Deborah Anne Stanes v Aero-Care Flight Support Pty Ltd - [2014] FWC 3525

[2014] FWC 3525

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Deborah Anne Stanes
v
Aero-Care Flight Support Pty Ltd
(U2014/4824)

COMMISSIONER WILSON

MELBOURNE, 28 MAY 2014

Application for relief from unfair dismissal - jurisdictional objection - whether extension of time should be granted.

Introduction

[1] Deborah Stanes has made an application to the Fair Work Commission (the Commission) seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Ms Stanes’ application relates to the termination of her employment with Aero-Care Flight Support Pty Ltd on 23 December 2013, and was lodged in the Commission on 20 February 2014. Aero-Care Flight Support’s response to the application confirms Ms Stanes was notified she was dismissed on 23 December 2013 and that the dismissal took effect on the same day.

[2] Section 396 of the Act requires the determination of four initial matters to be considered before considering the merits of the application, and for the reasons set out below, it is necessary for the Commission to consider one of the initial matters, namely whether her application was made within the 21-day period required in s.394(2)(a).

[3] The material filed by Ms Stanes shows, and I so I find, that her application was not made within the 21 day allowed by the Act. As a result, it is necessary for me to consider whether a further period should be allowed to Ms Stanes for the making of an unfair dismissal application.

[4] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. The 21 days for lodgement does not include the date that the dismissal took effect 1. As a result, the first day of the period commences on the day following the dismissal. If the final day of the 21 day period falls on a weekend or on a national public holiday (where the Commission is closed) the timeframe will be extended until the next business day2. Public holidays or weekends that fall during the 21 days will not extend the period of lodgement.

[5] Having been dismissed on Monday 23 December 2013, Ms Stanes’ application would need to have been made to the Commission no later than 13 January 2014 in order for it to be within time. Since her application was made on 20 February 2014, it is 38 days outside of the statutory period allowed for the making of an application.

[6] A conciliation conference of the parties has not been held, since Aero-Care Flight Support objects to the continuation of Ms Stanes’ application, arguing it was made after the period allowed for in the Act and that she is not a person protected from unfair dismissal. Ms Stanes has acknowledged that her application is presently out of time and seeks an extension of time pursuant to s.394 of the Act. While Ms Stanes acknowledges her application was lodged outside of the statutory time period, Aero-Care Flight Support opposes the granting of an extension of time on the basis that no exceptional circumstances exist.

[7] In the earlier stages of this matter, Aero-Care Flight Support also questioned whether Ms Stanes was a person protected from unfair dismissal, and in particular, whether she had completed the minimum employment period 3. That objection was subsequently withdrawn by the Respondent and is not considered in this decision.

[8] In preparing this matter for determination, Directions were issued to the parties for the provision of submissions and evidence and it was indicated to the parties that, if appropriate to do so, the matter would be dealt with by me on the papers. After reviewing the material filed by the parties, I find that the material does not require the finding of facts the existence of which is in dispute, and so I consider I am not required to conduct a conference or hearing in relation to this matter.

[9] For the reasons set out below, I am not satisfied there are exceptional circumstances in the manner set out in s.394(3) of the Act and so I refuse Ms Stanes’ application for a further period to be allowed for the making of an application for unfair dismissal remedy.

Background

[10] The circumstances of Ms Stanes’ employment with Aero-Care Flight Support and an earlier company and relevant matters after termination of employment are summarised as follows;

Between 2 March 2013 and 2 September 2013, Ms Stanes was employed by a company named Xenport Pty Ltd, which is described by the Respondent as a contractor and a separate legal entity to Aero-Care Flight Support Pty Ltd 4;

● While there is only basic information provided on the subject, the two companies appear to have involvement in providing services to Tiger Airways in Alice Springs, if not elsewhere.

Ms Stanes describes her role as involving “customer services” in relation to those contracts; the Aero-Care Flight Support Statement of Service issued to Ms Stanes after dismissal (and attached to her application) refers to her being employed as a “casual employee in the capacity of Airline Service Agent”. The statement of service records that Ms Stanes was employed with Aero-Care between 2 September 2013 and 23 December 2013 and that whilst employed with the company she averaged 11.82 hours per week at a base hourly rate of $36.67.

