Deborah Bryan v Coles Group Supply Chain Pty Ltd
[2011] FWA 4493
•4 AUGUST 2011
[2011] FWA 4493 |
|
DECISION |
Fair Work Act 2009
s 394 - Application for unfair dismissal remedy
Deborah Bryan
v
Coles Group Supply Chain Pty Ltd
(U2010/15286)
DEPUTY PRESIDENT SAMS | SYDNEY, 4 AUGUST 2011 |
Application for unfair dismissal remedy - dispute over date of dismissal - application lodged out of time - whether exceptional circumstances exist such as to extend time for filing application - no exceptional circumstances - application dismissed.
[1] Ms Deborah Bryan (‘the applicant’) was dismissed from her employment as a shop assistant at Coles Group Supply Chain Pty Ltd, Goulburn, New South Wales (‘the respondent’) having been employed by the respondent since June 2003. It is relevant to note that the applicant has not performed any work for the respondent since October 2009, following a workplace injury she sustained in May 2007. Her dismissal was said to have been as a result of an inability to perform the inherent requirements of her job.
[2] Pursuant to s 394 of the Fair Work Act 2009 (‘the Act’), the applicant filed an application for an unfair dismissal remedy on 20 December 2010, and the respondent lodged a jurisdictional objection to the application (Form F4) on 17 January 2011. The jurisdictional objection was that the application was lodged ‘out of time’, in that the applicant’s termination of employment was 30 November 2010, thereby making her application six days outside the 14 day time limit prescribed by s 394(2)(a) of the Act. I note the matter was unable to be resolved at a telephone conciliation on 15 February 2011.
[3] There was a vigorous disagreement between the parties as to when the applicant’s employment was terminated and when she became aware of the termination of her employment. It is this dispute which must be determined first by Fair Work Australia (FWA). If the respondent’s arguments are accepted as to when it claims the applicant’s termination of employment was effected, FWA will then be required to consider whether there are ‘exceptional circumstances’ such as to satisfy the Tribunal that the time for filing the applicant’s application should be extended (s 394(2)(b)). Conversely, if the applicant’s claim of when she first knew of her termination of employment is accepted, FWA may then proceed to determination of the claim on its merits. Given the interrelationship of the circumstances surrounding the applicant’s dismissal and the reasons for it, certain aspects of the evidence dealt with both the jurisdictional objection of the respondent and the merits of the application.
The disputed date of dismissal
[4] There were a number of events on different dates and conflicting documents tendered in the proceedings, which made it difficult to establish the real and effective date of the applicant’s dismissal. These include the following:
• On 30 November 2010, there was a meeting between the applicant and the respondent’s representatives, Mr David Clunes, Distribution Centre Manager, Ms Catherine Keech, Human Resources Advisor - Team Leader and the applicant’s support person / her husband, Mr Mark Connor, Union Delegate, in which the respondent maintained it was made clear to the applicant that her employment was to be terminated with immediate effect. That same day, after the applicant contacted her lawyer, Mr Carmine Santone (then a consultant with Maurice Blackburn), he wrote to the respondent and said, inter alia, ‘we were informed by our client on 30 November that her employment was to be terminated’ and:
‘Should her employment have been terminated, we urgently seek you to provide us with the letter of termination. If the letter does not specify the reasons for termination, please provide us with the basis for the termination.’
‘It is our understanding that our client does not have any documentation, and accordingly she is unsure as to the current situation. In these circumstances we seek your immediate reply.’
• 1 December 2010 was the date of the applicant’s termination letter, which was expressed as follows:
Dear Debbie
I refer to our meeting on 30 November 2010 when we discussed your current capacity fitness, redeployment options within the business and your ongoing employment.
During that meeting we discussed your medical inability to return to pre-injury duties as a team member at Goulburn DC due to your current medical restrictions based on Dr Ng medical assessment.
Also at this meeting the business provided you the redeployment options to Coles, Kmart, 1st Choice and Coles Express were unsuccessful.
At that time we indicated to you that it was our intent to terminate your employment with Goulburn DC based on your medical restrictions.
In light of this information I can confirm the termination of your employment effective 1 December 2010 meaning your annual leave entitlements and four (4) week notice period will be paid in the next pay cycle.
Any queries regarding your payment of finalisation monies should be directed to me at the site.
I take this opportunity to thank you for your valuable contribution to Goulburn DC and wish you well in your future endeavours.
Regards,
David Clunes
DC Manager
Goulburn
The applicant said she did not receive this letter until 7 December 2010;
• On 6 December 2010, the applicant and Mr Santone attended a Workers’ Compensation Commission teleconference (‘the teleconference’) at which the respondent said it had reaffirmed that the applicant was dismissed on 30 November 2010; and
• A certificate of service from the respondent stated that she had worked for the respondent from 3 June 2003 to 5 December 2010.
