Ross Brightman v FalconAir Pty Ltd

[2020] FWC 6773

[2020] FWC 6773

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Ross Brightman
v
FalconAir Pty Ltd
(C2020/5689)

COMMISSIONER YILMAZ MELBOURNE, 15 DECEMBER 2020

Application to deal with contraventions involving dismissal.

[1] FalconAir Pty Ltd is a specialist aircraft charter operator servicing Australia and the Asia Pacific region, offering corporate jet charter and aeromedical services, including patient and organ transfers and medical evacuations.

[2] In March 2020, FalconAir Pty Ltd (FalconAir) commenced negotiations with Mr Ross Brightman about prospective employment as its chief pilot. FalconAir submit an offer of employment was made, conditional on completion of training and meeting regulatory requirements. It is not contested that the offer was withdrawn on 9 June 2020, and Mr Brightman was given one week notice until 16 June 2020 to submit any out of pocket expenses for reimbursement. Mr Brightman asserts the dismissal took effect on 16 June 2020.

[3] On 20 July 2020, Mr Brightman lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against FalconAir.

[4] FalconAir submit that Mr Brightman was never employed and therefore the Commission has no jurisdiction to deal with the application. Mr Brightman submits that he was most probably employed by FalconAir and his employment was terminated on 16 June 2020. He further submits that because his application was made outside the 21-day statutory time limit, the Commission should find the reasons for the delay constitute exceptional circumstances in favour of an extension of time.

[5] I scheduled the jurisdiction/extension of time hearing for 16 October 2020. Both parties were given leave to be legally represented pursuant to s.596 (2)(a),(b) and (c) of the Act.

[6] I received witness statements from Mr Ross Brightman and Mr Marc De Stoop, the Chief Executive Officer and extensive materials which I have considered. Both Mr Brightman and Mr De Stoop also gave witness evidence during proceedings.

[7] This decision deals with the questions of whether Mr Brightman was employed and terminated by FalconAir, and the extension of time application.

[8] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 13 days after the 21-day statutory time limit.

Applicant’s submissions

[9] Mr Brightman contends that the parties entered into an employment arrangement in or about May 2020. He contends that it is a matter to be tested whether he actually started work or the arrangement was prospective. 1 During the one week notice, Mr Brightman worked on an alternative offer where he himself would put approximately $60,000 towards his own training and type rating for CASA. Mr Brightman’s offer of 17 June 2020 was rejected by FalconAir.

[10] Mr Brightman contends that further discussions occurred with Mr De Stoop on 1 July 2020, and it was after this date that he realised his employment agreement was terminated in favour of another candidate with free type rating.

[11] Mr Brightman contends that the reason for the termination of his employment agreement was that he had workplace rights, had exercised those rights, proposed to exercise those rights or was prevented by making an inquiry or complaint in respect of his employment or prospective employment under the Fair Work Act 2009 (Cth) and the Civil Aviation Act 1988 (Cth) and subsidiary legislation.

[12] Mr Brightman did not elaborate with any further detail what purported workplace rights had been contravened and how.

Respondent’s submissions

[13] FalconAir submit that for the Commission to consider an extension of time, it must be satisfied that Mr Brightman was dismissed. 2 It relies on the recent decision of Coles Supply Chain Pty Ltd v Milford3 that reasoned that the Commission must be satisfied that an employment arrangement was in place in fact and dismissed, and it must not just be an alleged dismissal.4

[14] FalconAir contend that Mr Brightman was not employed because the roles offered to him as Head of Flying Operations (HOFO), Head of Training and Checking (HOTAC) and Line Pilot required the completion of certain training and Civil Aviation Safety Authority (CASA) requirements to be passed. Until the requirements (training and regulations) were satisfied, Mr Brightman could not legally perform the roles.

[15] The employment agreement signed by both parties tendered in evidence confirmed the conditions of the offer of employment. 5

[16] The witness statement of Marc De Stoop stated that the commencement of employment would be confirmed after Mr Brightman passed the CASA Class One Medical and the CASA Chief Pilot interview and as both of these conditions could not be satisfied the offer of employment was never fulfilled.

