emphatically denied there was any verbal agreement that she could withdraw her
resignation and Mr Maka’s evidence that there was no such agreement should be accepted.
This allegation had only been raised on the day of the proceeding and had not been mentioned
anywhere else, despite two opportunities to put on evidence being open to the applicant. All
the applicant had sought was an ex gratia payment.
[37] Mr Ryan rejected the applicant’s claims of problems with Australia Post or alleged
advice from an employee of the Commission. There was no supporting evidence for either
proposition.
[38] Mr Ryan also rejected the applicant’s claim of ignorance of the law (See Mikhail v
Ingram Micro Pty Ltd T/A IngramMicro [2012] FWA 4314 and Truong v Elawar & Sons
Mechanical Repairs [2012] FWA 9709 and Nulty as being an ‘exceptional circumstance’.
[2013] FWC 2513
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[39] Mr Ryan submitted that there was not a skerrick of evidence of any acceptable reason
for the delay. All of the applicant’s explanations were either misguided or failed to constitute
circumstances that were out of the ordinary, unusual, special or uncommon.
[40] Mr Ryan said the applicant must have been aware that the termination of her
employment was 27 November 2012. She did not turn up to work after this date. Nor did she
take action to dispute her alleged dismissal with the respondent. Her only claims were for 2
weeks pay and alleged underpayments. Mr Ryan noted that the effective date of dismissal is
not when an employee chooses to acknowledge the fact, but when it actually occurs (see
Bryan v Coles Group Supply Chain Pty Ltd [2011] FWA 4493).
[41] As to the alleged verbal agreement with Mr Maka, Mr Ryan submitted that there was
no reason to doubt the credibility of Mr Maka. He emphatically denied such an agreement
was made. This was a case of the applicant attempting to rewrite history.
[42] Mr Ryan said there would be little or no prejudice to the respondent if the application
was accepted, but noted that the absence of prejudice does not constitute an ‘exceptional
circumstance’.
[43] As to the merits of the case, Mr Ryan put that there can be no doubt the applicant
resigned in clear and unequivocal terms. She had redrafted her resignation letter to her
satisfaction. Every document or form she completed indicated the date of her alleged
dismissal was 27 November 2012. There was corroborating evidence that she had told others
she was resigning for family reasons. It was the applicant herself who proffered the
circumstances of her boyfriend’s attempted suicide.
[44] Mr Ryan said that even if the applicant could be said to have an arguable case that
would not constitute an ‘exceptional circumstance’. Mr Ryan cited the various authorities
which have considered the notion of constructive dismissal (see O’Meara v Stanley Works Pty
Ltd [2006] AIRC 496, (‘O’Meara v Stanley Works Pty Ltd’). He put that if there was some
validity to the applicant’s complaints against other staff, the matter had not been ignored. The
conduct of the employer disclosed a willingness to investigate her complaints. There were
mediation meetings. It was just that the applicant did not like the outcome.
[2013] FWC 2513
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[45] Finally, Mr Ryan submitted that the application should be dismissed.
[46] In reply, the applicant said that if this was a case about the reasons for her resignation
she would have produced a ‘lot more evidence’. The mediation of her complaint was never
finalised. However, she was aware that this stage of the case was only to determine the timing
of the application.
CONSIDERATION
Was the application out of time?
[47] Section 394 (1) and (2) governs the time limits for the making of unfair dismissal
applications. The sections are expressed as follows:
‘394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under
Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation to a
dismissal if an application or complaint has been made in relation to the dismissal
other than under this Part.
(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).’
[48] The applicant maintained that her application was filed within 14 days of the date of
her constructive dismissal and that it followed that no jurisdictional impediment arises.
[49] The applicant acknowledged that the date of her alleged constructive dismissal was 27
November 2012. The date she signed her F2 application was Tuesday 11 December 2012 -
exactly 14 days later. However, the date the Commission received and stamped the
application was 13 December 2012, making the application two days late.
[2013] FWC 2513
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[50] As I understand it, the applicant put at least 5 explanations for her view that her
application for an unfair dismissal remedy was filed within time. Some were put with more
enthusiasm than others. These were:
The date she signed her application (11 December 2012) was the date the
application was made by her;
She had posted her application by ordinary mail on the same day (11 December
2012);
Her application was within time, if weekends were not counted;
Someone within the Commission had told her that her application would be ‘ok’ if
it was sent that day; and
Her employment was ‘pending’ until Mr Maka’s 4 December 2012 advice that this
was not so.
I shall deal with each explanation in turn.