[5] As will be seen from the various dates above, the only date which would bring the applicant’s application within time, is 7 December 2010; the date which she claimed she received the letter dated 1 December 2010. As a result, the evidence in this case obviously focussed on the meeting of 30 November 2010, and whether the applicant was effectively terminated on that day and whether she clearly understood that to be the case. It is that evidence to which I now turn.
THE EVIDENCE
List of Witnesses
Mr Carmine Nick Santone, Lawyer for the applicant
Ms Deborah Anne Bryan, the applicant
Mr Mark Connor, Union Delegate
Ms Catherine Keech, Human Resources Advisor - Team Leader, Coles Goulburn Distribution Centre
Mr David Clunes, Goulburn Distribution Centre Manager
Ms Sharon Lorraine Kennedy, NSW Injury Management Manager, Coles Group Supply Chain Pty Ltd
Nature of the applicant’s injury and progress of her injury management
[6] The applicant has had 11 workers’ compensation claims since her commencement of employment with the respondent. The applicant sustained an injury to her left shoulder while working night shift on 7 May 2007, at the respondent’s Goulburn Distribution Centre. As a result, she was on modified duties and had a prolonged period off work.
[7] On 8 October 2009, a reviewed injury management plan identified the following goals for the applicant:
Short term:
To determine a new vocational goal for Debbie.
Long term:
Debbie to gain suitable work with a different employer.
She has performed no work for the respondent since this time.
[8] The applicant was certified fit for pre-injury duties on 24 March 2010. However, two Functional Capacity Evaluations were conducted on 15 April 2010 and 28 June 2010, both of which disclosed that the applicant could work Light–Medium physical demand level on a full time basis. Relevantly, both reports concluded:
“... she has not demonstrated the capacity to perform work with the job demands required of a storeperson at the Coles Distribution Centre at Goulburn. As such, there remains a moderate risk of re-injury should she resume these activities.”
[9] On 2 September 2010, the applicant sought advice from Mr Santone, in respect to her dispute over workers’ compensation payments and the provision of suitable duties. Mr Santone lodged proceedings in the Workers’ Compensation Commission in order to obtain recommendations from the Registrar that the respondent comply with its obligations to provide suitable duties and, generally, in respect to the applicant’s rehabilitation.
[10] The applicant was requested to attend a specialist appointment with Dr S Ng on 6 October 2010. Dr Ng’s report stated, in part:
“It is my opinion that Ms Bryan does not have the functional capacity to return to the full range of normal work duties as a Team Member at Coles at Goulburn Distribution Centre because repetitive heavy manual handling or repetitive manual handling at and above shoulder height are part of the inherent physical requirement of the job task for a team member at Coles at Goulburn Distribution Centre would likely aggravate the degenerative disc condition in her cervical spine.”
[11] The contested workers’ compensation matter was listed for teleconference on 6 December 2010. Mr Glen Dolan of Sparke Helmore Lawyers represented the respondent with Ms Kennedy also in attendance. During the conference, Mr Santone inquired as to the status of the applicant’s employment. Mr Dolan replied that he was unsure, but Ms Kennedy was of the view that the applicant had been dismissed and a letter had been sent to her accordingly.
[12] The recommendation of the Registrar issued, pursuant to Div 3 of Pt 5 of Ch 7 of the Workplace Injury Management and Workers’ Compensation Act 1998, was as follows:
“The Registrar Notes:
1. The parties’ agreement for the worker to change her Nominated Treating Doctor to Dr. Kawr.
2. The parties’ agreement to the appointment of a WorkCover appointed Injury Management Consultant.
The Registrar Recommends:
3. That the said agreement by the parties is to commence as soon as practicable.”
[13] The reference to Dr Kawr above arose from the applicant’s insistence that she no longer had any confidence in her nominated treating doctor. However, the respondent said there was no evidence that since 6 December 2010, the applicant had consulted a new nominated treating doctor or had taken any steps to change her treating doctor.
[14] In her evidence, the applicant outlined the history of her injuries, return to work plans and her modified duties. She agreed she had been provided with vocational rehabilitation and assistance in finding work with alternative employers, including a job at Lowes, which did not work out because it required lifting. She agreed she had had a series of meetings with the respondent’s representatives to discuss redeployment with other employers in the Coles Group and outside of the Group. She insisted that she had been assured that she would not be dismissed. She had been shocked when she was dismissed as she had believed the Company ‘would do the right thing’.
[15] In oral evidence, the applicant deposed that in respect to the teleconference, she had understood that Ms Kennedy was to look into whether she had been dismissed. She could not remember Ms Kennedy definitely saying that she had been sacked. She agreed she might have missed something about the request for a letter confirming her dismissal. However, she recalled fax numbers being exchanged. The applicant said it took a long time to find a doctor in Goulburn because the respondent had a ‘bad reputation’ and a ‘lot of doctors did not want to deal with it’.
Solicitor’s Evidence
[16] In a somewhat unusual twist, Mr Santone, as the applicant’s solicitor and advocate in the proceedings, was required for cross-examination as he had provided his own statement in the proceedings.
