1
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Peter Sutherland
v
Sydney Property Finders Pty Limited t/as Sydney Property Finders
(U2014/12590)
DEPUTY PRESIDENT SAMS SYDNEY, 26 FEBRUARY 2015
Application for relief from unfair dismissal - whether application lodged ‘out of time’ -
applicant paid four weeks in lieu of notice - whether dismissal effective at expiry of notice
period - whether dismissal effective once notice paid - dismissal effective on date advised of
termination - application lodged ‘out of time’ - whether ‘exceptional circumstances’
established - confusion as to date of termination not made out - waiting for resolution of
underpayment not an ‘exceptional circumstance’ - seeking other employment not an
‘exceptional circumstance’ - no ‘exceptional circumstances’ - application dismissed.
[1] This decision concerns an application for an unfair dismissal remedy, lodged by Mr
Peter John Sutherland (the ‘applicant’), pursuant to the provisions of Chapter 3, Part 3-2 of
the Fair Work Act 2009 (the ‘Act’). The applicant was dismissed from his employment as a
Senior Valuer with Sydney Property Finders Pty Ltd (the ‘respondent’) for alleged poor
performance over a long period. The applicant’s unfair dismissal claim was lodged with the
Fair Work Commission (the ‘Commission’) on 15 September 2014.
[2] At this juncture, I record the terms of the letter said to have been received by the
applicant on 27 August 2014. It reads as follows:
‘Dear Peter
CONFIRMATION OF DISMISSAL
This letter confirms the summary termination of your employment, due to
unsatisfactory performance, effective immediately.
As discussed with you on 22 August 2014 the reason for your dismissal is continual
unsatisfactory performance of your duties at Sydney Property Finders.
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DECISION
AUSTRALIA FairWork Commission
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Your termination payments will include applicable notice in lieu in addition to any
outstanding entitlements.
Please ensure that you return all work related items of property to us immediately.
Regards,
Dennis Kalafonos
Principal’
[3] The date of the applicant’s dismissal was the subject of disagreement between the
parties. The applicant claimed that his dismissal was effective at the expiry of the four weeks
notice period (19 September 2014) he had received at a disciplinary meeting with the
respondent on 22 August 2014, or alternatively, when he received a written notice of his
termination in a letter he received by post on 27 August 2014. The respondent objected to the
application on jurisdictional grounds, in that the applicant was dismissed with immediate
effect at the meeting on 22 August 2014 and/or the respondent, as a small business (as
defined) had complied with the Small Business Fair Dismissal Code (the ‘Code’) when the
applicant was dismissed.
[4] Obviously, from the opposing positions, if either of the applicant’s contentions is
accepted, his application for an unfair dismissal remedy was filed within the statutory time
limit expressed in s 394(2)(a) of the Act. If the respondent’s position is accepted, the
application was filed 3 days outside the statutory time limit and the applicant would need to
satisfy the tests under s 394(3) of the Act that he could demonstrate ‘exceptional
circumstances’, such as to allow the Commission to exercise its discretion to permit the
application to be filed outside the statutory time limit.
[5] Section 396 of Act requires the Commission to determine a number of jurisdictional
matters before considering the merits of an unfair dismissal application. These are:
(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; and
(d) whether the dismissal was a case of genuine redundancy.
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[6] As mentioned earlier, the respondent raised objections to the application based on sub-
sections (a) and (c) of s 396 above. For completeness, I am satisfied that the applicant was a
person protected from unfair dismissal and his dismissal was not a case of genuine
redundancy. This decision will determine whether the application was firstly lodged within
the statutory time period of 21 days and, if not, whether the applicant has established
‘exceptional circumstances’, pursuant to the provisions of s 394(3) of the Act, such as to
allow his application to be accepted ‘out of time’.
[7] In order to get to the latter question, it is necessary to establish the effective date of the
applicant’s dismissal. Both parties were directed to file and serve any evidence and/or
submissions as to this question. The application was listed for hearing on 16 January 2015.
Mr P Macken, Solicitor appeared with permission for the applicant, pursuant to s 596 of the
Act and Mr L Bayne from the Real Estate Employers’ Federation appeared for the respondent.
[8] The applicant provided written and oral evidence. The respondent relied on the written
evidence of Mr Dennis Kalafonos, Director and the notes and oral evidence of Ms Donnalee
Cohn, the respondent’s Business Manager.