[51] Firstly, while accepting that the applicant was unrepresented and did not have the
benefit of any legal advice, the plain, ordinary English meaning of the words in s 394(2)(a),
‘the application must be made’ are that the application must be made to the Commission. The
words do not connote an intention that the section is referring to when the applicant prepares
or makes the application by filling it out and signing it. So much so is plainly evident by the
preceding section - s 394(1) - which makes it absolutely clear that a dismissed employee ‘may
apply to the FWC’ for an order for an unfair dismissal remedy. It most certainly does not say -
as the applicant contended - that this required only that the form be filled out within 14 days.
If the applicant’s interpretation was accepted, it would produce the absurd result that
dismissed employees could simply write any date on their application, as long as it was within
14 days (now 21 days), but not lodge or make their application to the Commission for many
weeks or months later. This would undermine the principles of the statutory setting of time
limits for certain things or actions to be done in Courts and Tribunals; See: Brisbane South
Regional Health Authority v Taylor (1996) 186 CLR 541.
[52] Secondly, there is an onus on parties to proceedings, particularly initiating parties, to
ensure that all statutory time limits for the filing of applications are made within the specified
period. This means allowing sufficient time for known contingencies, such as weekends or
public holidays, so as not to run the risk that any delays may result in a failure to lodge within
time.
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[53] As Senior Deputy President Richards said in Smith v KJM Contractors:
‘[45] In all, I do not consider the circumstances that I have discussed and set out,
and has been adduced through this evidence, generate exceptional circumstances such
as the Act warrants. The external event of the Christmas period was not an unforeseen
event. It is a generally known event. The Act makes no allowances for public holidays
or weekends. Such public holidays must therefore be accommodated by a dismissed
employee.
[46] As I said, the issue of the Christmas break was not unforeseen. It is an entirely
predictable event which must reasonably be managed, and managed around, by all
persons making applications, where their access to advice and other activity is
curtailed or limited by public holidays and weekends.’
I respectfully agree with his Honour’s observations.
[54] In addition, it seems curious to me that all the applicant’s subsequent communications
with the Commission (of which there were many) were by email, and not ordinary mail. How
much more important was it to ensure compliance with statutory time periods for the initiation
of her proceeding? The FWC website makes it easy and uncomplicated to file applications in
the Commission.
[55] Thirdly, there is no file note anywhere in the file, of the applicant calling anyone at the
Commission on or prior to 16 January 2013, let alone receiving advice that her application
would be accepted ‘out of time’. No phone records, contemporaneous notes or the name of the
persons she spoke to were produced.
[56] In my experience, FWC staff are vigilant and very cautious about what is said to
parties over the phone. For good reasons, they keep file notes of every conversation. This is
particularly so where the issue in doubt is the strict statutory time limits for filing
applications. I very much doubt the applicant had any conversation with any person at the
FWC about her application prior to its lodgement.
[57] For the forgoing reasons, I am unable to conclude that the application in this matter
was filed within the statutory time limit of 14 days. This finding leads to the next question.
Were there exceptional circumstances for the delay in bringing this application?
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[58] Section 394(3) of the Act provides the basis for the Commission’s consideration of
whether an unfair dismissal application should be accepted outside the 14 day time limit set
by s 394(2). Subsection (3) is as follows:
(3) FWA may allow a further period for the application to be made by a person under
subsection (1) if FWA 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.”
[59] In Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251, the Full Bench said:
‘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.’ (See also Prasad v Alcatel-Lucent
Australia Ltd [2011] FWAFB 1515).
[60] Rares J in Ho v Professional Services Review Committee No 295 [2007] FCA 388 said
at paras [25]-[26], after citing a passage from R v Kelly (Edward) [2000] QB 198 drew a
celestial analogy to make the point as to the meaning of ‘exceptional’:
‘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) [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.’
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
[2013] FWC 2513
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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.’
[61] In Nulty, the Full Bench of FWA said at paras [13]-[14]:
‘[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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional
circumstance. Indeed, unfortunately, it would seem to be all too common for
dismissed employees to be unaware of the time limits imposed in relation to making
an application for an unfair dismissal remedy or a general protections FWA
application. The parliament has chosen to condition the discretion to extend time for
making such applications on the existence of “exceptional circumstances”. In doing so
the parliament must be presumed to have proceeded on the basis that an employee who
is aggrieved at being dismissed ordinarily ought be expected to seek out information
on any remedy they may have in a timely fashion such that delay on account of
ignorance of the statutory time limit is not, of itself, an exceptional circumstance.’
[62] I turn now to each of the matters in s 394(3) of the Act.
