Mr Jason Jackson v TSA T/A Telstra

[2017] FWC 4170

[2017] FWC 4170

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Jason Jackson
v
TSA T/A Telstra
(U2017/6826)

DEPUTY PRESIDENT ANDERSON ADELAIDE, 10 AUGUST 2017

Application for an unfair dismissal remedy – jurisdictional issue raised – application out of time – no exceptional circumstances - extension of time refused – application dismissed

[1] Mr Jason Jackson has lodged an application under section 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment with the TSA Group (TSA). The legal entity operating the TSA Group is Trimatic Management Services Pty Ltd ATF the Trimatic Management Services Unit Trust. The TSA Group operates outsourced call centres in Australia and the Philippines. Those centres provide sales and service support for client businesses.

[2] Mr Jackson is a young man who was employed for approximately eight months as a Customer Experience and Sales Agent in a call centre before being dismissed on 15 May 2017. He was dismissed on notice for alleged unsatisfactory performance. The dismissal took immediate effect. He was paid one week in lieu of notice.

[3] Mr Jackson’s application was lodged with the Fair Work Commission (the Commission) on 26 June 2017. This is 42 days after his dismissal took effect. Applications under section 394 of the FW Act must be made within 21 days from the day a dismissal takes effect. The merits of Mr Jackson’s application cannot be heard and determined unless the Commission grants an extension of time for the application to be made.

[4] The TSA Group’s response to the application confirmed that the termination of Mr Jackson’s employment took effect on 15 May 2017. It opposed an extension of time.

[5] On 17 July 2017 my Associate corresponded with both Mr Jackson and the TSA Group and advised that the extension of time issue would be considered through a telephone hearing on 4 August 2017. Information about an extension of time under the FW Act was provided to the parties. Mr Jackson was directed to provide a witness statement and a copy of any document relied upon relevant to the extension of time issue by 28 July. At Mr Jackson’s subsequent request this date was extended to 31 July. The employer was given an opportunity to file written material in response by 2 August. Further information was received from Mr Jackson on 31 July and from the TSA Group on 2 August.

[6] Mr Jackson participated in the telephone hearing on 4 August with the assistance of his father, Mr Gary Jackson. The TSA Group was represented by its Head of Human Resources and Corporate Affairs Ms Zahra Peggs, assisted by Ms Jessica Foo. I note that a sound file record of the telephone hearing was made by the Commission.

[7] Two witnesses gave evidence in support of Mr Jackson’s extension of time application, Mr Jackson himself and Mr Gary Jackson. No witnesses were called by the TSA Group.

[8] I found both Mr Jackson and his father to be honest and reliable witnesses, within the bounds of their recall.

[9] Mr Jackson provided a number of reasons for the delay.

[10] His application dated 26 June says “At first I was not going to appeal, as speaking to family and friends. After explaining the situation, they suggested to launch an appeal as I was wrongly dismissed.” His written submission of 31 July says “the reason for lodging the statement late was due to already thinking it had been sent.” The written submission of 31 July further claims that “The reason for over the 21 days was due to TSA not communicating with me.”

[11] Mr Jackson’s written submission of 31 July, and the oral evidence of Mr Jackson and his father dealt extensively with this latter claim, concerning attempted communication by Mr Jackson and his father with the TSA Group in the period between dismissal and lodgement.

[12] The TSA Group contend that it provided Mr Jackson with clear written detail of the grounds for his termination at the time, that it did not fail to communicate or unreasonably contribute to any delay, and that Mr Jackson did not take all reasonable steps to dispute his dismissal or file proceedings in the Commission within the prescribed time.

[13] This decision about the extension of time issue is reached on the basis of all of the documentary material, submissions and oral evidence placed before me.

