Janelle McCarthy v Aero-Care Flight Support Pty Ltd

[2014] FWC 7301

[2014] FWC 7301

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Janelle McCarthy
v
Aero-Care Flight Support Pty Ltd
(C2014/1069)

COMMISSIONER BULL SYDNEY, 14 NOVEMBER 2014

General protections application to deal with contraventions involving dismissal - extension of time request.

[1] On 18 June 2014, Ms Janelle McCarthy (the applicant) lodged a general protections claim pursuant to s.365 of the Fair Work Act 2009 (the Act), alleging that she was dismissed by Aero-Care Flight Support Pty Ltd (the respondent) in contravention of Part 3-1 of the Act.

[2] The respondent filed a response on 25 June 2014. The respondent raised a jurisdictional objection to the application on the basis that the application was made out of time.

[3] The applicant submits that she received a letter of termination via email on 29 May 2014, and therefore made the application with the Fair Work Commission (the Commission) within 21 days. The respondent submits the applicant was notified during a meeting on 27 May 2014 that her employment was being terminated with immediate effect, which was confirmed in a letter and email sent to the applicant on 29 May 2014, resulting in her application being filed one day late.

[4] The application is subject to s.366 of the Act, which provides as follows:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

(My underline)

[5] The application was initially dealt with by way of a conference before the Commission on 6 August 2014.

[6] Present at the conference was the applicant and her support person. The respondent who appeared by telephone, was represented by Mr Stephen Hughes a Solicitor and Mr Greg Shelley, General Manager of the respondent.

[7] As no agreement could be reached between the parties in attempt to settle the matter, the Commission issued directions with respect to the respondent’s jurisdictional objection that the application was out of time.

Date of termination

[8] The applicant submits that she was dismissed on 29 May 2014, following an email from Mr Paul Brunyee, Regional Manager Airports, which stated:

“Good afternoon Janelle,

The attached was sent via registered post on the 29th May 2014.

Best Regards,

Paul Brunyee”

[9] There is no dispute that the email was received and read by the applicant on 29 May 2014. The attached letter to the email was dated 28 May 2014 with the subject line -“Termination of your employment”. Ms McCarthy states that she received the letter the following day 30 May 2014, by registered post.    1

[10] The letter states:

“28 May 2014

Termination of your employment

Dear Janelle,

I confirm the advice provided to you during the meeting held on 27 May 2014 with myself and Peter Sheehan, Chief Operating Officer, regarding the termination of your employment with Aero-Care Flight Support Pty Ltd.

In consideration of your historical performance, where you have failed to act in a manner consistent with the inherent competency required for the position of Manager Service & Standards, nor adequately redressed the identified performance and conduct issues, we consider that your performance remains unsatisfactory and have decided to terminate your employment. Your employment will end immediately.

......

Yours sincerely,

Paul Brunyee

Regional Manager Airports”

[11] Ms McCarthy states that up until 29 May 2014 she was still seeking confirmation from the respondent as to when the termination would occur or what date the respondent would like her to return to work.

[12] Attached to Ms McCarthy’s application to the Commission was a document titled “Timeline of events”. The document provides a chronological list of dates and notes from the applicant. On 27 May 2014, Ms McCarthy details what happened at a meeting on this date with Mr Sheehan and Mr Brunyee. Ms McCarthy’s notes make a number of references to her employment being terminated at this meeting such as:

● “Meeting ended with employment being terminated due to not having confidence I can complete the functions of my position.”

● “I was in so much shock that I was now unemployed...”

● “I was extremely upset after the meeting as I believe I had been terminated...”

[13] The respondent submits that the applicant’s employment was terminated during the meeting on 27 May 2014. A formal letter confirming Ms McCarthy’s oral termination was prepared by Mr Brunyee on 28 May 2014, who arranged for it to be sent to the applicant by registered post on 29 May 2014.

[14] There is no factual dispute between the parties on this issue, but rather a question of interpretation. The applicant’s representative Ms Romina Baczynski sent an email to the Mr Peter Sheehan the respondent’s Chief Operating Officer on 29 May 2014 stating:

“...

In accordance with the legal process of terminating an Employees contract under the Fair Work Act 2009, Aero-Care are required to formally issue a termination letter. Until a signed termination letter is received by the Employee, the Employee is still seen to be working for the Employer. In this case, until Janelle receive (sic) such correspondence formally, she is viewed to have been stood down with full pay.

