Ms Ornella Santesso v Qantas Airways Limited
[2015] FWC 3056
•5 MAY 2015
| [2015] FWC 3056 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Ornella Santesso
v
Qantas Airways Limited
(U2015/433)
DEPUTY PRESIDENT ABEY | HOBART, 5 MAY 2015 |
Application for relief from unfair dismissal - extension of time granted.
[1] Ms Ornello Santesso (applicant) filed an application under s394 of the Fair Work Act 2009 (the Act) seeking an unfair dismissal remedy. The applicant was employed by Qantas Airways Limited (Qantas) (respondent) until terminated on 23 December 2014.
[2] The application was lodged on 3 February 2015 which is outside the 21 day time limit. The applicant seeks an extension of time pursuant to s394(3) of the Act.
Background
[3] Ms Santesso has been employed with the respondent since April 2000. At the time of termination she was engaged as a Contact Centre Consultant.
[4] In March 2013 the applicant was charged by Tasmania Police with offences against the Tasmanian Criminal Code, being three counts of Forgery, one count of Uttering, and one count of Attempting to Commit Fraud on a Creditor. The applicant entered pleas of not guilty to all charges.
[5] In January 2014 the applicant sought and was granted an extended period of leave without pay. That leave was continuing at the time of termination.
[6] The applicant was due to be made redundant on 1 January 2015.
[7] The criminal trial was held in the Supreme Court of Tasmania in December 2014. The jury returned a verdict of guilty on each of the charges.
[8] On 8 December 2014 an article appeared in the Hobart Mercury discussing the trial. A further article appeared on 11 December 2014 which reported that Ms Santesso had been found guilty.
[9] On 23 December 2015 Ms Santesso received correspondence from the respondent terminating her employment with immediate effect, and one month’s payment in lieu of notice. The correspondence referred to the criminal trial and observed that “your conduct is incompatible with your contractual employment obligations.”
[10] At the time of termination the applicant had not been sentenced and no convictions had been recorded. The matter was subject to further hearing relating to disputed facts.
[11] On 24 December 2014 Ms Santesso sought a review of the termination through the Qantas internal review process.
[12] On 9 January 2015 the respondent advised that the appeal was still being considered.
[13] On 19 January 2015 the respondent wrote to Ms Santesso advising the outcome of the appeal. The appeal was “partially upheld” based on an incorrect observation that the applicant had been ‘convicted’ at the time of termination. However it was found that this inaccuracy, together with submissions relating to mitigating circumstances, did not warrant overturning the Company’s decision and the termination was confirmed.
[14] On 17 March 2015 Justice Porter recorded convictions and fined Ms Santesso $1000.
[15] On 24 March 2015 the applicant filed a Notice of Appeal which is apparently listed before the Criminal Court of Appeal in May 2015.
Exceptional Circumstances
[16] Section 394(3) of the Act identifies the matters to be considered in determining the existence or otherwise of exceptional circumstances warranting an extension of time. I deal with each below.
The reason for the delay
[17] The application was lodged 21 days out of time.
[18] Both parties relied on written submissions filed with the Commission.1 However during proceedings Mr Meredith enlarged on the written submissions so far as the sequence of events are concerned. The following is a summary of this submission.
[19] Ms Santesso received the letter of termination2on 23 December 2014. That same day she called Mr Meredith of Wallace Wilkinson & Webster. However the legal firm had closed for Christmas break and contact could not be made. Ms Santesso then contacted Mr Chris Gunson (counsel) who advised her of the time limits for an unfair dismissal application and also recommended that she seek an internal review of the decision. The application for an internal review was submitted either that day or on 24 December 2014.
[20] Mr Meredith returned to work on 5 January 2015. He contacted Ms Santesso and sought copies of relevant correspondence.
[21] At 9.00am. on 13 January 2015 Ms Santesso emailed Mr Meredith as follows:3
“Can you please let me know what is happening about the application? Needs to be lodged today.”
Mr Meredith replied at 10.58am that day in the following terms:4
“I haven’t been able to get a hold of Chris yet sorry. I did see your emails this morning and on Saturday.
If we are to apply to the FWC on the basis that you have been unfairly dismissed, we need to do so within 21 days of the dismissal taking effect.
“As I understand it, the dismissal is not effective until the company affirms the termination following the internal appeal process you have initiated.
If I am wrong in that, we are still protected by virtue ofs394(3) of the Fair Work Act, which allows for further time for the application if satisfied that there are ‘exceptional circumstances’, one of which is specifically listed as ‘any action taken by the person to dispute the dismissal’.
