Vee Gillian Kelly v William Stewart Bentley

[2011] FWA 2062

Note: An appeal pursuant to s.604 (C2011/4140) was lodged against this decision - refer to Full Bench decision dated 21 December 2011 [[2011] FWAFB 8992] for result of appeal.

[2011] FWA 2062

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vee Gillian Kelly
v
William Stewart Bentley
(U2010/9478)

COMMISSIONER SPENCER BRISBANE, 1 APRIL 2011

Termination of employment - Jurisdictional Objection - Extension of Time.

Introduction

[1] The Applicant (Mrs Vee Kelly) made an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), claiming she was unfairly dismissed from the employment of Mr William Bentley (the Respondent). The Respondent owns and operates three properties including Mooning Station. The Applicant was employed as a caretaker of the properties and resided at Mooning Station. This property is located approximately a one hour drive from Cunnamulla.

[2] In accordance with s.394 (2) of the Act, the application for relief must be made within 14 days after the dismissal took effect. This determination relates to the Respondent’s jurisdictional objection that the application was lodged out of time and whether an extension of time should be granted pursuant to s.394 (3) by Fair Work Australia (FWA) to allow the application to proceed.

[3] The Applicant alleged that whilst she was requested to vacate the property she was not notified of the termination of her employment contract. She submitted it was unclear to her; that a dismissal had been effected, as she had continued to reside at Mooning Station, where she undertook her work.

[4] The Applicant was represented by Mr Hugh Scott-Mackenzie, Counsel instructed by Ms Rachel Drew of Macrossans Lawyers. The Respondent was represented by Mr Mark Healy, Counsel instructed by Mr Tony Pattinson of Ferguson Cannon Lawyers.

[5] Whilst this determination does not make reference to all of the materials filed in relation to this matter, all of such have been considered.

Legislation

[6] FWA is required to consider whether an application is made within time, as well as whether the Applicant was protected from unfair dismissal by the legislation, prior to considering the merits of the application. Section 394(3) of the Act authorises FWA to extend the time for making the application if it is satisfied that there are exceptional circumstances, taking into account specific matters.

[7] The relevant sections of the Act are as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a 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).

(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.

396 Initial matters to be considered before merits

FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

…

Background

[8] It was agreed between the parties that in late 2007, the Applicant placed an advertisement in a newspaper seeking a caretaker of the farming property, Mooning Station which he owns and operates. The Applicant responded to the advertisement.

[9] The Applicant stated that she was 69 years of age and that she had been employed as a caretaker/manager of the three properties, Mooning Station (which was the primary property), Wyuna Station and Neverfail Station. The Respondent stated that she commenced on or around 5 February 2008.

[10] The Applicant outlined the terms of employment being, that she would reside at Mooning Station rent free, and that the Respondent would pay electricity, telephone and later internet costs, that the Respondent would pay her relocation costs from Cairns to Mooning Station (on the basis she stayed a minimum of six months). In lieu of the relocation costs, the Applicant would not receive wages for the first six months. In addition a Hilux Utility Vehicle was to be provided for her private use and to complete her duties.

[11] The Applicant provided details of the duties involved; which included checking the cattle and water troughs, maintaining the house and garden. She also stated she had undertaken other specific tasks. She submitted she had provided meals for visitors, and babysitting. She further stated some of the tasks had been undertaken at her own initiative, some on instruction by the Respondent. The Respondent disagreed with this, stating, the duties were limited to checking water troughs, and dam levels, and anything else had been undertaken at the Applicant’s own volition.

[12] In relation to her termination, the Applicant stated in her original affidavit that the Respondent visited the properties for a week at the end of March 2010; and that on 3 April 2010; she emailed the Respondent wishing him a happy Easter. The Respondent replied on the same day stating ‘some things will have to drastically change if you want to stay’ and identified an issue with a tyre on the vehicle. The Respondent stated that “the reason for this is that it had a wobbly rear tyre, and was not in roadworthy condition. I was concerned that driving the utility vehicle on the road would create a danger to Vee and other motorists. I was also concerned that I would be liable if the vehicle was involved in an accident, as it is registered under my name. It was therefore very important to me that Vee not drive this utility vehicle.”