THE EVIDENCE
[9] The applicant provided two statements, which were tendered in the proceeding. In the
first statement, the applicant said that he had requested a formal termination letter at the
meeting on 22 August 2014, so he could better understand why his employment was
terminated and in order for him to discuss the matter with his lawyer. As this letter arrived by
post on 27 August, he understood his claim was still lodged within the 21 day time period.
The applicant further submitted that he had delayed filing his unfair dismissal claim because
of the following:
(a) the timing of the dismissal letter;
(b) an agreed payment of six weeks pay was reduced to four weeks and he had
made a number of unsuccessful calls to Mr Kalafonos to rectify the
underpayment;
(c) his main priority and focus was to find work. This had been a daunting process
involving much preparation time and mental and emotional input;
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(d) he claimed that he incorrectly recorded 27 August 2014 in his Form F2 when it
should have been four weeks later; and
(e) his dismissal was a ‘blatant case of unfair dismissal.’ He had received no
warnings of the discipline to be imposed or of his alleged poor performance,
which he rejected.
[10] In a second statement the applicant, reiterated that he believed his dismissal was at the
end of his notice period (19 September 2014). He noted that the four weeks payment in lieu of
notice was not paid on 22 August 2014, nor on the next scheduled pay date. It arrived nine
days later on 3 September 2014.
[11] The applicant disputed Mr Kalafonos’ and Ms Cohn’s statements as to the words used
in the 22 August meeting. He could not recall the phrase ‘effective immediately’ and disputed
that the phrase ‘immediately dismissed’ had been said.
[12] The applicant acknowledged that there had been three occasions when he had been
‘pulled aside’ and vaguely accused of making ‘mistakes’. However, he believed that this was
more akin to bullying and harassment, rather than any formal warning process. No work
program had been offered and no warning letter issued.
[13] The applicant disputed the posting of the termination letter and Mr Kalafonos’ use of
the expression ‘on or about 22 August’. The applicant believed that it was immaterial that he
did not work during the notice period. Even if the application was three days late, the
applicant maintained it made no difference, because of the injustice imposed on him by his
‘blatant unfair dismissal’.
[14] In oral evidence, the applicant confirmed much of what he had said in his two
statements. In cross examination, the applicant said that in the meeting of 22 August 2014,
Mr Kalafonos had actually told him that the four weeks’ notice was given so that his dismissal
was to take effect at the end of the notice period. However, when pressed, he conceded he
could not remember exactly what Mr Kalafonos had said. The applicant agreed that he had
not worked out the notice because that had not been communicated in the meeting.
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[15] The applicant accepted that even though he was unclear as to whether he had been
terminated or not, rather than attend for work and seek clarity, he opted to stay at home and
not return to the office. The applicant claimed that he had notes of the 22 August 2014
meeting, but had not produced them.
[16] In questions from me, the applicant agreed he had handed back his keys, passes and
other material belonging to the employer on the day of the meeting (22 August 2014) and
packed up his personal belongings and took them away that day.
For the respondent
Mr Dennis Kalafonos
[17] Mr Kalafonos provided a written statement but was not required for cross
examination. Mr Kalafonos stated that in the meeting with the applicant and his support
person on 22 August 2014, he had dismissed the applicant ‘effective immediately’. His version
of the conversation was:
‘Despite several warnings about your continual mistakes and unsatisfactory
performance, your performance hasn’t improved in nearly three years. This is no
longer acceptable & for this reason you are being dismissed for continual
unsatisfactory performance effective immediately. You will be given 4-week’s pay in
lieu of notice.’
[18] Mr Kalafonos said the applicant was not required to work out any period of notice and
he did not do so. He had been paid four weeks pay in lieu of notice. Mr Kalafonos said that
‘on or about the 22 August’ a letter of termination dated that day was posted to the applicant
(see para [2]).
Ms Donnalee Cohn
[19] Ms Cohn attended the meeting with the applicant on 22 August 2014. She took notes
of the meting and reproduced them for the Commission (Exhibit C).
[20] In cross examination, Ms Cohn had understood that when the applicant said, ‘Please
put what you’ve said in writing’, it was a reference to the notes Mr Kalafonos was taking
independently to her own notes. Later in the meeting, he had asked for a letter of termination.
Ms Cohn believed it was clear that the applicant had known that his termination was from the
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end of the meeting. She had then posted a termination letter on Monday of the following
week.