It would, in my view, be pointless to file the application until the appeals process has been determined. If Qantas determine that they wont terminate you, we wont need to do anything and you will get your redundancy as planned.
...”
[22] On 19 January 2015 the respondent advised the outcome of the appeal and confirmed the termination with effect from 23 January 2015. The applicant forwarded this correspondence to Mr Meredith by email that same day. Mr Meredith said he put a note in his diary for 9 February, being 21 days from 19 January and the outer limit (in his mind) for filing an unfair dismissal application.
[23] The Unfair Dismissal Application was filed on 3 February 2015.
[24] Mr Meredith submitted that the applicant was blameless in this process. At all times Ms Santesso had acted with expedition and at each relevant point had taken appropriate steps the same day the event occurred.
[25] Mr Meredith said the advice he provided on 13 January 2015 was simply incorrect but had the effect of putting in the mind of the applicant that everything was in order. He submitted that his client was entitled to rely on the advice of her solicitor.
[26] Ms Reoch acknowledged that as a general rule a client was entitled to rely on the advice of a legal adviser. However this was not a rule to be followed slavishly and in this case the applicant was clearly aware that her termination took effect from 23 December 2014. Ms Reoch submitted that the applicant had other options and other resources available, and there was no barrier to filing an application pending the outcome of the internal review.
[27] The matter of representative error was discussed in Robinson v Interstate Transport Pty Ltd.5 The Full Bench referred to the approach in Clark v Ringwood Private Hospital6 summarised in Davidson v Aboriginal and Islander Child Care Agency7 as follows:
“(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii) A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii) 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 their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carryout those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv) Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.”
The Full Bench went on to observe:
“We think that representative error, in circumstances where the applicant was blameless, would constitute exceptional circumstances under s 366(2), subject to consideration of the statutory considerations in ss 366(2)(b) to (e) of the Act.”
[28] And later:
“It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative’s requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action of providing clear instructions to Mr Tayler to lodge his application.”
[29] Ms Reoch contends that the facts in Robinson are distinguishable from the applicant’s case and noting in particular the absence of affidavit evidence outlining the full circumstances in which the representative error arose. Ms Reoch submits that Ms Santesso has failed to prove she was blameless. I agree with Ms Reoch that affidavit evidence would have been preferable. Nonetheless, the Commission does have the benefit of a clear statement from Mr Meredith outlining the actions that both Ms Santesso and he took at each relevant point. In the circumstances I am prepared to accept this as an accurate outline of relevant events.
[30] The respondent relies on the authority of Gao v Department of Human Services8for the proposition that waiting on the results of an internal review does not amount to an exceptional circumstance. Whilst there is some force in this submission I make the following points:
● The applicant had instructed her solicitor to lodge the unfair dismissal application simultaneously as lodging the internal review application.
● The facts in Gao can be distinguished from the instant matter, particularly in relation to timing and the efforts undertaken to pursue a remedy. In this context I note the observations of Asbury DP in Tony Merlino v Coles Supermarkets Australia Pty Ltd9 in which she said:
“In my view, the facts in this case are distinguishable from those in Gao. In that case, Mr Gao sought a review of the termination of his employment but took few steps to pursue the matter. There was a delay of some six months between correspondence sent by Mr Gao to his former employer and his application for an unfair dismissal remedy being filed. Gao turned on the particular facts in that matter, and there is no general principle to be derived from that decision that an employee who seeks to dispute a termination internally, and as a result does not file an unfair dismissal application within the required time, will not be able to establish exceptional circumstances, to justify an additional period to make such an application being allowed.”
[31] In my view the applicant was entitled to rely upon the advice of her solicitor to the extent that the dismissal was ‘stayed’ as a consequence of her internal review application, even if this advice was incorrect. In this context I note that the Qantas “Standards of Conduct Policy “is silent on the question of whether a termination is ‘stayed’ pending the outcome of an appeal. Whilst I accept that there is nothing in this document which would give comfort to a legally trained mind to form such a view, equally, there is nothing in the document which would lead an individual without legal training to conclude that the advice was wrong and alternative steps should be taken.
[32] This is a clear case of representative error.
[33] I am satisfied that at every critical point the applicant was assiduous in her efforts to have the unfair dismissal application lodged. In my view the applicant is blameless so far as the delay is concerned.
