Mitchell Curtis v Suncorp Staff Pty Ltd

[2015] FWC 7380

[2015] FWC 7380

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mitchell Curtis
v
Suncorp Staff Pty Ltd
(U2015/8639)

COMMISSIONER JOHNS SYDNEY, 26 OCTOBER 2015

Application for relief from unfair dismissal.

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an Applicant for an unfair dismissal remedy made pursuant to section 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This decision is about whether the Commission should allow Mitchell Curtis (Applicant) a further period for lodgement of his application for an unfair dismissal remedy in circumstances where his completed application was lodged on 19 June 2015, that being 60 days after his employment was purported to be terminated by Suncorp Staff Pty Ltd (Respondent) on 20 April 2015.

The jurisdictional objection

[3] On 1 July 2015 the Respondent indicated its objection to the Commission exercising its jurisdiction to deal with the application because it was lodged later than the 21 days after the dismissal took effect. If, as the Respondent contends, the employment relationship ended on 20 April 2015, the Applicant’s application for an unfair dismissal remedy was 39 days out of time.

Legislative scheme

[4] Relevant to the Commission considering whether an extension of time to lodge the application should be granted is s 394(3) of the FW Act:

“(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.”

[5] Section 394(3) of the FW Act states that the Commission may allow a further period to lodge an application provided there are “exceptional circumstances” taking into account the five nominated criteria. The principles are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group. 3 In that matter the Full Bench held the following in relation to “exceptional circumstances”:

[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.  4

Facts either agreed or not otherwise contested

[6] On 5 September 2011 the Applicant commenced employment with the Respondent. He was employed as a Personal Assist Consultant and, at the time his employment was terminated he earned $46,029.00. 5

[7] It is a requirement of all employees of the Respondent that they comply with internal policies and procedures including those relating to personal/carer’s leave. 6 The relevant policy provides that:

“An employee should advise their leader, or another person nominated by the leader, of their intent to take personal/carer’s leave and the estimated period of absence at least one hour before their scheduled start time or as soon as practicable. In some instances this may be after the leave has started.

…

Evidence supporting a claim for paid personal/carer’s may be required…”

[8] On 12 February 2014 the Applicant received a first written warning in relation to on-going poor performance issues. One of the issues that gave rise to the first written warning was the Applicant’s failure to properly notify his team leader about unplanned absences in January 2014. 7
[9] On 14 July 2015 the Applicant received a second and final warning again relating to his performance. That warning was not in respect of unplanned absences. 8

[10] On 23 January 2015 the Applicant received a third and final warning substantially in relation to his failure to call his team leader and notify the Respondent of his intention to take personal leave. 9 The Respondent identified a number of dates in November 2014 and December 2014 when the Applicant sent a text message to a colleague (rather than his team leader) or simply failed to contact the team leader at all. The Applicant was expressly advised that:

“Should there be no immediate and sustained improvement in your performance, or should you engage any further unacceptable conduct, further discipline action may be taken, up to and including the termination of your employment.”

[11] Between 17 February 2015 and 20 April 2015 the Applicant was ill. On nearly every day in that period the Applicant obtained a medical certificate. 10 However, he did not provide any of them to his employer.

[12] On 9 March 2015 at 2:20 pm the Applicant sent an email to his team leader, Kelly Preston; he wrote,

“I called four times this morning but nobody picked up the phone as I was calling in sick.
I could not call again as I ran out of credit but as it is the only way I could contact you thought I would send through a email at least.” 11

[13] The Applicant re-sent the above email to Ms Preston at 7:19pm, further explaining that:

“I will not be in tomorrow as I am sick could you please call me tomorrow as I cannot call in sick and I can give you an update.”

[14] On 10 March 2015 the Applicant sent an email to Ms Preston in which he wrote,

“Just letting you know I will not be in today as I am still sick.
I am out of credit so I can’t call in but if you could call me later that would be great so I can give you [an] update.
I will see if there is a pay phone around my area so I can call in at some stage today.” 12

[15] At all times the Applicant sent his emails from an Australian “.au” Hotmail account.