[21] Ms Cohn explained the confusion over the claim of six weeks pay. The applicant was
to be paid the next Monday for two weeks pay for the previous two weeks work and then a
separate cheque for four weeks pay in lieu of notice would be sent later. Ms Cohn said she
had sent another cheque to him on 15 September 2014 for two weeks outstanding sick pay.
This had arisen after she had spoken to him on 12 September to clarify his outstanding
entitlements. The cheque for the payment in lieu of notice was sent on 3 September 2014.
SUBMISSIONS
For the applicant
[22] After setting out the chronology of events, Mr Macken argued his client’s case on
three alternative bases. Firstly, the termination of employment was with notice and the
employment relationship did not come to an end until the end of the notice period. Mr Macken
relied on Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 (‘Mihajlovic v Lifeline
Macarthur’) in support of this submission. He said it was irrelevant that the applicant did not
work the notice period. Secondly, as the applicant did not receive the payment for notice until
3 September 2014, he was still employed up to that date. Thirdly, the employment
relationship did not come to an end until the applicant received the letter of termination on 27
August 2014. Mr Macken observed that if any one of these three alternative dates is accepted
as the date of the dismissal, his unfair dismissal application is within the 21 day time period.
[23] Mr Macken said it was clearly in the applicant’s mind, rightly or wrongly, that the
employment relationship did not end until it was confirmed in writing. He had been
concerned that not only had he been unfairly dismissed, but he had been underpaid as well.
This had not been finally clarified with Ms Cohn until 12 September 2014.
[24] Mr Macken put a further alternative submission that even if the application was filed
‘out of time’, the Commission would find ‘exceptional circumstances’ such as to be satisfied
that the application should be accepted out of time.
[25] Mr Macken said there was clearly no prejudice to the employer. The applicant had not
deliberately delayed filing his application. The merits of the applicant’s case were strong in
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that there was uncontradicted evidence that he had received no written warnings or given any
directions on how to improve his performance. It would be unfair to deny the applicant an
opportunity to have his substantive case heard when he had a misconception as to when his
dismissal took effect; See: Allan v TESA Resources Pty Ltd [PR921219] (‘Allan v TESA’) per
O’Callaghan SDP.
For the respondent
[26] Mr Bayne drew a distinction between the cases cited by Mr Macken in Allan v TESA
and Mihajlovic v Lifeline Macarthur. In Allan v TESA, O’Callaghan SDP dealt with a
dismissal where the issue was whether the dismissal decision was definitely communicated to
the applicant. Unlike in this case, there was no ambiguity or lack of clarity as to when the
applicant was dismissed and when he clearly understood he had been dismissed. In Mihajlovic
v Lifeline Macarthur, there was also ambiguity about the documentation provided to the
applicant. That does not apply in this case.
[27] Mr Bayne submitted that the termination of the applicant did not have to be in writing,
nor did it require his acceptance. He was clearly told that he was dismissed on 22 August
2014. If this case is really about some underpayment claim, this application is not the
appropriate vehicle for pursuing such a claim. Mr Bayne emphasised that a dismissal does not
require the decision to be put in writing, nor does it require the payment of outstanding
entitlements or termination pay immediately. It most certainly does not mean that the
employment continues on until such conditions are met. These circumstances simply cannot
change the date of dismissal.
[28] Mr Bayne argued that it was plain that the applicant knew he had been dismissed. He
did not return to work or perform any work for the respondent. At no stage was the applicant
told he was being given notice of his dismissal. As to the lateness of the application, the
applicant claimed he had not received the letter of confirmation and had been underpaid. Mr
Bayne referred to his earlier submissions. His third reason was that he was preoccupied with
looking for other work. Mr Bayne said there is nothing ‘exceptional’ about a dismissed
employee looking for other work. Indeed, it would be ‘exceptional’, if they did not.
[29] Mr Bayne put that chasing up alleged underpayments is not disputing his dismissal.
Other than this application, there was no action by the applicant to dispute his dismissal. Mr
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Bayne put that there was significant prejudice to the employer, given that the relevant events
were five months earlier. As to the merits, Mr Bayne noted that there had been as many as
five warnings to the applicant. In addition, the respondent is a small business and it had
complied with the Code when dismissing the applicant.
[30] As to fairness between other parties, Mr Bayne said this case was far less meritorious
than other cases where ‘exceptional circumstances’ had been established. Finally, Mr Bayne
said the application should be dismissed.
CONSIDERATION
What was the date of the applicant’s dismissal?
