Mark Sweeney v Ace Insurance Limited T/A Ace Insurance

[2016] FWC 1515

[2016] FWC 1515 [Note: a correction has been issued to this document] [Note: An appeal pursuant to s.604 (C2016/708) was lodged against this decision - refer to Full Bench decision dated 1 June 2016 [[2016] FWCFB 3561] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Sweeney
v
ACE Insurance Limited T/A ACE Insurance
(U2016/243)

COMMISSIONER PLATT ADELAIDE, 1 MARCH 2016

Application for relief from unfair dismissal – extension of time refused.

Background

[1] On 18 January 2015, Mr Sweeney lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with ACE Insurance Limited T/A ACE Insurance (ACE).

[2] ACE contends that Mr Sweeney was not an employee and Mr Sweeney’s engagement was terminated by letter dated 17 December 2015, a copy of which was posted and emailed to Mr Sweeney. Whilst this decision refers to the termination of Mr Sweeney’s employment, the nature of the relationship between Mr Sweeney and ACE is not agreed, and the use of the term in this decision does not imply that Mr Sweeney was an employee of ACE.

[3] Mr Sweeney contends that he first became aware that his employment was terminated when he returned to Australia from overseas on 30 December 2015 and received a letter of termination . Mr Sweeney asserted that he was unable to reliably access the Internet whilst he was overseas and did not receive the email advice sent to him by ACE.

[4] On 5 February 2016, my Associate corresponded with both Mr Sweeney and ACE, and advised them that the extension of time issue would be considered at a telephone conference on 1 March 2016. Substantial information about the extension of time issue was provided to the parties. Mr Sweeney was directed to provide a witness statement and a copy of any document relied upon relative to the extension of time issue by 16 February 2016.

[5] On 19 February 2016, Mr Bernard O’Donnell, paid agent for Mr Sweeney, sought an extension of time until 22 February 2016 to lodge Mr Sweeney’s submission.

[6] On 26 February 2016, Mr O’Donnell provided a submission which included a copy of an outbound and inbound Flight Centre itinerary. This itinerary indicated that Mr Sweeney departed Australia on 11 December 2015 and returned on 30 December 2015. Copies of a number of certificates received by Mr Sweeney during his employment with ACE were also provided to the Commission. I make no adverse finding on account of the lateness of this submission.

[7] On 27 February 2016, Mr O’Donnell on behalf of Mr Sweeney provided an additional submission.

[8] On 23 February 2016, Mr Tim McDonald, lawyer representing ACE, provided an outline of submissions.

[9] The Commission conducted a conference by telephone on 1 March 2016. Mr Sweeney was present and represented by Mr O’Donnell and ACE was represented by Mr McDonald. Permission was granted pursuant to s.596(2)(a) and (c). This conference was recorded.

[10] Mr Sweeney provided the following information relevant to his extension of time application:

● he left Australia and travelled to Thailand on 11 December 2015;
● whilst he was in Thailand he had a smartphone capable of receiving emails but the wireless internet service at his hotel was problematic and he gave up trying to access his email on or about 15 December 2015;
● he first became aware of the termination letter on either 28 December 2015 (Form F2) or 30 December 2015 (written submission) or three days after his return to Australia (written submission);
● after becoming aware of his termination, Mr Sweeney contacted Mr Anthony in ACE accounts payable on two occasions between 4 and 6 January 2016. This contact primarily concerned the non-payment of commissions due to Mr Sweeney. Mr Sweeney also raised concerns about his dismissal and Mr Anthony told him he would have to take that up with someone more senior in ACE;
● on or about 11 January 2016, Mr Sweeney contacted his representative Mr O’Donnell who had been on leave over the Christmas period until that date;
● on 18 January 2016, the application was lodged by Mr O’Donnell; and
● Mr Sweeney asserts that he took “the earliest steps available given the Christmas period.”

[11] Mr Sweeney submitted that the unfair dismissal application was required to be lodged within 21 days from the date the dismissal took effect, but also submitted that the date upon which he became aware of the termination and the interaction with the holiday period should be considered as an extenuating circumstance.

[12] ACE provided the following information relevant to his extension of time application:

● the contract was terminated by letter dated 17 December 2015 and signed by Mr Chris Carey. The letter was sent by post and also by email by Mr Matt Quinlan NSW Agency Relationship Manager on the same day;
● as a result of the s.109X of the Corporations Act 2010 (Cth), the letter sent to Mr Sweeney terminated the contract on 17 December 2016, and that under the Electronic Transactions Act 1999 (Cth) the time of receipt of the email was the time it was available for download from the server;
● Mr Sweeney was not engaged as an employee; and Mr Sweeney’s circumstances do not constitute exceptional circumstances within the meaning of s.394 of the Act

[13] After the conference, Mr Sweeney provided a certified extract from his Passport to confirm his absence from Australia. The Passport extract indicated that Mr Sweeney left Thailand on 24 December and not 29 December as previously submitted. Mr Sweeney subsequently confirmed that he returned to Australia on 25 December 2015 and submitted that the holiday break prevented him from seeking advice until 29 December 2015.