Reason(s) for the delay (s 394(3)(a))
[63] As the applicant insisted that her application for an unfair dismissal remedy was filed
within time, it is hardly surprising that she advanced no reasons for the delay in filing her
application. This was revealed in the following exchange:
‘You haven’t given any evidence of an acceptable reason as to why your application is
late, have you? --- Because it wasn’t late.’
[64] However, that would do an injustice to the reasons she gave for filing her application
when she did, which in some respects overlap with reasons related to delay. Notwithstanding
that I see little merit in any of her earlier explanations, I am prepared to give her the benefit of
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the doubt and transpose these explanations as the reasons for her delay of 2 days in filing her
application.
[65] Regrettably, however, from whatever angle I come at it, the same conclusion stands
out. All of these explanations cannot withstand the scrutiny of being able to be characterised
as ‘exceptional circumstances’ within the meaning of s 394 of the Act. The first three when
viewed together, appear to constitute at least an ignorance of the law or, more properly its
correct interpretation (See Nulty at para [14]). Such an explanation sits rather uncomfortably
with the fact that the applicant claimed to have had HR advice from Ms Chrysostomou. It
would seem odd to me that anyone in an HR advisory capacity would interpret the legislation
so poorly and contrary to established principles and authorities.
[66] I have rejected the fourth explanation as to advice from the Commission. The fifth
explanation concerning a conflict of evidence between the applicant and Mr Maka will be
discussed shortly. However, even if that conflict is resolved in the applicant’s favour, it would
not explain why she waited from 4 December to 11 December 2012 to file her application.
For that intervening period there was simply no explanation at all.
Whether the person first became aware of the dismissal after it had taken effect (s 394(2)(b))
[67] For reasons I shall come to shortly, I do not accept there was any verbal agreement
with Mr Maka that she could withdraw her resignation. Even taking the applicant’s evidence
at its highest, her position was clarified in the email from Mr Maka on 4 December 2012,
leaving, as I just said, an unexplained gap of 9 days. In any event, there could be no
misunderstanding of the words in the letter ‘with immediate effect’ and ‘my last day of
employment on the above date’. In my view, there can be no doubt the applicant knew her
employment ended on 27 November 2012.
Any action taken by the person to dispute the dismissal (s 394(2)(c))
[68] There was no evidence that the applicant took any action to dispute her alleged
dismissal until the application was filed on 13 December 2013. Her only action was to request
a copy of her letter of resignation, and seek 2 weeks in lieu of notice and alleged statutory
entitlements.
Prejudice to the employer (including prejudice caused by the delay) (s 394(2)(d))
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[69] Aside from the usual prejudice to the employer of defending the merits of a dismissal,
there is little prejudice to the employer in this case, particularly as a second jurisdictional
objection had already been prepared and argued.
The merits of the application (s 394(2)(e))
[70] I will come back to the merits of the case shortly.
Fairness as between the person and other persons in a similar position (s 394(2)(f))
[71] There was no evidence of any unfairness to the applicant when compared to any other
person who had resigned in similar circumstances. Indeed the better view is that the
respondent took an entirely sympathetic and understanding approach to the applicant’s
personal circumstances.
Merits of the application
[72] At this stage of the proceeding, the Commission has obviously not been presented with
a full merits case. In those circumstances, I will not cite the relevant authorities dealing with
the notion of ‘constructive dismissal.’ Those principles of course, encapsulate the proposition
of a termination of employment at the employer’s initiative, a forced resignation or a
resignation brought about by the conduct of the employer; See: Mohazab v Dick Smith
Electronics Pty Ltd [1995] IRCA 645 and O’Meara v Stanley Works.
[73] Nevertheless, in this matter I have had the benefit of a significant amount of evidence
and material as to what occurred on 27 November 2012. In my opinion, there cannot be a
skerrick of doubt that the letter of resignation effective that day, terminated the applicant’s
employment with the respondent. There is no actual or implied suggestion that she had been
forced to resign, or that the conduct of the employer evinced an intention that it sought her
resignation. Indeed, she had successfully sought to have the wording of the letter changed to
how she wanted it.
[74] The uncontested evidence of Mr Maka and Mr El-Ayoubi was that the applicant had
told them and Mr Hennekam that she had resigned for family reasons. There was no doubt she
was under some stress and anguish that day, if it was true that her boyfriend had attempted
suicide. Rather than being dismissive or uncaring, Mr Maka was sympathetic and supportive
as demonstrated by her own email to him the next day. It was in these terms:
[2013] FWC 2513
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‘Thank you for being so supportive Dean. Let me know the result of my request and I
will be in next week to drop off my ID. I wish you success in your role.’
In any event, these outside of work circumstances were entirely consistent with what she had
said about the reasons for her resignation.
