Melissa Fagone v Hilton Hotels of Australia Pty Ltd t/as Hilton Sydney

[2013] FWC 2513

[2013] FWC 2513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Melissa Fagone
v
Hilton Hotels of Australia Pty Ltd t/as Hilton Sydney
(U2012/16792)

DEPUTY PRESIDENT SAMS SYDNEY, 2 MAY 2013

Application for unfair dismissal remedy - whether application ‘out of time’ - ‘exceptional circumstances’ - reasons for delay - misinterpretation of the law - resignation of applicant - no ‘exceptional circumstances’ - prospects of success remote - application dismissed.

BACKGROUND

[1] Ms Melissa Fagone, (the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), claiming that she had been forced to resign (constructively dismissed) from her employment as a security officer with Hilton Hotels of Australia Pty Ltd t/as Hilton Sydney (the ‘respondent’). In her F2 application, she identified 21 December 2011 as the date of commencement of her employment and the date of her dismissal as 27 November 2012.

[2] The respondent has raised two jurisdictional objections to the application being further considered by the Fair Work Commission (the ‘Commission’) as to its merits. These objections are:

(a) The application was lodged with the Commission (at that time Fair Work Australia (FWA)) outside the then statutory time limit of 14 days (now 21 days, by virtue of the commencement of the Fair Work Amendment Act 2013 on 1 January 2013); and

(b) There was no termination of the applicant’s employment at the initiative of the employer. The applicant had resigned for personal reasons unrelated to her employment.

[3] These two objections sit comfortably within the four preliminary matters the Commission must decide, pursuant to s 396 of the Act, before considering the merits of the application. The relevant provisions are subsections (a) and (b) of s 396 and are expressed as follows:

‘396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.’

[4] For completeness ss 396(c) and (d) are not relevant to this application. The respondent employs over 500 employees and, accordingly, the Small Business Fair Dismissal Code obviously does not apply. There was no submission put that the applicant’s termination of employment was a case of genuine redundancy.

THE EVIDENCE

Applicant’s Evidence

[5] The evidence in this matter is relatively straightforward and uncomplicated. However, there is a factual contest about what was said at the time the applicant submitted her resignation. I will come back to this conflict of evidence shortly. The Commission was provided with a numerous email exchanges between the applicant and the respondent’s supervisors and managers and other employees. The applicant also relied in this case on a statement made in pursuance of a workers’ compensation claim. It appears the applicant provided to the Commission whatever material she had collected surrounding her employment, without due care as to its relevance or concern as to its capacity to cloud the real issues before the Commission. That is not necessarily to be critical of the applicant, but reflected the fact that she was largely operating as an unrepresented litigant; notwithstanding she claimed to have advice from a specialist HR person.

[6] In any event, I have decided to accept all of this material and have weeded out for myself, that which is irrelevant. I might not have otherwise done so, given the matter really concerns the discrete question of whether the application should be accepted as ‘out of time’. However, Mr P Ryan of the Australian Hotels Association (AHA) for the respondent, felt obliged to respond to the applicant’s claims of a forced resignation with evidence from the management involved at the time. This was a perfectly understandable course of action. Given that one of the elements to be taken into account under s 394 of the Act is the merits of the application, I am now in a much firmer position to make findings than I might otherwise be, on whether the applicant was forced to resign or did so willingly, without any pressure from the employer.

[7] Interestingly, the evidence also revealed that the applicant’s letter of resignation was actually amended at her request and according to her express wishes. It was addressed to Mr Dean Maka, the respondent’s Security Risk manager in these terms:

’27 November 2012

[Address Supplied]

Dear Dean

Notice of Resignation

I wish to formally notify you that I am resigning from my position as Safety and Security Officer with The Hilton Sydney, with immediate effect.

I served my last day of employment on the above date. I also kindly request that due to my personal circumstances, I be paid the final two (2) week notice period up until 11 December 2012, without actually working this period.

I can be contacted on [phone number supplied] if you require any further information.’

[8] On 4 December 2012, the applicant emailed Mr Maka, as follows:

‘I was wondering if you had a chance to speak with Kate in regards to my request.’

Mr Maka responded a few hours later:

‘Good evening Melissa,

I hope you and your family are well.

Despite your personal circumstances, unfortunately your request to be paid the required period of 4 weeks notice has been denied because you did not give or work the required notice period.

