Anthony Milanese v Office Bar Hotel Pty Ltd T/A the Office on Pirie

[2015] FWC 3555

[2015] FWC 3555

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Milanese
v
Office Bar Hotel Pty Ltd T/A The Office on Pirie
(U2015/4853)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 27 MAY 2015

Application for relief from unfair dismissal - extension of time not granted.

[1] Mr Milanese has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with Office Bar Hotel Pty Ltd T/A The Office on Pirie (the Office). Mr Milanese’s application was lodged on his behalf by his lawyer, Ms Macey.

[2] Mr Milanese’s application was lodged on 15 April 2015. In that application Mr Milanese advised that he was told of the termination of his employment on 23 March 2015 and that this termination took effect from the same day. The application confirmed that the application was lodged outside of the 21 day time limit, but sought that the following information be taken into account relative to an extension of time:

“1.4.1 The Applicant was awaiting the minutes of the 23 March 2015 meeting and a formal letter of termination, such that he could obtain legal advice regarding an unfair dismissal application.

1.4.2 The Applicant received an email from the Employer on 7 April 2014 with a termination letter dated 2 April 2014 and a copy of the minutes of the 23 March meeting (this email, letter and minutes are attached as Annexures to this Application).

1.4.3 The Applicant was of the understanding that his termination did not take effect until he received a formal termination letter.

1.4.4 The Applicant obtained legal advice on 14 April 2014.” 1

[3] The Employer’s Response to the application confirmed that the termination of Mr Milanese’s employment took effect on 23 March 2015. Accordingly, the Office asserted that the application was lodged out of time. The Office asserts that Mr Milanese was advised of the termination of his employment at a meeting on 23 March 2015 and that this advice was subsequently confirmed in correspondence dated 2 April 2015. The Office asserts that Mr Milanese was aware that he was not required to attend work or perform any further duties or receive any further pay after 23 March 2015.

[4] On 21 April 2015 my Associate corresponded with both Mr Milanese and the Office and advised that the extension of time issue would be considered through a telephone conference on 21 May 2015. Substantial information about the extension of time issue was provided to the parties. Mr Milanese was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 14 May 2015.

[5] Further information was received from Mr Milanese on 14 May 2015. Mr Milanese detailed his employment history with the Office and his assessment of the circumstances which led to the termination of his employment. He advised that:

“I attended the meeting on 23 March 2015. Tim White and Owen Webb from the AHA (SA) were also in attendance. The meeting took 5 minutes. Tim informed me that my employment with The Office “won’t continue”, and I was advised that this, together with the reasons for it, would be set out in writing and sent to me “in the next day or so. Tim also said “I don’t think we can go on with the employment” and “all your entitlements will be paid”. I was asked to provide, and did provide, my postal address. As such, I did not believe my employment was formally terminated until I received this letter.

I was of the view that it did not matter what response I gave to The Office at either meeting as they had already employed someone to take over my position while I had been on leave, before I was even aware that they had any issues with my employment.

By 1 April 2015, I had not received any further correspondence, so I wrote an email to Tim White requesting minutes of the last meeting and a letter setting out the outcome of the 23 March meeting. A copy of that email is marked ‘E’ and annexed hereto.

On 7 April 2015, I received from Tim White by email a letter dated 2 April 2015. A copy of that email and the attached letter is marked ‘F’ and annexed hereto.

I had previously sought some preliminary advice from the Fair Work Ombudsman and fair Work Commission before the meeting if not before the meeting of 9 March. I was told that if my employment was terminated I would have 21 days to file an application for unfair dismissal. I understood I needed confirmation of the termination before I could act.” 2

[6] Mr Milanese sought legal advice on 9 April 2015. He met with Ms Macey on 14 April 2015 and his application was lodged on the following day.

[7] Mr Milanese participated in the telephone conference but was represented by Mr Bourne, of counsel. Permission to this effect was granted pursuant to s.596(2)(a) and (c) because I concluded that the matter was of sufficient complexity to warrant representation of that nature and because I noted that the Office was represented by an official from the Australian Hotels Association. Mr White from the Office also participated in this conference but the Office was represented by Mr Webb of the Australian Hotels Association (SA).