[17] It was Mr Santone’s understanding that the applicant had not actually performed work for the respondent since October 2009 and she had been on workers’ compensation since that time. He assumed the applicant’s previous Union solicitors had conducted and concluded her claim in respect to permanent impairment. Mr Santone said that he did not know that in October 2009 the applicant’s rehabilitation provider was seeking to find work for her with another employer.
[18] Mr Santone agreed that the outcome of the Workers’ Compensation Commission Registrar’s conciliation teleconference was not, and could not include orders, but only recommendations; one of which was to agree upon engaging an injury management consultant. He conceded that the respondent had never agreed that the applicant return to work, but he believed this was the first step in a proper return to work plan. It was Mr Santone’s evidence that during this teleconference, Ms Kennedy did say that the applicant’s employment had been terminated. But when he sought clarification, Ms Kennedy said she would check it out. Mr Santone said that this was the first time that he had been told ‘unequivocally that she’d been terminated’. The applicant was on the phone and he assumed she heard what Ms Kennedy had said.
Respondent’s Evidence
[19] In evidence in chief, Ms Keech referred to an earlier meeting on 12 November 2010, involving the applicant, her support person, Mr Connor, Mr Clunes and herself, where the applicant was given Dr Ng’s report. She and Mr Clunes left the room while the applicant read the report. The applicant later agreed she understood the report and had no further questions about it. When Ms Keech asked if she would consider redeployment options with other Coles entities, the applicant said that 1st Choice Liquor was opening in Goulburn in February. Ms Keech undertook to explore all redeployment options. The options were discussed at the 30 November 2010 meeting, but none were determined as suitable.
[20] In cross-examination, Ms Keech said she had phoned the applicant on 26 November 2010, to arrange the meeting on 30 November 2010, which was to discuss outcomes of redeployment options and any other business decisions. Ms Keech added that she was very diligent in keeping notes and this phone call was recorded in her file notes. Ms Keech acknowledged the applicant was not told the meeting was about a termination (of employment). Ms Keech deposed that it was usual when employees were terminated to give them written confirmation the day or two after the meeting in which they are informed of the decision. However, she agreed that the date of the letter would usually be the date of termination.
[21] Ms Keech agreed that the respondent was a major employer in the Goulburn area and employed many people in different roles. However, Ms Keech said that as the applicant’s role was in the supply chain business and with her medical restrictions, no vacancies and no positions were available. Ms Keech said she was now aware the applicant had provided medical certificates certifying her as being fully fit for work. Ms Keech said she had no role in the subsequent workers’ compensation proceedings and she only now understood what the applicant was seeking.
[22] In re-examination, Ms Keech noted that the applicant had a doctor’s certificate restricting her lifting to two kilograms. Ms Keech said there were no manual handling jobs within the Coles entities which could be performed with this restriction.
[23] Ms Kennedy’s evidence was that in the teleconference she had not said she would ‘check whether the applicant had been sacked’. She was very clear that the applicant’s employment had been terminated on 30 November 2010. Ms Kennedy said that Mr Santone had asked for a termination letter to be faxed to him as it was important that he receive the letter as the ‘clock was ticking’ on the 14 days to file an unfair dismissal application. Ms Kennedy observed that if the applicant had been told by her solicitor that the 14 days would run from the date she received the letter, this advice was inconsistent with what was said at the teleconference where Mr Santone had noted that the 14 days was already running.
[24] Ms Kennedy gave details of the history of the applicant’s workplace injuries (11 claims in all) and efforts made by the respondent to find her suitable employment. She said the applicant had not been able to perform her full duties since May 2007. Her injuries were generally related to her aggravating a degenerative disc condition. She had failed two functional assessments. At the teleconference, when the applicant said she no longer had confidence in her treating doctor, the respondent agreed she could change doctors. However, in the six months since, she had not consulted a new doctor, or even taken steps to change doctor, in order to seek a further independent assessment.
[25] In cross-examination, Ms Kennedy agreed she was not at the 30 November 2010 meeting. Ms Kennedy said that in the teleconference she had not known of Mr Santone’s letter of 30 November 2010, or if it had been responded to. She had merely said she would check if the dismissal letter had been sent, not if the applicant had been dismissed. She also agreed Mr Santone had not mentioned specific dates concerning the 14 day time period to file the application.
[26] It was Ms Kennedy’s understanding that the respondent’s obligations to provide suitable duties no longer applied.
The meeting of 30 November 2010
Applicant’s version of events
[27] The applicant said that she believed the purpose of this meeting was to discuss her capacity for work. She had told the respondent she wanted to keep her employment and that there were suitable positions available. She believed that her restrictions could be accommodated and had been told so on a number of previous occasions. However, at the meeting she was told by Mr Clunes it was the respondent’s intention to terminate her employment. Also during the meeting, other options were discussed and she left the meeting hopeful her employment would not be terminated and efforts would be made to accommodate her medical restrictions.