Please be aware that as you were a salaried EA team member and you failed to give or work the required 4 week notice period, the Hilton was actually in a position to withhold the 4 week period of notice from your final pay. However in light of your situation, we have elected to pay you out to your last shift including any outstanding annual leave.

This payout will be processed as part of the normal pay run.

Please let me know if you have any further questions or need anything else.

Best regards Melissa’

[9] On 12 December 2012 the applicant sent Mr Maka the following email:

‘Hi Dean,

As discussed in an email sent to me on Tuesday December 4th regarding my final pay, yourself and management have agreed to pay me my final shifts.

The Hilton Hotel has failed to do so. This is a final warning to the Hilton Hotel that if this pay is not rectified then further legal action will be taken against the Hilton Hotel

The Hilton Hotel has 7 days to comply.

Kind Regards

Melissa Fagone’

[10] All in all, it was the oral evidence of the witnesses, particularly that of the applicant, which elicited far more useful evidence which was of relevance to the issues to be determined in the case. For example, in oral evidence, the applicant claimed that Mr Maka had agreed to speak to Management as to whether her last day of employment would be 2 weeks after 27 November 2012 as per her request. She said the request was about ‘the outcome of my employment’ rather than the payment of 2 weeks’ pay in lieu of notice.

[11] In cross examination, the applicant said she understood the purpose of the present proceeding and what was required of her by way of directions issued by the Commission for the filing of evidence and submissions on the ‘out of time’ issue. She had also sought advice from someone at the Commission as to what she was required to do.

[12] Mr Ryan questioned the applicant on a three page statement she had signed on 14 March 2013. She acknowledged that nowhere in the statement did she address the reasons why her unfair dismissal application was filed late. This was because she believed it was not late and she wanted to deal with the facts and circumstances surrounding her ‘forced resignation’.

[13] Subsequently, the applicant briefly addressed the ‘out of time’ issue in her email of 9 February 2013 to the Commission. She said that if the 14 day limit is exclusive of weekends, then her application was made within 10 days. Even so, between 27 November and 11 December 2012 when she signed the application, there were exactly 14 days. Although the date stamp of FWA was 13 December 2012, she had never seen that date stamp before.

[14] Alternatively, the applicant claimed she was not aware of the ‘outcome of her employment’ until 4 December 2012, bringing the application back to within 10 days. She believed her employment was ‘pending’ because of a verbal agreement she had had with Mr Maka on 27 November 2012. This was despite her resignation being ‘effective immediately’ and that she had served her last day of employment that day.

[15] The applicant noted that the resignation letter was not typed by her and she was in a very emotional state that day. She had not been happy with the original wording and had insisted on changes. It now reflected ‘exactly how I wanted it written’.

[16] In oral evidence, the applicant claimed that Mr Maka led her to believe she would be able to withdraw her resignation. It was a verbal understanding that was not recorded anywhere else in the materials filed with the Commission. She said it was just ‘human nature’ that one cannot remember everything, notwithstanding her earlier evidence that her statement was true and correct.

[17] The applicant acknowledged that she did not return to work on any day subsequent to 27 November 2012. However, this was because she was waiting for Mr Maka’s response and she was suffering from anxiety and depression. She explained that she did not know she had to provide evidence of what had been said ‘word for word’ and had not expected Mr Maka to lie.

[18] The applicant denied she turned up to work on 27 November 2012 to resign. Rather, she wanted to know what her options were and Mr Maka advised her that the stress and bullying at work was not worth her mental health.

[19] The applicant denied that her request in the letter related solely to whether she would be paid 2 weeks’ notice. It was her understanding she could withdraw her resignation. The applicant said she posted her application on 11 December 2012 and added ‘Well the legislation does not say it has to be processed within 14 days, just the form had to be filled out within 14 days’.

[20] The applicant agreed with Mr Maka that she came to see him on 27 November 2012 after her boyfriend attempted suicide that morning. Nevertheless, she denied her boyfriend’s attempted suicide was the catalyst for her decision to resign. She had indicated to Mr Maka that her work commitments and personal pressure were too much. He had suggested it was not worth it. She did resign, but on the understanding she could withdraw it. She later told Mr Abdel El-Ayoubi and Mr Chris Hennekam that she had resigned for family reasons. She could not mention the workplace issues to them because of Hilton’s insistence on confidentiality in relation to workplace bullying investigations.

[21] The applicant acknowledged that after 27 November 2012 she took no action to contest her alleged dismissal. She had been seeking an ex gratia two week payment and outstanding wages. However, she did not regard that day as her last day of work.

