1
Fair Work Act
2009
s.394 - Application for unfair dismissal remedy
Mr Jarrod (Jack) McRae
v
Qantas Airways Limited T/A Qantas
(U2016/13792)
COMMISSIONER RIORDAN BRISBANE, 13 APRIL 2017
Application for relief from unfair dismissal.
[1] This decision relates to an application by Mr Jarrod McRae for an unfair dismissal
remedy in relation to his termination of employment with Qantas Airways Limited t/a Qantas.
[2] Mr McRae was represented by Mr Joshua Blundell-Thornton, an Industrial Officer
from the “Automotive, Foods, Metals, Engineering, Printing and Kindred Industries Union”
known as the Australian Manufacturing Workers’ Union (AMWU). Qantas were represented
by Mr Nick Saunders.
[3] By virtue of section 394(2) of the Fair Work Act, 2009 (the Act), the application must
be made within 21 days from the date of termination.
[4] Mr McRae commenced employment with Qantas on 13 February 2002. Mr McRae
was dismissed on 19 October 2016. Mr McRae was employed as an AME (Mechanical)
which, from my previous experience, is a specialist mechanical tradesperson in the aviation
industry.
[5] The AMWU made an application to the Fair Work Commission (FWC) for an unfair
dismissal remedy on Mr McRae’s behalf on 17 November 2016, some 8 days after the
statutory time limit.
[6] The AMWU submitted that there were exceptional reasons for the late filing of Mr
McRae’s application.
Statutory provisions
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.
[2017] FWC 1756 [Note: An appeal pursuant to s.604 (C2017/2707) was
lodged against this decision - refer to Full Bench decision dated 2 August
2017 [[2017] FWCFB 4033] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb4033.htm
[2017] FWC 1756
2
(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);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar
position.
Background
[7] Qantas has implemented a “Standards of Conduct Policy” (the Policy). This Policy
contains an internal appeals process, including appeals against a decision to terminate an
employee’s employment. The relevant provisions of this policy for this matter are contained
in section 17.
“17.7 Appeals against decisions to terminate employment
……
(a) The appeal must be received by the Nominated Person within 7 calendar days of
the Employee receiving written notification of termination of employment.
Appeals lodged outside of this 7 day limit will generally not be considered by the
Company.
……
(e) Appeals against termination of employment will be determined by the Company,
wherever possible, within 10 calendar days of receipt of a written appeal.
……
17.9 Outcome of Appeals
……
(b) Where an appeal is dismissed, there will be no change to the process or decision
which was the subject of the appeal.”
[8] Mr McRae was advised by Mr John Walker, National Manager Line Maintenance
Operations at Qantas, that his appeal had been dismissed on 7 November 2016, 19 days after
his termination, and 12 days after he lodged his appeal. Relevantly, Mr Walker’s
[2017] FWC 1756
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correspondence does not mention whether Mr McRae’s termination took effect on 19 October
2016 or 7 November 2016.
“7 November 2016
Dear Jack,
I refer to your letter sent to me on 26 October 2016 (Appeal letter). You have appealed
the decision to terminate your employment (Decision) set out in Paul Crawford’s letter
to you dated 19 October 2016 (Outcome Letter). As you are aware I am responsible
for considering your appeal.
Your Appeal Letter outlines the basis of your appeal, namely that there were matters
that were not taken into account which should have been (including relevant
mitigating circumstances).
Outcome of your appeal
I have reviewed the Outcome Letter and the findings set out in Regan Philpott’s letter
to you dated 6 October 2016 (Findings). I have also considered the grounds set out in
your Appeal Letter. Additionally, I have reviewed and considered relevant information
in relation to the investigation into your conduct including witness statements taken
around the time of the incident.
Based on my enquiries and review, I am satisfied that the Decision was appropriate in
the circumstances and your appeal is dismissed. There will be no change to the
decision to terminate your employment.
Reason for my decision
In relation to the particular matters you raise in your Appeal Letter I would respond as
follows (adopting the same numbering as your Appeal Letter):
1. High level of stress and anxiety in your personal life
I note that you have raised additional matters in your Appeal Letter that were
not fully raised during the investigation. These included your personal
circumstances and mental health issues.
Whilst I understand from your Appeal Letter that you faced challenging
personal circumstances around the time of the incident, I do not believe these
factors outweigh the seriousness of the substantiated misconduct.