[8] My conclusions about the extension of time issue were reached on the basis of all of the information before me. I note that a sound file record of this telephone conference was kept.

[9] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(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.”

[10] In the conference, Mr Bourne submitted that the termination of Mr Milanese’s employment should be taken to be effective from 2 April 2015, such that the application was made within time. Mr Bourne referred to the transcript of a recording of the meeting on 23 March 2015. It appears tolerably clear that this transcript was recorded without the knowledge of the Office or the Australian Hotels Association such that its legality may be questionable. Nevertheless, Mr Milanese seeks to rely on that transcript, typed by an employee of Mr Bourne’s firm. Notwithstanding this, the Office had no significant dispute with the accuracy of that transcript. My conclusion about the outcome of that conference is that Mr Milanese was in no doubt that his employment was terminated.

[11] Mr Milanese responded to the advice of the termination of his employment in the following terms:

“AM: It’s alright, it’s kind of, it’s nice just to have an answer after three weeks of nothing as well.

TW: Yeah, so thanks for all your efforts, and I know, I know you did, you did work hard in there.

AM: I appreciate you saying that.

TW: But there are just are some, a few things, like I said, a few things that you know I don’t we can’t go on with the employment, so did you have any questions.

AM: No questions, just again if the responses and minutes can be provided as per my request?

TW: Yeah we will get that out to you in the next day or two.

AM: Yep.

TW: Also all your entitlements etc. they will be all tidied up and you will obviously paid up everything you are owed.” 3

[12] It is very clear from this discussion that the Office undertook to confirm the termination of Mr Milanese’s employment within two days. The transcript states:

“OW: And we’ll get that out in writing to you if not today, by tomorrow so should receive it in the post the following day, so by Wednesday or Thursday.” 4

[13] I do not think there can be any doubt that Mr Milanese was aware of the termination of his employment on 23 March 2015. He was not paid beyond that day and there was no reference to a prospective termination date.

[14] On the information before me I have concluded that the termination of Mr Milanese’s employment took effect on 23 March 2015 such that the application was made two days outside of the 21 day time limit and hence, can only be pursued if this time limit is extended. I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 5 which stated:

“[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:

“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 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.”

[15] Mr Milanese’s reasons for the delay go to the extent to which he asserts that he was unaware that the termination of his employment took effect from 23 March 2015. This is inconsistent with the advice contained in his application. Further, Mr Milanese asserts that he emailed Mr White on 1 April 2015 “requesting minutes of the last meeting and a letter setting out the outcome of the 23 March meeting.” 6 However, that correspondence refers to his request for advice about his entitlements. I have concluded that Mr Milanese was aware, as of 23 March 2015, that his employment had been terminated. Mr Milanese further explains the delay on the basis that he understood he needed confirmation of his dismissal before he could act to pursue an application of this nature. I am not satisfied that his position in this respect satisfactorily explains the delay. Accordingly, I am not satisfied that Mr Milanese has established that the reasons for the delay represent circumstances which should be regarded as realistic or exceptional for the purposes of an extension of time.

[16] I am not satisfied that, apart from the late lodgement of this application, Mr Milanese pursued other actions so as to challenge the termination of his employment. I am not satisfied that an extension of time of this magnitude would prejudice the Office but this, of itself, does not provide a basis for an extension of time.

[17] The limited material before me relative to the merits of the application does not enable a definite conclusion about the matter. Accordingly, I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

[18] Considerations of fairness relative to other persons in similar positions do not support an extension of time.

[19] Accordingly I have concluded that the material before me does not establish that Mr Milanese’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order (PR567723) giving effect to this decision will be issued.

Appearances (by telephone):

S Bourne of counsel for the applicant

O Webb for the respondent.

Hearing (Conference) details:

2015.

Adelaide:

May 21.

 1   Form F2, para 1.4

 2   Statement of Anthony Milanese, dated 14 May 2015, paras 21 - 25

 3   Recording of meeting between Tim White, Owen Webb and Anthony Milanese on 23 March 2015, page 2

 4   Recording of meeting between Tim White, Owen Webb and Anthony Milanese on 23 March 2015, page 3

 5   [2011] FWAFB 975

 6   Statement of Anthony Milanese, dated 14 May 2015, para 23

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<Price code C, PR567722>