[16] The Applicant made no contact with the Respondent for a large part of the remainder of March 2015.

[17] Between 11 March 2015 and 30 March 2015 the Respondent made various attempts to contact the Applicant by phone and letter. In particular it sent a letter to him on:

a) 18 March 2015 about his personal leave obligations. However, the letter was never collected;
b) 25 March 2015 about abandonment of employment. However, the letter was never collected; and
c) 30 March 2015 again about abandonment of employment and providing him with a final opportunity to contact the Respondent about his unauthorised absences from work. The letter detailed the attempts made to contact the Applicant by email, telephone and post. He was advised that he had until 3:00pm on 2 April 2015 to make contact with Anastasia Alexopoulos (the manager of the Respondent’s Claims Assist).

[18] On both 30 March 2015 and 31 March 2015 the Applicant made contact with the Respondent and advised that he was not fit for work until 2 April 2015. However, he did not speak to his team leader but rather communicated the information to a claims consultant who sent an email to the Respondent’s Operations Manager, Brendan Vandertuin, and Ms Preston about the same.

[19] On 1 April 2015, in response to that contact from the Applicant, the Respondent again wrote to him and directed him to provide it medical evidence to support his absences since 17 February 2015.

[20] On 1 April 2015 the Applicant again called in sick. He advised another Claims Assistant that he had a medical certificate for the whole week and he would be back on 7 April 2015. He advised that he was “calling from a person’s phone in his building.” This information was provided to Ms Preston and Ms Alexopoulos.

[21] On 7 April 2015 the Applicant again called in sick. He spoke with a Team Leader, advising her that he was sick and he had a medical certificate for the day. This information was provided to Ms Preston and Mr Vandertuin.

[22] On 7 April 2015 Ms Alexopoulos attempted to contact the Applicant in the afternoon and discovered that his phone had been disconnected. This information was shared with Ms Preston and Mr Vandertuin.

[23] No contact was made by the Applicant between 7 April 2015 and 13 April 2015. Neither did any representatives of the Respondent attempt to contact the Applicant in this period.

[24] On 13 April 2015 the Respondent wrote to the Applicant directing him to attend a meeting on 15 April 2015. The letter was sent by email and registered post, but the Respondent concedes that the email bounced back. The notice of meeting was again sent by email on 14 April 2015 to a Gmail account for the Applicant.

[25] The Applicant made no contact with the Respondent between 13 April 2015 and 20 April 2015 when, on that date, the Respondent sent a letter to the Applicant terminating his employment. The letter of termination was sent to a Gmail account for the Applicant and also an incorrect Hotmail account (i.e. not a “.au” Hotmail account).

[26] The Applicant made no further attempts to contact the Respondent until 1 June 2015 when he phoned Mr Vandertuin. Mr Vandertuin responded by text message informing the Applicant that his employment had been terminated on 20 April 2015. 13 This is the date that the Applicant says he first became aware of the termination of his employment.

[27] On 11 June 2015 the Applicant sent an email to Ms Alexopoulos complaining about the termination of his employment and explaining the dire health and financial circumstances that he had been experiencing. Ms Alexopoulos replied indicating that the termination of the Applicant’s employment would stand.

[28] All correspondence sent by the Respondent to the Applicant was sent to him by post (in East Melbourne) and email (a Gmail account), both being addresses that he had listed as his contact addresses in the Respondent’s “Our People Space” (OPS) personnel system. 14 The letter of termination was sent by pre-paid post, not registered post.15

[29] However, it was the evidence of the Applicant that he does not use the Gmail account 16 and that he had not lived at the East Melbourne address since mid-2014.17

When did the termination of the Applicant’s employment occur?

