Mr Donald Williams v Rotorwest Pty Ltd T/A Heliwest Group

[2014] FWC 4337

[2014] FWC 4337

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mr Donald Williams
v
Rotorwest Pty Ltd T/A Heliwest Group
(U2014/1164)

COMMISSIONER GREGORY MELBOURNE, 11 SEPTEMBER 2014

Application for extension of time to lodge application for relief from unfair dismissal.

Introduction

[1] Mr Donald Williams commenced employment with Rotorwest Pty Ltd T/A Heliwest Group (Heliwest) on 3 April 2012. He is an experienced helicopter pilot and worked with Heliwest as a touring pilot on a roster of two weeks on, two weeks off. However, Mr Williams was dismissed on 17 February 2014 after he continued to fly while a main rotor gearbox transmission chip light was illuminated. Heliwest submits this constituted a serious breach of normal operating procedures and contravened applicable safety conventions. Mr Williams proceeded to lodge an unfair dismissal application. However, it was lodged on 8 April 2014, 29 days after the 21 day period set by s.394 of the Fair Work Act 2009 (Cth).

[2] However, s.394(3) allows an extension of time to be granted in which to make application if the Commission believes there are “exceptional circumstances” to warrant the exercise of this discretion. The sub section 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.” 1

The issue to be decided

[3] Are there “exceptional circumstances” existing under s.394(3) of the Act, in all the circumstances of this matter, to warrant the Commission exercising its discretion to grant Mr Williams additional time in which to make his unfair dismissal application?

The evidence and submissions

[4] Both parties were self represented. Mr Williams provided a written statement and also made further oral submissions. Heliwest also provided an outline of submissions, together with a witness statement from Mr David Grimes, who is a Director and the CEO of Heliwest. Mr Grimes also provided further oral submissions. Mr Williams' entitlements were paid out on termination. He also received five weeks pay in lieu of notice.

[5] As indicated, s.394(3) of the Act sets out various matters the Commission must take into account in determining an application for an extension of time in which to make an unfair dismissal application. The parties provided the following evidence and submissions in regard to each of those considerations.

(a) the reason for the delay

[6] In his F2 application Mr Williams acknowledged he filed his application out of time. However, he made reference to a holiday that had been booked. He also indicated his father died shortly before his termination, and he was subsequently required to travel to Sydney to deal with various issues concerning his father’s estate. In addition, he has since moved from Perth to Melbourne and been involved in selling a house in Adelaide, requiring him to travel back to South Australia to deal with some related issues.

[7] He also stated he has been confronted by the reality of having lost his father and his job in the space of a month and, as a result, his state of mind was poor and he found it difficult to focus. He also said he has been shocked and upset by what occurred and the way he has been treated by Heliwest.

[8] He also said this situation has been exacerbated by the fact he was not provided with any warning prior to his dismissal, or a reasonable opportunity to explain what occurred. He also says he was “not thinking straight” and was not aware of any rights he may have had following his termination. 2 He said he only became aware of the option of lodging an unfair dismissal claim when made aware of this possibility by a friend involved in HR.

[9] He stated:

“After my dismissal I travelled home to Melbourne. Here I was confronted by the reality of having lost my father and my career in just over a month. I had just moved to Melbourne and taken on a mortgage. I then had to travel to Sydney to organize my father’s estate and affairs as I am the Executor of his will. My state of mind at this stage was very poor and I found it hard to focus on anything including documenting an unfair dismissal claim. I did not fully understand the unfair dismissal process and due to my state at the time I was more focused on working through my personal distress from this issue and failed to seek immediate advice.” 3

[10] He continued to indicate:

“My dismissal has impacted very strongly on my well-being to the point it has severely affected my relationship with my wife and family. I am taking anti depressants, sleeping tablets and seeing a psychologist as a result of how I was treated.

I found out after my dismissal that I had been replaced before my actual dismissal date at my usual place of employment. This indicates that the decision was pre-empted with no procedural fairness afforded to me. I knew nothing about this and I was the last to know. This compounded my distress.” 4

(b) whether the person first became aware of the dismissal after it had taken effect

[11] Mr Williams submits he first became aware of his dismissal in a meeting called on 17 February. He stated:

“I was asked to attend a meeting with the CEO, COO and Chief Pilot of Heliwest, on Monday 17th of February 2014. When I attended the meeting, in my uniform because I was expecting to go back to work that afternoon, the CEO opened proceedings with ‘Well Don, I guess you know why you are here. Today is your last day with the Company.’ I was shocked and speechless. I have had a long and very enjoyable aviation career spanning 36 years and to have it ended with such a flippant comment was devastating. I was told no reason for the meeting nor advised to bring a representative or support person with me, therefore I was completely unprepared.” 5

