Fraser Macaulay v Sydney Trains
[2023] FWC 413
•20 FEBRUARY 2023
| [2023] FWC 413 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Fraser Macaulay
v
Sydney Trains
(U2022/11993)
| COMMISSIONER PLATT | ADELAIDE, 20 FEBRUARY 2023 |
Application for an unfair dismissal remedy – request for an extension of time – application dismissed.
Introduction
The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]
This decision concerns whether I should exercise my discretion to allow Mr Fraser Macaulay a further period for his unfair dismissal application (Application) to be made against Sydney Trains (the Respondent).
Background
Mr Macaulay has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with Coles which his form F2 Unfair Dismissal Application advised took effect on 13 December 2022.
The application was lodged on 19 December 2022.
On 13 January 2023, Sydney Trains lodged a form F3 Employer Response which they contended that the dismissal occurred on 26 October 2022 and therefore objected to the application on the basis that the application was lodged out of time, and that Mr Macaulay had not served the minimum employment period. This decision only deals with the minimum employment period objection to the extent that it is relevant to the extension of time issue.
On 24 January 2023, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 16 February 2023. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties.
The Applicant submitted materials in support of his position on the extension of time issue on 31 January 2023.
The Respondent filed written submissions and witness statements in relation to the extension of time issue on 7 February 2023.
At the request of the parties, leave was granted for both parties to file submissions in reply.
Hearing
A hearing was conducted by way of telephone conference on 16 February 2023. A sound file record of the telephone conference was kept. Ms Helen Bellette of the Australian Rail, Tram and Bus Industry Union (RTBU) represented Mr Macaulay at the hearing, whilst Ms Sally Moten (of counsel) represented the Respondent. Ms Moten was granted permission to represent the Respondent, unopposed, under s.596(2)(a) of the Act, on the basis that representation would ensure the matter was dealt with more efficiently, given the relative complexity of the matter.
Prior to the hearing, the parties indicated that they did not seek to challenge the written evidence of any of the witnesses. Accordingly, I accepted each of the witness statements, giving appropriate weight to all evidence after an assessment of its character (e.g. hearsay, opinion etc.) and its relevance.
Mr Macaulay’s position is summarised as follows:
· On 26 October 2022, Mr Macaulay was provided a letter from Sydney Trains titled “Termination of your probationary employment” which contained the following passage:
“Having considered the above (a finding of misconduct), a decision has been made to terminate your employment within your probationary period.
Accordingly, your last day of employment will be 26 October 2022. You will be provided one (1) week’s pay in lieu of notice.
You will be paid any statutory entitlements owing to you into your nominated bank account.
You will be required to return any Sydney Trains’ property in your possession
Request for Review
Under clause 18.3 of the Sydney Trains Enterprise Agreement 2018, you have a right to seek a review of this decision with the Chief Executive or their nominee. The nominee for this appeal is the Director People & Culture Business Partnering. The request for review must be lodged within fourteen (14) working days of receipt of this letter.”
· On 7 November 2022, the RTBU filed a request for review on Mr Macaulay’s behalf, as per clause 18.3 of the Sydney Trains Enterprise Agreement 2018 (the Agreement).
· On 9 November 2022, Ms Cara Palmer (Director, Business Partnering Engineering and Maintenance) confirmed receipt of the review request on behalf of Sydney Trains. Ms Palmer advised that a response would be provided in due course.
· On 9 December 2022, Ms Palmer sent an email to the RTBU which stated the following:
“Hi Helen,
Response to Fraser’s request for review:
I refer to your application to review the decision by Sydney Trains to terminate your employment within your probation period. I have now reviewed and considered all of the materials you provided in your application as well as the
materials relied on by Sydney Trains in deciding to dismiss your employment.I write to advise you of the outcome of my review. It is my view that you engaged in inappropriate conduct in breach of your obligations under the Transport Our Code of Conduct and that Sydney Trains’ decision to dismiss your
employment during your probation period was the appropriate outcome.This may be a difficult time for you. If you would like to access the free and confidential counselling and support service provided by the Employee Assistance Program, please let me know so that I can arrange access for you.
Thanks”
· Mr Macaulay contends that his dismissal took effect on the date that he received confirmation of his unsuccessful review, that being 9 December 2022. Mr Macaulay’s application was lodged on 19 December 2022, and accordingly he contends that the application was lodged within time and does not require an extension.
The Respondent contends that the date of the dismissal was 26 October 2022. On this date, Mr Macaulay received a called from his Two-Up Manager, Mr Richard McInerney, in which Mr McInerney informed him that he had been dismissed. After the phone call, Mr Macaulay was provided with the letter entitled “Termination of your probationary employment”, that being 26 October 2022 (extracted above) . The Respondent submits that the review process for employees in their probationary period contained at clause 18.3 of the Agreement does not delay the date of dismissal, but merely provides the employee with a chance to reverse a decision that has definitively been made.
