Christopher William Blair v Aurizon Operations Ltd

[2021] FWC 4887

[2021] FWC 4887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher William Blair
v
Aurizon Operations Ltd
(U2021/6111)

DEPUTY PRESIDENT BEAUMONT PERTH, 20 AUGUST 2021

Application for an unfair dismissal remedy – Jurisdictional objection – Application lodged out of time.

[1] Mr Christopher Blair (the Applicant) applied for an unfair dismissal remedy after his employment with Aurizon Operations Ltd (the Respondent) came to an end. His application was filed with the Fair Work Commission on 13 July 2021. Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) sets a 21-day timeframe in which an unfair dismissal application must be filed. The Applicant submits that his dismissal took effect on 28 June 2021, and therefore, his application was made within time. However, the Respondent disagrees, purporting that the Applicant’s dismissal took effect on 18 June 2021, and therefore, the application was filed four days late.

[2] If the application is to now proceed, it is necessary for the Applicant to show that his application was made within time, or if it was not made within time, to show that there are exceptional circumstances that warrant an extension of time in which to make the application and that it is fair and equitable for the extension to be granted.

[3] Whilst the parties were informed that the purpose of the hearing was to determine the abovementioned issues, the parties also drew the Commission’s attention to the Respondent’s jurisdictional objection premised upon the high income threshold. The Respondent argues that the Applicant enjoyed annual earnings above the high income threshold and so is excluded from making this application by virtue of s 382(b)(iii). The issue is examined within the decision, albeit even if the Applicant fell afoul of this threshold point, contemplation of whether he was covered by a modern award would remain necessary. Neither party advanced oral submissions on this point.

[4] However, further explanation of this issue proves unnecessary. In short, I have determined that the application was not made within the requisite time and that in all of the circumstances granting an extension of time in which to make the application, is unwarranted. The application is therefore dismissed. My reasons follow.

1 Background

[5] As noted, the threshold issue to first be determined is the date that the Applicant’s employment ceased. It is therefore useful at the outset to summarise in broad terms the history of the Applicant’s employment with the Respondent to assist an understanding of the arguments agitated by the parties before this Commission.

[6] The Applicant was employed as a Superintendent of Track. In this position he was responsible for the safe condition of the Respondent’s rail track, civil and associated infrastructure in Western Australia and New South Wales. 1

[7] The Respondent business considered it a senior management position requiring the Applicant to manage the leadership of a team of Construction and Maintenance Supervisors and Track Infrastructure Inspectors, in addition to managing maintenance contractors, preparing and monitoring budgets, developing and leading the scheduling and integration of efficient inspection and maintenance programs, amongst other duties. 2

[8] According to the Respondent, the Applicant’s contracted annual salary was $203,000.00 inclusive of superannuation, with a base rate of $185,388.13 per annum. The Applicant did not dispute this point, but did, however, contend that his take home salary in the 12 months prior to the end of his employment, was a lot less than his contracted annual salary.

[9] On 2 July 2020, the Applicant provided a medical certificate to the Respondent which certified that he was unfit for work for a period of five weeks. 3 The Applicant thereafter submitted a workers’ compensation claim.4

[10] Mr Vollbon, the Program Manager Rail Infrastructure Assets, stated that after the submission of the first medical certificate, the Respondent received medical certificates for the Applicant directly from the Applicant or the medical practice he attended. 5 In November 2020, Ms Matherson, a Senior Advisor Health and Rehabilitation of the Respondent, emailed the Applicant to request that all future medical certificates be directed to her.6

[11] Mr Vollbon said that on all occasions prior to 25 May 2021, he received from Ms Matherson copies of medical certificates pertaining to the Applicant as she received them. 7

[12] In April 2021, the medical certificate which the Respondent had received from the Applicant dated 26 February 2021, expired on 24 April 2021 and by 29 April 2021 no new medical certificate had been received. 8

[13] Mr Vollbon explained that he sent an email to the Applicant on 29 April 2021, attaching a copy of the expired medical certificate, and reminding the Applicant of the requirement to provide medical certificates. 9 Mr Vollbon said that in respect to the email dated 29April 2021, the Applicant responded by email, attaching a medical certificate valid until 25 May 2021.10

