David Woods v Allianz Australia Ltd

[2015] FWC 999

[2015] FWC 999

FAIR WORK COMMISSION

REASONS FOR DECISION

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

David Woods
v
Allianz Australia Ltd
(U2014/9196)

DEPUTY PRESIDENT SAMS SYDNEY, 12 FEBRUARY 2015

Application for relief from unfair dismissal - application lodged ‘out of time’ - consideration of ‘exceptional circumstances’ - stress and anxiety - moving house, carers’ responsibilities - no medical evidence - ‘exceptional circumstances’ not made out - 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 David Woods (the ‘applicant’) says he was notified of his termination of employment with Allianz Australia Ltd (the ‘respondent’) on 8 July 2014. The applicant lodged his application for an unfair dismissal on 10 September 2014. The Act mandates a 21 day time limit for initiating an application for a remedy for unfair dismissal. The application was therefore lodged 43 days outside of the statutory time limit set out in s 394(2)(a) of the Act.

[2] In determining this application, the Commission has had regard to the Form F2 Application for an Unfair Dismissal Remedy and the Form F3 Employer’s Response lodged on 16 September 2014. On 19 November, the Commission wrote to the applicant outlining the matters I am obliged to consider under s 394(3) of the Act and asking him to provide a statement addressing those matters within 14 days. The applicant provided a six page statement on 4 December 2014. The respondent was afforded an opportunity to provide a response to these materials and it provided a three page submission on 8 January 2015. Having considered all of this material, I issued an Order refusing an extension of time and dismissed the application on 20 January 2015. What follows are my reasons for doing so.

STATUTORY PROVISIONS AND PRINCIPLES

[3] 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.’

[4] 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].

[5] 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.

CONSIDERATION

Reasons for the delay (s 394(3)(a))

[6] In his written statement, the applicant explained that he had been stood down by the respondent on 3 June 2014 pending the outcome of a disciplinary meeting. His residential lease was due to expire on 4 July 2014, but he was unable to renew it as his future employment was uncertain and he needed to make arrangements to vacate the premises. He was also the sole carer for his partner, Ms Chanelle Hiini after she had resigned from her employment with the respondent and had lodged an unsuccessful workers’ compensation claim on the basis of psychological injury. When the respondent had contacted the applicant on 7 July 2014 to discuss his ongoing employment, he had not been able to take the call or answer any message as he had been moving into his partner’s parents’ house. He received a notice of his termination by email on 8 July 2014. This had caused him distress and, as a result, he has been suffering from depression. He also claimed to have suffered a nervous breakdown since his dismissal. At the time, he was unaware of the statutory time limit set out in s 394(2)(a)) of the Act.

[7] The applicant said that he had spent most of his time after his dismissal settling in after moving, caring for his partner and arranging payment for various creditors. He had spent much of his severance pay on paying utility bills, early contract severances and moving-related costs. This meant that he was unable to afford legal representation. He noted that the Commission had waived his application fee on hardship grounds.

[8] The applicant claimed that when he had called the Commission, he was advised to lodge an application and seek legal representation. He contacted a community legal centre, but was told that their budget did not allow them to assist with unfair dismissal applications and that they would not be able to arrange a consultation for three or four weeks. It was for the above reasons that his application was lodged late.

[9] In the respondent’s written submissions, Ms Simonne Kranz, Human Resources Consultant for the respondent, put that the events leading up to the applicant’s termination were not relevant to the determination of whether an extension should be granted. Further, the applicant had provided no medical evidence related to his alleged mental illness. In addition, ignorance of the statutory time limit could not constitute an ‘exceptional circumstance’ within the meaning of s 394(3) of the Act; See: Rose v BMD Constructions Pty Ltd [2011] FWA 673.

[10] I am unable to conclude that the reasons identified by the applicant constitute ‘exceptional circumstances’ within the meaning of s 394(3) of the Act. Legal assistance or representation is not required to file an application for a remedy for an unfair dismissal and, indeed, parties frequently represent themselves in such matters before the Commission. Moreover, the applicant’s Form F2 application was completed by him in full, seemingly without difficulty or legal advice. The relevant application form, 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. I do not accept that ‘getting settled’ after moving house could be causative of a delay in filing this application. It certainly does not constitute ‘exceptional circumstances’ within the meaning of s394(3) of the Act. I note that the applicant did not provide evidence in relation to his own health issues or of his carers’ responsibilities.

[11] In any event, I refer to the decision of the Full Bench in Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287, where at para [15], the majority (Watson VP and Smith DP) said:

‘[15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.’