[75] It must be stressed that the plain, ordinary meaning of the termination letter does not
permit any qualification or impute any ‘pending’ status of her employment. Its language was
clear and unequivocal. The fact that she had sought an ex gratia payment of two weeks pay in
lieu of notice was nothing more than an attempt to extract further monies from the respondent
to which she was not entitled as a matter of law. There is nothing necessarily wrong or sinister
about that request, but to suggest that it somehow put her employment ‘on hold’ or her
employment was ‘pending’ until she received an answer was misconceived and wrong. As
was said by Wilcox CJ in Siagian v Sanel Pty Ltd (1994) 122 ALR 333 at page 355:
‘It seems to me that, in the absence of evidence of a contrary intention, it should usually
be inferred that the employer intended the termination to take effect immediately. This
conclusion not only reflects the more accurate meaning of the phrase “payment in lieu
of notice”; it accords with common sense. An employer who wishes to terminate an
employee’s services, and is prepared to pay out a period of notice without requiring the
employee to work, will surely wish to end the relationship immediately. If the
employee is not to work, there is no advantage to the employer in keeping the
relationship alive during the period for which payment is made; and there is the
disadvantage that the employer will be burdened with employment related costs, such
as workers’ compensation insurance, payroll tax, liability for leave payments etc. The
employer also incurs the risk that some new burden will be imposed in respect of the
employment during the period.’
[76] In addition, the applicant’s subsequent conduct in not turning up for work the next
day, or any time subsequent, plainly demonstrates that she knew her employment had come to
an end. Indeed, why would she offer to come in the next week to drop off her ID if she
thought her employment was ‘on hold’ or ‘pending’ (see para [73])?
[77] More seriously, however, the applicant for the first time in these proceeding on 4 April
2013, claimed that she had a verbal agreement with Mr Maka that she could withdraw her
resignation. Nowhere in any document or other material sent to the Commission is this
assertion ever mentioned or even hinted at. Her explanation was that she could not remember
every detail at the time and it was only when she was giving evidence that it had come back to
[2013] FWC 2513
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her. Mr Maka, on the other hand, strongly denied that any such verbal agreement was reached
with him. It should be noted that I hardly think Mr Maka would have been in any position of
authority to make such a verbal agreement, without first clearing it with someone in HR.
Moreover, there was not a scintilla of evidence that the applicant had ever mentioned to
anyone that such an agreement was made.
[78] Given the applicant’s insistence on altering her letter of resignation to her satisfaction
(and Mr Maka’s agreement to do so) and presumably to ensure that nothing was left to chance
or unsaid, it beggars belief that an agreement to withdraw her resignation was not included in
the letter and not recorded by the applicant in any document until giving her evidence in the
proceeding. After all, this was no insignificant matter. It could fundamentally reverse the
resignation, and on her evidence, was an agreement about her future employment. To submit
she just could not remember everything until giving evidence, was utterly unbelievable and
disingenuous nonsense. I suspect that she only came up with this alleged verbal agreement
when coming to grips with how to rebut the overwhelming preponderance of evidence against
a conclusion of ‘forced resignation’.
[79] That said, far from being a ‘shrinking violet’, the applicant presented as a confident,
well rehearsed and argumentative advocate (including with me) as to the merits of her case. It
should also be remembered that she had had the benefit of advice and support of a HR
Advisor, Ms Theresa Chrysostomou who had actually filed a Notice of Commencing to Act
on her behalf, but did not appear in the proceeding. However, Ms Chrysostomou had filed
most of the documentary material on the applicant’s behalf.
[80] To make myself clear, on the conflict of evidence as to a verbal agreement with Mr
Maka that the applicant could withdraw her letter of resignation, I prefer Mr Maka’s version
of events over that of the applicant. I agree with Mr Ryan that this was a crude attempt by the
applicant to recreate history. Regrettably, it reflects very poorly on her judgement and
credibility.
[81] Accordingly, I find that the applicant’s prospects of success with her substantive case
to be extremely remote.
[2013] FWC 2513
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[82] In summary then, the applicant has provided no explanation - let alone a reasonable
one - as to the reasons for the delay in filing her unfair dismissal application outside the 14
day time limit then required by s 394(2) of the Act. In taking into account all of the criteria in
s 394(3) of the Act, there is no basis for any conclusion that ‘exceptional circumstances’ in
this case warrant the Commission extending the time for such filing. In these circumstances
the substantive application must be dismissed. An order to that affect will be issued
separately, but in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
M. Fagone on her own behalf.
P. Ryan for the Australian Hotels Association for the respondent.
Hearing details:
2013.
Sydney:
1 March.
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