[28] In a subsequent statement the applicant agreed that when Mr Clunes told her of the intention to terminate her employment she was most upset and started to cry. She was shocked and had no idea the respondent was ‘going to sack’ her at the meeting. She pleaded for her job. She understood that the respondent would reconsider its position and then make a final decision.
[29] Later that day, when she contacted Mr Santone, she told him the respondent was ‘going to sack’ her and that she was fairly sure that she would be dismissed. Nevertheless, she was hopeful that it would not occur and the respondent would consider what she had said and then make a final decision. Mr Santone undertook to clarify whether or not she had been dismissed.
[30] The next event was the teleconference of 6 December 2010. The applicant claimed the Registrar made orders assisting her return to work. The applicant said the next day she received the termination letter and advised Mr Santone to file an unfair dismissal claim. He told her that the 14 day time limit commenced when she was notified of the dismissal; being the letter of 1 December, although she had not received it until 7 December 2010.
[31] In oral evidence, the applicant said that in the 30 November 2010 meeting she did not respond to what the respondent had said because she instantly started crying and got terribly upset because she had been promised this was not going to happen. She had tried to get them to reconsider. She pleaded with them not to sack her. It was the applicant’s evidence that Mr Clunes had said ‘We are considering terminating you’. She denied telling Mr Connor ‘Don’t say anything more. We want to go off and see our solicitors’.
[32] Mr Connor is the Union delegate on site and the applicant’s husband. Mr Connor claimed to have been present, on a number of occasions, when the applicant was told her job would be safe. He attended the 30 November 2010 meeting as the applicant’s support person. Mr Connor said that he had been asked by Mr Clunes to go home at lunch time and bring his wife back to the site. He was not told the reason. Mr Connor said he had no knowledge of this meeting being already pre-arranged by Ms Keech and his wife.
[33] Mr Connor said it was his belief the meeting was called to discuss the applicant’s redeployment options and he was therefore surprised when it was stated that it was the respondent’s intention to terminate her employment. Mr Connor further described what occurred at the meeting. He said the applicant became upset and distraught. She pleaded for the respondent not to sack her and questioned what had happened to redeployment. She said her life was ruined and she could not stay at the meeting. She then walked out. After she left, Mr Connor told the respondent’s representatives that he was disgusted by the way the Company had treated its employees and he would be instructing his wife to seek legal advice.
[34] In cross-examination, Mr Connor said that he could not recall Mr Clunes saying in the meeting that the applicant was ‘terminated effective immediately’. Mr Connor agreed he was not representing himself as the Union delegate, but was there because the applicant was his wife.
[35] In re-examination, Mr Connor said he had attended other disciplinary meetings where employees were given paperwork when dismissed. This had not occurred in this instance.
Respondent’s version of events
[36] After tracing the applicant’s medical history, Ms Keech said that the respondent considered Dr Ng’s report on 6 October 2010, and had determined that the inherent requirements of the applicant’s job would be impossible to be satisfied and would likely further endanger her health and safety. The meeting of 30 November 2010, was convened to consider her ongoing employment. Ms Keech said that at the meeting, she provided the applicant with a history of events from October 2009, including Dr Ng’s recent opinion. Ms Keech deposed that Mr Clunes had told the applicant that the business was unable to reasonably accommodate her restrictions. He had told her, in very clear terms, that her employment was to be terminated with immediate effect. He also told her that the notice period and other entitlements would be paid. Ms Keech agreed the applicant was upset and crying and that Mr Connor had expressed his disgust with what had occurred.
[37] Ms Keech believed that there could be no doubt that the applicant had been terminated on that day and that she and her support person were unhappy with the decision. Ms Keech further deposed that when she received Mr Santone’s letter the same day, she drafted the termination letter of 1 December 2010, and sent it to the applicant.
[38] Ms Keech clarified the date of 5 December 2010 on the applicant’s certificate of service, by explaining that 5 December was the end of the payroll cycle under which the applicant was paid her outstanding entitlements. The next pay cycle commenced on 8 December 2010. It had nothing to do with the actual date of termination.
[39] It was Mr Clunes’ evidence that he clearly recalled telling the applicant she was terminated in the meeting of 30 November 2010. While it was his responsibility to do so, he found it difficult and would never take such a decision lightly.
[40] In oral evidence, Mr Clunes said he had told the applicant of the decision to terminate her employment, effective immediately, and her notice and other entitlements would be paid out. Her husband made comments about how disgusting it was how Coles treated its employees. The applicant had said ‘Mark don’t say another word. We’ll be off to go see our solicitor’. Mr Clunes deposed that as the applicant left the room, she forced the door so it hit the wall. Mr Clunes acknowledged the applicant was quite upset and crying but he had no recollection of her pleading for her job. He also said she was angry, as the forcing of the door indicated.