[12] Heliwest confirmed in its submissions that Mr Williams was not provided with any prior warning of his dismissal before the meeting on 17 February. However, the decision to terminate his services was communicated to him in that meeting. Mr Grimes stated:

“In this meeting Mr Williams was told that his actions were in direct contravention of his training and his extensive experience as a helicopter pilot, and the choice that he made after consulting and disregarding the aircraft’s in-flight checklist to continue to fly the helicopter for a further ten minutes:

i. put his life at risk;

ii. put the lives of the public below his aircraft at risk;

iii. put the helicopter at risk;

iv. put the reputation of Heliwest at risk;

v. destroyed his personal reputation as a pilot; and

vi. demonstrated his unsuitability to continue to be employed as a pilot at Heliwest.

In that meeting it was made clear that instant dismissal was justified, which would have resulted in no notice period under Mr William’s contract and no payment in lieu of notice.” 6

(c) any action taken by the person to dispute the dismissal

[13] Neither party made submissions going to this matter. However, Mr Williams states he “did not fully understand the unfair dismissal process and due to my state at the time I was more focused on working through my personal distress from this issue and failed to seek immediate advice.” 7 It appears he did not take specific action in response to his termination until he eventually lodged his unfair dismissal application.

(d) prejudice to the employer (including prejudice caused by the delay)

[14] Again, neither party made submissions going directly to this point. However, in his witness statement Mr Grimes commented:

“It is my strong belief that Mr Williams has been fairly treated, he negotiated in good faith and accepted and was paid a substantial sum over and above that to which he was entitled, and hence this application for an extension to the 21 day filing period to hear an unfair dismissal claim should be dismissed and this claim closed.” 8

(e) the merits of the application

[15] The issue of whether Mr Williams' actions and behaviour justified his termination is keenly contested. Mr William states he is an experienced helicopter pilot with no record of performance issues. He also says he has been a loyal and diligent employee during his period of employment with Heliwest. He says Heliwest has overstated the significance of the issue to do with the chip light and it was actually using this incident to justify his dismissal because of other issues he had raised in an earlier letter to Mr Grimes.

[16] However, Heliwest have a very different view about why Mr Williams was terminated. It submits he was dismissed for flying in contravention of the flight manual in that he continued to fly the helicopter after the ‘chip light’ came on, when the flight protocols require the helicopter land immediately in such circumstances. Mr Grimes provided a further explanation in his witness statement about what occurred on 20 January 2014, and why Mr Williams was dismissed. He stated:

“When the aircraft crossed the coast heading west to the platform a warning light illuminated on the dashboard (a chip light) warning the pilot that there was an issue with the helicopter gearbox. A chip light indicates that there are metal particles in the gearbox oil.

If a helicopter gearbox is generating metal particles the gears in the gearbox are breaking down which could have catastrophic consequences if the gearbox was to fail in flight. The helicopter must land as soon as possible and a licenced engineer must then examine the nature of the metal chips in the gearbox and determine whether the aircraft can continue to be flown or whether the gearbox must be repaired.

If a chip light illuminates, there are specific procedures that must be followed and these are outlined in the aircraft flight manual and in the pilot’s in-flight emergency check list that is carried in the cabin and routinely referred to by the pilots in flight...

Mr Williams noted the chip light, turned the helicopter around and headed back towards Jandakot Airport.

Mr Williams consulted the aircraft checklist, which clearly states that the pilot must “Land as soon as possible”...

Mr Williams chose to ignore the checklist and the instruction to land immediately, instead choosing to fly the helicopter back to Heliwest’s hangar at Jandakot, over ten minutes of flight time away.

In those ten minutes of flight time Mr Williams flew over multiple sites that are suitable to land the helicopter with no risk to the aircraft, its crew and the general public.