The Respondent identified the difference in the review process between employees who are in their probationary period and employees who are not.
The internal review process for dismissal decisions involving non-probationary employees is contained in the “Sydney Trains Disciplinary Review Procedure” (Disciplinary Procedure) and the “Sydney Trains Discipline Penalty Review Process Guidelines” (Disciplinary Guidelines). The Disciplinary Guidelines confirm that in the internal review process for non-probationary employees, “the discipline penalty is not applied until the review is completed”. Crucially, clause 2 of the Disciplinary Procedure provides that “the Disciplinary Procedure does not apply to employees who are on probation, independent contractors, labour hire employees and consultants.” (emphasis added)
For probationary employees, the internal review process is contained in clause 18.3 of the Agreement and the “Sydney Trains Probation Procedure” (the Probation Procedure). The Probation Procedure confirms that where a decision is made to terminate a probationary employee, the employee may request a review of that decision in accordance with the Agreement. There is no equivalent provision in the Probation Procedure or clause 18.3 of the Agreement to that in the Disciplinary Guidelines which provides that the discipline penalty (in this case, dismissal) is not applied until the completion of the review.
The Respondent contends that it was clear both in the telephone conversation with Mr McInerney and in the letter sent to Mr Macaulay on 26 October 2022 that his dismissal would take effect from that day. The Respondent notes that Mr Macaulay did not work, nor was he paid for any work, after 26 October 2022.
The Respondent contends that Mr Macaulay could have pursued an internal review of his dismissal whilst simultaneously lodging an unfair dismissal application in the Commission within the statutory timeframe.
At the hearing The parties agreed that it the event that I determine that the application requires an extension of time and grant same, that I should also determine whether Mr Macaulay is protected from unfair dismissal which includes a consideration of whether the Minimum Employment Period has been completed.
Applicable Law
Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are “exceptional circumstances”, taking into account the following six criteria:
“(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.”
The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.[3]
I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[4] which stated:
“[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).
…
[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.”
Consideration
When did the dismissal take effect?
The crucial issue for determination in this matter is the date which the dismissal took effect. The leading case on this issue is that of the Full Bench in Mohammed Ayub v NSW Trains,[5] in which it was confirmed that a dismissal takes effect when it is clearly communicated to the employee, and that the 21 day time limit for unfair dismissal applications commences on the date that the employee becomes aware of their dismissal, or at least had a reasonable opportunity to become aware.
The facts in this application are not dissimilar to those considered by the Full Bench in the matter of Qantas Airways Limited v McRae[6] (McRae). In McRae, the employee received a letter which told him that the employer had decide to terminate his employment, effective immediately, with 4 weeks’ wages paid in lieu of notice.[7] The letter also stated that if the employee did not agree with this ‘outcome’, he could ‘seek to appeal the decision in accordance with the Appeals section of the employer’s policy.[8]
The parties in McRae disputed whether the date of dismissal was the date that the original letter was sent to the employee or the date in which the internal appeal decision was communicated to the employee.
In McRae, the Full Bench found the following:
“…The letter of 19 October 2016 was very clear. Qantas had decided to terminate Mr McRae’s employment immediately. Mr McRae was to depart that day. The letter said he could seek to appeal under the policy. But there was no suggestion that any such appeal would suspend or affect the decision to dismiss Mr McRae.
Similarly, nowhere does the Policy state or imply that a decision to dismiss an employee is suspended, or otherwise ceases to have effect, if an internal appeal is made. To the contrary, the above provisions of the Policy proceed on the basis that the decision to
dismiss stands.
…
It is not the case that Mr McRae became aware of the Respondent’s reliance on the 19
October 2016 date only on 8 November 2016. He was clearly told on 19 October that he was dismissed immediately.
In our view, there was nothing to suggest to Mr McRae that his decision to seek an
internal appeal would alter, suspend or otherwise affect Qantas’ decision to dismiss him.”
The right to review a dismissal for an employee who is within their probationary period is contained at clause 18.3 of the Agreement, which is recreated below:
“18.3 Where a probationary Employee is given notice of dismissal, they shall have a right of review to be conducted by the Chief Executive or their nominee. Such a review should be lodged within 14 days of the notice of dismissal.”
The Applicant filed a witness statement from a former colleague of Mr Macaulay, who is currently awaiting the results of an internal review from Sydney Trains. The statement explains that the employee retains his employment entitlements whilst awaiting the results of his review, and accordingly the Applicant contends that this is evidence that Mr Macaulay’s dismissal only took effect once the review process was finalised. The employee who provided this statement has been employed by Sydney Trains for five years, and is not within his probationary period. The difference that the Respondent has identified between the internal review process for probationary and non-probationary employees means that the evidence in respect of this employee has no probative value.