[41] In cross-examination, Mr Clunes said he had made no notes of the meeting. The letter of 1 December 2010, was prepared by Ms Keech and he had signed it after checking it. Mr Clunes agreed that the respondent had sent no letter to the applicant about the meeting. Mr Clunes acknowledged that the 1 December letter could have said the applicant had been terminated at the meeting but, in fact, had said the termination was effective 1 December 2010. Nevertheless, Mr Clunes was clear that he had intended to, and had terminated her employment on 30 November 2010. Moreover, the applicant’s reactions revealed she knew it to be so.
[42] In further evidence, Mr Clunes said the respondent employed about 280 people in Goulburn. Mr Clunes added that he was not aware of the letter Mr Santone wrote on 30 November 2010, or of the Workers’ Compensation Commission proceedings.
SUBMISSIONS
For the respondent
[43] Mr T McDonald, Solicitor, after setting out the relevant legislative provisions under s 394 of the Act, referred to the meaning of ‘exceptional circumstances’ as considered by a Full Bench of FWA in Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Janette Smithers[2010] FWAFB 7251 and referred to by Thatcher C in Rajeev Prasad v Alcatel - Lucent Australia Ltd[2010] FWA 7804.
[44] Mr McDonald submitted that the applicant’s contention that the reason for the delay in filing her application was because the respondent was slow in issuing the termination letter, was not a factor in s 394(3)(a) of the Act, as the respondent’s actions, including whether or not to issue a termination letter, is not the point. It is the actions and circumstances of the applicant and her representative which are relevant: see Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Janette Smithers at paras 6, 16 and 27.
[45] Mr McDonald observed that the applicant and her support persons’ reactions at the 30 November 2010 meeting, her visit to the solicitor and his letter of the same day, all suggest that it was clear to the applicant that she had been dismissed on 30 November 2010 (s 394(3)(b)). While the respondent understood that the applicant was unhappy with her dismissal, no action was taken by her, or her representative, to dispute the dismissal (s 394(3)(c)).
[46] Mr McDonald accepted that the respondent would suffer no greater prejudice than it would ordinarily suffer as a result of the application being filed out of time (s 394(3)(d)).
[47] Mr McDonald acknowledged that the applicant was dismissed because of her medical inability to return to pre-injury duties. In circumstances where an employee can no longer perform the inherent requirements of the job, this may constitute a valid reason for dismissal: see Smith v Moore Paragon Australia Ltd [PR42856]. It was clear from Dr Ng’s report that if the respondent had asked the applicant to perform her usual duties, it would likely result in the aggravation of her degenerative disc condition.
[48] Mr McDonald submitted that there is no person in a similar position compared to that of the applicant and this factor does not assist her case (s 394(3)(f)).
[49] Finally, while noting that the extension of time is not lengthy, this is not the point: see Fred Antoun v ANZ Banking Group Ltd[2010] FWA 8601.
[50] In a reply submission, Mr McDonald put that the 1 December 2010 letter merely confirmed what had occurred the day before. Even so, if the applicant relies on the 1 December 2010 date, her application is still out of time.
[51] Mr McDonald relied on two of my decisions in Karen Campbell v Nadic Administration Pty Limited[2011] FWA 2123 (‘Nadic’) and Theodora Olympia Zevgolis and Vanessa Dique v Max Network Pty Ltd t/as Max Employment[2010] FWA 4246 (‘Zevgolis’), which dealt with the real and effective date of dismissal and not its confirmation by letter or otherwise.
[52] Mr McDonald said that it was not the correct test of assessing the date of dismissal as when the applicant chose to acknowledge it. He said it was difficult to fathom how the applicant was unaware of her dismissal until 7 December 2010. Given she had not been able to perform her job for over two years, her dismissal was hardly surprising. Even if she had a misapprehension about her dismissal on 30 November 2010, due to shock and distress, this would not be unusual and could not be regarded as constituting ‘exceptional circumstances’.
[53] Mr McDonald further submitted that while the applicant may have contacted her solicitor, no action was taken to dispute her dismissal.
[54] Mr McDonald rejected any suggestion that the respondent conceded no prejudice to it if the extension of time was granted.
[55] Mr McDonald accepted that the applicant had provided evidence that she no longer suffered a work related injury and she was fit for pre-injury work. However, she still has a degenerative disc condition which would be aggravated by a return to work and which prevents her from performing the inherent requirements of the job. Mr McDonald noted that the Workers’ Compensation Commission had made no recommendation, let alone an order, that the applicant return to work.
[56] In oral submissions, Mr McDonald added that the applicant actually prepared and signed the unfair dismissal application on 9 December 2010. Yet, there was no explanation why the claim was not filed for another 11 days.
For the applicant
[57] Mr Santone submitted that the applicant’s primary submission was that the date of termination was 1 December 2010. However, if it was found that the date was 30 November 2010, then an extension of time should be granted as, at best, the respondent’s representations to her were unclear and confusing and caused her to miscalculate the 14 day time limitation.