Mr Williams also failed to announce an emergency over the radio, failing to inform Heliwest’s Jandakot Operations Team, and failing to inform the Jandakot Air Traffic Control of the emergency.” 9

[17] He continued to indicate:

“After continuing to fly one of my helicopters for an extended period with a main rotor gearbox transmission chip light illuminated in direct contravention of all safety conventions including the aircraft fight manual and the in-flight emergency check list, Mr Williams has demonstrated his disregard for not only his own safety but that of this passengers and the general public below him. His actions have demonstrated that he is no longer fit to be a helicopter pilot, and they fall a long way short of what is expected of a pilot at Heliwest.” 10

[18] Mr Grimes also said an investigation into the incident was initiated. Mr Williams was also due for his industry standard Competency Check Flight which he took, but failed. Heliwest then provided him with some relevant retraining and he then took a further Competency Check Flight which he passed. However, he was then directed to undertake a Line Check, which is apparently a standard procedure undertaken prior to deploying a pilot onto a new operation. Mr Grimes said he failed that Line Check. The results of the investigation were then presented to Mr Williams in the meeting on 17 February.

[19] Mr Williams indicated in response he did continue to fly after the ‘chip light’ came on, however, he says this should not have resulted in his dismissal. He states:

“The chip light is no excuse. I’ve spoken to CASA. I’ve spoken to auditing companies. I’ve spoken to other fellow check and training captains and other people in high places. I’ve been in the industry for a long time. And they’ve all said that that’s no reason to sack anybody. I mean, they can say that but it’s not gross negligence.” 11

[20] He also acknowledged that he did fail the initial Competency Check Flight but this was simply because he hadn’t flown that type of operation in a long while.

[21] It is also noted that there may be some procedural issues to do with Mr Williams’ termination which might be relevant if he is allowed to make his unfair dismissal application. For example, he was not provided with any prior notice of what the meeting on 17 February was to be about. He was also not given the opportunity to have a support person present in the meeting, although Mr Grimes indicated he could have requested to have a support person, once the meeting commenced, and it would have been halted at that point until this was arranged. Mr Williams also said he believed the meeting had a predetermined outcome and he was given little opportunity to discuss the allegations made against him, or to emphasise his work record and any other mitigating factors that should be taken into account before any decision was made.

(f) fairness as between the person and other persons in a similar position.

[22] Neither party made submissions about the relevance of this consideration.

Consideration

[23] It is evident Mr Williams has been through a difficult time in recent months. His father died shortly before he was terminated from his employment at Heliwest. His termination apparently occurred without warning or prior indication and he has since relocated from Perth to Melbourne, and is in the process selling a property he owned in Adelaide. He also indicated he is in a difficult financial situation at present and uncertain about whether he is going to be able to find work in the career he has been involved in for more than thirty years. He is disappointed and upset at all that has occurred and this was evident in the submissions and evidence he provided in the proceedings before the Commission.

[24] Nevertheless Mr Williams’ unfair dismissal application was lodged 29 days after the 21 day period set down in the Act. Various decisions of this Tribunal and its predecessors have considered what is required to find “exceptional circumstances” exist to justify an extension of time being granted. I refer, in particular, to the decision of the Full Bench in Nulty v Blue Star Group 12. It was made in the context of a general protections application, however, the principles established by the decision have been held to be of broader application. The Full Bench stated at [13] to [15]:

“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.

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.

A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.” 13

[25] As the decision indicates s.394(3) requires the Commission to give consideration to each of the matters set out in subsections (a) to (f). It also indicates “exceptional circumstances” might be found to exist because of a single factor, or a combination of factors. I now turn to deal with the relevant circumstances, and the submissions of the parties in this matter, by reference to those considerations.

(a) the reason for the delay

[26] Mr Williams’ reaction to his unexpected termination is understandable. The subsequent upheaval and conjunction of events has clearly been stressful for him and his family, although he provided no specific medical evidence to confirm the nature of that impact. However, at the same time Mr Williams was evidently able to organise his family’s relocation from Perth to Melbourne following his termination, and to arrange the sale of a property in South Australia. He also travelled to Sydney as the executor of his father’s estate. Given that he was able to attend to all of these matters it is clear that nothing physically or otherwise actually prevented him from filing an unfair dismissal application within the 21 day period.

[27] He also states he was not aware of the option of lodging an unfair dismissal claim until made aware of that possibility by a friend, although he also stated he did not fully understand the unfair dismissal process. In any case this lack of understanding is, unfortunately, not an “exceptional circumstance,” but instead one that is all too often encountered. This is made clear in the decision in Nulty.

[28] In addition, feelings of shock and hurt, while entirely understandable emotions, are also commonly encountered in circumstances involving an employee’s dismissal from employment. For example, the Commission has previously found that feelings of shock and distress following dismissal from employment are likely to be expected and understandable reactions, rather than something that might be considered to be exceptional. As Commissioner Roe found in the matter of Rose v BMD Constructions Pty Ltd 14 (BMD Constructions):

“It is common for employees to suffer shock and trauma as a result of dismissal from employment. The evidence in this case of the level of incapacity is insufficient to create abnormal circumstances which would justify an extension of time.” 15

[29] In lodging his application on 8 April Mr Williams has also missed the mark by almost a month in circumstances where the presumption is that time limits set in the legislation will be respected and adhered to.