[31] Mr Macken relied on the following paragraph from Mihajlovic v Lifeline Macarthur to
assert that the applicant’s dismissal actually took place on 19 September 2014, being the
expiry of the four week notice period for which he had been paid.
‘[16] The above passage makes it clear that, under the Industrial Relations Act 1988 a
termination of employment, being a termination at the initiative of the employer,
occurred at the time that the employment relationship came to an end and, in the case
of an employee who had been dismissed on notice, the termination of the employment
relationship and therefore the termination at the initiative of the employer occurred
when the notice period expired.’
Consequently, this application for an unfair dismissal remedy was made within time and no
jurisdictional objection arises.
[32] In my view, Mr Macken’s emphatic reliance on Mihajlovic v Lifeline Macarthur was
entirely misplaced and misunderstands the context in which that case was decided. Mihajlovic
v Lifeline Macarthur is not authority for a general proposition that if an employee receives
notice of termination and is paid in lieu of notice, then the termination of employment does
not have any legal effect until the expiry of the notice period or at the end of the notice
payments. This cannot be right.
[33] For example, where an employee is summarily dismissed for serious misconduct, but
may be paid an amount said to be payment in lieu of notice, it could not seriously be
suggested that the employment relationship remains ‘on foot’ until the end of the notice
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payments. On the other hand, it is undoubted that where an employee actually works out the
notice period, the termination of employment occurs at the expiry of that period.
[34] The correct legal position was set out by Wilcox J in Siagian v Sanel Pty Ltd (1994)
122 ALR 333 at p 355 where His Honour said:
‘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.’
[35] Mihajlovic v Lifeline Macarthur does stand as authority for the proposition that each
case will be decided on its own particular facts and circumstances. The facts and
circumstances of Mihajlovic v Lifeline Macarthur were quite unusual. Mr Mihajlovic had
filed an unfair dismissal application, prior to the date on which his dismissal purportedly took
effect, namely by the payment of three months pay in lieu of notice. As it turned out, Mr
Mihajlovic was not paid the three months notice, so his employment was held to have
continued to the expiry of the notice. Perhaps unsurprisingly, the Full Bench said at para [43]:
‘The general self evident proposition is that unfair dismissal applications are to be made
within 'the prescribed 21-day period after a dismissal takes effect.’
[36] In order to further appreciate the context of the issues in Mihajlovic, it is appropriate to
have regard to what His Honour, Hatcher VP said in the case which led to the Full Bench’s
specific consideration above; See: Mihajlovic v Lifeline Macarthur [2013] FWC 9804. At
paras [7]-[8], His Honour said:
‘[7] I consider that, where misconduct was not involved, the above provision of the
contract permitted termination in two ways: firstly, by the provision of three months’
notice, and, secondly, summarily upon the payment of three months’ wages in lieu of
notice. Under the first option, it would have been permissible for LLM to not require
Mr Mihajlovic to attend for work during the three month period and simply to pay him
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his wages for that period. There is no reason why, in that scenario, the salary could not
have been paid in advance as a lump sum.
[8] The date of termination of employment would be different depending upon
which of these two contractual options LLM was exercising in the dismissal
notice. Under the first option, the employment would terminate upon the expiry of the
three months’ notice period - that is, on 5 September 2013. Under the second, it would
terminate forthwith. This is consistent with the approach taken by the Industrial
Relations Court of Australia (Wilcox CJ) in Siagian v Sanel Pty Ltd. In that case,
where the identification of the date of the applicant’s dismissal was critical to the
competence of his application, the Court said:
“Counsel's second argument is that, because of the payment in lieu of notice, the
termination did not occur on 29 March but at the date of expiration of the
period for which payment was made, 15 April. If this argument is correct,
s.170EE orders are available.
This argument also raises a complex problem. The problem arises because of
the ambiguity inherent in the words "payment in lieu of notice". The ambiguity
was pointed out by Waite J, in Leech v Preston Borough Council [1985] ICR
192 at 196:
"... it is clear from the authorities cited to us, ... all of which are
confirmed by the experience of our lay members, that the expression
'payment in lieu of notice' is regularly used throughout industry in one
or other of two quite different senses. The first, which is the
grammatically correct one, is when it is used to describe the payment to
an employee whom it is proposed to dismiss summarily of a lump sum
representing compensation for the wages or salary which he would have
received if he had been given the notice to which he is entitled by law.