[58] Mr Santone addressed each of the matters in s 394(3) of the Act. He submitted that the applicant believed the meeting on 30 November 2010, was to deal with redeployment options. While she was given notice of an intention to terminate her employment, it was her understanding that she was not terminated on that day. As her legal representative, Mr Santone said he had sought urgent clarification of the situation, as he was unsure as to whether she had, in fact, been terminated. He had received no reply.
[59] Mr Santone said the applicant relied on the respondent’s letter of 1 December 2010, which was not received by her until 7 December 2010, as to the calculation of the 14 days. The letter did not state that the termination was effective from 30 November 2010. The applicant believed she had until 21 December 2010, to lodge her unfair dismissal claim. She had not anticipated her termination and had sought immediate legal advice. Any previous legal advice concerned workers’ compensation matters.
[60] Mr Santone submitted that the applicant was shocked and confused at the 30 November 2010 meeting. She did not believe a final decision had been made. Urgent clarification was sought and not provided until the letter was received on 7 December 2010, or possibly the date of the teleconference the day before. Mr Santone emphasised that the applicant took immediate action after the meeting on 30 November 2010, to seek legal advice. Her legal representative took immediate steps to clarify the position, but the respondent chose not to reply.
[61] Mr Santone noted that the respondent conceded it would suffer no prejudice if the extension of time was granted (s 394(3)(d)).
[62] Mr Santone observed that the respondent had acknowledged that the sole reason for the applicant’s termination was her inability to return to any duties. This was contrary to its position in other proceedings in which it had relied on medical evidence which stated that the applicant was fully fit for her pre-injury duties. Moreover, in light of the Workers’ Compensation Commission recommendation, the applicant’s dismissal was premature.
[63] Mr Santone said that the applicant would suffer a distinct disadvantage compared to other employees seeking suitable duties, because she would be unable to access internal emails advertising vacancies and would not have regular contact with her employer and colleagues to find suitable work (s 394(3)(f)).
[64] In further oral submissions, Mr Santone said Ms Keech had agreed that the date of termination was 1 December 2010, and the applicant had been waiting for a final decision after the meeting on 30 November 2010.
[65] Mr Santone said that the decision in Zevgolis could be distinguished because in that case a decision had been clearly conveyed to the employee and the employee was merely seeking a reconsideration. In any event, the delay in that case was two months.
[66] Finally, Mr Santone put that the respondent had not complied with its obligations under the Workplace Injury Management and Workers’ Compensation Act.
CONSIDERATION
[67] Determination of this matter will necessarily involve a two step process. Firstly, the Tribunal must determine the date of the applicant’s dismissal. If the date is the day of the meeting of 30 November 2010, or the date of the termination letter (1 December 2010) then the application is clearly out of time; and, secondly, the Tribunal is required to consider whether there are ‘exceptional circumstances’ which would justify the exercise of its discretion to allow the application to be accepted out of time, pursuant to s 394(2)(b) of the Act. If the date of dismissal was the date the applicant was made aware that she had been dismissed; i.e. the receipt of the 1 December letter on 7 December 2010, then the application is within time and the matter can proceed to a hearing as to whether her dismissal was ‘harsh, unreasonable or unjust’ within the meaning of s 387 of the Act. I turn now to the first question.
What was the date of dismissal?
[68] Both parties agreed that the 1 December 2010 letter was sent by registered mail; although the respondent could not produce a registered mail receipt docket. In any event, it does seem extraordinary that a registered letter sent locally, would take six days to reach its intended recipient. Nevertheless, it was Mr Santone’s submission that the applicant’s dismissal was 1 December 2010, although she was not aware of it until 7 December 2010. Either way, be it 30 November or 1 December 2010, the application is still out of time.
[69] Be that as it may, the required test of when an employee is dismissed is not necessarily when it is confirmed in writing, but when an employee is made aware of, and understands that the employment relationship is to be ended. After all, there are numerous examples of employees being told of their dismissal or being put on notice of their dismissal, without it ever being formally confirmed in writing. I dealt with not dissimilar circumstances in Nadic where I said:
[9] Given the background to this matter, and the failure of the applicant to properly (or at all) address the specific requirements of s 366(2) of the Act, it is unnecessary for me to discuss the meaning of the expression “exceptional circumstances”, although I would adopt the comments of the Full Bench in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at par 10 - 15. That said, I apprehend the applicant’s one paragraph submission, asserts that she was expecting the respondent’s CEO, Mr Dallas James, to reconsider her dismissal and she was waiting for his phone call to that effect. There is no objective evidence that this was ever going to happen, or was even a possibility. The applicant merely presumed that as she was paid a notice period up to 6 December 2010, she was either not actually dismissed until then or Mr James would call her during that period.
[10] In my opinion, this submission cannot possibly amount to an “exceptional circumstance”, as comprehended by the statute. In any event, all of the relevant documentary evidence, including in the section where the applicant’s application refers to her being “sacked” on the 30th November 2010 makes it abundantly clear that she had been dismissed on 30 November 2010, and she knew it to be so. At the very least, one might have expected that an application, in some form, would have been filed shortly after the receipt of the letter of 14 December 2010, confirming her dismissal. After all, she identifies no other grounds as to why she waited until the 4 February 2011 before filing this application.