[14] However, by 2 June 2021, Mr Vollbon had not received a further medical certificate advising of the Applicant’s unfitness for work from 26 May 2021. 11 Mr Vollbon said that he sent an email to the Applicant on 2 June 2021, reminding him of the requirement to provide the medical certificate.12

[15] By 6 June 2021, the Respondent had not received a further medical certificate, and so Mr Vollbon emailed the Applicant expressing the urgency of providing a medical certificate and indicating that a failure to do so may lead to the termination of his employment. 13

[16] By 15 June 2021, the Respondent had not received the required medical certificate and had not been contacted by the Applicant. 14 Mr Vollbon therefore sent by email the letter of 15 June 2021 to the Applicant, it was also sent by registered post, and set out, amongst other matters:

…On 2 June 2021 an initial email was sent to you regarding the requirement to provide further medical evidence to determine any additional unpaid personal leave. A further email following up was sent to you on Friday 4 June 2021. Additionally, I attempted to call you on 8 June 2021 and 10 June 2021 on your Aurizon mobile phone.

According to my records, you have not made any contact with myself regarding your absence or to provide an ongoing explanation into your absence.

As of today, you have now been absent for twelve (12) working days without approval or explanation provided to the Company. As a result, we can only conclude that you have abandoned your employment.

Accordingly, your employment will be treated as terminated by reasons of abandonment on 18 June 2021.

If you dispute this conclusion, you should respond by no later than 5.00pm (WA Time) on 18 June 2021 outlining, as a minimum:

1. Whether it is your intention to return to work or provide any medical evidence to request unpaid personal leave

2. Your reasons, if any, you have failed to respond to my multiple attempts to contact you since 2 June 2021 and

3. Any other matters you wish to raise

If you do not respond, we will proceed to process your termination as at close of business 18 June 2021.

[17] A letter of 18 June 2021 from Mr Marsh of jklegal, representative of the Applicant, to Hall & Wilcox Solicitors, solicitors of the Respondent, was included in the evidence. The letter stated that it was ‘By Email’. Entitled ‘Blair & Aurizon Pty Ltd Workers’ Compensation’, it read:

Attached please find correspondence received from Aurizon Pty Ltd written directly to Chris, dated 15 June 2021 and signed by Michael Vollbon.

I have previously written to your firm indicating that Michael Vollbon was to have no contact with Chris and that all communication was to come via your office to my firm. This was supported by a medical report from Dr Tom Strickland which we also provided to you due to the danger the communication from Michael Vollbon could lead to a panic attack and further mental issues for Chris.

Aurizon’s letter of 15 June 2021 shows clearly that Michael Vollbon is ignoring that request to the detriment of Chris’ recovery and health.

I confirm that we have provided to your office various medical reports and ongoing progress medical certificates indicating that Chris is unfit for work and is therefore taking unpaid leave until such time as his workers’ compensation claim is finalised.

Please convey to Michael Vollbon and Aurizon Chris’ position and provide them with medical evidence as to his position, if you have not already done so, to prevent a repeat of this behaviour in future. 15

[18] Mr Vollbon confirmed that on 23 June 2021, he sent a letter to the Applicant by email and registered mail confirming that the foreshadowed termination of the Applicant’s employment had taken place on 18 June 2021. 16

[19] On 30 June 2021, Mr Vollbon said he was advised by email that the Applicant had attended the Respondent’s Welshpool office to return the Respondent’s property in his possession. 17

[20] Mr Vollbon said that he received an email from jklegal attaching a letter of 12 July 2021. That letter read:

I refer to the above matter and attach copies of my correspondence to Hall & Wilcox together with their response dated 9 July 2021.