[30] On 19 June 2015 the Applicant filed his application for an unfair dismissal remedy, that day being:

a) 18 days after the Applicant says he became aware, on 1 June 2015, that his employment had been terminated; and
b) 60 days after his employment was purportedly terminated by the Respondent on 20 April 2015.

[31] There is, therefore, some import to be attached to the date that the dismissal took effect. If the Applicant is correct, then his application for an unfair dismissal remedy is not out of time. If the Respondent is correct then the application is 39 days out of time and it is necessary to further consider each of the elements of section 394(3) of the FW Act.

[32] It is well established that a dismissal does not take effect unless and until it is communicated to the employee who is dismissed. 18

[33] In Wilson v Australian Taxation Office 19 a Full Bench found that:

“Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of termination to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to the general proposition. It may be that, in some circumstances, the termination is effective when is communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee.” 20

[34] There is no evidence in the present matter to suggest that the Applicant was deliberately avoiding receipt of the letter of termination.

[35] In essence the Respondent submits that the Applicant should be deemed to have received the letter of termination on or soon after 20 April 2015. The Respondent points to the notes under section 117(1) of the FW Act:

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.

[36] The Respondent submits that the Applicant should be deemed to have received the letter of termination on or soon after 20 April 2015 because it was sent by prepaid post to his last known address. 21

[37] However, in the present matter it is evident (from the trail of communication between the parties) that, at the time the Respondent sent the letter of termination on 20 April 2015, the Respondent was aware that:

a) the Applicant had been making attempts to communicate about illness (albeit intermittently) up until 7 April 2015;
b) in circumstances where the Applicant had not attended for work since 17 February 2015, whatever medical condition the Applicant had, it was most likely serious;
c) correspondence posted to the Applicant’s street address on the OPS system had not been collected on previous occasions when he was sent by registered post;
d) it had not received email correspondence from the Applicant from his Gmail account in recent times; and
e) at least from 9 March 2015, the Applicant was using a Hotmail account with an “.au” suffix.

[38] Notwithstanding all of the matters referred to above that the Respondent must been aware of on 20 April 2015, on that day it sent the letter of termination:

a) by ordinary post to an address that the Applicant had previously failed to collect mail from;
b) to a Gmail email account that it had not recently received any email from (i.e. from the Applicant); and
c) to a Hotmail email account without the “.au” suffix.

[39] The unchallenged evidence of the Applicant is that he never received the letter of termination dated 20 April 2015. There is no evidence from the Respondent that establishes the Applicant did actually receive the letter of termination.

[40] The home address used by the Applicant in his application for an unfair dismissal remedy is different to the residential address to which the Respondent sent the letter of termination. The Applicant presented as an honest person and I accept his evidence that he had not lived at the East Melbourne address since mid-2014. Of course the Applicant should have notified his employer of his change of address. But his failure to do so does not change a finding that the Applicant did not receive the letter of termination by post. Deeming that the letter of termination was served on the Applicant at his last known address on or soon after 20 April 2015 does not equate to the termination being communicated to the Applicant.

[41] I further find that the Applicant did not receive the letter of termination by email by reason that:

a) he was not using a Gmail email account (there is no evidence to prove that he was using his Gmail account); and
b) the Hotmail email account to which the Respondent sent the letter of termination was clearly wrong.

[42] Accordingly, it necessarily follows that the termination of the Applicant’s employment was not communicated to him and it did not take effect on 20 April 2015.

[43] Rather, the Applicant only became aware of the termination of his employment on 1 June 2015. There is no evidence to contradict the evidence of the Applicant that he only found out about the termination of his employment on 1 June 2015. The Respondent can point to no evidence that the Applicant must have known about the termination of his employment on or sometime after 20 April 2015. The Respondent’s case relies entirely upon it being deemed that the Applicant had the termination communicated to him on 20 April 2015.