[17] Further FalconAir submit that it had no intention of entering into legal relations until the conditions precedent to the offer were fulfilled, and further it submits that Mr Brightman never performed work for FalconAir, nor was he remunerated. 6

[18] Mr De Stoop, the Chief Executive Officer of FalconAir, admits to mistakenly giving Mr Brightman notice, but this he contends does not give rise to the existence of an employment relationship. 7

[19] FalconAir contends that Mr Brightman was never employed and therefore not capable of being dismissed; the result being that the Commission has no jurisdiction pursuant to s.368(1) of the Act. It also contends that the Commission should dismiss the application pursuant to s.587 (1)(a) on the basis that the application has not been made in accordance with the Act. 8

[20] In the unlikely circumstances that the Commission finds that Mr Brightman was dismissed, FalconAir make submissions in relation to the considerations in an extension of time matter, and say that Mr Brightman has not demonstrated exceptional circumstances warranting the granting of an extension of time in relation to his general protections application.

Consideration

[21] General protections applications involving dismissal must be made within 21 days.

[22] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position

[23] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 9 where it was held that:

“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 regular occurrence, even though it can be a on 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.” 10

[24] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[25] The general protections involving dismissal application was lodged with the Commission on 20 July 2020, 13 days late.

[26] Mr Brightman submits that he disputed the dismissal and made a proposal to FalconAir to engage him on different terms. He further submits that he was not familiar with Australian workplace relations laws and its processes and the delay was attributable to an error on the part of his legal representative, his former solicitor. 11 Mr Brightman stated that he contacted a lawyer on 4 July 2020, and met with her on 8 July 2020. He submits that when he met with her, she did not advise him of the timeframe for lodging applications.

[27] Mr Brightman states that he met with his current legal representative on 14 July 2020, however the application was not lodged until 20 July, some 6 days after he obtained further legal advice from a new legal representative.

[28] FalconAir acknowledges that Mr Brightman made an offer that involved a financial contribution to his type rating and on the basis that it offered him the HOTAC role. The offer was not accepted by FalconAir on the same day the offer was made (17 June 2020). 12

[29] Mr Brightman provides no explanation for his own inactivity to dispute the alleged termination of employment or the making of an application within the 21 day timeframe other than accounting for his contacting or meeting with a lawyer on 4, 8 and 14 July 2020 and his lack of awareness of Australian employment laws and their processes.

[30] Provided the Applicant is blameless, representative error is generally accepted as an exceptional reason for the purposes of granting an extension of time. However, Mr Brightman only accounted for a small period in the first 21 days and the period of the delay. Mr Brightman did not account for the whole period. He did not explain any action to inform himself about general protection applications or any other form of redress in the Commission, other than contacting a lawyer. In this instance, Mr Brightman cannot be considered blameless in the delay.

[31] Mr Brightman also relies on his lack of awareness of Australian employment law and processes, but ignorance of the law is not considered an exceptional reason in favour of an extension. 13

[32] The period prior to the 21^st day is relevant as to whether there are exceptional circumstances. 14 Mr Brightman submits that he became aware of his “termination” on 1 July 2020 and it was at this time that he determined that he should obtain legal advice. However, this explanation does conflicts with his own submissions concerning the discussion held with Mr De Stoop on 9 June 2020 which led to his development of an alternative employment proposal.

[33] There must be a credible reason for the delay. 15 Having regard to the evidence, I am not satisfied that Mr Brightman demonstrated credible reasons to justify an extension. I do not consider the reasons for the delay weigh in his favour.

Steps taken to dispute the termination

[34] It is not in contention between the parties that Mr Brightman had prepared an alternative employment proposal to FalconAir for their consideration, however, this action was not action disputing a termination of employment. Mr Brightman did not put FalconAir on notice that he challenged the alleged termination of employment and would take any subsequent formal action. Therefore, I cannot find this consideration to weigh in his favour.

Prejudice to the employer

[35] Mr Brightman submits that granting an extension of time will not cause FalconAir disadvantage or unfairness, particularly in light of the 13-day delay.

[36] FalconAir does accept that there is unlikely to be any prejudice caused by the delay, however, it submits it will incur legal costs if an extension of time were granted and it follows that it would be required to object to the jurisdiction of the Commission on the basis that Mr Brightman was never employed. 16

[37] FalconAir did not demonstrate prejudice, and consistent with established precedent regarding prejudice, even the mere absence of prejudice is an insufficient basis to grant an extension. Consequently, this consideration is in my view a neutral consideration in this matter.