As indicated in my earlier correspondence, unless you reinstate Christopher’s employment with your company by close of business on Monday, 12 July 2021 I am instructed to make application for Unfair Dismissal without further notice. 18

2 When did the dismissal take effect?

[21] Section 386(1)(a) of the Act defines the term ‘dismissed’ as a situation where a person’s employment has been terminated at the initiative of the employer or where a person is forced to resign as a result of some act of the employer. A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 19  What will constitute ‘communicated’ for the purpose of providing notice, will vary on a case-by-case basis, and must be considered and applied by taking into account the particular circumstances of a case.

[22] At common law, it is accepted that an employer may unilaterally terminate the contract of employment with notice or by way of a summary dismissal. The general principle is, to give effect to the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. 20  Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective.21  

[23] In short, the letter of 15 June 2021, set out that the termination of the Applicant’s employment would occur as of close of business 18 June 2021, unless he disputed the conclusion that he had abandoned his position. That letter was sent by Mr Vollbon directly to the Applicant.

[24] It is accepted that a notice of termination may validly operate notwithstanding that it is stated to take effect subject to a condition, provided that the notice is expressed with sufficient certainty so that conditional date of termination is ascertainable, the condition upon which the termination becomes operative has been fulfilled and the employee is in a position to know that the condition has been satisfied. 22

[25] The Applicant gave evidence that he did not consider that his dismissal took effect until 28 June 2021. This was the date when he collected the letter of ‘18 June 2021’, which had been sent by registered mail, from the post office.

[26] While Mr Vollbon sent the letters of 15 June 2021 and 23 June 2021 by registered mail, he was unequivocal with his evidence that those same letters had also been sent by email. To demonstrate that this was the case, Mr Vollbon directed the Commission to the relevant emails that had attached the letters.

[27] On the day of the hearing, the Applicant presented an argument that did not appear to have been broached in his written submissions. Namely, that he had never received the emails of 15 June 2021 and 23 June 2021, because the email address used had inverted commas around it. It read ‘To: Blair, Christopher; ‘[email protected]’. For all other purposes, the email address of the Applicant was correct, except for the inverted commas. Because the argument was a recent invention, the Respondent was absent time to call an IT Consultant to address why inverted commas would make no difference to the email arriving to the recipient – in this case the Applicant. However, counsel for the Respondent clarified that the inverted commas or angled brackets were utilised by the computer program to distinguish between the ‘display name’ and the name recognised by the computer.

[28] However, as it stands, the Applicant was represented as of 15 June 2021 and thereafter. His legal representative, a Mr Marsh, sent a letter of 18 June 2021, by email, to Hall & Wilcox Solicitors. There is no evidence before me to suggest that the letter did not arrive on that date to the Applicant’s legal representative. Mr Marsh’s letter of 18 June 2021 makes express reference to Mr Vollbon’s letter of 15 June 2021.

[29] One may recall that Mr Vollbon provided evidence that he emailed the letter to the Applicant on 15 June 2021, in addition to sending it via registered mail to the Applicant. It is not apparent that Mr Vollbon sent the letter to anyone else, save the Applicant. It follows that for Mr Marsh to have been aware of the letter of 15 June 2021, and to have attached it to his correspondence of 18 June 2021 to the Respondent’s representative, the Applicant must have received the letter of 15 June 2021 on or prior to 18 June 2021.

[30] Contrary to the Applicant’s claims, I am of the view that he received the emails of 15 June 2021 and 23 June 2021 and the attached correspondence, on those respective dates. His argument about the inverted commas surrounding the Applicant’s email address as precluding receipt of the email was fanciful. Further, to suggest that he was unaware that the Respondent had considered him to have abandoned his employment until receipt of the registered mail on 28 June 2021, was a meritless argument in the face of his own legal representative sending Mr Vollbon’s letter of 15 June 2021 to Hall & Wilcox on 18 June 2021.

[31] It follows that if I am to believe one witness account over the other, then it will be the account of Mr Vollbon. He simply provided evidence, avoided engaging in recent inventions or dallying with assertions that flew in the face of the direct evidence. I believed him to have told the truth.

