Matthew Kelly v Ceramic Distributors Pty Ltd T/A Imported Ceramics

[2017] FWC 6421

[2017] FWC 6421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Matthew Kelly

v

Ceramic Distributors Pty Ltd T/A Imported Ceramics

(U2017/9552)

Commissioner Platt ADELAIDE, 5 DECEMBER 2017

Application for relief from unfair dismissal – extension of time – employee not aware of dismissal at the time – extension granted. 

1. Mr Kelly has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Ceramic Distributors Pty Ltd T/A Imported Ceramics (Imported Ceramics) which his form F2 Unfair Dismissal Application advised took effect on 10 August 2017.

1. The application was lodged on 31 August 2017.

1. Mr Kelly’s application did not recognise that it was made beyond 21 days from the date of dismissal.

1. On 13 October 2017, Imported Ceramics lodged a form F3 Employer Response which indicated that Mr Kelly was notified of the dismissal ‘Early August 2017 (But this was placed on hold – pending investigations)’ with the dismissal taking effect on 9 August 2017. The form F3 Employer Response did not raise any jurisdictional objection. On 10 November 2017, Imported Ceramics lodged a form F4 Objection to Unfair Dismissal Application and raised a jurisdictional objection on the basis that the application was lodged out of time. 

1. On 17 November 2017, my Associate corresponded with Mr Kelly and Imported Ceramics and advised that the extension of time issue would be considered at a telephone conference on 1 December 2017. 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. Mr Kelly was directed to provide a statement concerning the extension of time and any documents to be relied upon by 24 November 2017. Imported Ceramics was invited to file any material in reply by 29 November 2017.

1. It is not in dispute that on Friday 28 July 2017 Mr Kelly met with Mr Barry Ryan and Mr Mark Ryan where his employment was dismissed on the basis of performance grounds.

1. The parties provided copies of the written correspondence between them. The correspondence canvasses most of the facts relevant to my decision. The correspondence is summarised as follows:

·On Sunday 30 July 2017, Mr Kelly wrote an email to Mr Barry Ryan apologising for his performance, reflecting on the positives he brought to the business and concluded with a comment that he was sorry about how it ended and wished things could have turned out differently.

·At 11.11am on 1 August 2017, Mr Barry Ryan emailed Mr Kelly thanked him for his email and wished him well for the future.

·At 9.49am on Wednesday 2 August 2017, Mr Kelly emailed Mr Barry Ryan and, having become aware of the impact of the dismissal on his Visa, sought to have a conversation about the matter.

·At 10.53am on 2 August 2017, Mr Barry Ryan emailed Mr Kelly and advised that his email had been forwarded to Ms Jenni Foster (Payroll Manager) to investigate how the company could assist in maintaining his Visa.

·At 2.03pm Mr Kelly again emailed Mr Barry Ryan advising him that the cancellation of his Visa would mean he would have to leave the country within 30 days and pleaded for another chance.

·At 3.10pm Mr Barry Ryan responded copying in Ms Jenni Foster and stated ‘Hi Mathew (sic), I am going to Sydney on Friday back next Wednesday, I will consider your proposal over the next couple of days and get back to you early next week, in the mean time I have instructed Jenni to hold your termination notification and to process just the one week of ordinary pay for this week.’

·On 11 August 2017, Ms Jenni Foster (Payroll Manager) signed a Centrelink Employment Separation Certificate which indicated that Mr Kelly’s employment ceased on 9 August 2017 and that he had been paid 3 weeks’ pay in lieu of notice and his leave entitlements on 11 August 2017.

·At 10.02am on 11 August 2017, Mr Kelly emailed Mr Barry Ryan and said ‘I can see from my wages that you have paid me out. Just want to say thanks for considering it.’

·At 11.55am on 11 August 2017 Mr Barry Ryan advised Mr Kelly by email as follows ‘Hi Mathew (sic), Sorry I didn’t get back to you yesterday I got tied up with other issues. I did reflect and considered your request however I believe I have made the correct decision for the Company. Trust all works out for you in the future.’

1. Mr Kelly provided a written submission which is summarised as follows:

·His termination was confirmed via email from Mr Barry Ryan on 11 August 2017.

·He only became aware that his employment had been terminated when he received his wages, as the amount was larger than usual.