Merits of the application

[38] Mr Brightman submits the reasons given to him for the alleged termination of the employment agreement was for financial reasons. However, in his outline of submissions he refers to the reasons contained in the letter from FalconAir dated 10 June 2020, where it was stated that Mr De Stoop is experiencing pushback from CASA. Mr Brightman then contends that he proceeded to make inquiries from CASA and discovered that Mr De Stoop withdrew Mr Brightman’s application.

[39] In Mr De Stoop’s witness evidence he confirmed that he withdrew the application that was before CASA following pushback from his Board as they would not agree to continue to fund the application, he also confirmed the reasons having considered the information from CASA about Mr Brightman being unlikely to meet the required flying standards and COVID-19 impacts on FalconAir operations. The reasons to contain costs was shared with CASA in the email of 10 June 2020. 17 The evidence of the email tendered by Mr De Stoop confirms the timing of the cancellation of the application before CASA occurred after his meeting with Mr Brightman on 9 June 2020.

[40] Mr Brightman does not address in his evidence how the merits of his application relate to the general protections provisions, other than the statement that FalconAir breached the provisions regarding protection. 18 Further, he does not, I note, dispute that he did not meet the necessary qualifications and requirements set by CASA for the proposed employment arrangement. While Mr Brightman states it is to be tested whether he was employed by FalconAir, his own evidence alludes to his understanding that employment would commence after he met the conditions of the employment offer. Further, if he understood there were conditions to the employment offer, he did not submit how not meeting those conditions on his part were a contravention of the general protections’ provisions. The statement by CASA that Mr Brightman had not met the minimum flying time in Australian conditions, coupled with the restrictions for travel even though Australian Border Force permitted the travel out of Australia to the US to complete the training were compelling that Mr Brightman was unlikely to meet the conditions.

[41] I have not tested the evidence in regard to merit and it is not my position to do so in an extension of time application. 19 However, the limited material in support of Mr Brightman’s submissions in my opinion are unhelpful for a persuasive argument relating to merit.

Fairness between the person and other persons in a like position

[42] Mr Brightman contends that based on various decisions concerning extension of time it is fair to do so in this matter. It is also submitted that Mr Brightman’s action to dispute his “termination” and his proposal for alternative employment is exceptional and relevant to the consideration. Finally, Mr Brightman submits that he should be in a position to rely on accurate legal advice.

[43] FalconAir did not adequately respond to this consideration.

[44] I do not find the explanations offered by Mr Brightman persuasive for an extension of time. I have already found Mr Brightman’s actions of developing alternative employment proposals not an action of disputation. I do consider that this action is evidence in support of the contention that he understood that he did not meet the conditions of the offer associated with the employment agreement. I note that this is not contentious as Mr Brightman accepts that he does not meet the necessary requirements to be able to commence the positions as outlined in the employment agreement. 20

[45] Mr Brightman’s offer to fund his training is not unusual or exceptional to support an extension of time. Many occupations rely on self-funding of qualifications, nevertheless this relates more to the conditions associated with the prospective employment arrangement rather than relevance to the reasons for an extension of time. Finally, while Mr Brightman may be fairly entitled to rely on accurate legal advice, there is insufficient evidence to support the contention that the legal advice was wrong in the context of the advice sought. Despite this, it is expected that applicants will take an active approach in their own matters by obtaining information and taking a lead in their matter. In this matter I do not consider Mr Brightman to be blameless in the carriage of his application.

[46] In the circumstances, much of the submissions concerning this consideration related to other factors contained within s.366(2). I am not satisfied neither for nor against that either party has addressed this consideration adequately, therefore I consider it neutral in the circumstances.

Was Mr Brightman employed?

[47] FalconAir contend that Mr Brightman was never employed and therefore the application for an extension of time is not properly before the Commission. FalconAir submit the terms contained in the employment agreement were conditional before acceptance of the contract. Consequently, it submits I should dismiss the application pursuant to s. 587(1)(a) of the Act.