[32] Mr Marsh’s letter of 18 June 2021 to Hall & Wilcox did not contest the assertion that the Applicant would be considered to have abandoned his employment as of 18 June 2021, or otherwise expressly address the three points that had been raised in the letter of 15 June 2021. The letter only noted:

I confirm that we have provided to your office various medical reports and ongoing progress medical certificates indicated that Chris is unfit for work and is therefore taking unpaid leave until such time as his workers’ compensation claim is finalised.

Please convey to Michael Vollbon and Aurizon Chris’ position and provide them with medical evidence as to his position, if you have not already done so, to prevent a repeat of this behaviour in the future.

[33] No direct medical evidence was attached to Mr Marsh’s letter of 18 June 2021 to show that the Applicant was certified unfit for work. Further, whilst Mr Vollbon wrote to the Applicant directly, the correspondence of Mr Marsh addressed and was sent to the legal representatives of the Respondent, it was not apparent that Mr Vollbon was privy to Mr Marsh’s letter of 18 June 2021 at the relevant time.

[34] In all of the circumstances, I am of the view that it was plainly communicated to the Applicant that the end date of his employment was 18 June 2021, and he was aware of this at that date. Whether the ending of his employment was to be by way of abandonment, was, in effect, placed in his hands; he, or his legal representative, had the opportunity to respond to Mr Vollbon, to dispute his abandonment of employment but chose not to do so.
[35] Further, while an argument may be pressed that as the Respondent was legally represented it was considered appropriate to respond to Hall & Wilcox, I observe the following points. First, the Applicant had been previously providing medical certificates directly to the Respondent. Second, Mr Vollbon as the Applicant’s line manager was not precluded from enquiring about a further medical certificate – as had been done previously. Third, Mr Vollbon was not precluded from communicating with the Applicant regarding the status of his employment. Fourth, evidence was given that while the Respondent had engaged Hall & Wilcox, it had done so only regarding carriage of the Applicant’s disputes workers’ compensation claim.

[36] Mr Vollbon’s letter of 15 June 2021 gave the Applicant notice, subject to a clearly stated condition, that his employment would terminate on 18 June 2021. The Applicant was positioned to know that the condition had been fulfilled given the letter of 15 June 2021 was in language that was easy to comprehend, no response had been provided to Mr Vollbon directly, and the response provided by Mr Marsh to Hall & Wilcox did not directly address the issues raised by Mr Vollbon.

[37] On any objective level, it is open to find that the Applicant’s dismissal took effect on 18 June 2021, and therefore his application has been made outside of the requisite statutory period.

3 Extension of time

[38] Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd. 23 In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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, can be considered exceptional.

[39] In Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters, 24 the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1), the observation remains relevant:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 25

[40] Under s 394(3) of the Act, the Commission takes into account several factors when determining whether circumstances are exceptional, these are:

(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.

[41] Each of these factors are considered below.

3.1 Reason for the delay

[42] The Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation. 26 The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all of the circumstances must be considered.27

[43] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application. 28 However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.29

[44] The parties were informed of the factors the Commission takes into account when determining whether to grant an extension of time. Notwithstanding the Applicant advanced his case primarily on the basis that his application had been filed in time. Therefore, reasons provided for the delay were limited or were perhaps unrelated to the delay.

[45] The Applicant argued that the Respondent was aware of the Applicant’s pending workers’ compensation claim and that the Respondent had been kept aware of this via correspondence passing between the solicitors of both the Applicant and Respondent concerning such claim. It was, therefore, fanciful for the Respondent to suggest that the Applicant had abandoned his employment, said the Applicant’s representative.

[46] The same representative of the Applicant asserted that the two letters that related to the termination of the Applicant’s employment were sent by regular post and were received much later than the dates written. I have already addressed that point at length. However, the Applicant’s representative continued, that on receipt of those letters, the Applicant instructed his lawyer to write to the solicitors of the Respondent indicating his opposition to those efforts to terminate.

[47] Mr Marsh of jklegal wrote to Hall & Wilcox on 28 June 2021, the letter attached progress medical certificates dated 25 June 2021 and an invoice for a medical practitioner. No mention was made of the Respondent’s letters of 15 June 2021 and 23 June 2021.