[70] Further, in Zevgolis, I determined that the date of dismissal is not necessarily the date of the receipt of its confirmation. At par [30] I said:
[30] I will now deal with the courageous submission of Mr Coady that the real and effective date of the applicants’ dismissals was when they received their letters of dismissal (dated 8 February and received on 9 February 2010). He put that this was because the process was infected by their concerns with dealing with the fraud allegations. It seems patently clear the applicants knew, without doubt, that they had been dismissed on 22 January 2010. In their originating applications, their statements in these proceedings, their oral evidence and in Ms Zevgolis’ email of 24 January 2010, it was said unequivocally that they were instantly dismissed on that day and that they knew the reason for their dismissals. In my assessment, the letter dated 8 February 2010, did no more than confirm their dismissals. It did not raise any new allegations or additional information about which the applicants were unaware. Consequently, I have no trouble in concluding that the applicants were dismissed on 22 January 2010, and that they knew the reasons why. That finding satisfies s 394(3)(b) of the Act.
[71] I see nothing inconsistent with a decision to terminate the applicant’s employment and Mr Santone’s wording in his letter of 30 November 2010 ‘we were informed by our client on 30 November that her employment was to be terminated’ (my emphasis). The balance of the letter seeks confirmation of the termination and the reasons for it. It does not say that the applicant was unsure or confused as to whether she had actually been terminated.
[72] Having regard to the evidence and arriving at a conclusion, based on the balance of probabilities: see Briginshaw v Briginshaw (1938) 60 CLR 336, I am satisfied that the applicant knew she was dismissed on 30 November 2010. The issues which fortify this conclusion include, inter alia:
• the evidence that Mr Clunes told the applicant in the meeting of 30 November 2010, that her employment was to be terminated with immediate effect. I accept Mr Clune’s evidence in that respect;
• the acknowledged, and perhaps understandable and natural reactions of the applicant and her husband when told of the decision. The applicant became upset and was crying. She pleaded for her job back. Her husband said he was disgusted with the respondent’s treatment of their employees. These reactions were indicia of acknowledgement of the finality of the matter;
• it seems curious why Mr Connor would attend a meeting with his wife if all it was about was to discuss her redeployment options. I think this is a further indicia of what the applicant and her husband were expecting;
• whether it was the applicant or her husband who made the closing response ‘we are going to see our solicitors’ is not the point. This was hardly the appropriate conciliatory reaction of someone pleading for their job back. In proper context, the comment ‘we are going to see our solicitors’ could only have been about the applicant’s dismissal;
• the evidence of Ms Kennedy was that in the teleconference on 6 December 2010, Mr Santone had asked for a letter of termination as ‘the clock was ticking’ on the 14 days to file an unfair dismissal application. In accepting Ms Kennedy’s version of events, I believe that Mr Santone was merely asking for confirmation of the dismissal, not clarification of whether it had, in fact, occurred;
• Ms Kennedy also deposed that she was in no doubt that the applicant had been dismissed on 30 November 2010; although I note she had not attended the meeting on that day. In any event, Ms Kennedy was well placed to know precisely what had happened on 30 November 2010. I accept this evidence;
• it was Mr Santone’s own recollection that Ms Kennedy had told him in the teleconference that the applicant’s employment had been terminated and a letter to that effect had been sent. His recollections corroborate Ms Kennedy’s version of events;
• as I said earlier, I accept that when Ms Kennedy said she would check, she was referring only to the letter having been sent. This would explain why the applicant said she had not received the letter (at that point) and why there were exchanges of fax numbers. Ms Kennedy’s references to checking was not about the substance of whether the applicant had been terminated. Why would Ms Kennedy agree to check on this, when she had no doubt about it?; and
• the applicant had directly participated in this teleconference. There was no evidence that she did not hear what Ms Kennedy had said.
[73] Notwithstanding all of the evidence described above, and even if the applicant did receive the 1 December letter on 7 December 2010, there was no explanation why the application was not lodged until 13 days later – just one day shy of the statutory cut off. After all, Form F8 is not a complicated document to prepare; a fortori for a solicitor who had some considerable knowledge of the applicant’s circumstances.
[74] That said, I apprehend there was a sense of urgency already in Mr Santone’s mind as he had written to the respondent for clarification on 30 November 2010, and had asked again about it on 6 December 2010. At that time, Ms Kennedy had given him a direct and unequivocal answer. It seems odd to me that no action was taken to file the application for a further 13 days. Moreover, I note that the application was prepared and signed by the applicant on 9 December 2010. Yet, the application was not filed for a further 11 days. There was no explanation for this further delay, save for Mr Santone’s frank admission that it was not ‘best practice’. Given the clarification of the apparent uncertainty, it behoved the applicant, or Mr Santone on her behalf, to ensure the application was lodged as quickly as possible.
