Mr Stephen Nemeth v Sydney Trains
[2021] FWC 2186
•26 APRIL 2021
| [2021] FWC 2186 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Stephen Nemeth
v
Sydney Trains
(C2020/7561)
DEPUTY PRESIDENT BULL | SYDNEY, 26 APRIL 2021 |
Application to deal with contraventions involving dismissal - whether application filed out of time - whether exceptional circumstances exist to extend time for filing.
[1] On 8 October 2020, Mr Stephen Nemeth filed with the Fair Work Commission a s.365 General Protections application involving dismissal. The application alleges multiple breaches of general protections law. 1 Mr Nemeth’s application states that his employer, Sydney Trains notified and dismissed him on 17 September 2020.
[2] Sydney Trains contends that the application should be dismissed as it has not been filed within the prescribed legislated timeframe, namely 21 days after the dismissal took effect and that there are no exceptional circumstances for the Commission to exercise its discretion to extend the time for filing.
[3] Mr Nemeth submits that his application was filed in time, and in the alternative, there exists exceptional circumstances due to representational error for the Commission to exercise its discretion to extend the time for filing.
[4] At the hearing of this matter, both parties were legally represented pursuant to leave being granted under s.596(2(a)) of the Act. Mr Nemeth and his solicitor Mr Michael Short provided written statements and gave evidence and were subject to cross-examination. For Sydney Trains, written statements and oral evidence were provided by Ms Kirsty McGeachie, Maintenance Operations Manager, and Ms Kothai Chandran, Team Leader for Transport NSW, both of whom were cross-examined on their evidence.
Was the application filed within the 21 day period?
[5] The timeframe for filing a s.365 application is set out at s.366(1) of the Fair Work Act 2009 (the Act):
“366 TIME FOR APPLICATION
366 (1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).”
[6] Mr Nemeth, in submitting that his application was filed within the prescribed timeframe, contends that he was not notified of his dismissal until 17 September 2020, when he received correspondence to that effect. The correspondence was dated 20 August 2020 and had not been forwarded to Mr Nemeth at around this date due to an administrative error.
[7] Sydney Trains submits that the applicant has lodged his application either nine or two days outside the prescribed timeframe. This is because on 8 September 2020, he received his final pay including all accrued entitlements which are paid out on termination made it clear that he had been dismissed from his employment and thus needed to file his application by 29 September 2020, which was nine days before his application was actually filed.
[8] Further, on 15 September 2020, Mr Nemeth acknowledges that he received a Separation Pack which contained a Certificate of Service and final payslip also making it clear that he had been terminated from his employment. If this date is taken as the date the dismissal took effect, Sydney Trains submits that the application was filed two days out of time.
[9] On 21 July 2020, Mr Nemeth was sent correspondence from Sydney Trains stating that it was satisfied that he had engaged in conduct contrary to its Code of Conduct and that the appropriate remedy was dismissal. Under the Interim Disciplinary Review Process Guidelines, Mr Nemeth was able to request a review of the decision to terminate his employment by making a request to the Secretariat, Transport for NSW Disciplinary Panel within 10 days which was duly filed by his solicitor Mr Short. 2
[10] The 21 July 2020 correspondence advised that where a review is requested the dismissal will not take effect until after the review has been completed. The correspondence further stated that if the review outcome confirms the dismissal, the employment termination will be effective from the date of the appeal decision response letter. An email was sent to Mr Short on 4 August 2020 from the Review Secretariat stating that the disciplinary penalty review request would be considered on 19 August 2020 and that he would receive notification of the panel decision on completion of the review.
[11] A decision upholding the dismissal decision by Sydney trains was made by the Review Panel on 19 August 2020 and a letter prepared for Mr Nemeth to advise him of this outcome. The outcome letter was not sent to Mr Nemeth at this time due to an internal misunderstanding and the letter was not sent until 17 September 2020 following an enquiry from Mr Nemeth’s solicitor.
[12] However, prior to 17 September 2020, Mr Nemeth was paid his final pay including accrued leave entitlements on 8 September 2020. On receipt of this payment, Mr Nemeth emailed his solicitor on the same day stating:
“It appears I have been officially terminated.