[48] A further letter from jklegal was emailed to Hall & Wilcox on 28 June 2021. It attached Mr Vollbon’s letter of 23 June 2021, in which Mr Vollbon confirmed that the Applicant’s employment had been terminated on 18 June 2021 and broached that the Applicant owed some $20,359.81 in overpayment to the Respondent. Apart from confirming that Mr Vollbon’s letter was attached, the letter observed that earlier correspondence from jklegal appeared not to have been passed to Mr Vollbon, and it stated the following:

I confirm that correspondence of this nature is continuing to cause aggravation of Chris’s mental health issues, particularly when he has no understanding at all of what debt he could possibly owe Aurizon Pty Ltd and that no claim has previously been made for any monies of that sort.

I request your urgent response.

[49] Another letter was emailed by Mr Marsh of jklegal on 6 July 2021 to Hall & Wilcox. The letter referred to correspondence from Mr Vollbon on 23 June 2021 and 28 June 2021, which said Mr Marsh had effectively terminated the Applicant’s employment. The letter continued:

I am instructed that, should Chris’ employment not be reinstated with Aurizon Holdings Pty Ltd by the close of business of Friday, 9 July 2021, he intends to lodge an unfair dismissal claim without further notice.

Please obtain your client’s instructions and revert to me as soon as possible.

[50] On 12 July 2021, Mr Marsh of jklegal emailed a letter to Mr Vollbon, it stated:

As indicated in my earlier correspondence, unless you reinstate Christopher’s employment with your company by the close of business on Monday, 12 July 2021 I am instructed to make application for Unfair Dismissal without further notice.

[51] Come 13 July 2021, Mr Marsh of jklegal sent by email a letter to Mr Vollbon that attached a copy of the unfair dismissal application that had been filed with the Commission on 13 July 2021.

[52] At all material times, the Applicant was legally represented. Further, as already noted, I am of the view that come 18 June 2021, both the Applicant and his representative were aware that the Applicant had been dismissed. However, it was not until 6 July 2021 that the Applicant’s representative broached making an unfair dismissal application to the Respondent. The Applicant thereafter waited another six days before again placing the Respondent on notice of the potential unfair dismissal application.

[53] No plausible explanation was provided as to why an unfair dismissal application was not filed within the requisite period or thereafter. The evidence shows that by 6 July 2021, the Applicant was well aware that an unfair dismissal application was a possible avenue of recourse.

[54] An argument that the Applicant was operating under a misapprehension regarding his legal rights is insufficient in and of itself to constitute an ‘exceptional circumstance’ within the meaning of the Act. 30 Further, the argument is implausible when one considers he was legally represented and had already alluded to the making of such application by 6 July 2021 – a date still within the statutory period.

[55] Included in the Applicant’s bundle of documents were medical certificates certifying him unfit for work from 11 June 2021 to 23 July 2021 and 16 July 2021 to 27 August 2021. It is unclear from the materials provided, whether these documents were provided to the Respondent, and if so, by whom, how and when. It would be fair to assume, given the Applicant’s medical history, evidence provided and the issues of his job loss and the unresolved overpayment, that he may have experienced stress and perhaps anxiety in the period between the dismissal and the lodging of his unfair dismissal application. However, whilst the Applicant submitted, he was unable to communicate with the Respondent due to his mental incapacity, 31 he remained legally represented during the relevant period and was providing instruction to his solicitor at that time.

[56] The Applicant proffered no submission on the subject of representative error and ultimately it is the applicant’s responsibility to prosecute her or his case. Where representative error is a factor that could have contributed to the delay in making the application, it is nevertheless accepted that the conduct of the applicant is to be examined. 32 In the circumstances of this case, by 6 July 2021, the Applicant, by the communication of his legal representative, had acknowledged recourse to the unfair dismissal jurisdiction. However, he took no step to file the unfair dismissal application at that time or before the expiry of the statutory period. Nevertheless, given the absence of argument on the point and provision of evidence on the same, no conclusion can be reached regarding representative error.