Respondent’s evidence

Mr Abdel El-Ayoubi

[22] Mr El-Ayoubi was at the relevant time the respondent’s Safety and Security Officer. He deposed that on 27 November 2012 around 3pm he was working in the Hilton’s Fire Control Room when the applicant appeared at the door. Also present were Dean Maka and Chris Hennekam. The applicant said ‘Hello Dean can we have a talk in private?” Mr Maka and the applicant left the room and went to the office.

[23] A short time later they both returned and the applicant said:

‘Can you please contact Chris (Hennekam) as I have something to tell you.”

When Mr Hennekam returned, the applicant said ‘I want to let you know that I have just resigned effective immediately due to family reasons.’ Mr Hennekam gave her a hug and they said goodbye. Mr El-Ayoubi provided a statement to the Director of Human Resources, Kate Burgin, on 4 January 2013 in relatively similar terms to his evidence in this proceeding.

[24] In oral evidence, Mr El-Ayoubi agreed that on 27 November 2012 when he saw the applicant, she was upset. He was not aware there had been any issues between the applicant and another employee, Ms Moniquea Spiteri. In re-examination, Mr El-Ayoubi said that all of the information the applicant supplied on 27 November 2012, was volunteered by her. He had not sought, instigated or encouraged her resignation.

Mr Dean Maka

[25] Mr Maka’s version of the conversation with the applicant on 27 November 2012 was as follows:

I said:	“What’s wrong?’
She said:	“I’ve been having some personal issues at home. This morning, my boyfriend left me a note to say that he was committing suicide and went missing. I spent all morning looking for him. He is currently in hospital. With everything going on with family and work commitments and now this, the pressure is becoming too much and something has to give. I have come here today to resign. I felt it was more professional to do this in person rather than over the phone. I’m sorry for any inconvenience this will cause.”
I said:	“Don’t worry about that, try and concentrate on your commitments at home. Did you bring a written notice of resignation?”
She said:	“No. Can you help me prepare one? I would also like to be paid out my notice period without actually working.” ’

[26] Mr Maka said that he and the applicant then drafted her resignation letter together.

[27] In a second statement, Mr Maka dealt with a complaint by the applicant against Ms Spiteri which resulted in an investigation by the respondent in early November 2012. The investigation culminated in a meeting with the applicant on 26 November 2012 in which she was informed of the investigation’s outcome. The applicant refused to accept the outcome - which was that a small issue had ‘snowballed’ and all employees should be professional and courteous to each other - and she had wanted Ms Spiteri sacked. Her response was ‘This is bullshit. I’m sick of this process, it is a complete waste of fucking time’ and left the meeting.

[28] Mr Maka had waited for her to calm down and then asked her if she wanted to talk about it. Mr Maka was rebuffed, because he would not disclose to the applicant what, if any, disciplinary action had been taken by the Hotel against Ms Spiteri.

[29] Mr Maka denied that the applicant had ever said she had no choice but to resign because HR was not going to assist her. He further denied that she had requested to go with him to HR to discuss her request. Mr Maka added that he heard the applicant tell two other staff: ‘I’ve just resigned for family reasons.’

[30] In oral evidence, Mr Maka said the applicant had requested a change of the wording of her letter of resignation. It was his understanding that she had resigned her position that day, but insisted on being paid a notice period of two weeks, without actually working. There was no other arrangement or agreement about her employment. She did not turn up for work the next day or any subsequent day.

[31] Later, in cross examination, Mr Maka denied that the applicant had told him her boyfriend did not have to go to hospital as he was ok. He further denied she had mentioned her mental health issues related to work.

[32] Mr Maka was asked about the applicant’s meeting with management on 26 November 2012, the day before her resignation. He said he was unaware the applicant was suffering from anxiety and panic attacks. However, he was aware of ongoing issues between the applicant and Ms Spiteri.

SUBMISSIONS

For the applicant

[33] The applicant understood that the 14 days time limit did not relate to processing, but to the Form F2 just being filled out and sent. She claimed her HR advisor, Ms Theresa Chrysostomou had also understood this to be the case. The applicant also claimed that someone from the Commission told her that ‘as long as the form is within 14 days that’s fine’. The applicant claimed that at the time she did not know she was eligible to claim constructive dismissal or send her application via email.