(b) whether the person first became aware of the dismissal after it had taken effect

[30] While Mr Williams might have had little or no prior warning that he was about to be terminated the fact he was being terminated was made clear to him in the meeting on 17 February.

(c) any action taken by the person to dispute the dismissal

[31] Mr Williams appears to have become increasingly distressed and upset by his termination from Heliwest. However, it appears he did little to actively explore the options that might have been available to him in response until a friend suggested he lodge an unfair dismissal application. However, by this point the 21 day period for lodging an application was well passed. There is accordingly nothing to indicate Mr Williams took any other action to formally dispute his dismissal, apart from eventually lodging the unfair dismissal application.

(d) prejudice to the employer (including prejudice caused by the delay)

[32] This matter was not directly addressed in the submissions provided by Heliwest. However, there will inevitably be some prejudice to an employer if required to respond to an unfair dismissal application, given the time and effort involved, and the potential distraction from its principal business activities. This will usually be more pronounced for a small business that lacks dedicated resources to devote to the task.

(e) the merits of the application

[33] As indicated this is a hotly contested issue that would fall to be determined based on detailed submissions and evidence if the substantive matter were to proceed to be dealt with. The respective positions of the parties have been summarised already and are not restated now. Mr Williams downplays the significance of the “chip light” incident and submits it was used as an excuse to terminate his employment in circumstances where he had highlighted other concerns to do with Heliwest’s operational procedures.

[34] Heliwest has a very different position about the significance of the incident, and submits it gave consideration to Mr Williams’ summary dismissal, before deciding to terminate him with pay in lieu of notice. As indicated, the respective positions of each party would need to be determined based on more detailed evidence and submissions than were before the Commission in the current application. However, what is clear at this point is that the Commission is unable to form a definitive view about the respective merits of the matter on the basis of the submissions and evidence now before it.

[35] However, the relevance of the issue of “merit” when determining an application for an extension of time has been considered by a Full Bench of the Australian Industrial Relations Commission in Kyvelos v. Champion Socks Pty Limited, 16 when dealing with similar legislative provisions to those now contained in the Fair Work Act 2009. The Full Bench held:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement.” 17

The Full Bench continued:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 18

[36] As indicated, I have by no means formed a concluded view about the respective merits of this matter, and in the absence of detailed evidence and submissions going to those merit issues am not in a position to make conclusive findings about what are clearly keenly contested matters. However, the decision of the Full Bench in Kyvelos makes clear it is not necessary to do so at this point.

(f) fairness as between the person and other persons in a similar position.

[37] I am satisfied this is of limited relevance in the present matter and is again a neutral consideration.

Conclusion

[38] Having had regard to the various considerations in s.394(3) I am unable to conclude that “exceptional circumstances” exist in all the circumstances of this matter to warrant an exercise of the discretion to extend the time for Mr Williams to make application. The reasons for the delay are a significant factor in coming to this conclusion. I don’t restate those circumstances at this point. I am satisfied Mr Williams had both the motivation and ability to lodge an unfair dismissal application within the 21 day period following his dismissal. I am also satisfied there were no “exceptional circumstances,” as defined by the relevant authorities, to prevent him from doing so. His application for an extension of time to make his unfair dismissal application is therefore dismissed.

COMMISSIONER

Appearances:

The Applicant appeared on his own behalf.

Mr David Grimes appeared on behalf of the Respondent.

Hearing details:

2014.

Melbourne and Perth (by video):

26 June.

 1   Fair Work Act 2009 (Cth) at s.394(3)

 2 F2 Application at question 1.4 on page 3

 3   Exhibit W1 at para 11

 4   Ibid at para 12-13

 5   Ibid at para 2

 6   Above n.ii at paras 27-28

 7   Above n.iii

 8   Ibid at para 34

 9   Above n.ii at paras 7-14

 10   Ibid at para 33

 11   Transcript at PN18

 12   [2011] FWAFB 975

 13   Ibid at [13]-[15]

 14   [2011] FWA 673

 15   [2011] FWA 673 at [10]

 16   Dec 1294/00 M Print T2421

 17   Ibid at [14]

 18   Ibid

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