[34] This consideration weighs in favour of granting the application
Whether the person first became aware of the dismissal after it had taken effect
[35] The applicant became aware of the termination on the date of the letter of termination, i.e 23 December 2014. This is the relevant date for the purpose of time limits. This aspect is neutral.
Any action taken by the person to dispute the dismissal
[36] The applicant immediately sought legal advice, lodged an appeal under the internal review process and initiated the process for lodging an unfair dismissal application. This weighs in favour of granting the application.
Prejudice to the employer (including prejudice caused by the delay)
[37] The respondent submitted that the grant of an extension of time would unfairly prejudice the respondent due to:
● The costs to the respondent in participating in proceedings before the Commission, including representation costs and other costs and expenses associated with absences from the workplace; and
● A burden on the respondent’s internal resources to defend the claim, and impact on workflow and other incidental costs.
[38] The costs the respondent refers to are inevitable in any defended unfair dismissal application, particularly when a party chooses (with leave) to be represented by legal counsel. The application is 21 days out of time. Ms Reoch acknowledged that the costs she refers to are not additional to that which would have been incurred had the application been lodged in time.
[39] There is no suggestion that critical evidence might not be available or compromised as a consequence of the delay.
[40] I am not satisfied that the respondent would suffer any additional prejudice as a consequence of the late application. However the mere absence of prejudice to the respondent does not mean it is a sufficient basis to grant an extension of time.10 In the present context I regard this consideration as neutral.
Merits of the Application
[41] It is noted that the applicant has appealed the conviction decision of Porter J. The applicant contends that if this appeal is successful it is likely that Ms Santesso will be acquitted. It follows, the applicant submits, that the grounds on which she was terminated would be made redundant and it must follow that the dismissal was unfair.
[42] The applicant submits that irrespective of the outcome of the appeal, the dismissal was unfair in that the criminal proceedings were brought about in circumstances wholly related to the breakdown of her marriage in a purely domestic situation.
[43] The respondent submits that the applicant’s employment was terminated for a reason relating to the alleged incompatibility of the criminal findings with her role as a Telephone Sales Consultant. Further, the dismissal was not harsh, unjust or unreasonable. Even if the convictions are quashed on appeal, the respondent contends that there is a valid reason for termination relating to the nature of the charges and the failure to disclose these charges to her employer. In such circumstances the respondent was entitled to form the view that it no longer had trust and confidence in the applicant as an employee.
[44] There are clearly serious issues of difference between the parties of which I have not had the benefit of hearing full argument. In such circumstances I am certainly not prepared to conclude that the application is without merit.11 This consideration is neutral.
Fairness between the person and other persons in a similar position
[45] The respondent submits that if the application is granted, it would create unfairness between the applicant and other persons who have failed to file applications for unfair dismissal remedies within the prescribed period and have been denied an extension of time in circumstances similar to those of the applicant.
[46] This is a contention which goes to the broader merits of the application. It is axiomatic that for an extension to be granted, exceptional circumstances must be established.
Conclusion
[47] ‘Exceptional circumstances’ are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances need not be unique, unprecedented or very rare.12
[48] In this case I find the delay is attributable entirely to representative error and the applicant is blameless.
[49] Representative error is a consideration which, depending on the particular circumstances, may be sufficient reason to extend the time within which an application for relief is to be lodged.
[50] The other considerations I am required to take into account are either neutral or weigh in favour of granting an extension.
[51] I conclude that the applicant has satisfied the criteria for the existence of ‘exceptional circumstances’ and that I should exercise my discretion pursuant to s.394(3) of the Act to allow a further period for Ms Santesso to make her application. An order allowing a further period until 3 February 2015 will issue with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Meredith for the applicant
Ms Reoch for the respondent
Hearing details:
30 April 2015
Final written submissions:
Respondent - 4 May 2015
1 Exhibits A1 and R1
2 Exhibit A2
3 Exhibit A3
4 Exhibit A4
5 [2011] FWAFB 2728 Watson and Drake SDPP, Harrison C 4, 17 May 2011
6 [1997] 74 IR 413
7 [1998] 105 IR 1
8 [2011] FWAFB 5605
9 [2015] FWC 1185
10 Brodie –Hanns v MTV Publishing Ltd [1995] 67 IR 298
11 Kornicki v Telstra Technology Group Print P3168 22 July 1997 Ross VP, Watson SDP, Gay C
12 Nulty v Blue Star Group Pty Ltd [2011] 203 IR1 at [5]
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