The second, which is the colloquial and grammatically inaccurate one,
is when the term is used as a convenient shorthand way of telling an
employee that he is being given the full period of notice to which he is
entitled by law but is at the same time excused any duty (and refused
any right) that he would otherwise have under his employment contract
to attend at the workplace during the notice period."
Although Waite J did not spell out the result that flowed from each meaning, it
is clear from other decisions that, in the first case, the employee's employment
terminates upon the date of payment of the lump sum. In the second case, the
employment extends until the expiration of the period for which the payment
was made.
The question whether a payment in lieu of notice immediately terminates the
employment is always one of fact. In Leech at 196-197 Waite J said that the
proper inference as to the sense in which the expression is used may turn upon
"very subtle indications or nuances of wording which will have to be weighed
carefully according to their context". The difficulty, of course, is that the
parties will normally not have made the position clear. They will probably not
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have averted to the distinction made by Waite J. The Court will be left to put
its own interpretation on their actions.” [footnotes excluded, emphasis added]’
[37] In his consideration above, His Honour relied on the expressed and clear terms of Mr
Mihajlovic’s termination letter. Similarly, I relied on the terms of a resignation letter in
Fagone v Hilton Hotels of Australia Pty Ltd t/as Hilton Sydney [2013] FWC 2513, where the
applicant in that case having resigned, sought to extend her employment relationship by two
weeks, because she had sought and was granted a two weeks ex gratia payment. Her notice of
resignation was expressed as follows:
’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.’
[38] At para [75] of the decision, I said:
‘[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.’
[39] So it is in this case. The evidence, including from the applicant himself, is replete with
references to him having been terminated with ‘immediate effect’ and with him having
accepted this to be the case. For example:
(a) In the applicant’s Form F2 application at para 3.2, he said:
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‘2. A ‘summary termination’ is absolutely unwarranted as I have done
nothing worth of such harsh treatment.
...
4. At around 6-00PM on Wednesday 20th August Mr Kalofonos [sic] called
me to inform me that we were to meet the following morning at 8-00am
to discuss my immediate dismissal. He kindly advised me that I could
bring a witness [my emphasis].’
(b) Mr Kalafonos’ uncontested evidence records the following about what he said
in the 22 August 2014 meeting:
‘Despite several warnings about your continual mistakes and unsatisfactory
performance, your performance hasn’t improved in nearly three years. This is
no longer acceptable & for this reason you are being dismissed for continual
unsatisfactory performance effective immediately. You will be given 4-week’s
pay in lieu of notice [my emphasis].’
(c) Ms Cohn, who took notes of the meeting, gave evidence that Mr Kalafonos had
used the words, ‘We’ve decided to terminate your employment effective
immediately [my emphasis].’
(d) Exhibit C, the notes of the meeting records the following at the end:
‘D. Because of this continual unsatisfactory performance we’ve decided to
terminate your employment effective immediately. You will get 4-week’s pay
in lieu of notice [my emphasis].’
(e) Even the applicant’s support person, Tim Conroy, records as follows:
‘Mr Sutherland requested a written termination letter, however, none was
provided.’
(f) The letter of termination (see para [2]) is in plain and unequivocal terms.
[40] Despite this evidence, which I accept, I am troubled that in the applicant’s Form F2 he
referred to the meeting to discuss his ‘immediate dismissal’, but just two months later, he
could not recall hearing the words ‘effective immediately’ and he disputed the phrase
‘immediate dismissal’ in Mr Kalafonos’ statement. I have difficulty reconciling this
contradiction.
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[41] In addition, the applicant’s claim as to a lack of clarity as to when he was dismissed
sits rather uncomfortably with his own evidence, on oath, that on 22 August 2014, he returned
the office keys and passes, packed his personal belongings and left the office. He made no
attempt to question the date of his dismissal or attend for work subsequently.
[42] I have absolutely no doubt that the applicant knew full well that he had been dismissed
on 22 August 2014 and he acted according to that belief. His lack of recall about what was
said in the meeting ‘rings rather hollow’ in the context of unequivocal evidence to the
contrary.
[43] As to Mr Macken’s second alternative date - 3 September 2014 - when the applicant
received the notice payments, I do not accept that this date constituted the date of the
termination of the employment relationship. This is so because the delay in making the notice
payments arose from confusion as to what were the applicant’s outstanding entitlements. So
much is obvious from the evidence of the applicant and Ms Cohn. It was made very clear to
the applicant that he would be paid four weeks notice and he was paid that amount; albeit late.