For the respondent

[34] Mr Ryan submitted that even on the applicant’s own submissions, she had resigned on 27 November 2012 and her application was therefore filed 2 days late. He noted that the applicant bore the burden of satisfying the Commission that ‘exceptional circumstances’ exist for the discretion to be exercised by the Commission to extend the time for filing. He relied on Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975(‘Nulty’) as to the meaning of ‘exceptional circumstances’.

[35] Mr Ryan observed that the applicant claimed her application was not ‘out of time’ if one excludes ‘weekends’ and/or she was not aware that her employment had come to an end until 4 December 2012. Mr Ryan relied on Smith v KJM Contractors Pty Ltd [2010] FWA 5515(‘Smith v KJM Contractors’) as to ‘weekends’ not being included in the 14 day calculation.

[36] Mr Ryan rejected the claim that the applicant was not aware her employment had come to an end until 4 December 2012, describing it as disingenuous. He noted that the applicant had sought changes to the letter of resignation and it was in clear and unequivocal terms. He emphatically denied there was any verbal agreement that she could withdraw her resignation and Mr Maka’s evidence that there was no such agreement should be accepted. This allegation had only been raised on the day of the proceeding and had not been mentioned anywhere else, despite two opportunities to put on evidence being open to the applicant. All the applicant had sought was an ex gratia payment.

[37] Mr Ryan rejected the applicant’s claims of problems with Australia Post or alleged advice from an employee of the Commission. There was no supporting evidence for either proposition.

[38] Mr Ryan also rejected the applicant’s claim of ignorance of the law (See Mikhail v Ingram Micro Pty Ltd T/A IngramMicro [2012] FWA 4314 and Truong v Elawar & Sons Mechanical Repairs[2012] FWA 9709 and Nulty as being an ‘exceptional circumstance’.

[39] Mr Ryan submitted that there was not a skerrick of evidence of any acceptable reason for the delay. All of the applicant’s explanations were either misguided or failed to constitute circumstances that were out of the ordinary, unusual, special or uncommon.

[40] Mr Ryan said the applicant must have been aware that the termination of her employment was 27 November 2012. She did not turn up to work after this date. Nor did she take action to dispute her alleged dismissal with the respondent. Her only claims were for 2 weeks pay and alleged underpayments. Mr Ryan noted that the effective date of dismissal is not when an employee chooses to acknowledge the fact, but when it actually occurs (see Bryan v Coles Group Supply Chain Pty Ltd[2011] FWA 4493).

[41] As to the alleged verbal agreement with Mr Maka, Mr Ryan submitted that there was no reason to doubt the credibility of Mr Maka. He emphatically denied such an agreement was made. This was a case of the applicant attempting to rewrite history.

[42] Mr Ryan said there would be little or no prejudice to the respondent if the application was accepted, but noted that the absence of prejudice does not constitute an ‘exceptional circumstance’.

[43] As to the merits of the case, Mr Ryan put that there can be no doubt the applicant resigned in clear and unequivocal terms. She had redrafted her resignation letter to her satisfaction. Every document or form she completed indicated the date of her alleged dismissal was 27 November 2012. There was corroborating evidence that she had told others she was resigning for family reasons. It was the applicant herself who proffered the circumstances of her boyfriend’s attempted suicide.

[44] Mr Ryan said that even if the applicant could be said to have an arguable case that would not constitute an ‘exceptional circumstance’. Mr Ryan cited the various authorities which have considered the notion of constructive dismissal (see O’Meara v Stanley Works Pty Ltd [2006] AIRC 496, (‘O’Meara v Stanley Works Pty Ltd’).He put that if there was some validity to the applicant’s complaints against other staff, the matter had not been ignored. The conduct of the employer disclosed a willingness to investigate her complaints. There were mediation meetings. It was just that the applicant did not like the outcome.

[45] Finally, Mr Ryan submitted that the application should be dismissed.

[46] In reply, the applicant said that if this was a case about the reasons for her resignation she would have produced a ‘lot more evidence’. The mediation of her complaint was never finalised. However, she was aware that this stage of the case was only to determine the timing of the application.

CONSIDERATION

Was the application out of time?

[47] Section 394 (1) and (2) governs the time limits for the making of unfair dismissal applications. The sections are expressed as follows:

‘394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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).’

[48] The applicant maintained that her application was filed within 14 days of the date of her constructive dismissal and that it followed that no jurisdictional impediment arises.

