Ricky Whatmore v Virgin Australia Airlines Pty Ltd

[2013] FWC 8201

[2013] FWC 8201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Ricky Whatmore
v
Virgin Australia Airlines Pty Ltd
(C2013/5654)

COMMISSIONER WILLIAMS PERTH, 24 OCTOBER 2013

Application to deal with contraventions involving dismissal - extension of time.

[1] This matter concerns an application made by Mr Ricky Whatmore (Mr Whatmore or the applicant) under section 365 of the Fair Work Act 2009 (the Act).

[2] Section 366 of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. The Fair Work Commission (the Commission) however has the discretionary power to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below:

“366 Time for application

(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).

(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.”

[3] Mr Whatmore’s application states that he was dismissed on 25 July 2013. His application was made on 19 August 2013. The application was made after the 21 day time limit had passed.

[4] Consequently I wrote to Mr Whatmore explaining to him the requirements of section 366 of the Act and inviting him to provide any relevant evidence and submission to assist the Commission in determining whether there were exceptional circumstances in this case. I also invited the respondent to provide a submission in response and Mr Whatmore had a further opportunity to comment on the respondent’s submission.

[5] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be allowed.

Are there are exceptional circumstances?

Background

[6] The applicant was first employed in February 2013.

[7] The applicant was on approved annual leave for the period 17 June 2013 to 30 June 2013 and during this time was travelling overseas. The applicant was due to return to work on 1 July 2013.

[8] Whilst in the United Arab Emirates he was detained by the local authorities for a period which prevented him from returning to Australia at the conclusion of his annual leave.

[9] On 28 June 2013 the applicant contacted the respondent and advised them of his situation.

[10] On 5 July 2013 the respondent wrote to the applicant and advised him that it viewed him as now being absent without authorisation and that this was having a negative impact on the business and they expected him to resume duty no later than 12 July 2013.

[11] The applicant was not able to return to work on the date because he continued to be detained in the United Arab Emirates.

[12] On 19 July 2013 the respondent sent the applicant a show cause letter as to why his employment should not be terminated and the applicant responded to this with his own letter on 22 July 2013.

[13] On 25 July 2013 the respondent wrote to the applicant advising that they had decided to terminate his employment.

[14] Subsequently the applicant was released from detention and returned to Australia on 18 August 2013.

The reason for the delay

[15] With respect to the reasons for the lodging of the application after the 21 day time limit had expired the applicant says the delay was caused because he had difficulty seeking legal advice, he had taken time to appeal his decision through the respondent’s internal processes, he was not able to return from overseas until 18 August 2013 and whilst he was in the United Arab Emirates he had limited access to printers and was restricted in his ability to download information from the Commission’s website.

[16] In its submission the respondent says the applicant should not be granted an extension of time.

[17] The respondent says the applicant did appeal its decision to terminate his employment through its internal procedures to the General Manager Cabin Crew, the Chief Operating Officer and the General Manager People.

[18] The respondent asserts that the applicant did have access to internet, email and telephone as demonstrated through his communication repeatedly with the respondent during his absence and says that the applicant worked in the United Arab Emirates in Dubai for a period of seven years and so had considerable local knowledge to assist him access such resources locally.

[19] Considering then the reasons for the applicant’s delay in making this application firstly I do not accept that seeking legal advice is an acceptable reason for the delay in this case. One assumes the parliament when making the time limit of 21 days was cognisant of the fact that employees may choose to seek legal advice before making an application and considered this time period sufficient for dismissed employees to do so.

[20] The fact that the applicant did not return to Australia until 18 August 2013 is also not in my view an acceptable reason for the delay in this instance. The applicant was interacting regularly with the respondent through emails and the material before the Commission demonstrates that the applicant had sent emails to the respondent on 28 June 2013, 9, 15, 22 and 25 July 2013. During this time he had also received various letters from the respondent assumedly also by email. Given his capacity to interact with the respondent in this way there is no reason why he could not whilst he was absent from Australia similarly interact with the Commission and lodge an application via email, fax or through the lodgement facility provided on the Commission’s website.

[21] Further I do not accept the applicant’s submission that the limited access he had to printers and download facilities was a reason for the delay. The information before the Commission demonstrates that the applicant had ready access to at the very least email communications. The applicant was certainly in no worse situation than many employees find themselves in when they are dismissed in remote parts of Australia with limited access to telephone, internet and email. There is no particular provision in the legislation for employees in these situations to be granted a further period within which to make their applications and certainly living in remote parts of Australia cannot be said to be an exceptional circumstance in itself.