[44] Given the plain effect of the applicant’s dismissal on 22 August 2014, the fact that
there was some delay in making the in lieu payments cannot be held to prolong the
employment relationship until such payments are made. Moreover, it is not uncommon for
dismissed employees to challenge the payments made to them on termination. Often the
payments are not made for many weeks, while the dispute is resolved or is simply delayed
because of a company’s pay cycle. To suggest that these circumstances somehow means the
employment relationship ‘remains on foot’ is illogical nonsense.
[45] As to Mr Macken’s further submission that the applicant was waiting for written
confirmation of his dismissal and did not receive the letter until 27 August 2014, such a
complaint takes the applicant’s case nowhere. Given the clear and unequivocal words used by
Mr Kalafonos’ at the meeting on 22 August 2014, it was unnecessary for the applicant to have
confirmed what he already well knew to be the position.
[46] As the applicant was dismissed on a Friday and Mr Kalafonos said that ‘on or about
22 August’, the termination letter was posted to the applicant, it is quite likely that he did not
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receive it until Wednesday 27 August 2014. But that is not the point. There is no statutory
basis or implied contractual term which requires an employer to confirm a dismissal, in
writing. Of course, it is preferable for the employee to have written reasons for his/her
dismissal, as it may become a relevant issue if the merits of an application is reached. That is
not the case here. In circumstances where the applicant not only knew the basis for his
dismissal, but strongly contested the reasons at the time, there is absolutely no doubt that he
was dismissed on 22 August 2014.
[47] In summary then, it is simply not open for an employee who has been told in clear and
unequivocal terms that his/her dismissal has immediate effect and where the employee
accepts that to be the case, for the employee to reconstruct the facts in order to assert the exact
opposite. It is besides the point that monies were paid either in lieu of notice or according to
the terms of a contract of employment. Here, the applicant was clearly told on 22 August
2014 that his dismissal was effective immediately, he accepted this factual proposition in his
Form F2 application, but now says “ignore all that, my employment really came to an end
when my four weeks in lieu of notice payments ended on 19 September 2014”. Apart from
being wrong at law, such a proposition is illogical and disingenuous. It is an attempt to
recreate history. In any event, as the decision in Mihajlovic v Lifeline Macarthur makes clear,
in the usual course, an application for an unfair dismissal remedy cannot be lodged before a
person is dismissed. As the application was lodged on 15 September 2014 and the applicant
claims he was really dismissed on 19 September 2014, his application would be premature
and likely fail for want of jurisdiction on that basis.
[48] I find that the date of the applicant’s dismissal was 22 August 2014. As he filed his
application on 15 September 2014, the application was filed three days outside the statutory
time period permitted by s 394(2) of the Act. Having so found, I turn now to consider whether
there were any ‘exceptional circumstances’ which would satisfy me that the Commission’s
discretion should be exercised to allow this application to be filed ‘out of time’.
[49] The relevant legislative framework, guiding the exercise of the Commission’s
discretion in relation to ‘out of time’ applications, is set out at s 394 of the Act as follows:
‘394 Application for unfair dismissal remedy
...
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(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.’
[50] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star
Group Pty Ltd [2011] FWAFB 975 (‘Nulty’). While Nulty was decided under the General
Protections provisions of the Act, the definition of ‘exceptional circumstances’ has been held
to have the same meaning where it appears in other sections of the Act, most notably in s
394(3). In Nulty, a Full Bench of the Commission said:
‘[10] It is convenient to deal first with the meaning of the expression “exceptional
circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of
FWA considered the meaning of the expression “exceptional circumstances” in
s.394(3) and held:
“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary
as “forming an exception or unusual instance; unusual; extraordinary.” We can
apprehend no reason for giving the word a meaning other than its ordinary
meaning for the purposes of s.394(3) of the FW Act.”
[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of
principle is equally applicable to s.366(2).
[12] The ordinary meaning of the expression “exceptional circumstances” was
considered by Rares J in Ho v Professional Services Review Committee No 295 a case
involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:
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“23. I am of opinion that the expression ‘exceptional circumstances’ requires
consideration of all the circumstances. In Griffiths v The Queen (1989) 167
CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision
which entitled either a parole board or a court to specify a shorter non-parole
period than that required under another section only if it determined that the
circumstances justified that course. They said of the appellant’s circumstances:
‘Although no one of these factors was exceptional, in combination they
may reasonably be regarded as amounting to exceptional
circumstances.’