The letter provided to Mr Macaulay on 26 October 2022 was not ambiguous as to the date of his dismissal. The letter stated, “a decision has been made to terminate your employment” and “your last day of employment will be 26 October 2022”. As was the case in McRae, there was no suggestion either in the letter of 26 October 2022 or clause 18.3 of the Agreement that the right to review alters or suspends the dismissal.
Similarly, in the email sent to the RTBU on 9 December 2022, Ms Palmer refers to the decision to dismiss Mr Macaulay’s employment in the past tense by stating “Sydney Trains’ decision to dismiss your employment during your probation period was the appropriate outcome.” (emphasis added)
There is no suggestion in either the letter of 26 October 2022, the email of 9 December 2022 or clause 18.3 of the Agreement that an internal review of a decision to dismiss delays or alters the date of dismissal.
Clause 18.3 does not contain any express provision which defers the dismissal taking effect.
I find that Mr Macaulay was dismissed on 26 October 2022. Given that the application was lodged on 19 December 2022, the application is 33 days out of time, and can only proceed if an extension of time is granted.
Paragraph 394(3)(a) - reason for the delay
The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[9] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic,[10] the Full Bench explained the correct approach by reference to the following example:
“[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[11]
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”
Mr Macaulay did not provide any written submissions and/or evidence which went to the reason for the delay, as he relied solely on his position that the application was filed in time.
It is noted that Mr Macaulay was represented by the RTBU throughout the disciplinary process. The RTBU contended that representative error was present. I accept that the RTBU appears to have advised Mr Macaulay that the dismissal was ‘stayed’ p[ending the resolution of the review. Perhaps this explains why there is no evidence of Mr Macaulay instructing the RTBU to lodge an unfair dismissal application.
This factor weighs in favour of the granting of an extension of time.
Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
As discussed above, I have found that the dismissal took effect on 26 October 2022. In my view the communications reveal that Mr Macaulay had a reasonable opportunity to become aware of his dismissal on this date.
This factor weighs against a finding that there are exceptional circumstances.
Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[12]
Mr Macaulay, through the RTBU, requested an internal review of the decision to dismiss him under clause 18.3 of the Agreement. This is action taken by Mr Macaulay to dispute the dismissal. This factor weighs in favour of a finding that there are exceptional circumstances.
Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)
Prejudice to the employer will weigh against granting an extension of time.[13] However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.[14]
There is no submission that the granting of an extension of time represents prejudice to Coles. This is a neutral consideration.
Paragraph 394(3)(e) - merits of the application
I have found above that Mr Macaulay was dismissed from his employment on 26 October 2022. On his form F2 application, Mr Macaulay noted that he commenced employment with Sydney Trains on 27 April 2022.
The Respondent filed evidence, which was unchallenged, that Mr Macaulay had twelve days of leave without pay throughout his employment with the Respondent.
Section 382(a) of the Act states that to be protected from unfair dismissal, a person must have completed the minimum employment period.
Section 383 of the Act states that the minimum employment period for a person employed by an employer who is not a small business employer (e.g. Sydney Trains) is six months. Any period of unpaid leave is excluded from the calculation of the minimum employment period by operation of s.22(2) of the Act.
As a result of my finding that Mr Macaulay was dismissed on 26 October 2022, it is clear that Mr Macaulay did not serve the minimum employment period of six months. Accordingly, Mr Macaulay is not a person protected from unfair dismissal.
Given that Mr Macaulay is not a person protected from unfair dismissal, if an extension of time was granted, his application would have no reasonable prospects of success. This factor weighs against the granting of an extension of time.
Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[15] considered this criterion and said:
“[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”
I am not satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. Because it is not a relevant factor it is a neutral consideration in determining whether to grant an extension of time.
Conclusion
Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded, on balance, that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant. The application must therefore be dismissed.
In the event that I had determined to grant the extension of time application I would have had to determine whether Mr Macaulay was protected from unfair dismissal. As a result of my finding as to the date of dismissal, I would have found that Mr Macaulay did not complete the 6-month minimum employment period which (due to unpaid leave) would have concluded at the end of his shift on 11 November 2022.
An Order[16] reflecting this decision will be issued.
COMMISSIONER
Appearances:
H Bellette for the Applicant.
A Redfern for the Respondent.
Hearing details:
2023.
Adelaide (by teleconference):
February 16.
[1] Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
[2] Section 394(3) of the Act
[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[4] [2011] FWAFB 975
[5] [2016] FWCFB 5500.
[6] [2017] FWCFB 4033.
[7] Ibid at [22].
[8] Ibid at [23].
[9] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[10] [2016] FWCFB 349
[11] [2018] FWCFB 3288 at [35]-[45]
[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[13] Ibid
[14] Ibid
[15] [2016] FWCFB 6963
[16] PR750788
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