[14] In light of the new information as to the date Mr Sweeney returned to Australia, the parties were invited to provide further submissions on the impact of the earlier date of arrival into Australia.

[15] Mr Sweeney’s representative submitted that the error as to the date Mr Sweeney returned to Australia was caused by representative error. No evidence as to how that error occurred was provided. I fail to see how the disparity in the date Mr Sweeney returned to Australia can be characterised as representative error. The Flight Centre itinerary was submitted in support of Mr Sweeney’s contention that he was absent from Australia until 30 December 2015 and did not receive the letter of termination until he returned. The disparity between Mr Sweeney’s original submission as to his date of return to Australia and the date he actually returned to Australia one week earlier, raises concerns as to the reliability of the evidence given by Mr Sweeney as to his inability to receive emails in Thailand. It also extends the period in which Mr Sweeney could have pursued his claim.

[16] I also note that Mr Sweeney’s representative provided revised submissions of the dates he met with Mr Sweeney and that these dates were inconsistent with the information provided to me at the earlier hearing.

[17] On the information before me, and taking into account Mr Sweeney’s credit, I am not convinced that Mr Sweeney did not have email access in Thailand and thus did not receive the termination letter by email. On that basis Mr Sweeney would have been aware of the termination on or about 17 December 2015, if I am wrong about that I find that Mr Sweeney was aware of the termination of his employment upon his return to Australia on 25 December 2015.

Date of termination

Section 394(2)(a) of the FW Act states:

“394(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

[18] I note that s.394(2)(a) does not require the employee to have actual knowledge of the dismissal in order for the dismissal to take effect. 1

[19] I find that the date of termination was the 17 December 2015.

Discretion to extend time

[20] Section 394(3) of the FW Act states:

“(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.”

[21] I have considered the provisions of s.394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd² 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).

[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.”

[22] Mr Sweeney submitted that the 21 day period commenced from the date he first became aware of the termination. In my view this position misunderstands the law, if that were the case then s.394(3)(b) would have no work to do. The time limit specified by s.393(2) commences from the date the dismissal took effect and all of the conduct following is relevant in the exercise of my discretion under s.394(3).

[23] With respect to his lack of knowledge of the termination until the receipt of the communication from ACE until 25 December 2015, I do not regard this circumstance as exceptional.

[24] I believe that Mr Sweeney was aware of the termination no later than 25 December 2015. Having become aware of the termination Mr Sweeney failed to take any action to contest the termination until he contacted his representative on 11 January 2015, some 17 days later.

[25] Mr Sweeney has not satisfactorily explained his lack of action in pursuing the matter between 25 December 2015 and 11 January 2016. Whilst Mr Sweeney asserts he took “the earliest steps available given the Christmas period,” he has failed to adequately explain why he took so long to lodge the application.

[26] There is no evidence that Mr Sweeney pursued the termination of his employment with Mr Carey, the decision maker and author of the termination letter, or Mr Quinlan who sent the termination email. Mr Sweeney only appears to have seriously pursued the non-payment of his commissions.

[27] Whilst the Commission was closed on the Public Holidays during the Christmas New Year period there was ample opportunity for Mr Sweeney to seek advice and/or lodge an application within the 21 day period and certainly well prior to the 18 January 2016.

[28] In my view, the duration of the delay does not favour a finding that an extension of time of this magnitude would prejudice ACE.

[29] In terms of the merits of the application, information which allows a definitive conclusion in this respect is not before me and I have regarded the merits of the application as a neutral factor relative to the extension of time issue.

[30] Considerations of fairness, relative to other persons in similar positions is not relevant in this matter.

[31] I have concluded that the material before me does not establish that Mr Sweeney’s circumstances can be regarded as exceptional so as to warrant an extension of time. The application will be dismissed on this basis and an Order PR577900 giving effect to this decision will be issued.

COMMISSIONER

Appearances:

B O’Donnell, with permission, for Mr Sweeney.

T McDonald of Moray & Agnew, with permission, for Ace Insurance Pty Ltd.

Hearing details:

2016

Adelaide
March 1.

 1   Weichers v Sodexo Remote Sites Australia Pty Ltd (2013) 229 IR 143

2 [2011] FWAFB 975

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