24. Brennan and Dawson JJ held that the failure in that case to evaluate the
relevant circumstances in combination was a failure to consider matters which
were relevant to the exercise of the discretion under the section (167 CLR at
379). Deane J, (with whom Gaudron and McHugh JJ expressed their
concurrence on this point, albeit that they were dissenting) explained that the
power under consideration allowed departure from the norm only in the
exceptional or special case where the circumstances justified it (167 CLR at
383, 397).
25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J
referred with approval to what Lord Bingham of Cornhill CJ had said in R v
Kelly (Edward) [2000] QB 198 at 208, namely:
‘We must construe "exceptional" as an ordinary, familiar English
adjective, and not as a term of art. It describes a circumstance which is
such as to form an exception, which is out of the ordinary course, or
unusual, or special, or uncommon. To be exceptional a circumstance
need not be unique, or unprecedented, or very rare; but it cannot be one
that is regularly, or routinely, or normally encountered.’
26. Exceptional circumstances within the meaning of s 106KA(2) can include a
single exceptional matter, a combination of exceptional factors or a
combination of ordinary factors which, although individually of no particular
significance, when taken together are seen as exceptional. Thus, the sun and
moon appear in the sky everyday and there is nothing exceptional about seeing
them both simultaneously during day time. But an eclipse, whether lunar or
solar, is exceptional, even though it can be predicted, because it is outside the
usual course of events.
27. It is not correct to construe ‘exceptional circumstances’ as being only some
unexpected occurrence, although frequently it will be. Nor is it correct to
construe the plural ‘circumstances’ as if it were only a singular occurrence,
even though it can be a one off situation. The ordinary and natural meaning of
‘exceptional circumstances’ in s 106KA(2) includes a combination of factors
which, when viewed together, may reasonably be seen as producing a situation
which is out of the ordinary course, unusual, special or uncommon. And, the
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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.
[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.
[15] A finding that there are “exceptional circumstances”, taking into account the
matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to
extend time is enlivened. That is, even when “exceptional circumstances” are
established, there remains a discretion to grant or refuse an extension of time. That
discretion should be exercised having regard to all the circumstances including, in
particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a
consideration of whether, given the exceptional circumstances found, it is fair and
equitable that time should be extended [Endnotes not reproduced].’
[51] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3)
above, must be considered when deciding whether or not ‘exceptional circumstances’ have
been established. Even if ‘exceptional circumstances’ are established, this is merely the
jurisdictional gateway for the exercise of the Commission’s discretion to extend the time for
filing an unfair dismissal application. In other words, ‘exceptional circumstances’ may be
found to have existed, but the Commission may still refuse to exercise a discretion to accept
the application ‘out of time’; See: Nulty at para [15]. A recent Full Bench of the Commission
in Lombardo v Commonwealth of Australia [2014] FWCFB 2288 succinctly described the
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Commission’s decision making process under s 394(3) of the Act as: ‘The test for granting an
extension of time involves both a broad discretion and a high hurdle of ‘exceptional
circumstances.’ I turn now to each of the criteria set out under s 394(3) of the Act.
Reasons for the delay (s 394(3)(a))
[52] The applicant put that even if his application was ‘out of time’, the Commission would
be satisfied that there were ‘exceptional circumstances’ such as to allow the Commission to
extend the time for filing. As I understood it, his reasons for the delay were threefold.
[53] Firstly, he was unaware of the effective date of his dismissal. I have already dealt with
this matter. In any event, even accepting that the applicant may have been confused (which I
don’t), the state of being confused should have meant that he would file an application just to
be sure (particularly as he was very ‘live’ to the view that he had been unfairly dismissed). It
is unclear to me whether the applicant was seeking legal advice around this time, but if he
had, he would have been well advised to file an unfair dismissal application and sort out his
underpayment claims separately and, if necessary, through the Fair Work Ombudsman.
However, as there was no submission put concerning ‘representative error’, I need take this
issue no further.
[54] Secondly, the applicant said he was waiting to sort out his underpayment claim before
filing his unfair dismissal claim. There is simply no reason why the two claims cannot be
pursued concurrently. Waiting to resolve an underpayment claims does not prevent the filing
of an unfair dismissal application.
[55] Thirdly, the applicant said his time was preoccupied with looking for another job.
