Stephen Saltau v Transfield Services (Australia) Pty Limited

[2012] FWA 9821

[2012] FWA 9821

FAIR WORK AUSTRALIA

DECISION

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

Stephen Saltau
v
Transfield Services (Australia) Pty Limited
(U2012/9460)

COMMISSIONER BULL SYDNEY, 23 NOVEMBER 2012

Application for an unfair dismissal remedy - jurisdictional objection - application made out of time - exceptional circumstances argued - time for filing not extended

[1] This matter is an application under s.394 of the Fair Work Act 2009 (the Act) made by Mr Stephen Saltau (the Applicant) alleging that his former employer, Transfield Services (Australia) Pty Limited (Transfield), terminated his employment in circumstances which were unfair.

[2] Mr Saltau’s employment was terminated with effect from 31 July 2012, by written notice dated 25 July 2012. The written notice stated that the Applicant’s position had become redundant due to the completion of the Home Insulation Safety Project (HISP) and that no other suitable position could be found within the company. Mr Saltau was paid his accrued entitlements, including redundancy pay and payment in lieu of notice.

[3] On 20 August 2012, the Applicant filed an application for an unfair dismissal remedy with Fair Work Australia (FWA); 20 days after his termination took effect.

[4] The Respondent filed a form F3 − Employer’s Response to Application for Unfair Dismissal Remedy on 4 September 2012. In addition to objecting to the claim that the Applicant was unfairly dismissed, the Respondent raised a jurisdictional objection to the application on the basis that the application was filed more than 14 days after the date on which the dismissal took effect, relying on the timeframe specified in s.394(2) of the Act.

[5] Section 394(2) of the Act provides that such applications must be filed within 14 days after the dismissal took effect or within such further period as the Tribunal allows.

[6] The matter was listed for hearing in order to determine whether an extension of time for the lodgement of the application should be granted.

[7] The parties filed written submissions in advance of the hearing date.

[8] At the hearing, Mr Saltau represented himself and the Respondent was represented by its Industrial Relations Manager, Mr Daniel Dal Bon.

Submissions

Applicant’s submissions

[9] Mr Saltau commenced employment with the Respondent on 12 April 2011 and was employed on a full time basis as the HSEQ Coordinator for the Respondent’s HISP Insulation Contract (the HISP was a Federal government contract).

[10] Mr Saltau submitted that he understood his position with the Respondent was permanent, not just full time and that he had little warning of his redundancy. As such, it was to a large extent a surprise to him, when he was informed of his termination of employment (PN28).

[11] Mr Saltau stated that the Respondent failed to properly and fully consult with him prior to making a decision on his redundancy.

[12] Mr Saltau had applied for a number of advertised positions within Transfield but had not received a response to most of his applications; he asserted that Transfield employed 16,000 employees.

[13] On 20 August 2012, Mr Saltau came to the conclusion that his termination was unfair and lodged his application with FWA after studying the legislation. Before this period Mr Saltau states that he did not feel aggrieved as he believed he was being considered for other work.

[14] Mr Saltau submitted that he had no knowledge of the specific timeframes in respect to filing an unfair dismissal application and that the delay in filing his application was not a result of a deliberate or belligerent disregard to the legislative timeframe.

[15] The Applicant further argued that his employment continued during his notice period, thus his application filed on 20 August 2012, was within the time constraints, as the one month notice period provided by the Respondent continued until 30 August 2012.

[16] Mr Saltau submitted that the method for selecting staff for redundancy was not transparent and not explained to employees prior to implementation of the redundancy process.

Respondent’s submissions

[17] Mr Dal Bon, on behalf of Transfield opposed the granting of an extension of time for the Applicant to file the unfair dismissal claim, on the ground that no exceptional circumstances existed.

[18] It was accepted that the Applicant commenced in the full time position of HSEQ Coordinator on the HISP on 12 April 2011. His employment ceased by way of redundancy as a result of the HISP contract concluding and no other suitable positions being available within the Respondent’s operations. The Respondent was one of five HISP employees made redundant on 31 July 2012 as a result of the completion of the contract.