[22] The applicant asserts that the respondent had deliberately delayed its response to the internal appeals he made after he was dismissed assumedly to prevent him making this application in time. The respondent denies this assertion and there is no reason to believe that assertion is true.

[23] What however is correct is that after the respondent notified the applicant that he was dismissed on 25 July 2013 Mr Whatmore sought a review of this decision. The applicant requested that the General Manager Cabin Crew review the decision. Next he requested that the Chief Operating Officer review the decision and on 2 August 2013 he was advised in writing that the decision would stand.

[24] The applicant then requested that the General Manager People review the decision to terminate his employment and he was advised on 9 August 2013 that the decision would stand and that:

“Given that the internal appeal process has been exhausted and that the Chief Operating Officer has upheld the decision, I regret to inform you that this matter is now considered closed.”

[25] What is clear from this is that during the period from first being advised on 25 July 2013 that his employment was terminated through to 9 August 2013 the applicant was actively seeking an internal review by the respondent of its decision to terminate his employment. Up until being told on 9 August 2013 that the matter was closed the applicant assumedly held the view that it was possible that the respondent would change its mind and rescind the termination decision.

[26] In these circumstances then I accept it was reasonable for the applicant not to have made an application to the Commission during this period whilst the respondent was considering the various appeals the applicant had made. I accept as a result that there is an acceptable reason for a delay of approximately 14 days in making this application.

Any action taken by the person to dispute the dismissal

[27] As noted above the applicant did actively dispute the dismissal by repeatedly requesting that the respondent’s senior officers review the decision to terminate his employment.

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

[28] The delay in making the application is short and I am not satisfied that there is any particular prejudice to the employer caused by the delay in making the application.

The merits of the application

[29] In the application the applicant describes the alleged contraventions as follows:

“I believe I have been terminated for exercising my workplace right to utilise approved annual leave, however due to unique extenuating circumstances I have not been able to return from this leave on the date specified for my return which has then been classified by Virgin Australia as unauthorised absence...

I have been penalised with termination of exercising my workplace right to take authorised leave and deciding to travel.”

[30] The respondent submits that the applicant was not able to resume his roster duties within the timeframe required by the respondent and when requested the applicant could not provided a definitive timeframe when he would be able to resume his roster duties. Because of this a review of his employment was conducted and he was requested to show cause why his employment should not be terminated.

[31] The respondent says that the termination occurred because of the applicant’s unauthorised absence from work and his inability to return to work by 12 July 2013 as requested by the respondent.

[32] The respondent submits that the applicant was not on approved annual leave at the time of his termination but rather was on unapproved absence from work and the fact that he had originally been granted annual leave was irrelevant to the decision to terminate his employment. As such there has been no contravention by the respondent of the general protections provisions.

[33] It is well established that in an extension of time application the Commission is not to embark upon a full investigation of the merits of the claim in the sense of hearing evidence and full argument on any respective points of law.

[34] In this case it is my view that there is little merit to the applicant’s argument. It is not readily apparent to me that the decision to terminate was for any reason other than the fact that the applicant was not able to return to work when required by the employer and when asked was not able to advise when he would be able to return to work. The connection the applicant draws between the decision to terminate and his having taken annual leave, which he views as the exercise of a workplace right, is doubtful however it is not correct to say there is no arguable case on behalf of the applicant.

[35] Given the merits of the substantive case are so weak this is a negative factor which weighs against granting an extension of time to launch the application.

Fairness as between the person and other persons in a similar position

[36] There is no information regarding fairness between the applicant and other persons in a similar position.

Conclusion

[37] The onus is on the applicant to persuade the Commission that a further period should be allowed for him to make this application beyond the statutory time limit of 21 days. I have considered the information provided by both parties.

[38] Considering the relevant factors here my conclusion is that there is an acceptable reason for the delay in making the application and the applicant actively contested his dismissal from the moment he was advised of it, both of which are positive factors in favour of granting an extension of time and these in my view outweigh the fact that the application itself has little apparent merit and little chance of success.

[39] I am persuaded then that I should exercise the discretion available to allow a further period for this application to be made. An order will be issued in conjunction with this decision to extend the time for the making of this application to the date the application was made.

[40] The parties will be contacted shortly to convene a conference under section 368 of the Act.

COMMISSIONER

Final written submissions:

Applicant, 22 August 2013 and 25 September 2013

Respondent, 16 September 2013

Printed by authority of the Commonwealth Government Printer

<Price code C, PR543512>