While that is a commendable submission, it could not possibly be held to be an ‘exceptional
circumstance’. I agree with Mr Bayne that it would rather be to the contrary - that a dismissed
employee, not looking for alternate employment, would be the exception.
[56] In my opinion, none of the reasons proposed by the applicant, either singly or
cumulatively, constitute ‘exceptional circumstances’ within the meaning of the statute.
When the person first became aware of the dismissal after it had taken effect (s
394(3)(b))
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[57] For the reasons earlier expressed, I find the applicant’s dismissal occurred on 22
August 2014 and he was aware of his dismissal on that date. This circumstance weighs
against the grant of an extension of time.
Any action taken by the person to dispute his dismissal (s 394(3)(c))
[58] There is no evidence that the applicant took any steps to contest his dismissal until the
filing of this application. I do not accept that querying his termination pay constituted
disputing his dismissal. It was an entirely different and separate matter. These circumstances
weigh against the grant of an extension of time.
Prejudice to the employer (s 394(3)(d))
[59] This criterion was not elaborated upon by the applicant; although the respondent
pointed to the applicant’s dismissal as having occurred some months ago as grounds for a
finding of prejudice to the employer. I consider this factor to be a neutral consideration in this
case.
Merits of the application (s 394(3)(e))
[60] In his written statement, the applicant denied that he had been given ‘several’
warnings about his poor performance. He recalled being ‘pulled aside’ on three occasions and
told in an aggressive, but vague manner, that he was making mistakes and that his work
required improvement. There were no warnings in writing. There had not been any
performance improvement program.
[61] The applicant also stated that he had been dismissed shortly after a period of leave he
had taken to deal with his father’s medical emergency, which had first become apparent on 21
July 2014. He set out the chronology leading to his dismissal in his Form F2 application as
follows. The applicant had left work, with permission of the respondent, to be with his father
in Canberra on 21 July 2014 and returned on 25 July 2014. With the apparent support of the
respondent, he then flew to Melbourne to be with his family on 28 July and returned to work
on 15 August 2014. On 19 August 2014, he was directed by Mr Kalafonos to take the next
day off to consider his future working for the respondent. At 6:00pm on Wednesday 20
August, he was directed to attend a meeting the following morning to discuss his ‘immediate
dismissal’. He was able to reschedule the meeting to Friday so he could bring a witness. The
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termination letter he had subsequently received set out poor performance as the reason for his
dismissal, but did not set out specifics.
[62] The respondent’s materials were largely addressed to the question of the date of the
applicant’s dismissal, but made reference to a number of warnings issued to the applicant. Mr
Bayne noted that the respondent was a small business employer, as defined, and he submitted
that the respondent relied on its compliance with the Code.
[63] It is appropriate to note that a consideration of the merits of an application at such an
early stage in the proceedings and without the benefit of tested evidence, will only ever be on
a prima facie basis; See: Kyvelos v Champion Socks Pty Limited Print T2421, 10 November
2000. However, it seems clear that the applicant was dismissed on performance based grounds
and that, even on his own evidence, he had been spoken to about his performance. For the
above reasons and, considering that the applicant will face a further jurisdictional hurdle in
establishing that his dismissal was not compliant with the Code, I am satisfied, on a prima
facie basis, that the applicant’s prospects of success are negligible. This factor weighs against
an extension of time being granted.
Fairness as between the person and other persons in a similar situation (s 394(3)(f))
[64] I do not consider the applicant’s position in relation to another person in a similar
position is unfair. His dismissal appears to be a conventional dismissal with notice, on the
grounds of poor performance. This is a neutral factor in my consideration.
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CONCLUSION
[65] Having considered all of the matters which the Commission is required to take account
under s 394(3) of the Act, I am not satisfied that there are ‘exceptional circumstances’ which
would warrant my granting an exception to the statutory time limit for the lodgement of this
unfair dismissal application. The circumstances, as disclosed during the proceeding, are not
‘out of the ordinary course, unusual, special or uncommon’. Accordingly, this application for
an unfair dismissal remedy must be dismissed. An order to this effect will accompany the
publication of this decision.
DEPUTY PRESIDENT
Appearances:
Mr P Macken, Solicitor for the applicant.
Mr L Bayne of the Real Estate Employers’ Federation for the respondent.
Hearing details:
2014:
Sydney
16 January
Printed by authority of the Commonwealth Government Printer
Price code C, PR561368
ORK WORK COMMISSION FAIR THE SEAL OF