[19] A statement from Mr Philip Treeby, the Senior Contracts Manager - HISP, was tendered. The Applicant did not object to the statement and accepted the accuracy of its contents. Mr Treeby’s statement indicated the following:

• 30 April 2012 − Mr Treeby informed the Applicant and other employees of the pending closure of the HISP and steps being taken to avoid retrenchments.

• 30 May 2012 − Mr Treeby wrote to the Applicant and other HISP employees of steps being undertaken to identify redeployment opportunities.

• 21 June 2012 − Mr Treeby provided by email further information of the HISP status to employees and advising that some employees will be released on 31 July 2012.

• 20 July 2012 − Mr Treeby wrote to the Applicant clarifying issues he had raised in regard to the closure of the HISP, including that continued employment was not guaranteed.

[20] Mr Dal Bon stated that unfortunately an internal review could not identify any suitable vacancies for the Applicant prior to his termination. Mr Dal Bon argued that the Applicant has failed to identify any exceptional circumstances and has failed to meet the requirements to satisfy an extension of time being granted.

Legislative Framework

[21] Subsection 394(2) of the Act provides that an unfair dismissal application must be made within 14 days after the dismissal took effect:

394 Application for unfair dismissal remedy

...

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

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

[22] Subsection 394(3) of the Act provides that FWA may allow a further period for an unfair dismissal application to be made if satisfied there are exceptional circumstances. The Tribunal in concluding whether exceptional circumstances exist must take into account certain listed factors:

394 Application for unfair dismissal remedy

...

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.

Meaning of Exceptional Circumstances

[23] The expression “exceptional circumstances” is not defined in the Act but numerous Tribunal cases have dealt with and addressed the meaning in the statutory context of s.394(3). My understanding of these decisions is that exceptional circumstances need not be unique, unprecedented, or very rare; but they cannot be circumstances that are regular, routine, or normally encountered.

[24] This conclusion is supported by the Full Bench decision in Nulty v Blue Star Group Pty Ltd 1 (Nulty), where the Full Bench, in examining the words “exceptional circumstances” (while not under s.394, but under the Act’s General Protection provisions) stated:

“(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.”

Determination

[25] In determining this matter, the Tribunal is required to take into account the factors listed above as set out at sub s.394(3) of the Act, these factors are examined below.

Reasons for the delay

[26] In his written outline of submissions, Mr Saltau included in his reasons for the delay, that he held no knowledge of the specific timeframes detailed in the FWA legislation (although this was not the sole reason for the delay). Lack of knowledge of the Act’s timeframes is not an unfamiliar position put to this Tribunal by employees seeking an extension of time to file their unfair dismissal applications. To date, this has not been a circumstance that has been held to be exceptional. As the Full Bench said in Nulty:

“(14) Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.”

[27] Mr Saltau concentrated his submissions on what he believed to be a lack of consultation and transparency in regard to the redundancy process. Mr Saltau stated:

“From all the literature that I was able to read on Fair Work Australia that I came to the conclusion in my own mind that it was an obligation on all employers to provide consultation and consider redeployment (PN166).”

[28] However, the prime reason for the delay in filing appeared to be that Mr Saltau understood that his employer was actively seeking alternate employment for him after his dismissal and that when he realised that this was not going to eventuate, he immediately acted to file his application. Mr Saltau stated:

“So that, I guess, mitigates the reasons why I wasn’t so concerned that I’d received a letter of termination; because I believed there was other opportunities that were yet to be considered for me within the organisation (PN 140).”

[29] Mr Saltau further argued that the employer did not have the right to terminate his employment contract without providing one month’s notice. This argument was developed on the wording of the contract of employment under the heading Termination:

“Either party may terminate this contract by giving at least one month’s notice in writing. In the case of termination of this contract by Transfield Services, Transfield Services may at its option pay you an amount equal to your salary in lieu of the notice period being worked by the employee.”