Got a termination pay-out of all my entitlements this morning.
I have still received no correspondence on any findings or an email of any kind.
Do we now go back to the appeal board?”
[13] His solicitor, Mr Short responded stating:
“Thanks for your email. Yes we will now need to commence unfair dismissal proceedings in the Fair Work Commission. I need the termination letter before I can do so.
Once the Form 8 is lodged with the Fair Work Commission, I will notify the member, Deputy President Bull.” 3
[14] Mr Nemeth replied stating:
“Well, I don’t have a termination letter and have had no emails either.
So what can we do without them?”
[15] To which Mr Short replied:
“They must terminate you formally. I anticipate the delay is due to you no longer being at work. I would be surprised if you don’t receive a letter from them within 48 hours.”
[16] Further correspondence was not received within 48 hours, however, on 15 September Mr Nemeth received in the mail a Separation Pack that had been posted by Sydney Trains on 9 September 2020. The separation pack contained a cover letter, Certificate of Service and final pay advice.
[17] The cover letter was dated 8 September 2020 and states:
“Please find enclosed your Separation Pack following your exit from Sydney Trains. This includes your Certificate of Service.
If you have requested an Employment Separation Certificate (for Centrelink purposes), it will be forwarded to your home address once your payment has been completed by payroll.
I would like to take this opportunity to thank you for your service at Sydney Trains and wish you well in your future endeavours.
Should you have any further enquiries please contact HR Advisory on 1800 …”
[18] The enclosed Certificate of Service listed the period of service as coming to an end on 20 August 2020 and states:
“Prior to leaving Sydney Trains Stephen Nemeth was employed in the position of Work Group Leader Substation LV.”
[19] The enclosed pay advice details reflected the payment made earlier to Mr Nemeth on 8 September 2020, and included phrases such as ‘AL on Term (Marginal)’ and ‘Tax Marginal Termination’.
[20] Mr Nemeth emailed Mr Short on the same day at 9:19pm stating:
“Attached is a separation letter from Sydney Trains.
I still don’t have a termination letter.
What do we do now?”
[21] Mr Nemeth did not receive a response from Mr Short the following day and telephoned him on 17 September 2020, to seek his advice. Mr Short then emailed the Secretariat for the Transport for NSW Disciplinary Panel wherein he stated in the email:
“I refer to the abovenamed employee and to his request for a review of a decision terminating his employment.
Mr Nemeth informs me he has recently received a separation pack. This is despite not being provided with any response to his review application.
Reading between the lines, it appears that the review has been completed and he has been terminated. If this is the case, the decision has not been communicated to Mr Nemeth. This is irregular and highly improper.
I await news of the review decision.”
[22] Mr Short did not receive a reply to his email; however, Mr Nemeth was sent an email that afternoon from Ms McGeachie titled Final DRP Letter which attached correspondence dated 20 August 2020 from the Acting Secretariat Transport for NSW Disciplinary Panel. The correspondence advised that the Disciplinary Review Panel had met on 19 August 2020 and that his review application was unsuccessful.
[23] Mr Nemeth’s evidence was that while the receipt of the lump sum payment from his employer into his bank account on 8 September 2020 appeared to indicate he was dismissed; this was not possible as he had to be informed in writing of his dismissal. 4
[24] In respect of receipt of the Separation Pack, Mr Nemeth stated he was confused and did not know why he had been given a Separation Pack. He had not received any notification from the Review Panel and the Separation Pack did not reference the Review Panel. It was unclear whether it meant that Sydney Trains had stopped paying him while his review request was still ongoing.
[25] It is accepted that as a general proposition, the termination of an employee’s employment does not occur until the termination is actually communicated to the employee. Such communication should be by plain or unambiguous words or conduct. 5 It is not accepted that a dismissal needs to be formalised in writing to be effective.6
[26] I am satisfied that at least commencing from receipt of his Separation Pack on 15 September 2020, together with the facts, matters and circumstances preceding this date that Mr Nemeth was aware at that time his employment with Sydney Trains had come to an end.