...”

[15] Section 117 of the Act provides:

“Requirement for notice of termination or payment in lieu

Notice specifying day of termination

(1) An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

Note 1: Section 123 describes situations in which this section does not apply.

Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:

(a) delivering it personally; or

(b) leaving it at the employee's last known address; or

(c) sending it by pre-paid post to the employee's last known address.”

[16] No authority is provided for the proposition advanced by the applicant. The applicant’s position on the law in respect of the effective date of termination is mistaken. The obligation not to terminate an employee unless written notice is given as per s.117 of the Act may not have been complied with, however, it does not result in the employee remaining in employment on pay until this has occurred. Termination of employment takes effect once the employee becomes aware of it, subject of course to any advice that the dismissal is to take effect at some later date. See, for example, Commonwealth of Australia (Australian Taxation Office) v Wilson [PR901127].

[17] In Ishan D’Souza v Henry Schein Halas 2 (D’Sousa), the Commission dealt with similar circumstances (notwithstanding the case was in relation to unfair dismissal) where an employee asserted that his dismissal took effect from the day he received the written letter confirming the termination of his employment. The employer submitted that the dismissal took effect on the day before, when the employer had advised the employee at a meeting that his employment was terminated.

[18] In D’Sousa, the employee argued that he could not be terminated until the requirements of s.117 of the Act had been complied with, that is, the employee had received written notice of his termination. This argument was rejected with the Deputy President stating:

“[30] If an employer terminates the employment of an employee without notice and without making payment in lieu of notice before effecting termination, the result is that the employer has acted unlawfully. It does not invalidate the termination of the employment. An employee's remedy is to apply for a penalty for a contravention of that provision by reference to a breach of s. 44(1) of the Act which provides that:

“An employer must not contravene a provision of the National Employment Standards.”

[31] The note makes clear that that provision is a civil remedy provision. But the employment nevertheless has ended notwithstanding the unlawful act.

[33] Wilcox CJ makes clear that ultimately termination of employment will usually be inferred from the date on which the employer intended the termination of employment to take effect. It seems to me that the reasoning of Wilcox CJ is consistent with the reasoning on the question of when employment under a contract of employment ends as set out in a decision of the High Court of Australia Automatic Fire Sprinklers v Watson , and in particular the conclusion of Dixon J at 469 when his Honour said:

“For the reasons I gave earlier in this part of the judgment, I think that there is nothing in the general law preventing a wrongful dismissal of a servant operating to discharge him from his service notwithstanding that he declines to accept the dismissal as absolving him from further performance...-”

[34] Similar observations to those of His Honour were made by the other Justices of the court in that judgment. So it is that the decisions referred to by the Applicant are of no assistance and the decision in Siagian is contrary to the proposition that he advances. Likewise under the common law, a failure by an employer to give notice of a termination or to make payment in lieu of notice would be a wrongful dismissal but a dismissal nonetheless. An employee's remedy lies in damages. The employment relationship under the contract does not continue even though the contract of employment may well do so.

(References omitted)

[19] A meeting was held with the applicant on 27 May 2014, which resulted in the applicant being verbally told that her employment had been terminated with immediate effect and that she would be paid eight weeks salary in lieu of notice. The following day the respondent prepared a formal letter confirming the applicant’s employment had been terminated which was sent to her by registered post on 29 May 2014, (the letter was dated 28 May 2014). The applicant states she received this letter on 30 May 2014. 3 The applicant also states she received payment for the 29 May 2014 which is not disputed by the respondent plus her eight weeks notice pay.

[20] Based on the submissions of both parties, including the applicant’s time line, I find that the respondent terminated the applicant’s employment on 27 May 2014 when she was made aware of her termination.

[21] It follows that the application to deal with contraventions involving dismissal, pursuant to s.365 of the Act was made outside the time prescribed in s.366(1)(a), albeit by one day.

[22] As such, the Commission must consider whether the time for filing should be extended on the basis that there are exceptional circumstances.

Exceptional circumstances

[23] The applicant has argued that she understood the date of her dismissal was the day she received a copy of the letter of termination, being 29 May 2014, 4 however, submits that if it was found by the Commission that she had filed her application out of time, exceptional circumstances exist for the time to be extended.

