Craig Wuiske v Compass Group

[2015] FWC 1194

[2015] FWC 1194

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Craig Wuiske
v
Compass Group
(U2014/16225)

DEPUTY PRESIDENT SAMS SYDNEY, 20 FEBRUARY 2015

Application for relief from unfair dismissal - actual date of dismissal - applicant aware he was dismissed - waiting for documents or outstanding entitlements does not extend time - application lodged ‘out of time’ - no exceptional circumstances - merits of case not strong - application dismissed.

[1] This decision arises from an application to the Fair Work Commission (the ‘Commission’) for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Mr Craig Wuiske (the ‘applicant’) was notified of his dismissal from employment with Compass Group (the ‘respondent’) by telephone on 7 November 2014. However, he maintains that his actual date of dismissal was 10 December 2014, when he received what he describes as ‘formal notification’ of his termination. The application was lodged on 31 December 2014.

[2] The Act mandates a 21 day time limit for initiating an application for unfair dismissal. If the date of 7 November 2014 is accepted as the date on which the applicant’s dismissal took effect, the application is lodged 33 days outside of the statutory time limit set out in s 394(2)(a) of the Act. If the date of 10 December 2014 is accepted as the date on which the applicant’s dismissal took effect, the application was lodged on the last day of the 21 day statutory time limit and is within time.

[3] 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;

(d) whether the dismissal was a case of genuine redundancy.

[4] For completeness, I am satisfied that the applicant was a person protected from unfair dismissal, and that the respondent is not a Small Business Employer as defined. 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’.

[5] In determining this application, the Commission has had regard to the Form F2 Application for an Unfair Dismissal Remedy. On 20 January 2015, the Commission wrote to the applicant outlining the matters I am obliged to consider under s 394 of the Act and asking him to provide a response within 14 days. On 2 February 2015, the applicant provided a one page statement, annexing his Employment Separation Certificate and a PAYG statement forwarded to him by the respondent. Having considered this material, I issued an order refusing an extension of time and dismissing the application on 9 February 2015. What follows are my reasons for doing so.

[6] The statement provided by the applicant was expressed as follows:

‘I Craig Wuiske believe that the request forwarded to Fair Work Commission was actually received by them on the 21st day (31.12.14) after I was formally notified in writing which was the 10.12.14 that I was terminated from my employment.

Although the termination date is the 04.11.2014 I did not receive any separation certificate until it was emailed to me on the 10.12.14, this is the date written on the certificate by the person completing the form. I had to chase Compass Group for this information as well as my pay out monies once I was terminated.

I did not follow up with the Fair Work Commission until I had this paper work as I had no proof that my employment had been terminated, I also believed that Compass Group was playing games/stalling as I had told Danny Newsome that I was seeking Legal advice when he called me on the 07.11.14 due to the fact that I did not actually work at the site since February 2014 that was closed down and therefore could not be terminated because it has ceased.

Please see the attached documents reasoning for my case to be heard/extension of time by the Fair Work Commission.

I maintain that the official date that I was notified in writing is the 10.12.2014 as show [sic] by the dates on the emails sent to me by Compass Group and the date on the separation certificate.’

[7] An email to his employer dated 5 December 2014 was expressed, in part, as follows:

‘Danny,

As per the phone conversation we had at 10:59am the 07th November, 4 weeks ago to the day, in which I was informed by you that HR had requested for you to contact me and let me know that my employment with Compass Group was to be terminated as Dogwood Downs was closing due to completion of contract.

I am still yet to receive the written letter confirming this, which you stated that I would receive on Friday the 07th of November or my monies that are still outstanding that should have been finalized within 48hrs of my termination (business days).’

The applicant went on to detail unpaid entitlements and to express disappointment as to the delay in being paid. He demanded that the respondent send him his entitlements within a short period. Mr Newsome from the respondent emailed back to apologise for the delay on 10 December 2014 and the documents (an Employee Separation Certificate and PAYG documents) were sent later that day.

[8] In his Form F2 Application, the applicant identified 7 November 2014 as the date on which he was notified of his dismissal, with ‘formal notification in writing’ on 10 December 2014. He claimed that the respondent’s phone call to inform him that he was dismissed was in breach of the respondent’s procedures for the termination of Managers, as there should have been an in person meeting at the respondent’s Brisbane office. The applicant complained that he had tried calling the Commission over the ‘last few days’ and that he had only had his call answered on 31 December 2014.

CONSIDERATION

What was the date of the applicant’s dismissal?

[9] Regrettably, the applicant’s view of his ‘formal’ date of termination is misconceived. Section 394(2)(a) sets out the 21 day statutory time limit starts from the day after ‘the dismissal took effect.’ On his own evidence, he was notified of his termination on 7 November 2014 by telephone. Whether or not this was in accordance with the respondent’s procedures (and I make no finding on this point) is not relevant to the question of ‘when the dismissal took effect’. If there is a claim for a breach of the respondent’s policies or the applicant’s contract of employment, this application is not the means for pursuing such a claim. That said, I would observe that dismissing a person over the phone or by email is a most inappropriate means of doing so.