[30] Mr Saltau argues that the right to pay a month’s salary in lieu of the notice period being worked by the employee still requires a month’s notice to be provided and further that the employee is not required to work during the pay in lieu of notice period. On Mr Saltau’s argument his unfair dismissal application was filed while he was still employed, as the one month’s notice would not have expired until 30 August 2012.

[31] The payment in lieu of notice provision contained within Mr Saltau’s employment contract is a standard provision found in employment contracts, as well as in awards and agreements made under the Act and is reflected in the National Employment Standards at s.117(2)(b) of the Act.

[32] The argument put forward by Mr Saltau on this point cannot be accepted. The termination provision in the employment contract allows the employer to “terminate” the contract by paying an amount of salary in lieu of, and equal to, the notice period. Thus termination in lieu of notice has effect from when the notice is given, not at the end of that notice. The Respondent’s letter of termination to Mr Saltau makes this clear.

The merits of the application

[33] On what was put before the Tribunal, it is difficult to see the merits of the Applicant’s claim of unfair dismissal. Mr Saltau was engaged on a government funded project which came to an end. Along with a number of other employees, Mr Saltau’s position became redundant and no suitable alternate work was able to be found in the Respondent’s operations at the time of the redundancy. Mr Saltau argues that the process was not transparent and that full consultation was not undertaken by Transfield. The documentation presented to the Tribunal and the witness statement of Mr Treeby, on their face, appears to contradict this assertion.

Whether the Applicant first became aware of the dismissal after it had taken effect

[34] Mr Saltau was made aware of his termination in correspondence dated 25 July 2012, which he states he did not receive until 31 July 2012; the date the termination had effect from.

Action to dispute the dismissal

[35] No party submitted that the Applicant took any action to dispute his termination, either at the time of notification or leading up to the application being filed on 20 August 2012.

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

[36] The Respondent submits that it will be prejudiced if an extension of time is granted in that it will incur the cost and inconvenience of defending the application. The prejudice identified by the employer appears to be what the Respondent would have incurred had the application been filed within time. No additional prejudice caused by the delay has been identified. However, mere absence of prejudice to the Respondent is not sufficient to grant an extension of time (see Brodie-Hanns v MTV Publishing Ltd 67 IR 298).

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

[37] The Respondent submitted that five other employees were also retrenched on 31 July 2012. It does not appear that they have filed claims of unfair dismissal in this Tribunal.

Do exceptional circumstances exist?

[38] The submissions of the Applicant were addressed more towards the unfairness of his termination rather than addressing what exceptional circumstances existed to justify the Tribunal extending the time for filing his unfair dismissal application.

[39] I accept, as Mr Saltau submitted, that there was no deliberate disregard on his behalf to ignore the statutory timeframe. I also accept that he was unaware of the statutory timeframes imposed on unfair dismissal applications. However, the statutory test that the Tribunal must apply is one of exceptional circumstances, not the reasonableness of the circumstances.

[40] Nothing argued by Mr Saltau represents an unforeseen or an unexpected event, in so far as they posed an unanticipated obstacle to the lodgement of his unfair dismissal application. The fact that Mr Saltau was under the impression that he had permanent employment with Transfield and that he was being considered for other positions or that the redundancy process was not transparent does not address why his unfair dismissal application was filed out of time. As such I am not satisfied that exceptional circumstances exist.

[41] In all of the circumstances I am not persuaded to exercise the discretion provided in s.394(3) of the Act to extend the period for Mr Saltau to file his unfair dismissal.

[42] Accordingly the unfair dismissal application is dismissed as having not been filed within the requisite statutory time limit and there being no exceptional circumstances to extend the time for filing from 14 August 2012 to 20 August 2012.

COMMISSIONER

Appearances:

S Saltau on his own behalf.

D Dal Bon for the Respondent.

Hearing details:

2012.
Sydney:
16 November 2012.

 1   [2011] FWAFB 975

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