Gareth Morgan v Stellar Asia Pacific Pty Ltd

[2016] FWC 5240

[2016] FWC 5240

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gareth Morgan
v
Stellar Asia Pacific Pty Ltd
(U2016/3032)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 3 AUGUST 2016

Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for lodgement of an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] The relationship between Mr Morgan and the respondent is continuing. He commenced employment in August 2006.

[3] Mr Morgan lodged his application at the Fair Work Commission (the Commission) on 23 June 2016.

[4] When determining this application I had before me the Application for Unfair Dismissal lodged by Mr Morgan. I wrote to him on 28 June 2016 outlining the matters I was required to consider by the Act and asked him to provide a statement addressing these matters within 14 days. Mr Morgan provided a comprehensive statement on 4 July 2016. The substance of that statement is set out below:

“Dear The Hon. Lea Drake,

I would like to request a hearing regarding this matter of being outside the 21 days be heard by telephone.

My delay was caused as I was not aware until May of this year that my case could be considered as unfair dismissal. I was of the belief that mine was a work place dispute as I was still an employee of Stellar Asia Pacific. I had spent countless hours from November 2014 to May 2016 attempting to resolve this issue internally believing that an outcome could be reached. Since November 2014 through meetings with the Centre Manager, General Manager and Human Resources Manager I have been requesting that the business provide me with information to support why I was removed and actions to improve my performance. This information along with actions is what would normally be provided to an employee who is to be or is being performance managed. However they have not been able to fulfil this request.

After a meeting with the Centre Manager and Human Resources Manager on May 12th 2016 where I was told they would no longer be discussing my situation any further, I investigated how an external body could assist me with resolving the dispute. It was during the following week I learnt that my dispute could potentially be considered unfair dismissal. I then proceeded to draft an application with the intention of submitting it over the weekend of May 28th. Prior to doing so I approached the Human Resources Manager on May 27th and gave her the professional courtesy of informing her of the action I intended to take. She requested that I not go ahead with this action until further discussions were had with the Centre Manager, General Manager and the Corporate Human Resources Manager. The Corporate Human Resources Manager met with me on June 1st 2016 then again on June 10th 2016 where I was advised that she could not substantiate my allegations and would not look at it again unless asked to by the commission.

With this in mind I would like you to consider that June 10th was the date from which my 21 day period began.

I have also read over the response provided by Stellar to my claim and would prefer that this matter be heard over the phone where ever possible. I have what I believe would be considered as items of evidence that support my claim when compared to their responses. I feel that addressing these matters over the phone or in person would be better, as I am no longer comfortable dealing with Stellar in writing.

I would also like it noted that since I advised Stellar of my intent to lodge a claim with the Fairwork Commission, I have been placed under additional stress in the work place by the actions of Stellar. Just one example; I was paid incorrectly on June 22nd 2016 and had my additional pay withheld until July 1st 2016. This was despite me requesting it be corrected on June 23rd 2016. 

Thank you for taking the time to consider my application.”

[5] I considered Mr Morgan’s explanation. I issued a Finding and Order refusing his application for an extension of time and dismissed his application on 11 July 2016.

[6] Subsequent to that Finding and Order Mr Morgan contacted my Chambers and advised that I had not provided an opportunity for him to be heard by telephone as he had requested. He also asked for an explanation for my Decision. I confirmed that his request for a telephone hearing had been overlooked and asked if he would like to have a further opportunity to be heard. In response to his request that I reallocate the application I advised that I could not reallocate the file but that I would give him an opportunity to put any further matters to me that he might have put in a telephone listed hearing had I given him that opportunity.

[7] I held a hearing by transcribed telephone link on 28 July 2016.

[8] I confirmed to Mr Morgan that the time for lodgement of any appeal from my Finding and Order was calculated from the date of that Finding and Order, and that if he wished to appeal a Notice of Appeal form was accessible on the Commission’s website.

[9] Mr Morgan summarised his circumstances as follows:

• On 5 November 2014 he was informed that his position would change. He would be moved from the position of Operations Manager to the position of Team Leader. That change involved a loss of income of approximately $5000 per annum;



• The anticipated change in his position took place on 18 January 2015;



• He continued discussions with the respondent regarding this change, treating it as a workplace dispute or grievance;



• In approximately mid May 2016, possibly between 14 and 20 May 2016, he was told by the respondent that they would be no longer investigating his change of position and dispute notification;



• On 27 May 2016 he told the respondent that he would lodge a claim. The respondent asked him to hold back until a meeting could take place on 1 June 2016 with persons identified as Joe and Kathy;



• On 10 June 2016 the respondent informed him that they would not investigate his claim further;



• He lodged his application on 23 June 2016.

[10] The respondent did not wish to put any material further to what was set out in its Employer Response. This is set out below:

“1. Gareth Morgan was not dismissed from his employment with Stellar Asia Pacific and he is still currently employed by Stellar and he had no break in his employment tenure.

2. Gareth Morgan was spoken to by Daniel Upton Centre Manager who he reported to late October 2014. This was an informal discussion to advise Gareth he was not performing to expectations and this was impacting the Client service, and he may need to begin performance management with him. Daniel had supported Gareth in his position of Operations Manager, however as his performance had declined Daniel was in the position to have to potentially take performance management action.