1. Imported Ceramics provided material which is relevantly summarised as follows:

·Mr Kelly was terminated on 28 July 2017, Mr Kelly, Mr Barry Ryan and Mr Mark Ryan were in attendance.

·Mr Kelly’s email dated 30 July 2017 acknowledged his termination.

·Mr Ryan’s email dated 1 August 2017 acknowledged Mr Kelly’s termination.

·Mr Kelly was paid all entitlements including annual leave and 3 weeks’ pay in lieu of notice in the following pay period on 9 August 2017.

1. The matter was listed for hearing by way of telephone conference on 1 December 2017. Ms Jenni Foster and Mr Mark Ryan dialled in to the telephone conference. Mr Kelly did not dial in and could not be contacted. The hearing was adjourned to 1.30pm (AWST) to allow Mr Barry Ryan to dial in to the conference and to give Mr Kelly an opportunity to attend. At 1.30pm, Mr Kelly represented himself and Ms Jenni Foster, Mr Mark Ryan and Mr Barry Ryan represented Imported Ceramics. A sound file record of the telephone conference was kept.

1. Mr Kelly gave evidence at the hearing, his position is summarised as follows:

·On Friday 28 July 2017, Mr Kelly met with Mr Barry Ryan and Mr Mark Ryan where his employment was dismissed for performance grounds.

·Imported Ceramics agreed to review his dismissal.

·On 11 August 2017, Mr Kelly saw his employer had deposited more funds than was expected in his back account.

·He was not formally advised of the decision to reject his review request until 11 August 2017.

·He lodged his application within 21 days from 11 August 2017.

1. Imported Ceramics relied on its submissions and further contended:

·It did not withdraw the decision to dismiss but determined not to change it.

·The dismissal occurred on 28 July 2017.

·The application was made late.

·The reference to 9 August 2017 on the Centrelink Employment Separation Certificate was an error.

·No exceptional circumstances exist.

1. The key factual dispute to be determined in this matter is the date when the dismissal took effect and when Mr Kelly became aware of it.

1. Whilst it is clear that on 28 July 2017 Imported Ceramics advised Mr Kelly that he would be dismissed with 3 weeks’ notice, Mr Kelly sought a reconsideration of that decision and on 2 August 2017 Mr Barry Ryan agreed not to proceed with the dismissal pending his review. This had the effect of undoing the 28 July 2017 dismissal. That Imported Ceramics determined not to proceed with the 28 July 2017 dismissal is evident from the email by Mr Barry Ryan at 3.10pm on 2 August 2017, the instruction to the Payroll Manager to pay one weeks’ pay, as opposed to the 3 weeks’ notice in lieu and entitlements, and the date of termination recorded on the Centrelink Employment Separation Certificate.

1. Whilst Imported Ceramic did not formally advise Mr Kelly as to the outcome of Mr Ryan’s review until 11 August 2017, I find that Mr Kelly was dismissed on 9 August 2017 (as per the Centrelink Employment Separation Certificate). I infer that as a result of an instruction given on that date, Mr Kelly was paid his outstanding entitlements and received the same on 10 August 2017.

1. This unfair dismissal application by Mr Kelly was made 1 day outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

1. Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(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).

(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.”

1. 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[1] 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.”

1. I make the following findings.

1. I find that Mr Kelly sought a review of the original decision to dismiss him on 2 August 2017.

1. I find that Mr Kelly did not become aware of the final dismissal decision until 11 August 2017 when he received his final pay and confirmed his understanding that his employment had come to an end via email.

1. Mr Kelly lodged his application within 21 days from him becoming aware of the dismissal.

1. The applicant needs to provide a credible explanation for the entire period of the delay,[2] and has done so.

1. There is no submission that the granting of an extension of time represents prejudice to Imported Ceramics.

1. In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.

1. Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

1. For the reasons I have set out above, I am satisfied that Mr Kelly’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted and the application will accordingly be referred to an alternative member of the Commission for determination of the merits. An Order[3] reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Mr M.Kelly the Applicant.

Mr B.Ryan on behalf of the Respondent.

Hearing (Conference) details:

2017.
Adelaide:
December 1.

[1] [2011] FWAFB 975

[2] Cheval Properties Pty Ltd t/as Penrith Hotel v Smither (2010) 197 IR 403

[3] PR598326

Printed by authority of the Commonwealth Government Printer

<Price code C, PR598325>