[27] This matter cannot be considered in a vacuum. Mr Nemeth was notified 21 July 2020 that he had been dismissed and that this decision would stand unless any review he requested was successful. Although Mr Nemeth did not receive as anticipated, any written or other notice of the review outcome, he did receive payment into his bank account of his termination payments inclusive of accrued annual and long service leave on 8 September 2020. This payment prompted him to email his solicitor stating that it appeared to him that he had ‘officially been terminated’ as he had received a termination pay out of all his entitlements. 7
[28] On 15 September 2020, he received a Separation Pack from Sydney Trains and without explicitly stating that his review application was unsuccessful, the documentation could not be taken as anything other than as confirmation of his dismissal. The documentation is headed Separation Pack, refers to his exit from Sydney Trains, thanks him for his service and wishes him well in his future endeavours and attaches a Certificate of Service and a payslip that refers to termination payments.
[29] Clearly the Separation Pack was sufficient for his solicitor to conclude that reading between the lines it appeared that he had been terminated. 8
[30] On the basis of the conclusion above, Mr Nemeth’s General Protections application has been filed two days out of time.
Should the time period be extended?
[31] The ability for the Commission to extend the time for filing arises from a combination of s.366(1)(b) and s.366(2) of the Act. Section 366(2) states that the Commission may allow a further period in which to file an application when satisfied that exceptional circumstances exist:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
[32] The Act does not address the issue of the weight to be attached to each factor to be taken into account and, as such the weight to be given to a particular factor is for the Commission to determine. 9
[33] The Commission is constrained in extending the period in which to file a General Protections s.365 application to where it is satisfied that “exceptional circumstances” exist. Sydney Trains argues that no “exceptional circumstances” exist for the Commission to extend the time for filing the General Protections application.
[34] In Nulty v Blue Star Group10 (Nulty) the Full Bench discussed the meaning of “exceptional circumstances” in the following terms:
“[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 Smithers11 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 29512, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed13:
“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.
[14] …
[15] 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."
[35] As stated above, s.366(2) sets out a list of matters that the Commission is to take into account when determining whether exceptional circumstances exist, and these are considered below.
(a) The reason for the delay
[36] Mr Nemeth contends that any failure to file his application within the prescribed time was due to representative error. Sydney Trains accepts that there was representative error. 14
[37] Mr Nemeth’s evidence made it clear that at all times he acted on the advice of his solicitor, Mr Short. Mr Short filed Mr Nemeth’s review panel request.
[38] On 8 September 2020, Mr Nemeth received payment into his bank account of monies Mr Nemeth identified as a termination pay out of all his entitlements. Mr Short’s advice was to wait until he received a termination letter from Sydney Trains before commencing unfair dismissal proceedings in the Fair Work Commission which he anticipated would arrive within 48 hours.
[39] On 15 September, a week later, Mr Nemeth received a Separation Pack from Sydney Trains. He then sent an email to Mr Short on the same day and when he did not receive a response from Mr Short, he contacted Mr Short on 17 September 2020. Mr Short then sent correspondence to the Review Secretariat which prompted Sydney Trains to forward to Mr Nemeth correspondence dated 20 August 2020, advising him that his review request was unsuccessful and affirmed the original Sydney Trains disciplinary decision of dismissal. Mr Short filed Nemeth’s General Protections application on the 21st day from this date.
[40] The evidence demonstrates that Mr Nemeth was vigilant and acted promptly at all times in seeking advice from his solicitor, who he relied upon to act on his behalf. This is a factor that weighs strongly in Mr Nemeth’s favour.
(b) Any action taken by the person to dispute the dismissal
[41] Mr Nemeth disputed his dismissal by making a review application and placing the matter in the hands of his solicitor and apprising his solicitor of any developments that came to his attention. It cannot be said that he took no or little action. This favours Mr Nemeth.
(c) Prejudice to the employer (including prejudice caused by the delay)
[42] There is no identifiable prejudice to Sydney Trains in the late filing of the application. This is a neutral consideration. 15
(d) The merits of the application
[43] Sydney Trains submits that based on the merits of the application any application to extend time for filing should be dismissed as the application has no reasonable prospects of success.