[10] I note that the applicant referred to having to pursue the respondent for the Separation Certificate and his ‘pay out monies’ (presumably a reference to his notice and other entitlements). This admission and the email to Mr Newsome are consistent with the behaviour of an employee who understands that he has been dismissed. ‘Formal’ or written notification is not necessary to confirm what the applicant already knew to be the case. While the Employee Separation Certificate was completed by the respondent on 10 December 2014, it identifies an earlier date, 4 November 2014 as the date of termination on the grounds of ‘End of season or contract’.

[11] The applicant did not specifically identify the payment of his notice or entitlements as delaying the date of his termination to 10 December 2014; rather, he says that he was waiting for written notification of his dismissal. For the sake of completeness, though, I refer to the comments of 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.’

[12] Given the plain and acknowledged effect of the applicant’s dismissal on 7 November 2014, the fact that there was some delay in paying outstanding entitlements, cannot be held to extend 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. The failure of the respondent to provide the Employment Separation Certificate and PAYG documents in a timely manner, while regrettable and certainly inconvenient for a recently dismissed employee, does not affect the date of the applicant’s dismissal. To suggest that these circumstances somehow means the employment relationship ‘remains on foot’ is misconceived and wrong at law.

[13] For the reasons given above, I find that the applicant’s dismissal took effect on 7 November 2014. As he filed his application on 31 December 2014, the application was filed 33 days outside the statutory time period permitted by s 394(2) of the Act. While the applicant did not directly address this point (despite being put on notice to do so), I now turn 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’.

Relevant statutory provisions and principles

[14] The relevant legislative framework, guiding the exercise of the Commission’s discretion in relation to applications of this kind, is set out as follows:

‘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.’

[15] 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:

“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.

[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].’

[16] 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 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))

[17] The applicant identified the reason for the delay as being the delay in the respondent providing ‘written confirmation’ of his dismissal. While I note that the applicant had requested, but did not receive a written letter of termination setting out the reasons for his dismissal, his own email of 5 December 2014 sets out that he was fully aware of the reason for the termination of his employment. Given my finding above that the applicant was aware that the date of the effective date of termination on 7 November 2014, I cannot conclude that this would constitute an ‘exceptional circumstance’ within the meaning of s 394(3) of the Act.

[18] As to the other documents provided in a less than timely fashion by the respondent (the Employment Separation Certificate and PAYG documents), none of these documents provide information which is necessary for him to complete the Form F2 Application. The Form F2 available from the Commission, is simple and straightforward and extensive guidance is provided on the Commission’s website as to the lodgement of such an application. While the delay in the provision of his Employment Separation Certificate could conceivably create difficulties for the applicant in gaining access to benefits, it does not constitute any bar on the lodgement of an unfair dismissal application.

[19] In all the circumstances, the Commission cannot be satisfied that the applicant’s stated reason/s, either individually or cumulatively, for filing his application ‘out of time’ constitute ‘exceptional circumstances’, as contemplated by the statute.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[20] For the reasons I have expressed above, I find that the applicant was aware of his dismissal on 7 November 2014.

Any action taken by the person to dispute her dismissal (s 394(3)(c))

[21] While the applicant’s correspondence to the respondent voices his displeasure as to the failure of the respondent to pay his entitlements or provide him with other documentation, I do not perceive this complaint as disputing his dismissal. I find that the first concrete action taken by the applicant was the lodgement of this application on 31 December 2014. This must weigh against the grant of an extension of time.

Prejudice to the employer (s 394(3)(d))
[22] This criterion was not addressed. Given the circumstances and the moderate delay in the filing of this application, this is a neutral factor in my consideration.

Merits of the application (s 394(3)(e))

[23] In his Form F2 Application, the applicant said that he had proposed to take three months of annual leave in February 2014 and the respondent had appointed another Site Manager at the Dogwood Downs site in March 2014. The applicant had been told that he would be sent to another site, without consultation. He went on personal leave in March 2014 and had not returned to the site since then, for reasons that are not entirely clear. The applicant said that he could not see how the closure of the Dogwood Downs site could therefore be a valid reason for his dismissal, being that he had not worked at the site since 2014. The applicant made some non-specific references to bullying and discrimination.

[24] 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, given the cessation of the respondent’s contractual work at the relevant site, the references by both parties to that being the reason for the applicant’s termination, I find that the merits of the application are not particularly strong. This weighs against the grant of an extension of time.

Fairness as between the person and other persons in a similar situation (s 394(3)(f))

[25] The applicant did not expressly respond to this criterion. For the reasons I have given above, I do not consider the applicant’s position in relation to another person in a similar situation is unfair. The dismissal appears to be a conventional dismissal on the basis of a cessation of the respondent’s contract of employment.

CONCLUSION

[26] 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 by the material submitted by the applicant, are not ‘out of the ordinary course, unusual, special or uncommon’. The application for an unfair dismissal remedy must be dismissed. I confirm my order of 9 February 2015.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<Price code C, PR561218>