[24] Section 366(1) of the Act requires an application made under s.365 to be made within 21 days after the dismissal that gave rise to the action took effect or within such further period as the Commission allows as under s.366(2), which states:

“366 Time for application

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

The reason for the delay

[25] Ms McCarthy states that on 10 June 2014, she was admitted to hospital via the emergency department for an unscheduled emergency surgical procedure 5 and was discharged on 12 June 2014. Ms McCarthy provided a copy of a medical certificate from a Doctor Karim Ghanim dated 8 August 2014 which stated:

“I would like to confirm that Mrs Janelle McCarthy was a patient under my care who was required to have pre-surgery preparation on 10 June 2014 in preparation for her surgical procedure at SJOG Murdoch Hospital on the 11 June 2014, and in my opinion was unable to fulfil her duties until the 24 June 2014.”

[26] Three points arise from the medical certificate.

[27] The applicant was terminated on 27 May 2014, so it is unclear what duties are being referred to between 11 June and 24 June 2014 that the applicant “is unable” to fulfil. Secondly the applicant filed her general protections application on 18 June 2014, being a day which the medical certificates states the applicant is “unable to fulfil” her duties. Thirdly the certificate is referring to events some two months earlier, but is written is the present tense, that is, “is unable” as opposed to “was unable” For these reasons I find the medical certificate unhelpful.

Any action taken by the person to dispute the dismissal

[28] The applicant states that up until 29 May 2014, she was still seeking confirmation from the respondent as to when the termination would occur or what date the respondent would like her to return to work. I do not accept that the applicant was not aware of her employment having been terminated during the meeting on 27 May 2014; her own records of the meeting indicate that she believed she had been terminated.

[29] The first step taken by the applicant to dispute her dismissal was her application filed with the Commission. For the purposes of s.366(2)(b) the applicant’s materials do not demonstrate that she had taken steps to challenge the decision to dismiss her other than by making this application.

Prejudice to the employer (including prejudice caused by the delay

[30] For the purposes of s.366(2)(c) of the Act, the employer states that the prejudice to the employer is the necessity to expend time, money, resources and effort in defending this application which is otherwise out of time. 6

The merits of the application

[31] The applicant’s case does not appear to be exceptionally strong on the material submitted to date, but I do not find that it is without merit.

Fairness as between the person and other persons in a like position

[32] There is no other person to whom reference is made for comparative fairness purposes under s.366(2)(e) of the Act, nor is there any suitably comparative case to which the applicant has referred in her materials.

Conclusion

[33] The expression “exceptional circumstances” is not defined in the Act, the word “exceptional” was defined in the decision of Lord Bingham of Cornwall CJ in R v Kelly (Edward) (1999) UKHL 4; [2000] 1 QB 198 at 208:

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. (my underline)

(See also Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290)

[34] The Full Bench in Nulty v Blue Star Group Pty Ltd 7 outlined what is required to find “exceptional circumstances” exist, to justify an extension of time. The Full Bench stated at paragraph 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.”

[35] As I have found earlier in this decision, Ms McCarthy’s employment was terminated by the respondent on 27 May 2014, resulting in her application being filed one day late. During the time between the applicant being terminated and the date the application was filed with the Commission, the applicant was unexpectedly hospitalised and underwent emergency surgery resulting in a three day hospital stay. There is no question in my mind that the applicant’s emergency surgery and hospitalisation was an unforeseen disruption to the 21 day time frame allowed for filing an unfair dismissal application. This event in my opinion is sufficient to find that an exceptional circumstance exists to allow an extension of one day to the time allowed for filing.

[36] Having considered the circumstances above I am satisfied that it would be appropriate to grant an extension of time to Ms McCarthy to file her application by one day. And an order will issue to reflect this finding.

COMMISSIONER

Final Written submissions and witness statements:

Applicant, 11 September 2014.

Respondent, 19 September 2014.

 1   See applicant’s correspondence of 11 September 2014.

 2   [2014] FWC 5864.

 3   Applicant’s written submission of 11 September 2014.

 4   Received via email.

 5   Applicant’s outline of submissions dated 21 August 2014.

 6   Respondent’s outline of submissions dated 4 September 2014.

 7   [2011] FWAFB 975.

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