[44] There are sound reasons why the Commission should not embark on a detailed examination of Mr Nemeth’s substantial case in considering an extension of time application in taking this criterion into account.16
[45] The application was filed on the 21st day from the date of dismissal based on Mr Short’s calculations as to the effective date of dismissal. Despite a 21 day period having elapsed the contents of the Form F8 application do not identify what workplace right was allegedly exercised leading to the adverse action and what that adverse action was. Based on this document alone there would appear be limited prospects of success in Mr Nemeth’s General Protection application.
[46] It was not until Mr Nemeth gave his oral evidence that more detail of the alleged breach was provided wherein he stated that as he had raised complaints with his employer which was his workplace right, he alleged that he was then adversely treated as a consequence.
[47] For present purposes it is sufficient to note that on the material now before the Commission, it is not in a position to assess the merits as a favourable consideration in assessing whether exception circumstances exist. Mr Nemeth’s case does not appear to be strong, but the Commission is unable to characterise it as being without any reasonable prospect of success.
(e) Fairness as between the person and other persons in a similar position
[48] The materials demonstrate that there is no other person to whom reference is made for comparative fairness purposes, nor is there any suitably comparative case to which the applicant has referred in his materials.
Conclusion
[49] A decision as to whether the time under s.366(2) should be extended, involves the exercise of discretion,17 and to this extent the case law indicates that there is a “high hurdle” in meeting the test of “exceptional circumstances”.18 In this case though, the Commission is satisfied that representative error amounts to exceptional circumstances. As stated by the Full Bench in Clarke v Ringwood Private Hospital: 19
“The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of his/her representative and took no steps to inquire as to the status of his/her claim. A different situation exists where an applicant gives clear instructions to his/her representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.”
[50] In this case I do not consider it appropriate that any of the delay occasioned by Mr Short’s late filing should be attributed to Mr Nemeth.
[51] The delay in this matter is short and having considered the circumstances above, I am satisfied that there exists exceptional circumstances in the form of representative error and that it would be appropriate for the Commission to exercise its discretion to grant an extension of time to Mr Nemeth to file his application by the two days required.
[52] An order will issue to reflect this finding.
DEPUTY PRESIDENT
Appearances:
Mr H Pararajasingham of Counsel for the applicant
Ms S Moten Solicitor and B Baumgarten Solicitors of Lander & Rogers for the respondent
Hearing details:
2021
20 April
Printed by authority of the Commonwealth Government Printer
<PR728819>
1 Form F8 at 3.1
2 An email from the Penalty Review Secretariat on 4 August 2020 states the review application was filed on 4 August whereas correspondence from the review secretariat of 20 August 2020 states the application was filed on 3 August (being the 10th day from notification)
3 An earlier s.739 dispute application filed by Mr Nemeth had been allocated to Bull DP
4 Witness statement of 7 February 2021 at [10]
5 Mohammed Ayub v NSW Trains [2016] FWCFB 5500 at [17]
6 See comments in Ishan D’Souza v Henry Schein Halas [2014] FWC 5864 and P.T. Wilson and Australian Taxation Office PR901127
7 Email of 8 September 2020
8 Email to Review Panel 17 September 2020
9 Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 41; Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [197]
10 [2011] FWAFB 975 At the time of this decision the time for filing was 60 days
11 [2010] FWAFB 7251
12 [2007] FCA 388 (27 March 2007)
13 at paras [23]-[27]
14 Written submissions of 5 March 2021 at [48]
15 Ittyerah v Coles Supermarkets (Australia) Pty Ltd (No 2) 412 FCA 23 April 2021 at [73]
16 Kyvelos v Champion Socks Pty Ltd AIRCFB 10 November 2000 Print T2421 at [14]
17 Hart v Damien John Pedder & Kirsty Michelle Pedder as Trustees of the Plumbing Solutions Trust [2014] FWCFB 3270 at [8]
18 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]
19 74 IR 414 at 418
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