2. Antagonistic behaviour of Mr Brendan Keogh
Under this appeal ground you suggest that Mr Keogh provoked you which led
to your incident on 6 September 2016. You suggest that Mr Keogh is well
known for this type of behaviour and provide information from other
employees to support this position.
[2017] FWC 1756
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After close review I do not accept this argument. By your own admission you
state there were “several other places in the lunch room” you could have sat. If
this was the case, this confrontation with Mr Keogh could have been avoided if
you repositioned yourself to another table.
3. Your service at Qantas
I have reviewed your service history which includes you being issued with a
formal warning in November 2015. As a result you undertook face to face
Standards of Conduct training and as recently as January 2016 the Company
provided you a letter reminder regarding expectation of your behaviour.
Despite this the incident on 6 September demonstrates you have not reformed
your behaviour in the workplace.
Overall I believe that Mr Crawford took into account all relevant factors, including
mitigating circumstances you made the Company aware of, in making the Decision. I
have carefully considered the additional information you have provided in your
Appeal Letter and have determined that this does not warrant a review of the decision
to terminate your employment.
Conclusion
For the reasons set out above your appeal is dismissed, in accordance with the Qantas
Standards of Conduct Policy, my decision that the appeal is dismissed is final and no
further internal appeals may be made in relation to this matter.
Again, I remind you may find it helpful to access the confidential counselling service
that is available to you, free of charge, through our Employee Assistance Program –
the contact number is 1300 *** ***. Please note you have access to the EAP until 19
December 2016.
Please also remember that this matter is confidential. You must not discuss it with any
other employee (except someone who is acting as a support person for you).
Yours sincerely
John Walker”
(my emphasis)
Consideration
[9] The principles to be followed in determining the existence of an exceptional
circumstance are well established and are set out in a decision of a Full bench in Nulty v Blue
Star Group Pty Ltd1;
[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
[2017] FWC 1756
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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.
Section 394(3)(a) – reason for the delay
[10] The Applicant claims that he was confused over his actual termination date and only
became aware when he received his Separation Certificate on 8 November 2016, that the
Respondent still regarded 19 October 2016 as his termination date.
[11] The Applicant advised the AMWU of this issue on 16 November 2016. The AMWU
lodged an unfair dismissal application on behalf of the Applicant the next day.
[12] In Ayub v NSW Trains2 a Full Bench of the Fair Work Commission held:
“[48] Nonetheless the critical point made in Gisda Cyf that the shortness of the period
allowed to lodge a claim must inform the way in which the time-limiting provision is
interpreted is valid in the context of the FW Act. Indeed the proposition is a fortiori
given that time period allowed by the FW Act is much shorter and the circumstances
in which an extension of time may be obtained are more constrained. An interpretation
of s.394(2)(a) which would have the practical effect of reducing further what is
already a very limited opportunity to lodge an unfair dismissal claim would be rejected
if another is reasonably available. Our conclusion is that, in respect of a dismissal
without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot
not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at
least has a reasonable opportunity to find out, that he or she has been dismissed. It is in
that sense the dismissal is regarded as having been communicated to the employee.
[49] In relation to a dismissal with notice, drawing on the common law principles
earlier identified, the dismissal would take effect upon the date of the expiration of the
specified period of notice. It is necessary however for that date to be clearly
identifiable. This would equally apply to a conditional notice of termination. In the
case of a dismissal with a payment in lieu of notice, the dismissal would need to be
communicated to the employee in such a way that the employee knows, or at least has
a reasonable chance to find out, that he or she has been dismissed. There may also be
an additional requirement that the payment in lieu of notice has actually been received
by the employee.”
Section 394(3)(b)- whether the person first became aware of the dismissal after it had taken
effect
[13] Obviously the Applicant was aware he had been dismissed on 19 October 2016.
However, the Applicant exercised his right as an employee of Qantas and sought an internal
[2017] FWC 1756
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review of the decision to terminate his employment. Until this review was finalised, the
Applicant was hopeful that the decision to terminate him would be overturned. Every
employee who seeks an internal review would hope that their termination would be rescinded.
Such a desire would be normal behaviour.