[44] Consequently, it also necessarily follows that when the Applicant filed his application for an unfair dismissal remedy on 19 June 2015 it was not out of time. The Applicant’s application for unfair dismissal remedy should, therefore, be allowed to proceed on this basis.

Out of Time Consideration
[45] However, even if I am wrong about when the termination of the Applicant’s employment took effect, I would allow his application for an unfair dismissal remedy to proceed on the basis that there are exceptional circumstances to do so having regard to the following application of s.394(3) of FW Act.

Paragraph 394(3)(a) - The reason for the delay

[46] If it is accepted that there were 60 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission then, in essence the reason for delay advanced by the Applicant is the dire medical situation in which he found himself.

[47] It is beyond contention that at least between 17 February 2015 and 20 April 2015 the Applicant was ill. On nearly every day in that period the Applicant obtained a medical certificate. 22 The Applicant says he continued to be sick after 20 April 2015 and he continued to obtain medical certificates in respect same. However, he did not produce them to the Commission because he was not aware that he was required to do so. There was nothing in the demeanour of the Applicant that causes me to conclude that he was not telling the truth. It seems, more likely than not, that his regular practice of obtaining medical certificates in the period 17 February 2015 and 20 April 2015 continued after that date.

[48] The medical certificates do not disclose the nature of the Applicant’s illness but clearly for in an extended period of time the Applicant was ill and medical practitioners were prepared to attest to the same. The Applicant’s evidence is that he was subsequently diagnosed with irritable bowel syndrome. The Commission, as presently constituted, takes judicial notice of the debilitating nature of that syndrome.

[49] An illness over such an extended period of time is, by any account, properly to be considered out of the ordinary course, unusual, special, or uncommon. It is an exceptional circumstance which weighs in favour of the Applicant being granted an extension of time.

Paragraph 394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[50] It is uncontested that the Applicant first became aware of the dismissal on 1 June 2015. There is no evidence that he actually became aware of the dismissal at any earlier time. It could only be said that the Applicant became aware of it on or soon after 20 April 2015 if it is deemed that he became aware of it on that date.

[51] The Applicant then filed his application for an unfair dismissal remedy on 19 June 2015. This factor weighs in favour of granting the Applicant and extension of time

Paragraph 394(3)(c) - Any action taken by the person to dispute the dismissal

[52] On learning of the termination of his employment on 1 June 2015 the Applicant wrote an email to the Respondent explaining the exceptional circumstances of his medical condition and dire financial situation.

[53] When his plea for reinstatement was rejected on 19 June 2015 he filed his application for an unfair dismissal remedy.

[54] The action taken by the Applicant weighs in favour of granting him a further period to make his application.

Paragraph 394(3)(d) - Prejudice to the employer (including prejudice caused by the delay)

[55] In its submissions the Respondent asserts prejudice associated with the considerable time and expense that it has already occurred in responding to what it considers to be a claim without merit. There is nothing in the submissions made by the Respondent to establish that it would suffer any prejudice other than the usual prejudice that arises out of the passage of time.

[56] The prejudice asserted by the Respondent is a neutral factor in considering whether to grant the Applicant a further period to make his application.

Paragraph 394(3)(e) - The merits of the application

[57] In the matter of Kornicki v Telstra-Network Technology Group 23the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

“The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the Applicant to establish that the substantive application was not without merit.” 24

[58] The Commission, as presently constituted, adopts this reasoning of the Full Bench of the former Commission in relation to the consideration of merits.

[59] Therefore, consistent with the accepted practice in jurisdictional hearings I will not embark upon a detailed consideration of the substantive case. In a jurisdictional hearing the Commission is not in a position to make findings of fact on contested issues. That is an assignment to be undertaken by the Commission during the substantive hearing.