[75] For all these reasons, I would conclude that the applicant was dismissed on 30 November 2010, thereby placing her application for an unfair dismissal remedy, six days out of time. This finding takes me to the next step.
Were there ‘exceptional circumstances’ to justify why the application should be accepted out of time?
[76] Section 394(3) of the Act provides the basis for FWA’s consideration of whether an unfair dismissal application should be accepted outside the 14 day time limit set by s 394(2) of the Act. Subsection (3) is as follows:
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.
[77] In Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, a Full Bench of FWA discussed the meaning of ‘exceptional circumstances’ in the Act:
[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 3 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 4, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:5
“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.
[78] In addressing each of the factors in s 394(2) of the Act, I make the following findings and observations; many of which stem directly, or are related to my earlier findings as to the date of the applicant’s dismissal.
Reason for the delay
[79] Mr Santone submitted that the reason for the applicant’s delay in filing her application was that she was confused and upset which caused her to miscalculate the date from which to commence the 14 day count. With respect, it was not for the applicant to calculate the 14 days, but was a duty bound to be undertaken by her legal representative.
[80] In any event, I have earlier found that the applicant was under no illusion as to what had occurred on 30 November 2010, and later events, including the 6 December 2010 teleconference merely confirmed this understanding. Accordingly, I do not accept that the applicant’s state of mind was such as to justify ‘exceptional circumstances’ as contemplated by the statute. Even so, I repeat again that there was no satisfactory explanation (or at all) as to why the claim was not filed soon after the 6 December teleconference (in which I have accepted the respondent’s version of events) or critically, as Mr McDonald observed, soon after the application was actually prepared and signed by the applicant on 9 December 2010. Mr Santone’s concession that it may not have been ‘best practice’ to wait a further 11 days, was a refreshing admission; however, it doesn’t assist his client’s case.
Whether the person first became aware of the dismissal after it had taken effect
[81] Similarly, I am satisfied that the applicant was first made aware of her dismissal on 30 November 2010, and that the letter of 1 December 2010 merely confirmed the outcome of the meeting on the day before. I agree with Mr McDonald’s submission that the issue is not when the applicant chooses to acknowledge her dismissal, but when it, in fact, has occurred. After all, a dismissal, as defined under the Act, is one which is at the initiative of the employer. While I accept there may be circumstances where the employer’s intention to dismiss is so confusing, ambiguous or uncertain as to make it impossible for an employee to know the date of dismissal, this is not such a case. All of the matters I referred to at par 72 fortify my view in that regard.
Any action taken by the person to dispute the dismissal
[82] True it is that the applicant took immediate steps to seek legal advice following the meeting of 30 November 2010. However, that merely reaffirms my view that she knew she had been dismissed on that day. I also accept that Mr Santone took steps to clarify the situation that very same day. However, it is plain from the terms of his letter that the applicant did not dispute her dismissal (although that might be obviously inferred, given her actions at the meeting and shortly thereafter). In any event, no further action was taken by the applicant or her legal representative to make the respondent aware that she intended to dispute her dismissal until the application was filed on 20 December 2010. This factor does not favour the applicant’s case.
Prejudice to the employer
[83] I accept that the employer will experience the usual prejudice in extending the application by being required to expend further costs and time in defending the substantive claim.
Merits of the application
[84] While the substantive basis of the applicant’s dismissal was not contested, I obviously have not heard or considered detailed medical evidence of the applicant’s fitness or capacity to return to full time duties. Given the prognosis of Dr Ng, the respondent had, in my preliminary assessment, taken an appropriate and responsible view that a return to pre-injury duties might result in aggravation of her degenerative disc condition. There was no firm evidence as to whether the respondent has other alternative duties for the applicant to perform. In any event, given the circumstances described in the proceedings, I am satisfied the respondent has complied with all of its statutory obligations in seeking to assist and rehabilitate the applicant into pre-injury employment. Nevertheless, there must be a point where the Tribunal accepts that the respondent’s obligations have been satisfied and the employee cannot conceivably into the future fulfil the inherent requirements of the job. Prima facie, that position, has been reached. I stress this is only a preliminary view. However, the doubtful merits of the application do not favour an extension of time being granted.
Fairness as between the person and other persons in a similar position
[85] There was no evidence of any unfairness afforded to the applicant vis a vis another employee of the respondent in a similar position. Indeed, on one view, the respondent’s claim that it has tried to assist the applicant’s rehabilitation beyond its legal obligations, weighs against the applicant as to any differential unfair treatment.
CONCLUSION
[86] For the aforementioned reasons, I find that there are no ‘exceptional circumstances’ in this case which would justify FWA extending the time for filing this unfair dismissal application. Accordingly, the application must be dismissed. An order to that effect will be issued jointly with this decision.
DEPUTY PRESIDENT
Appearances:
Mr C Santone, Solicitor, Santone Lawyers, for the applicant
Mr T McDonald, Solicitor, Moray & Agnew Lawyers, for the respondent
Hearing details:
2011
SYDNEY
6 May
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