[12] 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))

[13] In his Form F2 application, the applicant identified 11 July 2014 as the date on which he was notified of his termination. In his written statement, he said he had been notified of his termination by email on 8 July 2014 and complained that he had not been able to return to the workplace while he was stood down. He was paid three weeks’ pay in lieu of notice. In its Form F3 Employer’s Response and its written submissions, the respondent identified 8 July 2014 as the date on which the applicant was notified of his termination, effective the same day. I find that the applicant became aware of his dismissal on 8 July 2014.

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

[14] In his written statement, the applicant detailed complaints he had made to the respondent’s HR department while he was still employed. The respondent argued that these complaints were not relevant, as they were not action to dispute the dismissal, as they had taken place before the dismissal itself. I accept this submission and I find that the first concrete action taken by the applicant in relation to his dismissal was the filing of this application. A period of 43 days outside the statutory time limit is not insignificant.

Prejudice to the employer (s 394(3)(d))

[15] In his written statement, the applicant submitted that due to the size of the repondent’s business and access to its internal legal and human resources team, the delay in filing his application would ‘have absolutely no effect to them and will not result in prejudice of any kind to them.’ In fact, because he was not allowed to return to work for one month prior to his dismissal, he was the one who was disadvantaged.

[16] Ms Kranz speculated that by the time the Commission heard this application, a period of eight to twelve months was likely to have elapsed. Additionally, the Manager to whom the applicant reported, was no longer employed by the respondent. She submitted that a mere absence of prejudice is an insufficient basis to grant an extension of time; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[17] Given the length of the delay in filing the application, the numerous investigations and disciplinary proceedings involving the applicant, I find that prejudice to the employer is not insignificant, even when the size and resources of the respondent are taken into account. This factor weighs against an extension of time being granted to the applicant.

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

[18] In his written statement, the applicant said he had ‘been clearly dismissed unfairly, unjustly and have been dealt with extremely harshly.’ He explained that on 30 November 2013, just after returning from a period of carers’ leave, he had been directed to attend an informal meeting with Ms Linda Picking (the applicant’s direct Manager) and Ms Tammy Zammit (Team Leader). He had been told that it was not a disciplinary meeting and that it was not necessary for him to have the support person he requested, Mr Tim Maguire, his former Manager. At the meeting, he was directed to delete any emails sent to him by his former colleague and current partner, Ms Chantelle Hiini. Ms Zammit and Ms Picking expressed concern that the applicant was using his position to assist Ms Hiini’s workers’ compensation claim. He said that the management of a key account was removed from him after this time.

[19] The applicant complained that he had been given a first and final written warning in May 2014. A copy of a document marked ‘First and Final Written Warning’ dated 5 May 2014 was attached to the respondent’s Form F2 Employer’s Response. It set out that the applicant had been directed to stop sending work related material to his email address and to delete work related material sent to his personal email address from Ms Hiini. The warning further detailed that the applicant had sent as many as 30 emails containing work related material to his personal email account, after being directed not to do so. Their content included ‘broker/customer information quote numbers, business plans, portfolio performance results, quarterly presentation, call plans and skill development plans’. The applicant had responded that a number of these emails were of the Code of Conduct and Company policies, but others were sent because he had wanted to work from home. The letter directed the applicant to delete these emails from his personal email account and confimed that there was no expectation for him to work from home. It also set out that any further breach of conduct and/or performance issues was likely to result in his dismissal.

[20] The applicant referred to being ‘secretly audited’ in May 2014, which I take to refer to his attendance at work. A letter marked ‘Review of Ongoing Employment’ dated 2 June 2014 set out that the applicant had arrived late for work on 15 May 2014 (57 minutes late) and on 23 May 2014 (1 hour and 44 minutes late) without contacting his employer. This was contrary to the respondent’s unplanned leave and lateness policies. This letter concluded:

‘I note that you stated in the meeting that you are a high performer. We do not agree with this statement as your level of performance and behaviors are inconsistent with that of a high performing employee.

As you are aware, you were issued with a First and Final Written Warning (FFWW) on 5 May 2014. You were informed at the time that any further breach of conduct and/or performance issues is likely to result in termination of your employment. You have breached the UPA on two separate occasions following the issuing of your FFWW. This conduct demonstrates your complete disregard for Allianz processes and is extremely disappointing given how recently you received the FFWW.

Your continued poor conduct is a serious concern and Allianz is now reviewing your ongoing employment and will make a decision as to whether your employment continues or is terminated. Before any decision is made in this regard, you are requested to attend a further meeting with me on 3 June 2014 at 2pm. You will be asked to provide your verbal response at this meeting and you may also submit a written response at this time if you would like to do so. You have the opportunity to bring along a support person to the meeting, although this is not compulsory.