[57] I have considered the delay as the period beyond the 21-day period, and while the application was made some four days late, I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the period (or part thereof) of the delay in lodging her unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

3.2 Whether the person first became aware of the dismissal after it had taken effect

[58] For the reasons detailed in this decision, I am of the view that the Applicant became aware of his dismissal on 18 June 2021. I, therefore, consider this to be a neutral consideration.

3.3 Action taken by the person to dispute the dismissal

[59] The Applicant’s representatives twice informed the Respondent’s representatives that the Applicant sought to contest his dismissal. Notably on 6 July 2021 and 12 July 2021. However, the Respondent submits that such correspondence was directed to the legal representatives of the Respondent’s workers’ compensation insurers who had no brief to act for the Respondent in relation to the termination of the Applicant’s employment.

[60] Further, the Respondent observes that the dismissal notification was on the Respondent’s letterhead and was emailed to the Applicant from an email address of the Respondent, and was signed by Mr Vollbon, the Applicant’s manager. The Respondent had taken steps to directly communicate with the Applicant about the status of his employment regarding abandonment.

[61] According to the Respondent, there was nothing in any of the Respondent’s correspondence which either directly, or by implication, indicated that Hall & Wilcox held any agency to deal with the matter.

[62] In circumstances where it was Mr Vollbon who had communicated with the Applicant, and not the Respondent’s lawyer, it would be entirely reasonable that the Applicant, or his representative, direct communication back to Mr Vollbon instead of the Respondent’s legal representative for the workers’ compensation claim. It follows that while there is evidence before the Commission that the Applicant, through his representative, took action to dispute his dismissal, that same action was directed towards solicitors who were absent carriage of the matter regarding the employment relationship. In all of the circumstances, I am satisfied that this factor weighs as one of neutral consequence.

3.4 Prejudice to the employer

[63] The Respondent has contended that there is no prejudice to it other than the usual cost and inconvenience of dealing with such application. I consider this, therefore, to be a neutral consideration.

3.5 Merits of the application

[64] In Kornicki v Telstra-Network Technology Group, 33 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said, in respect to the merits of an application:

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. 34

[65] Concerning the substantive application, the merits have not been fully tested. Evidence on the merits is rarely called 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 an applicant to lodge her or his application. 35 The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. It is for these reasons that I have concluded this factor to be one that is neutral.

3.6 Fairness as between the person and other persons in a similar position

[66] The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, 36 where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission. 37

[67] I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party based on the paucity of submissions filed by both parties on this point.

3.7 Conclusion – whether there are exceptional circumstances

[68] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all of the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension of time.

[69] While appreciative that the delay in making the application was four days, having regard to the reasons for the delay in culmination with the other factors one considers under s 394(3), which are predominately neutral, it remains the case that it is not fair and equitable to grant an extension of time.

[70] In short, the Applicant was at all material times legally represented and did not pursue an argument of representative error. While the Applicant may have operated under the misapprehension regarding when his dismissal took effect, such misapprehension appeared, at best, to be contrived. As noted, the other factors considered under s 394(3) are predominately neutral.

[71] It follows that the Applicant’s application for an unfair dismissal remedy is dismissed. An Order 38 will be issued with this decision. However, for the fulsomeness I have addressed the submissions of the parties regarding the jurisdictional objection of the high income threshold.

4 High income threshold

[72] The Respondent submitted that the Applicant’s base salary was $185,388.00 at the time of his dismissal.

[73] The word ‘Earnings’ is described at s 332 of the Act, as:

332 Earnings

(1) An employee’s earnings include:

(a) the employee’s wages; and

(b) amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and

(c) the agreed money value of non-monetary benefits; and

(d) amounts or benefits prescribed by the regulations.

(2) However, an employee’s earnings do not include the following:

(a) payments the amount of which cannot be determined in advance;

(b) reimbursements;

(c) contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;

(d) amounts prescribed by the regulations.

Note: Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).

(3) Non-monetary benefits are benefits other than an entitlement to a payment of money:

(a) to which the employee is entitled in return for the performance of work; and

(b) for which a reasonable money value has been agreed by the employee and the employer;

but does not include a benefit prescribed by the regulations.