[60] The substantive factual contest between the Applicant and the Respondent is whether there was a valid reason for the termination of the Applicant’s employment by reason of his failure to comply with directions about providing the Respondent with notice of his unplanned absences and his failure to comply with directions to provide medical certificates. Looking at the chronology of events the Applicant’s conduct is truly extraordinary and demonstrates a complete disregard for the legitimate interest of his employer to know about when he would attend for work and the likely duration of absences when he could not. On those occasions when the Applicant did contact the Respondent he should have been at pains to provide information to his employer about his situation. Even if one accepts the evidence of the Applicant about the nature of his illness, it is difficult to understand how neither he nor a family member or a friend or his treating doctors could not have made more regular contact with the Respondent and provided more substantial information about the Applicant’s medical condition.

[61] On the material before me, more likely than not, the Respondent had a valid reason for termination of employment, even in the face of the Applicant’s medical condition. He was not sacked because of his medical condition; his employment was terminated because of his failure to properly notify his employer about his absences and the long periods when the Applicant made no attempt at all to contact his employer. On the material before me, his failure to do so was unacceptable.

[62] However, at a proper hearing of the merits of the claim, the Applicant might be able to establish through proper medical evidence why his medical condition debilitated his ability to make contact with his employer.

[63] For present purposes, the Commission, as presently constituted, is satisfied that the Applicant’s case is not one that is without merit or lacking in any substance.

[64] If the Applicant can establish to the satisfaction of the Commission that he was truly debilitated and in financial circumstances which made it impossible for him to make contact with his employer, then he may well be able to establish that the termination of his employment was harsh, unjust or unreasonable. It would be open to the Commission, after considering each of the elements of section 387 of the FW Act, to find that the termination of the Applicant’s employment was unfair.

[65] That the Applicant’s case is not without merit or lacking in any substance weighs in favour of granting him a further period to make his application.

Paragraph 394(3)(f) - Fairness as between the person and other persons in a similar position

[66] This is not a relevant factor.

Conclusion

[67] For the reasons set out above, the Commission, as presently constituted, finds that:

a) the Applicant’s application for an unfair dismissal remedy is not out of time but that, in any case
b) on balance, it is satisfied that there are exceptional circumstances warranting the Applicant being allowed a further period for his application to be made (i.e. being granted an extension of time to lodge his application).

[68] The matter will now be referred to the Unfair Dismissals Case Management Team for further programming. An Order to this effect will be issued with this Decision.

COMMISSIONER

Appearances:

M Curtis for himself.

A Frieberg (internal ER advisor) for the Respondent.

Hearing details:

2015.

4 September.

Melbourne.

 1 Section 394(2)(a) FW Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2 Section 394(3) FW Act.

 3 [2011] 203 IR 1.

 4 Above note at [13].

 5   Form F3 – Employer Response to Unfair Dismissal Application.

 6   Exhibit “R2”, witness statement of Anastasia Alexopoulos, paragraph 4.

 7   Exhibit “R2”, witness statement of Anastasia Alexopoulos, paragraph 7.

 8   Exhibit “R2”, witness statement of Anastasia Alexopoulos, paragraph 8.

 9   Exhibit “R2”, witness statement of Anastasia Alexopoulos, paragraph 9.

 10   Exhibit "A3".

 11   Exhibit "A2".

 12   Exhibit "A2".

 13   Exhibit “R3”, witness statement of Brendan Vandertuin, paragraph 7 this.

 14   Exhibit “R2”, witness statement of Anastasia Alexopoulos, paragraph 12 this.

 15   Transcript PN170.

 16   Transcript PN133.

 17   Transcript PN165.

 18   Burns v Aboriginal Service of Western Australia (Inc) (unreported, AIRFB, Williams SDP, Acton SDP and Gregor C, 21 November 2000), Print T3496 [24].

 19   PR901127 [2001] AIRC 163; (26 February 2001).

 20 Ibid at [11].

 21   Exhibit “R1”, Respondent’s Outline of Submissions, paragraph 5.5.

 22   Exhibit "A3".

 23   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 24   Ibid.

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<Price code C, PR573315>