[49] The applicant acknowledged that the date of her alleged constructive dismissal was 27 November 2012. The date she signed her F2 application was Tuesday 11 December 2012 - exactly 14 days later. However, the date the Commission received and stamped the application was 13 December 2012, making the application two days late.

[50] As I understand it, the applicant put at least 5 explanations for her view that her application for an unfair dismissal remedy was filed within time. Some were put with more enthusiasm than others. These were:

● The date she signed her application (11 December 2012) was the date the application was made by her;
● She had posted her application by ordinary mail on the same day (11 December 2012);
● Her application was within time, if weekends were not counted;
● Someone within the Commission had told her that her application would be ‘ok’ if it was sent that day; and
● Her employment was ‘pending’ until Mr Maka’s 4 December 2012 advice that this was not so.

I shall deal with each explanation in turn.

[51] Firstly, while accepting that the applicant was unrepresented and did not have the benefit of any legal advice, the plain, ordinary English meaning of the words in s 394(2)(a), ‘the application must be made’ are that the application must be made to the Commission. The words do not connote an intention that the section is referring to when the applicant prepares or makes the application by filling it out and signing it. So much so is plainly evident by the preceding section - s 394(1) - which makes it absolutely clear that a dismissed employee ‘may apply to the FWC’ for an order for an unfair dismissal remedy. It most certainly does not say - as the applicant contended - that this required only that the form be filled out within 14 days. If the applicant’s interpretation was accepted, it would produce the absurd result that dismissed employees could simply write any date on their application, as long as it was within 14 days (now 21 days), but not lodge or make their application to the Commission for many weeks or months later. This would undermine the principles of the statutory setting of time limits for certain things or actions to be done in Courts and Tribunals; See: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

[52] Secondly, there is an onus on parties to proceedings, particularly initiating parties, to ensure that all statutory time limits for the filing of applications are made within the specified period. This means allowing sufficient time for known contingencies, such as weekends or public holidays, so as not to run the risk that any delays may result in a failure to lodge within time.

[53] As Senior Deputy President Richards said in Smith v KJM Contractors:

‘[45] In all, I do not consider the circumstances that I have discussed and set out, and has been adduced through this evidence, generate exceptional circumstances such as the Act warrants. The external event of the Christmas period was not an unforeseen event. It is a generally known event. The Act makes no allowances for public holidays or weekends. Such public holidays must therefore be accommodated by a dismissed employee.

[46] As I said, the issue of the Christmas break was not unforeseen. It is an entirely predictable event which must reasonably be managed, and managed around, by all persons making applications, where their access to advice and other activity is curtailed or limited by public holidays and weekends.’

I respectfully agree with his Honour’s observations.

[54] In addition, it seems curious to me that all the applicant’s subsequent communications with the Commission (of which there were many) were by email, and not ordinary mail. How much more important was it to ensure compliance with statutory time periods for the initiation of her proceeding? The FWC website makes it easy and uncomplicated to file applications in the Commission.

[55] Thirdly, there is no file note anywhere in the file, of the applicant calling anyone at the Commission on or prior to 16 January 2013, let alone receiving advice that her application would be accepted ‘out of time’. No phone records, contemporaneous notes or the name of the persons she spoke to were produced.

[56] In my experience, FWC staff are vigilant and very cautious about what is said to parties over the phone. For good reasons, they keep file notes of every conversation. This is particularly so where the issue in doubt is the strict statutory time limits for filing applications. I very much doubt the applicant had any conversation with any person at the FWC about her application prior to its lodgement.

[57] For the forgoing reasons, I am unable to conclude that the application in this matter was filed within the statutory time limit of 14 days. This finding leads to the next question.

Were there exceptional circumstances for the delay in bringing this application?

[58] Section 394(3) of the Act provides the basis for the Commission’s consideration of whether an unfair dismissal application should be accepted outside the 14 day time limit set by s 394(2). Subsection (3) is as follows:

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”

[59] In Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251, the Full Bench said:

‘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.’ (See also Prasad v Alcatel-Lucent Australia Ltd[2011] FWAFB 1515).

[60] Rares J in Ho v Professional Services Review Committee No 295 [2007] FCA 388 said at paras [25]-[26], after citing a passage from R v Kelly (Edward) [2000] QB 198 drew a celestial analogy to make the point as to the meaning of ‘exceptional’:

‘And, in Baker v The Queen [2004] HCA 45; (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.’

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.’