(4) This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:

(a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;

(b) the employer is required to contribute to the fund for the employee’s benefit in relation to a defined benefit interest (within the meaning of section 291-175 of the Income Tax Assessment Act 1997) of the employee;

(c) the employer is required to contribute to the fund for the employee’s benefit under a law of the Commonwealth, a State or a Territory.

[74] The term ‘annual rate of earnings’ in s 382(b)(iii) of the Act, refers to the annual rate of earnings at that time, and not the annual earnings to that time (that is the amount earned in the 12 months to that time). 39

[75] The Applicant submitted that I should consider his actual earnings, particularly in circumstances where he had received less than his base rate of pay because of an extended period of unpaid leave. The law, however, is clear that the annual rate of earnings is to be assessed as at the time of dismissal. It is not an assessment of the actual earnings in the 12 months immediately prior to dismissal. 40

[76] As the Applicant’s earnings exceeded the high income threshold of $153,600.00 at the relevant time, it would be the case that he is not a person protected from unfair dismissal by s 382 of the Act unless he was covered by a modern award.

[77] As noted, in the usual course where an applicant’s earnings exceeded the threshold, it would then be necessary to determine the question of whether a modern award applied in relation to the Applicant’s employment with the Respondent (noting that neither party contended that an enterprise agreement applied). Neither party addressed this issue in their arguments and in light of my findings and conclusion regarding the unfair dismissal application having been submitted late and there not having been exceptional circumstances to warrant an extension of time, it proves unnecessary to take this issue any further. However, based on the evidence of the Respondent, it would appear, that more likely than not, a modern award did not cover the Applicant.

DEPUTY PRESIDENT

Appearances:

Mr. Christopher Blair, the Applicant;

Mr. Neville Marsh, for the Applicant;
Mr. David Johnston, for the Respondent.

Hearing details:

Perth (telephone);
August 10;
2021.

Printed by authority of the Commonwealth Government Printer

<PR732649>

 1   Mr Michael Vollbon (Vollbon Statement) [2].

 2 Vollbon Statement [3].

 3 Vollbon Statement [6].

 4   Ibid.

 5 Vollbon Statement [7].

 6   Ibid.

 7 Vollbon Statement [8].

 8 Vollbon Statement [9].

 9 Vollbon Statement [10].

 10 Vollbon Statement [11].

 11 Vollbon Statement [13].

 12   Ibid.

 13 Vollbon Statement [14].

 14 Vollbon Statement [15].

 15   Applicant’s Bundle of Documents.

 16 Vollbon Statement [16].

 17 Vollbon Statement [17].

 18  Vollbon Statement MPV11.

 19   Burns v Aboriginal Legal Service of Western Australia (Inc) (AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 [24].

 20   Mohammed Ayub v NSW Trains[2016] FWCFB 5500 [17].

 21   G J McCarry, ‘Termination of Employment Contracts by Notice’ (1986) 60 Australian Law Journal 78 [79].

 22   Mohammed Ayub v NSW Trains[2016] FWCFB 550.

 23   Nulty v Blue Star Group Pty Ltd [2011] 203 IR 1 (‘Nulty’).

 24   [2018] FWCFB 901.

 25 Ibid [38].

 26   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 [39].

 27   Ibid.

 28   Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 [40].

 29   Mr KeMitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [12].

 30   Nulty [14].

 31 Applicant’s Outline of Submissions paragraph [5].

 32   Patrick Morgan McConnell v A & PM Fornataro T/A Tony’s Plumbing Service[2011] FWAFB 466.

 33   Kornicki v Telstra-Network Technology Group Print P3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).

 34   Ibid.

 35   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.

 36   [2015] FWC 8885.

 37 Ibid [29].

 38   PR733015.

 39   Zappia v Universal Music Australia Pty Ltd T/A Universal Music Australia[2012] FWAFB 6108 [9].

 40   Darling v Bechtel Australia Pty Ltd[2015] FWC 1242.