[48] The witness statement of Mr Marc De Stoop, CEO and his witness evidence described the discussion he had with Mr Brightman while he was looking to engage a Chief Pilot, he stated that he was aware that Mr Brightman had not been involved in active flying for a number of years and was employed in flight training. He submits that he said words to the effect of:

“FalconAir is looking for a new Chief Pilot. FalconAir will lend you money to cover the costs of flight training, provided that you are able to pass the Civil Aviation Safety Authority Chief Pilot interview and Class One examination. However, we cannot employ you until these requirements are met.” 21

[49] Further Mr De Stoop gave evidence that FalconAir holds an Air Operator’s Certificate which is an authorisation granted by CASA under the Civil Aviation Act 1988 (Cth) (CA Act) to conduct commercial activities. It is a requirement that to hold an Air Operator’s Certificate, the Operator must engage a person in the role of Head of Flying Operations. It is also a condition that the Operator appoint a Chief Pilot in the position of Head of Flying Operations. 22

[50] Due to the small size of FalconAir, a fulltime position as Head of Training and Checking (HOTAC) was not justified, so it offered Mr Brightman the role of HOTAC as well, in addition to the role of Head of Flying Operations and Chief Pilot. The purpose of the role of HOTAC is to ensure personnel in the operation are competent to deliver its work. Mr De Stoop noted that during the discussions with Mr Brightman that his instrument rating had also expired to fly the aircraft operated by FalconAir. An instrument rating is required to pilot an aircraft per Instrument Flight Rules. The rating is required when visual meteorological conditions cannot be maintained in conditions when there is no visibility. The type rating is also a requirement of CASA and is relevant to all the roles FalconAir required of Mr Brightman. 23

[51] Mr De Stoop gave evidence that he agreed to provide to Mr Brightman financial assistance (to be reimbursed via salary sacrifice over a period of 3-5 years) to obtain the required qualifications to undertake the roles, provided he was successful in passing the CASA Chief Pilot Interview and completed the required training. On 23 April 2020, the offer of employment was sent to Mr Brightman, which contained the conditions of engagement. 24

[52] Mr De Stoop gave evidence that his Chief Pilot left FalconAir, and following receipt of the signed terms of the offer by Mr Brightman, he asked his Accounts Manager to draft correspondence enquiring with Australian Border Force if Mr Brightman could be exempted from travel restrictions to attend training in the United States. A copy of the letter to Australian Border Force was raised during proceedings, and Mr De Stoop admitted to its reference to Mr Brightman as an employee in the correspondence. However, he states that Mr Brightman was not an employee as he could not perform any of the roles without satisfying the regulatory requirements, which were a condition of the employment. Mr De Stoop also confirmed that Mr Brightman did not earn a salary from FalconAir, nor performed any work in relation to the roles offered to him. 25

[53] In May 2020, Mr De Stoop had discussions with a representative of CASA who stated that Mr Brightman will not pass the review of Chief Pilot due to his lack of flying in the last 8 years in Australian conditions. These comments together with the initial cost investment in training estimated at $65,000, the impact of COVID-19 on FalconAir’s operating hours, the immediate need to reduce operational costs and having considered border travel restrictions, FalconAir determined to withdraw the offer in around late May or early June 2020. Mr De Stoop and Mr Brightman met on 9 June 2020. 26 A letter to Mr Brightman following the meeting was sent on 10 June 2020 where Mr De Stoop states that he provided a week of notice mistakenly because Mr Brightman returned the offer signed, even though employment had not commenced.27 On 9 June 2020, after Mr De Stoop informed Mr Brightman of his reasons for withdrawing the offer, he contacted CASA to also withdraw Mr Brightman’s application for Chief Pilot Interview.

[54] The employment agreement offered to Mr Brightman under the heading commencement date states “The employee’s employment with the Company will begin on the Commencement Date specified in Item 2 of the Schedule and will continue unless terminated in accordance with this Agreement.” 28 Relevantly, the Schedule of the employment agreement confirms the commencement date “to be confirmed upon passing CASA Chief Pilot Interview”, the position is confirmed as Head of Flying Operations/ Head of Training and Checking and Line Pilot full time and the probation period of six months applies from the commencement date and item 5 confirms the conditions precedent to the offer and outlines the conditions of the loan to complete the CAE/FSI Falcon F 900 Initial rating.29