[14] The Applicant only became aware of the Respondent’s reliance on the 19 October
2016 date on 8 November 2016 – one day before the expiration of the statutory time limit. In
effect, this meant that the Applicant only became aware of his actual date of termination on
the 20th day after his dismissal.
[15] I have taken this into account.
Section 394(3)(c)- any action taken by the person to dispute the dismissal
[16] The Applicant filed an internal appeal against his termination. The Applicant had also
involved his Union, the AMWU, in representing his interests during this process.
[17] I have taken this into account.
Section 394(3)(d) – prejudice to the employer
[18] The Respondent claims that it will suffer prejudice if an extension of time is granted
on the basis that it will be inconvenient to ongoing employees of the Respondent to deal with
the proceedings and that the Respondent will incur costs in defending this claim.
[19] These issues do not enliven the issue of prejudice. The Respondent incurring cost and
utilizing its employees as witnesses to defend its decision is part and parcel of every
application before the Fair Work Commission. To extinguish an Applicant’s unfair dismissal
application on these grounds would be bordering on a breach of procedural fairness.
[20] I have taken this into account.
Section 394(3)(e) - Merits of the Application
[21] The Applicant was terminated for misconduct after allegedly bullying a fellow
employee of the Respondent, in breach of the Respondent’s Standards of Conduct Policy.
The Applicant claims that there were extenuating circumstances in relation to his behaviour
which the Respondent did not consider in reaching its decision to terminate his employment.
[22] In Kornicki v Telstra-Network Technology Group3 (Kornicki) the Commission
considered the principles applicable to the extension of time discretion under the former
section 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission
said:
“If the application has no merit then it would not be unfair to refuse to extend the time
period for lodgement. However we wish to emphasise that a consideration of the
merits of the substantive application for relief in the context of an extension of time
application does not require a detailed analysis of the substantive merits. It would be
sufficient for the applicant to establish that the substantive application was not without
merit.”
[2017] FWC 1756
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[23] Detailed evidence on the merits of a case are rarely dealt with at an extension of time
hearing. As a result, the Commission “should not embark on a detailed consideration of the
substantive case” for the purpose of determining whether to grant an extension of time to the
applicant to lodge their Application.
[24] I adopt the reasoning of the Full Bench of the Australian Industrial Relations
Commission in Kornicki. I find that this factor is a neutral consideration in these proceedings.
Section 394(3)(f)- fairness as between the person and other persons in a similar position.
[25] I am not aware of any other employee of the Respondent who has filed their unfair
dismissal application late due to the delay in the Respondent’s internal appeals process.
[26] I do not accept the Respondent’s submission that granting an extension of time to the
Applicant would be unfair to employees of the Respondent who have previously lodged their
unfair dismissal applications on time.
[27] I find that it would not be unfair to employees in a similar position to grant an
extension of time to the Applicant.
Conclusion
[28] In determining this matter, I have taken into account all of the submissions of the
parties.
[29] I note that Mr Walker advised Mr McRae that his decision was final. Such a phrase
would infer that 7 November is the accurate date of termination.
[30] It would be procedurally unfair to only allow the Applicant two days to lodge his
application after receiving the outcome of his internal appeal from the Respondent. I
acknowledge that the Applicant is a member of the AMWU who probably could have filed an
application in the two days after the internal appeal was concluded. However, that is not the
issue. If the Applicant was not a member of a Union then, based on the Respondent’s logic, he
would have needed to seek legal advice, perhaps unnecessarily, whilst Mr Walker was
conducting his review or sought legal advice and completed his application in the two days
after 7 November 2016. Such a proposition is unsatisfactory and unfair.
[31] The decision of the Full Bench in Ayub is on point. I adopt the obiter and reasoning of
the Full Bench and find that the termination date of the Applicant was when he was notified
of the outcome of his appeal, ie 7 November 2016.
[32] I find that the Applicant has submitted his application for an unfair dismissal remedy
within the statutory timeframe in accordance with section 394(2)(a) of the Act.
[33] As a result of my finding, I have not needed to consider whether exceptional
circumstances existed in this matter which would have allowed an extension of time in
accordance with s394(3) of the Act.
[2017] FWC 1756
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[34] The substantive matter will be referred to a Member of the Fair Work Commission for
directions and arbitration.
COMMISSIONER
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Price code C, PR591376
1
[2011] FWAFB 975
2 [2016] FWCFB 5500
3 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
