Claude Tomisich v Parade College Bundoora

[2015] FWC 2226

[2015] FWC 2226

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Claude Tomisich
v
Parade College Bundoora
(U2015/2108)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 30 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Claude Tomisich alleged that the termination of his employment by Parade College Bundoora (the College) was unfair.

[2] On 12 December 2014, Ms Catherine Livingston, Deputy Principal of the College, caused a letter of termination to be sent to Mr Tomisich. The letter was emailed to Mr Tomisich’s work email address and sent to his postal address by registered mail.

[3] At the hearing on 27 March 2015, I granted permission for both parties to be represented as I considered that it would enable the matter to be dealt with more efficiently given the complexity of the matter.

[4] Mr Tomisich gave evidence that he did not check his work emails on a regular basis and he did not receive the letter by email. Mr Tomisich gave evidence he opened the letter of termination on 16 December 2014. He believed it had been delivered to his address on that date.

[5] Ms Livingston exhibited an Australia Post tracking report for the registered post letter she sent to Mr Tomisich. That report showed that the item was delivered at 16.15pm on 15 December 2014.

[6] Mr Tomisich did not give evidence that he was not at home on 15 December 2014.

[7] Mr Tomisich submitted that the tracking report stated that the letter was delivered to Pascoe Vale South rather than Pascoe Vale, which meant that the letter was delivered to the Pascoe Vale South Post Office. However, if this was correct, then there would have been additional information on the tracking report evidencing it being delivered to Pascoe Vale on 16 December 2014.

[8] I accept the evidence that the termination letter was delivered on 15 December 2014.

[9] A Full Bench of the Australian Industrial Relations Commission considered this issue in Commonwealth of Australia (Australian Taxation Office v Wilson) 1 when a notice of dismissal was effective and held as follows:

“[11] Counsel for the Commonwealth referred us to a number of authorities but conceded that there are few on point. One decision which appears to us to bear directly on the issue is Transport Workers' Union of Australia v National Dairies Limited (1994) 57 IR 183. In National Dairies Keely J, sitting in the Industrial Relations Court of Australia, was required to decide whether the employment in question terminated before or after the date on which legislation providing statutory remedies for unfair dismissal commenced to operate. In the course of his judgment His Honour said:

"It was accepted by the respondent's counsel, for the purpose of the present hearing, that the employer's letter of purported termination was not received by the applicant until 30 March 1994. In my opinion the mere posting of the letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee. I am unable to uphold the respondent's submission that the intention of the legislature was to make it a contravention of the Act for an employer to perform actions "pursuant to which the employer seeks to terminate an employee even if that wish is never communicated to the employee ie even if a letter of termination posted by an employer is never received by the employee.""

With respect we agree with His Honour's conclusion. Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee. Those circumstances did not, however, exist in this matter and we therefore refrain from further discussion of the point.” [Emphasis added]

[10] I therefore find that Mr Tomisich’s employment ended on 15 December 2014 and his unfair dismissal application was not made within 21 days of the date of the dismissal.

[11] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[12] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 2 where the Full Bench 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:

“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.” [Endnotes not reproduced]

(a) the reason for the delay;

[13] Having read the letter of termination on 16 December 2014, Mr Tomisich immediately emailed a copy of the termination letter to Mr John Bingham, his lawyer. He telephoned the lawyers on 18 December, 19 December, 22 December and 23 December 2014. He gave evidence that he instructed Mr Bingham prior to 22 December 2014 to file an application. On 26 December 2014, he left Australia on a prearranged holiday.

[14] Mr Bingham did not file the application until 6 January 2015, which was one day late. Mr Tomisich relies on representative error to explain the delay.

[15] Witness statements of Mr Bingham were filed in this proceeding. However, Mr Bingham was not available for cross examination so the statements were not admitted into evidence.

[16] I do not think that this is a case where Mr Tomisich sat on his hands and simply relied upon his representative. Mr Tomisich gave unchallenged evidence about instructing Mr Bingham to file an application. As he was overseas from 26 December 2014, I do not see what he could have done to follow up with Mr Bingham. He had no reason to assume that Mr Bingham would not file his application on time.

[17] I find that Mr Tomisich’s reason for the delay weighs in favour of granting an extension of time.

(b) whether the person first became aware of the dismissal after it had taken effect;

[18] It was submitted that because Mr Tomisich did not read the letter until 16 December 2014, he was not aware of the dismissal until after it took effect and this weighs strongly in favour of granting an extension of time.

[19] This submission may have had some weight if Mr Tomisich had not been put on notice on 27 November 2014 that the College was proposing to terminate his employment on 12 December 2014. Mr Tomisich was provided with an opportunity to respond and did not attend the meeting scheduled on 4 December 2014.

[20] Further, the termination letter itself advised that the date of termination was 12 December 2014. There is no evidence that there was any discussion between Mr Tomisich and his lawyer about the date the dismissal took effect.

[21] While I reject the submission that this weighs strongly in favour, it does weigh in favour.

(c) any action taken by the person to dispute the dismissal;

[22] Mr Tomisich took no action other then lodging this application to dispute his dismissal. This weighs against granting an extension of time.

(d) prejudice to the employer (including prejudice caused by the delay);

[23] There was no submission that there would be any prejudice to the employer. This weighs in favour of extending time.

(e) the merits of the application;

[24] The College submitted that Mr Tomisich’s claim lacked merit as evidenced by the Form F2. The form simply claims that there was no valid reason for the dismissal and that Mr Tomisich was denied procedural fairness.

[25] Mr Tomisich tendered a detailed letter sent to him by the College on 27 November 2014. That letter clearly sets out the College’s reasons for proposing to terminate his employment. That letter invited Mr Tomisich to a meeting on 4 December 2014 to provide him with an opportunity to respond to the proposed termination. Ms Oldham stated that Mr Tomisich did not attend on 4 December 2014. There was no objection taken to that statement.

[26] While at an extension of time hearing there is no opportunity to test the merits of the claim, here Mr Tomisich has not even raised an arguable case that the termination of his employment was unfair. Mr Tomisich’s representative at the hearing did not respond to the submissions of the College on merit. This weighs against granting an extension of time.

(f) fairness as between the person and other persons in a similar position.

[27] There were no submissions in relation to this criterion.

Conclusion

[28] Mr Bingham’s error is not Mr Tomisich’s error, but representative error is only one factor in determining if there are exceptional circumstances. The lack of an arguable case does not support a finding of exceptional circumstances. No submissions were filed by Mr Tomisich to support his application for an extension of time in the event that I found Mr Tomisich’s dismissal took effect on 15 December 2014. His written submissions only addressed the effective date of termination.

[29] At the hearing, Mr Tomisich’s representative relied upon the reasons for the delay, lack of prejudice to the employer and that Mr Tomisich only became aware of the dismissal after it took effect to support a finding of exceptional circumstances. While this matter is finely balanced, I consider that there are exceptional circumstances and I would exercise my discretion to extend time.

DEPUTY PRESIDENT

Appearances:

A Denton of Counsel for the Applicant.

L Oldham for the Respondent.

Hearing details:

2015.

Melbourne:

27 March.

 1   PR901127.

 2   [2011] FWAFB 975.

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