To ensure that this matter remains confidential, please do not discuss these details with other parties either within or outside of Allianz, except for me, Human Resources, your next level manager and/or your personal representative.

A copy of this letter and any response you make will be retained on your employment file.’

[21] The letter of termination, dated 8 July 2014 set out that applicant had attended a meeting with Ms Willimott, and Ms Zammitt on 3 June 2014. Ms Jacqui Knatt had attended as the applicant’s support person. The letter said that he had been given the opportunity to respond to the matters raised in the letter of 2 June 2014 and that he had:

• chosen to make no further comments in relation to his lateness and failure to advise the respondent;



• expressed that he was being treated unfairly; and



• expressed his belief that he did follow management directions.

The applicant was dismissed with three weeks’ pay in lieu of notice. The applicant had then submitted a formal grievance on 10 June 2014. This was investigated and the allegations raised in his grievance were found to be unsubstantiated on 17 June 2014. A review of this finding on 2 July 2014, instigated by the applicant, upheld the initial finding.

[22] The applicant said that after the meeting on 3 June 2014, Ms Leigh Willamot (Sales and Service Manager) had ‘aggressively and loudly slammed her fists on my desk and demanded that I leave the premises.’ This was five minutes after she had advised him to go home and prepare his response to the above letter. He described her behaviour as bullying and a breach of his right to privacy, as it had occurred in front of other colleagues (Ms Willamot has subsequently left the employment of the respondent).

[23] The applicant claimed that the respondent had improperly terminated him, because as he was unable to be terminated for being late, Ms Willamot had terminated him for not notifying the respondent prior to attending work. There was no basis for the respondent to claim that he was unable to follow management direction. He had not been given a reasonable opportunity to improve his performance. The First and Final Written Warning was issued without any previous counselling or warning.

[24] The respondent submitted that it was highly unlikely that the applicant’s application would be successful. The above details were indicative of a fair and equitable review process in relation to his unsatisfactory conduct. Such conduct constituted a valid reason for his dismissal.

[25] 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, it seems clear that the applicant was dismissed on the basis of poor performance after he had been issued a first and final written warning for misconduct. I am not persuaded by the applicant’s claim that he had not been previously counselled in relation to sending work-related material to his personal email account. It seems abundantly plain that he was aware of this direction from at least the meeting on 20 November 2013. In light of the respondent’s obligations of confidentiality in relation to customers, clients and other parties, I am satisfied this was a lawful and reasonable direction. The applicant simply chose to ignore the direction and the risks of doing so.

[26] The applicant did not deny his lack of compliance with the respondent’s absence/lateness policies or that he was on notice after the issuance of the First and Final Written Warning that further performance related issues or misconduct could result in the termination of his employment. However, he did not admit any fault in relation to his actions.

[27] The applicant made reference to ‘voice recordings’ he had made of meetings he had had with representatives of the respondent, which he claimed would support his unfair dismissal application. While I make no findings on the legality or admissibility of such material (nor could I, on the limited material before me), it would be open to conclude that any evidence of secret recordings made by the applicant in relation to his dispute, would demonstrate that the relationship of trust and confidence between the parties has irrevocably and irretrievably been broken; See: Thomas v Newland Food Company Pty Ltd[2013] FWC 8220.

[28] For these reasons, I am comfortable in making a prima facie assessment that the applicant’s prospects of success are negligible. This weighs against an extension of time being granted.

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

[29] The applicant addressed this criterion by drawing the Commission’s attention to Shields v Warringarri Aboriginal Corporation[2009] FWA 860 in which Kaufman SDP said that it was ‘not unusual for people who were forced to resign to feel like they could not act in a timely manner to protect their interests’. The applicant said he had not been afforded the opportunity or time to seek legal advice. The applicant also referred to the definition of ‘exceptional’ in Baker v R [2004] HCA 45. He believed his circumstances were ‘exceptional’ in and of themselves, but also unexpected and previously unencountered. In response, Ms Kranz drew the Commission’s attention to a number of decisions of the Commission in which an extension of time was refused. Obviously, the decision of Kaufman SDP is not on point, as the applicant was not forced to resign, but was dismissed for cause.

[30] To my mind, the applicant’s submissions on this criterion are really submissions on the overall finding of ‘exceptional circumstances’, rather than fairness as between himself and another person in a similar situation. In any event, I do not consider that the applicant’s position in relation to another person in a similar position is unfair. It appears his case is a conventional dismissal with notice, based on both conduct and performance issues.

CONCLUSION

[31] 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 20 January 2015.

DEPUTY PRESIDENT

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