[61] In Nulty, the Full Bench of FWA said at paras [13]-[14]:

‘[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.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.’

[62] I turn now to each of the matters in s 394(3) of the Act.

Reason(s) for the delay (s 394(3)(a))

[63] As the applicant insisted that her application for an unfair dismissal remedy was filed within time, it is hardly surprising that she advanced no reasons for the delay in filing her application. This was revealed in the following exchange:

‘You haven’t given any evidence of an acceptable reason as to why your application is late, have you? --- Because it wasn’t late.’

[64] However, that would do an injustice to the reasons she gave for filing her application when she did, which in some respects overlap with reasons related to delay. Notwithstanding that I see little merit in any of her earlier explanations, I am prepared to give her the benefit of the doubt and transpose these explanations as the reasons for her delay of 2 days in filing her application.

[65] Regrettably, however, from whatever angle I come at it, the same conclusion stands out. All of these explanations cannot withstand the scrutiny of being able to be characterised as ‘exceptional circumstances’ within the meaning of s 394 of the Act. The first three when viewed together, appear to constitute at least an ignorance of the law or, more properly its correct interpretation (See Nulty at para [14]). Such an explanation sits rather uncomfortably with the fact that the applicant claimed to have had HR advice from Ms Chrysostomou. It would seem odd to me that anyone in an HR advisory capacity would interpret the legislation so poorly and contrary to established principles and authorities.

[66] I have rejected the fourth explanation as to advice from the Commission. The fifth explanation concerning a conflict of evidence between the applicant and Mr Maka will be discussed shortly. However, even if that conflict is resolved in the applicant’s favour, it would not explain why she waited from 4 December to 11 December 2012 to file her application. For that intervening period there was simply no explanation at all.

Whether the person first became aware of the dismissal after it had taken effect (s 394(2)(b))

[67] For reasons I shall come to shortly, I do not accept there was any verbal agreement with Mr Maka that she could withdraw her resignation. Even taking the applicant’s evidence at its highest, her position was clarified in the email from Mr Maka on 4 December 2012, leaving, as I just said, an unexplained gap of 9 days. In any event, there could be no misunderstanding of the words in the letter ‘with immediate effect’ and ‘my last day of employment on the above date’. In my view, there can be no doubt the applicant knew her employment ended on 27 November 2012.

Any action taken by the person to dispute the dismissal (s 394(2)(c))

[68] There was no evidence that the applicant took any action to dispute her alleged dismissal until the application was filed on 13 December 2013. Her only action was to request a copy of her letter of resignation, and seek 2 weeks in lieu of notice and alleged statutory entitlements.

Prejudice to the employer (including prejudice caused by the delay) (s 394(2)(d))

[69] Aside from the usual prejudice to the employer of defending the merits of a dismissal, there is little prejudice to the employer in this case, particularly as a second jurisdictional objection had already been prepared and argued.

The merits of the application (s 394(2)(e))

[70] I will come back to the merits of the case shortly.

Fairness as between the person and other persons in a similar position (s 394(2)(f))

[71] There was no evidence of any unfairness to the applicant when compared to any other person who had resigned in similar circumstances. Indeed the better view is that the respondent took an entirely sympathetic and understanding approach to the applicant’s personal circumstances.

Merits of the application

[72] At this stage of the proceeding, the Commission has obviously not been presented with a full merits case. In those circumstances, I will not cite the relevant authorities dealing with the notion of ‘constructive dismissal.’ Those principles of course, encapsulate the proposition of a termination of employment at the employer’s initiative, a forced resignation or a resignation brought about by the conduct of the employer; See: Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 645 and O’Meara v Stanley Works.

[73] Nevertheless, in this matter I have had the benefit of a significant amount of evidence and material as to what occurred on 27 November 2012. In my opinion, there cannot be a skerrick of doubt that the letter of resignation effective that day, terminated the applicant’s employment with the respondent. There is no actual or implied suggestion that she had been forced to resign, or that the conduct of the employer evinced an intention that it sought her resignation. Indeed, she had successfully sought to have the wording of the letter changed to how she wanted it.

[74] The uncontested evidence of Mr Maka and Mr El-Ayoubi was that the applicant had told them and Mr Hennekam that she had resigned for family reasons. There was no doubt she was under some stress and anguish that day, if it was true that her boyfriend had attempted suicide. Rather than being dismissive or uncaring, Mr Maka was sympathetic and supportive as demonstrated by her own email to him the next day. It was in these terms:

‘Thank you for being so supportive Dean. Let me know the result of my request and I will be in next week to drop off my ID. I wish you success in your role.’