Attached to Ms Stanes’ application for unfair dismissal remedy is a Letter of Offer of Employment dated 2 September 2013 that records her employment being governed by the provisions of the Aero-Care Collective Agreement 2012 and also being offered on a casual basis. The terms of the collective agreement are modified through an executed Individual Flexibility Arrangement that was also provided with Ms Stanes’ unfair dismissal application.

Ms Stanes’ application also records that she had been dismissed because of a security breach by her, which the company identified to her as a serious breach.

Ms Stanes’ grandmother died on 6 December, following illness from April 2013, and her aunt died unexpectedly on 5 January 2014 5;

Ms Stanes consulted a clinical psychologist from November to 2013, through to April 2014, who records that her loss of employment “contributed significantly to her elevated anxiety along with some associated depressed mood” and that her job loss “came as a shock to her, causing her disappointment, anxiety, confusion and reduced self-esteem” 6;

Ms Stanes’ psychological condition “impaired the Applicant’s decision making process and resulted in the Applicant not being able to submit the application in time” 7.

Aero-Care Flight Support submissions record that Ms Stanes telephoned Ms Longdon, the company’s Payroll Officer on 23 December 2013 and on 7 January 2014. In the first call, Ms Stanes asked for advice about the termination of employment, which Ms Longdon said she could not provide and referred her to Mr Shelley, the company’s General Manager - Employee Relations. In the second call, Ms Longdon recollects Ms Stanes asking for copies of her employment contract, separation certificate and statement of service, which she sent on 10 January 2014. 8

Mr Shelley recollects that the Applicant contacted him on 24 December, leaving a voicemail, which he responded to by email on 24 and 27 December. There were subsequent emails between the two on 17 January. This correspondence is attached to Mr Shelley’s witness statement and records (in summary) 9;

An initial reply by Mr Shelley to Ms Stanes’ voicemail on 24 December at 10.04 am;

Ms Stanes’ reply at 11.25 am, which said;

“Thankyou Greg. I understand you are on leave. Please contact when you are able, I have sought legal advice on the processes not followed. Merry Christmas.”

A longer reply was sent by Mr Shelley on 27 December at 8.39 am, which indicated that the company had assessed Ms Stanes’ performance during her probationary period and that, as a casual employee, the company had decided it would not offer her any more shifts. Mr Shelley advised he would have a statement of service prepared and sent to her 10.

Ms Stanes replied by email at 10.25 am, putting forward her views about her employment; her health; and her grandmother’s illness and death. In the email, she wrote;

“Cridlands Lawyers have been appointed to act on my behalf, discussing unfair dismissal, regardless of whether I am casual or not, stating my remaining probation period of 31/2 months is to be reinstated, to allow fair and reasonable opportunity to prove to Aerocare I am worthy of my job and that I am backpaid my salary as per my roster 24/12 to 6/1. Cridlands Lawyers have advised they will be in contact with you.” 11

On 17 January, the Applicant emailed Mr Shelley advising that she had received information from the company, and asked for a copy of the company’s 2012 collective agreement. 12

Shortly afterwards on the same day, Mr Shelley responded by email in the following way 13;

“Hi Debbie,

the Aero-Care Collective Agreement 2012 can be found on the Fair Work Commission website, I have included the link for you below.

Sincerely,

Greg

Greg Shelley

(address block omitted)”

Legislation

[11] Relevant to the Commission’s consideration of the above questions are the provisions of s.394 of the Act which provides the following;

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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

(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.

[12] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application;

“[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

Consideration

[13] I turn to consider in detail whether I am satisfied that there are exceptional circumstances which might lead to allowing a further period for the application to be lodged, and in particular, I address each of the criteria set out in subsection 394(3) of the Act.

1. The reason for the delay (s.394(3)(a))

[14] Ms Stanes’ reasons for the delay in lodging an application for unfair dismissal remedy relate to psychological illness she experienced following her dismissal and the death of her grandmother and aunt. Material provided to the Commission in relation to these matters is referred to above.