[13] The Applicant stated that Mr O’Keefe told her that he would be taking up the caretaker position, after the Respondent had offered it to him. She stated this occurred before 8 April 2010. On 8 April 2010, the Applicant phoned the Respondent and informed him that she had driven the vehicle to Eulo and that the tyre could not be repaired.

[14] On 8 April 2010, the Respondent emailed the Applicant stating that she had one month’s notice to vacate the property, which she stated effectively gave her one week to move out, as she was visiting her daughter for three weeks. The Respondent stated that ‘[b]y requesting that she vacate my property, it is obvious that I consider her role as a caretaker to be terminated as she cannot perform this role without residing at Mooning Station’.

[15] The Respondent’s 8 May 2010 email to the Applicant was as follows:

“Dear Vee,

As you can see below I clearly said not to drive the ute on the road. This is just unacceptable as it is dangerous for you, other vehicles on the road and also against the law

As you continue to defy me I have no alternative but to give you one months notice to vacate Mooning.

This will give you one week to find somewhere else to move to, before going to see your Daughter, which shouldn’t be hard as you have told me you have had 5 or 6 offers to caretake other properties. When you get back it will give you a week to pack up and move your things.

Yours faithfully”

[16] The Respondent stated that this email was more than an eviction notice it referred to the Applicant’s unacceptable conduct that he considered to be commensurate with serious misconduct.

[17] The Respondent stated that on 11 April 2010, the Applicant sent him an email in which she stated she had obtained legal advice and she would leave Mooning Station when she was ‘good and ready’, and that he had given her no reason to leave.

[18] The Applicant submitted that on 4 May 2010, at approximately 10.30pm, the Respondent entered the house on Mooning Station without her permission, and informed her he was staying for a few days. She asked him to leave; he refused so the Applicant stated she called the police. She did allow him to stay when he said he had nowhere else to go. He had left by 4.00 am the next morning.

[19] Further, on 10 May 2010, the electricity provider notified the Applicant that the electricity was to be disconnected, as the Respondent was no longer paying the bill. The Applicant had the electricity transferred to her name. She stated that the Respondent also disconnected the internet service on 13 May 2010.

[20] The Applicant submitted that on 11 May 2010, the Residential Tenancies Authority informed her that she should also contact FWA in relation to the termination of her employment. Accordingly, she stated that she phoned FWA on 11 May 2010, and the officer offered to post her the unfair dismissal forms. She stated that she received the forms, but had no record of the date of receipt or when she posted the completed forms to FWA, but her recollection was they were posted within 2 or 3 days of receiving the forms. The evidence provided by the Applicant was that the postal service to Mooning Station provided a delivery twice per week, usually on Monday and Thursday. She also stated that it was not unusual for the postal service to take 10 days to get from Brisbane to Mooning Station. In accordance with her evidence regarding the postal service, it was submitted that it is possible that it took 10 days for the forms from FWA to reach Mooning Station, and 10 days for their return.

[21] On 16 May 2010, the Respondent gave her a further notice, pursuant to the Residential Tenancies and Rooming Accommodation Act (Tenancies Act) requiring her to vacate the property by 17 July 2010. It was the Applicant’s understanding that while she resided at Mooning Station, she was employed by the Respondent and continued to carry out the duties as specified. She argued that as there was no one else there, ‘it made sense to her that she remained employed’ by the Respondent.

[22] The Applicant stated that on 17 May 2010, Mr O’Keefe removed the vehicle on the Respondent’s instructions. She had no other means of travelling around the properties. However, the vehicle was returned to her in July 2010 for the purpose of showing a valuer around the properties, at the Respondent’s instruction.

Amended Evidence:

[23] Directions were set for the exchange of evidence and submissions and a hearing occurred on 5 November 2010. During the course of that hearing the Applicant’s Counsel confirmed that the Applicant’s evidence required amendment. The Applicant’s evidence was predominately that the delay in lodging the application was due to a delay in receiving the documents from FWA. Accordingly it was agreed that the Applicant would file a further affidavit and the Respondent would have the opportunity to seek appropriate instructions and a further hearing would occur on 4 February 2011.