In any event, these outside of work circumstances were entirely consistent with what she had said about the reasons for her resignation.

[75] It must be stressed that the plain, ordinary meaning of the termination letter does not permit any qualification or impute any ‘pending’ status of her employment. Its language was clear and unequivocal. The fact that she had sought an ex gratia payment of two weeks pay in lieu of notice was nothing more than an attempt to extract further monies from the respondent to which she was not entitled as a matter of law. There is nothing necessarily wrong or sinister about that request, but to suggest that it somehow put her employment ‘on hold’ or her employment was ‘pending’ until she received an answer was misconceived and wrong. As was said by Wilcox CJ in Siagian v Sanel Pty Ltd (1994) 122 ALR 333 at page 355:

‘It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase “payment in lieu of notice”; it accords with common sense. An employer who wishes to terminate an employee’s services, and is prepared to pay out a period of notice without requiring the employee to work, will surely wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment related costs, such as workers’ compensation insurance, payroll tax, liability for leave payments etc. The employer also incurs the risk that some new burden will be imposed in respect of the employment during the period.’

[76] In addition, the applicant’s subsequent conduct in not turning up for work the next day, or any time subsequent, plainly demonstrates that she knew her employment had come to an end. Indeed, why would she offer to come in the next week to drop off her ID if she thought her employment was ‘on hold’ or ‘pending’ (see para [73])?

[77] More seriously, however, the applicant for the first time in these proceeding on 4 April 2013, claimed that she had a verbal agreement with Mr Maka that she could withdraw her resignation. Nowhere in any document or other material sent to the Commission is this assertion ever mentioned or even hinted at. Her explanation was that she could not remember every detail at the time and it was only when she was giving evidence that it had come back to her. Mr Maka, on the other hand, strongly denied that any such verbal agreement was reached with him. It should be noted that I hardly think Mr Maka would have been in any position of authority to make such a verbal agreement, without first clearing it with someone in HR. Moreover, there was not a scintilla of evidence that the applicant had ever mentioned to anyone that such an agreement was made.

[78] Given the applicant’s insistence on altering her letter of resignation to her satisfaction (and Mr Maka’s agreement to do so) and presumably to ensure that nothing was left to chance or unsaid, it beggars belief that an agreement to withdraw her resignation was not included in the letter and not recorded by the applicant in any document until giving her evidence in the proceeding. After all, this was no insignificant matter. It could fundamentally reverse the resignation, and on her evidence, was an agreement about her future employment. To submit she just could not remember everything until giving evidence, was utterly unbelievable and disingenuous nonsense. I suspect that she only came up with this alleged verbal agreement when coming to grips with how to rebut the overwhelming preponderance of evidence against a conclusion of ‘forced resignation’.

[79] That said, far from being a ‘shrinking violet’, the applicant presented as a confident, well rehearsed and argumentative advocate (including with me) as to the merits of her case. It should also be remembered that she had had the benefit of advice and support of a HR Advisor, Ms Theresa Chrysostomou who had actually filed a Notice of Commencing to Act on her behalf, but did not appear in the proceeding. However, Ms Chrysostomou had filed most of the documentary material on the applicant’s behalf.

[80] To make myself clear, on the conflict of evidence as to a verbal agreement with Mr Maka that the applicant could withdraw her letter of resignation, I prefer Mr Maka’s version of events over that of the applicant. I agree with Mr Ryan that this was a crude attempt by the applicant to recreate history. Regrettably, it reflects very poorly on her judgement and credibility.

[81] Accordingly, I find that the applicant’s prospects of success with her substantive case to be extremely remote.

[82] In summary then, the applicant has provided no explanation - let alone a reasonable one - as to the reasons for the delay in filing her unfair dismissal application outside the 14 day time limit then required by s 394(2) of the Act. In taking into account all of the criteria in s 394(3) of the Act, there is no basis for any conclusion that ‘exceptional circumstances’ in this case warrant the Commission extending the time for such filing. In these circumstances the substantive application must be dismissed. An order to that affect will be issued separately, but in conjunction with this decision.

DEPUTY PRESIDENT

Appearances:

M. Fagone on her own behalf.

P. Ryan for the Australian Hotels Association for the respondent.

Hearing details:

2013.

Sydney:

1 March.

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