[15] In submissions made by Ms Stanes, she records that after her dismissal, she contacted both Cridlands lawyers and the NT Women’s Legal Service and had difficulties in obtaining assistance. The relevant staff member at Cridlands Lawyers was away until 13 January and the NT Women’s Legal Service was not able to assist until the end of January. Ms Stanes also submits that her health caused her an inability to progress her application, as did her inability to obtain a copy of the Aero-Care Collective Agreement 2012. 15

[16] Bearing in mind that Ms Stanes’ application was made on 20 February 2014 and that the statutory time limit expired on 13 January 2014, the foregoing circumstances do not wholly explain the delay in filing.

[17] In this regard, I note that, in forming a view about whether there are exceptional circumstances that would allow a further period for the making of an application, I am required to consider whether there is a credible reason for the whole of the delay in making the application 16. Notwithstanding illness or incapacity, a partial period of the longer whole period in which an applicant is capable of making enquiries about their rights, following the advice received, or interacting with their former employer by email and raising queries with them, may be reason not to accept the reason put forward by an applicant as the reason for whole of the delay in making an application.17

[18] After reviewing the information put forward by the parties, I find that Ms Stanes’ health circumstances is the reason for the delay in making her application. While I accept that as the reason, and have sympathy for her circumstances, the competing evidence and submissions lead me to the view that, in the period after she was dismissed through to 13 January (by which time an application should have been lodged), Ms Stanes was sufficiently capable and functioning to make an application if that is what she wanted to do. In that time, she formally put Aero-Care on notice that she had appointed solicitors; approached two different legal services for the purposes of obtaining advice; spoke and corresponded with at least two different managers of the company about her entitlements and conditions of employment. There is no material before me about the precise nature of Ms Stanes dealings with Cridlands, or what they advised her to do.

[19] In the context in which it is presented, I find that Ms Stanes has inadequately explained the reason for the delay in making her application for unfair dismissal, and as a result, I consider this factor weighs against a finding there are exceptional reasons for the grant of a further period for the making of an application.

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

[20] Ms Stanes was informed of her dismissal on the day it occurred and had her dismissal and the purported reason for the dismissal provided to her on the same day. As a result, this criterion is not a factor in my decision making.

[21] I consider this factor to be neutral, in that the facts in this case assist neither the Applicant or the Respondent.

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

[22] Section 394(3)(c) requires a consideration of whether or not an applicant has taken any action to dispute their dismissal.

[23] In relation to Ms Stanes, the material before me indicates that at the time of her termination of employment and subsequently Ms Stanes disputed her dismissal and that she was sufficiently concerned about what had occurred for her to put the company on notice that she had retained solicitors about her dismissal. There is not, however, evidence, that the notice of this dispute was later put into effect (other than with the lodgement of this application).

[24] The approach taken by the Fair Work Commission in relation to the statutory consideration in s.394(3)(c) is that set out in Brodie-Hanns v MTV Publishing Limited 18 in which it was said that one of the factors which will bear upon the granting an extension of time is;

“2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.” 19

[25] In the case before him, Marshall J considered the following about this particular factor;

“Other action taken by applicant

The other action taken by the applicant left the respondent in no doubt that its decision to terminate her employment was in active dispute up to a fortnight before she filed her application under s 170EA of the Act. However, the context of that other action (apart from her initial approach to the respondent to reconsider its decision) was completely in the nature of her pursuit of an alternative avenue of redress to the one provided for by the Act. Whilst ordinarily the taking of steps designed to challenge the termination may assist in the attaining of an extension of time, I believe, in the instant circumstances, that such a factor is neutral.” 20

[26] A similar situation arises here. There is not evidence before me that would indicate there is a demonstrated or concerted effort on the part of Ms Stanes to question her dismissal between the date on which she was dismissed and the date on which the application for an unfair dismissal remedy was made. I consider this factor to be neutral, in that the facts in this case assist neither the Applicant or the Respondent.