[55] The email sent from Mr De Stoop to Mr Brightman dated 10 June 2020, uses expressions as though there is an “employment arrangement” or “employment engagement”. It provides one week of notice to finalise expenses for reimbursement of costs incurred in preparation for the assessment by CASA, return of any property owned by FalconAir and concludes that the contract had not officially started. The relevant reference from the email is:

“I know that you are disappointed as much as I am, however, I thought it better to have a conversation about this now given the contract has not officially started and we are not currently paying you a salary – the company has now effectively, yesterday, 9 June 2020 given you notice – 1 week under the probationary period to end the contract at this time. What this means for you and we noted in our meeting we are happy to finalise any expenses that need to paid and that are currently outstanding.” 30

[56] The email from Mr Brightman to Mr De Stoop offering an alternative where he obtains funds to facilitate an alternative role, is evidence that Mr Brightman understood that the initial offer was withdrawn and there was no active employment as at 17 June 2020. 31

[57] Applications pursuant to s.366 of the Act are to be made consistent with the principles of the relevant sections of the Act. The first objective criteria is that the person has been dismissed, and the second objective term is that an allegation has been made that the dismissal was in contravention of the general protection provisions of the Act. The dismissal must have occurred in fact. 32 The words must be given their ordinary meaning, and I find the contract conditions are not ambiguous, therefore they too must be given their ordinary meaning.

[58] FalconAir terminated the offer of employment, even though Mr Brightman accepted the offer by returning the signed terms. The general principles that once an offer is accepted the contract cannot be terminated apply, except where there are conditions attached to the offer and cannot be met. FalconAir did not waive the conditions, but rather the requirement to meet the conditions became more pressing after the resignation of the Chief Piot and the additional challenges that became apparent that Mr Brightman was unlikely to meet those conditions.

[59] In relation to the matter regarding whether Mr Brightman was employed or not, I find he was not employed as he had not met the conditional requirements of the job, did not perform the job and was not paid for the performance of duties associated with the job. The contract stipulates the start date, and the start date did not come into effect prior to the termination of the employment agreement.

Conclusion

[60] While I did not find that Mr Brightman was employed by FalconAir, which is a requirement of making an application subject to s.366 of the Act, I also considered Mr Brightman’s submissions and evidence concerning his application for an extension of time. I do not consider the application is made in accordance with the Act and further in relation to the extension of time, on balance of all the considerations, I am not satisfied that the circumstances weigh in favour of granting Mr Brightman an extension of time, even if his employment had been terminated as a matter of fact.

[61] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am satisfied that there are no exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Further having considered the evidence whether Mr Brightman was employed and dismissed I do not find so. Accordingly, the matter is dismissed.

COMMISSIONER

Appearances:

Ms N. Leedman for the Applicant

Mr N. Read for the Respondent

Hearing details:

2020
Melbourne (by Telephone)
16 October

Printed by authority of the Commonwealth Government Printer

<PR725474>

 1   Applicant’s outline of submissions at Q1d.

 2 Respondent’s outline of submissions [5].

 3   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.

 4   Op Cit [5] and [6] and Ibid [57] – [62] and [67].

 5   Attachment MDS-A to Exhibit R1.

 6   Exhibit R1 [13] – [19] and Attachment “A” Schedule 5, Item 2 of MDS-A.

 7 Exhibit R1 [30].

 8 Respondent’s outline of submissions [9].

 9   [2011] FWAFB 975.

 10 Ibid at [13].

 11   Applicant’s outline of argument [4], [8] and [10] – [13].

 12   Respondent’s outline of submissions [13] – [14].

 13   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975.

 14   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.

 15   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 16 Respondent’s outline of submissions [21].

 17   Applicant’s outline of submissions at Q1g.

 18   Ibid at Q1h.

 19   Miller v DPV Health Ltd[2019] FWC 3979.

 20   Applicant’s witness statement Exhibit A1.

 21 Exhibit R1 [4].

 22   Exhibit R1 [7] and [8].

 23   Ibid [9] – [13].

 24   Ibid [14] – [16].

 25   Ibid [17] – [19].

 26   Exhibit R1.

 27   Ibid [29] – [30] and Attachment MDS-C.

 28   Attachment MDS-A at 1.1.

 29   Attachment MDS-A Schedule.

 30   Attachment MDS-C.

 31   Attachment MDS-E.

 32   Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 [54].