3. The nature of our business means we are accountable to our Clients to meet agreed service level targets and overall performance to expected and agreed standards as per contractual agreements. This means performance of all our employees in the Clients service needs to meet the expectations. If we do not perform to our Clients expectations, we are putting at risk our client terminating the contract with Stellar, and in turn this puts our employee roles at risk.

4. At no point was it stated the role of Operations Manager was being made redundant.

5. Daniel advised him on 9 November 2015 he may need to consider moving him to a different role, and offered him the possibility of a sideways movement to an Account Services Manager role to cover maternity leave or a Team Leader role. The Team Leader role is a lower level, however is covered by the Stellar Enterprise Agreement 2014.

6. On 10 November 2014 Gareth handed in his resignation letter. This letter was very complimentary about his time with Stellar.

7. When Gareth handed in his resignation letter Daniel was surprised and the resignation was not immediately accepted. Further discussions were held with Gareth about reconsidering his resignation as Stellar considered him a valued employee. Daniel offered him a Team Leader position if he did not resign. Daniel approved Gareth a couple of days leave after this discussion.

8. Gareth decided to accept the offer of Team Leader and was issued with an Employment Contract with effect in the position from 19 January 2015. Gareth withdrew his resignation and Stellar accepted his withdrawal.

9. Gareth accepted the Team Leader position as he was going on annual leave and would get paid a holiday loading and leave hours would be based on 38 hours as the Team Leader position was covered under the Stellar Enterprise Agreement 2014.

10. Gareth came back to work after his annual leave and commenced in his Team Leader position. He is still currently employed in this position.

11. Gareth has had several discussions with Daniel Upton, Will Coles, Group General Manager and Kathey Dodds, HR Manager since October 2014 about the reason for his change in position. In his last discussion with Kathey Dodds she recommended that Corporate HR needed to be across the full situation and set up a meeting with myself.

12. On 1 June 2016 I met with Gareth and Kathey. Gareth gave me his version of events and I advised I would also need to speak with Daniel. Daniel was on annual leave and I advised it may take up to 3 weeks to get back to Gareth with a response to his allegations. Gareth was comfortable with this.

13. I was able to meet up with Dan on 7 June 2016 to obtain a response to the allegations made by Gareth. I also spoke to Will Coles briefly about the allegations to ascertain his response. From reviewing the information given I was not able to substantiate the allegations made by Gareth. I advised Gareth of this outcome on 10 June 2016 and gave reasons for this outcome. I advised in this meeting it was his prerogative if he wanted to take this outcome further. If that occurred that I would respond accordingly. Kathey Dodds was present at this meeting.

14. Approximately 10 minutes after this meeting concluded, Gareth asked to meet with me again. He asked if he could have my notes of the meeting and if I had spoken to Will Coles. I responded to him re the notes and advised I had spoken to Will Coles.

15. I met with Daniel and Will to advise that I was not able to substantiate the allegations made by Gareth and there would be no further action.”

[11] The relevant legislative framework for the exercise of the Commission’s discretion in relation to applications of this kind is set out below:

394 Application for unfair dismissal remedy
...
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.

[12] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 where the Full Bench said:

“[10]It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [Endnotes not reproduced]

[13] For exceptional circumstances to arise as contemplated by s.394 of the Act, it is not necessary that the applicant for that extension of time be overtaken by a catastrophic event. Reasons for delay in the category of extreme events are not necessary to meet the test. All of the factors outlined in s.394(3) of the Act must be considered and weighed when deciding whether or not exceptional circumstances, circumstances sufficient to support an exception, exist.

[14] When determining Mr Morgan’s application for an extension of time for lodgement I considered the various criteria to which my attention is directed by s.394(3) of the Act.

reason for the delay-s.394(3)(a)

[15] If 18 January 2015, the date of Mr Morgan’s change of position, is the date of his alleged dismissal he is many months out of time.

[16] The reason Mr Morgan provided for his delay in lodgement was that he was pursuing a dispute notification or internal grievance procedure and that he was otherwise unaware of his entitlement to lodge an application.

[17] I was not persuaded that Mr Morgan’s difficulties were out of the ordinary, unusual or uncommon.

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

[18] Mr Morgan became aware of the change of his circumstances with the respondent on 5 November 2014.

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

[19] Mr Morgan disputed this change of circumstances by engaging with the respondent internally and by lodging this application.

prejudice to the employer-s.394(3)(d)

I was satisfied that there would be no greater prejudice to the respondent caused by Mr Morgan’s application being listed now than there would have been had it been lodged in time. Prejudice to the respondent was a neutral consideration.

the merits of the application-s.394(3)(e)

[20] Merit was a neutral issue in my consideration of this application.

fairness as between Mr Morgan and other persons in a similar position-s.394(3)(f)

[21] There was no issue of fairness in relation to any other person in a similar position.

[22] Having considered all of the matters to which my attention is directed by the Act I was not satisfied that there were exceptional circumstances which would warrant my granting an exception to the statutory time limit and on that basis dismissed the application. I was satisfied that Mr Morgan’s circumstances were not out of the ordinary course, unusual, special or uncommon. Nothing that Mr Morgan put to me in the telephone link hearing before me on 28 July 2016 altered my original conclusion.

SENIOR DEPUTY PRESIDENT

Appearances:

G Morgan, the applicant

J Edmonds, Stellar Asia Pacific Pty Ltd

Hearing details:

2016.

Telephone Hearing:

July 28.

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