Consideration

[14] Section 394 of the FW Act relevantly states:

“394 Application for unfair dismissal remedy

…

(2) The application must be made:

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

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

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

[15] Mr Jackson’s application can only proceed to a full hearing and determination if he can establish that “exceptional circumstances” exist within the meaning of section 394(3) so as to warrant an extension of time. I have considered the provisions of section 394(3) as they apply to this matter in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd 1 which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

[16] I make the following findings relevant to the extension of time issue:

1. Mr Jackson was provided oral reasons for his termination at a meeting on 15 May. These were confirmed in detail and in writing a week later, by letter dated 22 May;

2. Mr Jackson took no immediate action after his dismissal to seek further information from the employer, or dispute it. However, after discussing it with family members, both Mr Jackson and his father made a number of telephone calls to the TSA Group seeking to speak to a senior manager, Mr Ian Pybourne, about the termination;

3. In the calls made by Mr Jackson and his father they spoke to TSA Group employees Thomas Hill, Andrew Jarman and Shane Keepence. They were variously told that Mr Pybourne was not available, that a message would be left at their request for him to call them back or (in the case of the discussion with Mr Keepence) that any issues concerning the termination of employment would need to be addressed to the human resources department and not Mr Pybourne;

4. No specific details of days when these calls were made or of the number of calls made were provided by Mr Jackson or his father. However, in oral evidence they referred to at least half a dozen calls in approximately the period three and four weeks after termination.

5. I find, on the balance of probabilities that at least three of these calls were made before 21 days after the dismissal took effect but only in that week prior. The employer’s submissions refer to the call between Mr Gary Jackson and Mr Keepence being on 2 June, which was 18 days after dismissal. That is consistent with the oral evidence.

6. I find, on the balance of probabilities, that the final call made to the TSA Group by Mr Jackson or his father was mid June 2017, some four weeks after the dismissal. Both Mr Jackson and his father gave evidence, which I accept, that in that final call to the TSA Group they were told that Mr Pybourne was on leave. They waited for approximately 10 days hoping he would return their call. He did not. They then filed proceedings in the Commission.

7. I do not find that any of the company officers promised Mr Jackson or his father that Mr Pybourne would call them back. I am satisfied that they were told that their request would be passed on. I am satisfied that on at least one occasion they were told that the human resources department was the appropriate contact point for the escalation of their concerns, not Mr Pybourne.

8. At the time of his termination, Mr Jackson knew in general terms that a dismissed employee had a right to take legal action to challenge a dismissal. He did not know that there was a time limit for doing so until approximately one or two weeks prior to lodging his application.

I now consider each of the factors set out in section 394(3) of the FW Act.

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

[17] There is no evidence to support Mr Jackson’s assertion in his submission of 31 July that the reason for the delay was that he thought his application had been lodged. I reject that ground.

[18] The substantive reason for the delay was the attempts by Mr Jackson and Mr Jackson’s father to secure a discussion with the TSA’s Mr Ian Pybourne for the purposes of seeking information and justification for the dismissal and to clear negative inferences in the reasons for dismissal.

[19] Mr Jackson did not act promptly after his dismissal to seek this information. Although he had been orally advised at the time, allowance needs to be made for the fact that the written details of his termination sent by the TSA Group were by letter dated 22 May, that is a full week after the termination took effect. However Mr Jackson took at least a further week after receiving that letter before initiating any contact. It is apparent on the face of his application, and his evidence, that “at first I was not going to appeal”. 2 It was only after discussions with family and friends that he made calls or had calls made to the TSA Group on his behalf.

[20] Mr Jackson and his father contributed to the delay by insisting that they speak to Mr Pybourne and Mr Pybourne alone. It should have become apparent to them within at least a week of making calls and from the lack of response by Mr Pybourne that calls for him to personally respond were fruitless. They persisted, with days and then weeks passing by. They had the opportunity to speak to the human resources department, and chose not to.

[21] I do not find that the TSA Group contributed to the delay. The employer provided oral reasons for dismissal on the day of dismissal and written reasons for dismissal well inside the 21 day period. An employer is entitled to determine which officer will deal with former employees or their representatives. There is nothing unusual with an employer requiring a former employee to speak to human resources staff rather than a head of operations.

[22] While some of the calls to the TSA Group were made in the few days before the 21 day limit expired, there was nothing in the responses of the TSA Group which misled Mr Jackson or his father about their rights. There was no negotiation or renegotiation of the termination or its reasons underway or foreshadowed by the employer at any time, including during the first 21 days after the dismissal or in the period that crossed over the 21 day mark.

[23] On the facts in this case, the reason for the delay is not compelling. I consider this to be a factor that weighs against the granting of an extension.