4. Prejudice to the employer (including prejudice caused by the delay) (s.394(3)(d))

[27] The statutory consideration of prejudice to the employer is dealt with in s.394(3)(d) and is a reference both to the prejudice of having to respond to the claim itself as well as any further prejudice which may have accrued as a result of the delay itself. No specific arguments of prejudice are advanced on the part of Aero-Care Flight Support beyond those that would ordinarily be experienced by an employer called upon to defend a claim of unfair dismissal. As a result, I also consider this to be a neutral factor in my consideration of the granting of an extension of time.

5. The merits of the application (s.394(3)(e))

[28] Both the Applicant and the Respondent have briefly addressed the subject of the merits of the claim by Ms Stanes. The specific allegations made by the employer are not repeated in this decision for reason that they are disputed by Ms Stanes. It serves to record that the allegations go to concerns about Ms Stanes being late for several shifts as well as to an elaboration of the serious security breach referred to in the company’s letter of termination.

[29] While Ms Stanes rejects the allegations, she has not detailed the rejection, and it is therefore difficult to be confident she has good grounds for doing so.

[30] I take into account, in respect of the merits of the application that Aero-Care Flight Support’s Letter of Offer of Employment to Ms Stanes referred to there being an initial probationary period of six months from 2 September 2013, for the purposes of allowing both parties “to determine if they wish to continue with the employment relationship”.

[31] As a result of these considerations, the merits of Ms Stanes’ application are not entirely apparent on the basis of the material provided to date, which is not to say the application is without merit.

[32] As a result, consideration of this criterion weighs against the Applicant, and in particular in my consideration of whether there are exceptional reasons for the grant of a further period for the making of an application.

6. Fairness as between the person and other persons in a like position (s.394(3)(f))

[33] The Commission’s consideration in respect of this criterion is a consideration of Ms Stanes situation in comparison to other persons who may have been dismissed and who seek to make an application for an unfair dismissal remedy. This subsection invites a comparison of persons who have also had their employment terminated and are capable of lodging an application under s.394, and, relevantly whether it would be fair to that class of person in the event that Ms Stanes application was permitted to be filed late.

[34] Ms Stanes has provided some explanation as to the reason for the delay in making her application of unfair dismissal, however has not explained why it took as long to lodge as she took. The Commission’s expectation with these matters is that a satisfactory explanation is given for the whole period of the delay, and that, if it is not so given, that the extension of time is not given. It can be expected therefore, with reference to the consideration in s.394(3)(f), that it would be unfair to other persons in a like position to grant the request for a further period to be allowed for the filing of an application.

[35] As a result, I not satisfied there are exceptional circumstances in the manner envisaged by s.394 of the Act for the grant of a further period to Ms Stanes for the making of an application for an unfair dismissal remedy.

[36] An Order dismissing Ms Stanes application is issued at the same time as this decision.

COMMISSIONER

1 Acts Interpretation Act 1901 (Cth), s.36(1)

2 Acts Interpretation Act 1901 (Cth), s.36(2); see Hemi v BMD Constructions Pty Ltd[2013] FWC 3593

3 See Fair Work Act 2009, s.383

4 Respondent’s First Outline of Submissions, 28 March 2014, after para 17

5 Applicant’s Second Outline of Submissions, 17 April 2014, Statutory Declaration of Deborah Stanes

6 Applicant’s Second Outline of Submissions

7 Ibid

8 Respondent’s Second Outline of Submissions, 17 April 2014, Witness statement of Amanda Longdon

9 Ibid, Witness statement of Gregory Shelley

10 Ibid, Attachment GS-2

11 Ibid

12 Ibid, Attachment GS 3

13 Ibid

14 Nulty v Blue Star Group, 2011, 203 IR 1 at [13]

15 Applicant’s First Outline of Submissions, 20 March 2014

16 Cheval Properties v Smithers, (2010) 197 IR 403, at [18]; [2010] FWAFB 7251

17 McMeeken v Action Industrial Catering, [2012] FWAFB 5933, at [7] - [8]

18 (1995) 67 IR 298

19 Ibid, at p 299

20 Ibid

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