Awareness of the dismissal taking effect (section 394(3)(b))

[24] Mr Jackson’s dismissal, with a week in lieu of notice, took effect on 15 May. He was told orally of this on that day. He was fully aware of his dismissal taking effect from that time.

[25] On the facts in this case, I consider this to be a factor that weighs against the granting of an extension.

Action taken to dispute dismissal (section 394(3)(c))

[26] I am satisfied that the purpose of the calls made by Mr Jackson and his father to TSA were in the nature of questioning the evidence that supported the stated grounds of dismissal. I have found that these calls were made approximately in weeks three and four after dismissal. The action was not taken inside the first fortnight after the dismissal.

[27] On the facts in this case, I consider this to be a factor that weighs marginally in favour of granting of an extension.

Prejudice to the employer (section 394(3)(d))

[28] The employer is of a reasonable size and not prejudiced in operational terms should an extension of time be granted. However, a lengthy delay may impact the recall of witnesses concerning events of some time ago. An employer is also entitled to arrange its affairs and organise its resources on the basis that claims of this nature can no longer be made beyond the lodgement period, except in exceptional circumstances.

[29] On the facts in this case, I consider this to be a neutral factor.

Merits of the Application (section 394(3)(e))

[30] Mr Jackson and his father were seeking information from the TSA Group that would establish that Mr Jackson had been acting in good faith in dealing with customers. While Mr Jackson was not seeking his job back or necessarily contesting the decision to dismiss, he was seeking an explanation and apology for what he considered to be unfair inferences that he had acted in bad faith in offering customers discounts to which they were not entitled. He believed, and continues to believe, that he was dealing with customers in good faith in the manner in which he had been trained.

[31] I accept that this is a genuinely held view by Mr Jackson and his father. I have not however heard evidence and submissions from the employer that would enable any conclusion, preliminary or otherwise, to be formed by the Commission on what are factual matters. I make no finding in that regard.

[32] On the facts in this case, I consider this to be a neutral factor.

Fairness between persons in similar position (section 394(f))

[33] No evidence or submissions from Mr Jackson or the TSA Group raise issues of fairness with and between other persons.

[34] On the facts in this case, this is not a relevant factor.

Conclusion

[35] The delay in lodgement is substantial, being double the statutory time limit.

[36] In considering whether exceptional circumstances exist, the conduct of the applicant throughout the whole period after dismissal is relevant to whether an extension of time should be granted. 3

[37] For a portion of the period of delay genuine endeavours were made by Mr Jackson and by his father on his behalf to engage with the TSA Group on matters associated with the dismissal. However, those endeavours were neither instant nor continuous. There was no action on the part of Mr Jackson in the first fortnight after his dismissal, other than speaking to family members. On his own evidence, he did not initially intend to pursue the matter. Further significant delays occurred in the final seven to ten days before lodgement when Mr Jackson waited for a return call from Mr Pybourne. That was a fruitless and self-imposed delay. All indications in the previous fortnight should have led Mr Jackson and his father to reasonably conclude that Mr Pybourne would be most unlikely to respond.

[38] I am not satisfied that exceptional circumstances exist so as to warrant an extension of time. The application will not proceed to a hearing on the merits.

[39] Given Mr Jackson’s genuinely held belief, and that of his father, that the dismissal conveyed unfair inferences concerning conduct that could impact his future prospects, it remains open, should the company see fit, to voluntarily engage in discussion with Mr Jackson to clarify these matters. I encourage that process. Mr Jackson is a young man just entering the workforce and he gave sworn evidence to that effect in a forthright manner. Whether that occurs is entirely a matter for the parties. In light of this decision, the Commission has no further role.

[40] Mr Jackson’s application is dismissed. An Order giving effect to this decision will be issued.

DEPUTY PRESIDENT

Appearances:

Mr J. Jackson, on his own behalf, and Mr G. Jackson, for the Applicant.

Ms Z. Peggs and Ms J. Foo, for the Respondent.

Hearing details:

2017.

Adelaide.

4 August.

 1   [2011] FWAFB 975

 2   Application (F2) 26 June 2017 paragraph 1.5

 3 Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403 at 408-409

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