[24] After the hearing on 5 November 2010; the Applicant filed a further affidavit on 17 November 2010. In this she stated ‘since swearing my affidavit, I have realised that there are further facts and documents that are relevant to the matter which were not addressed in my previous affidavit.’

[25] The Applicant’s evidence in the earlier affidavit was that she spoke to Fair Work Australia on the day after the dismissal was effective; that being 11 May 2010. She later stated in accordance with her second affidavit that was an error.

[26] The Applicant stated that contrary to her earlier affidavit she had a conversation with an Officer from FWA and it was indicated that some forms would be sent to her to fill in; however she denied she was informed of the 14 day timeframe in which to lodge the Application.

[27] The Applicant in her second affidavit stated that whilst the email sent to her by the Respondent on 8 April 2010, instructed her to vacate the Station within one month; it did not propose to terminate her employment.

[28] She stated that at the time she did not have a lawyer acting for her and she considered that if she remained at Mooning Station and continued to carry out the duties to the extent she was able to, she remained employed.

[29] In her affidavit, she stated, that she raised the 8 April 2010 email that sought to terminate her tenancy, to an employee at the Cunnamulla Magistrates Court who suggested she discuss any possible employment ramifications with FWA. Accordingly the Applicant stated she wrote to FWA and produced a handwritten letter dated 2 May 2010.

[30] She also stated she had contacted the FWA general helpline in Melbourne on 4 May 2010 by telephone at 5.20pm to discuss her employment situation. Her Telstra phone record confirms this 55 second call. Further to this she rang the same number on 25 May 2010 at 10:35am and 10:48am with call durations of approximately 10 minutes and 1 minute respectively. The Telstra record also confirms a call to the Fair Work Ombudsman Information Line on 25 May 2010 at 10:49am for approximately 6 minutes.

[31] She also stated that FWA sent her a letter dated 25th May 2010 with various attachments including an application for unfair dismissal and the FWA Guide - Unfair dismissal, and an application for waiver of the application fee.

[32] The FWA covering letter states in the sixth line ‘an application for an unfair dismissal remedy (Form F2) needs to be completed in full, signed and received by FWA within 14 days (including weekends and public holidays) after the date of termination.

[33] She stated she carefully considered the FWA documents and then completed the unfair dismissal application on 1st June 2010 and drove to Eulo (32 km) and posted the application to FWA; which was received some 3 days later.

Consideration

[34] The following provides an assessment of each of the provisions in s.394 (3) of the Act to examine whether exceptional circumstances exist to allow for an extension of time:

s.394 (3) (a) the reason for the delay

[35] There is disagreement between the parties about when the dismissal took effect. The Applicant’s unfair dismissal application was lodged on 4 June 2010.

[36] The Applicant submitted that there has been no express notice of her termination; only the notices to vacate the station. Further, that if any of the notices did constitute a notice of termination, the termination was effective at earliest on 8 May 2010 and at the latest, 17 July 2010. If the relevant date is 17 July 2010, then the application was not out of time. It was agreed that the initial eviction notice was deficient.

[37] The Applicant stated in her application that the dismissal took effect on 10 May 2010, ‘but in practice 17 May 2010’, as she considered she remained employed until then. However she further referred the tribunal to the Respondent’s instruction to her to perform the task of showing the valuer around the property in July 2010. If the dismissal took effect on 10 May 2010 (the date the electricity was disconnected, and one month and two days after the Respondent’s email requesting she vacate the property), the application is 11 days out of time. If the dismissal took effect on 17 May 2010, the application is 4 days out of time. If the dismissal took effect on 17 July 2010 in line with the effective date of the eviction notice, the application was within time.

[38] The Respondent submitted that the date of dismissal was 8 April 2010, and that it took effect one month later as per the Respondents initial email. Therefore on that basis they submitted if the relevant date is 8 May 2010, the application is 13 days out of time.

[39] The Applicant submitted that the delay in filing the application was consequent upon the confusion created by the Respondent regarding the status of her employment and further that the delay was, in part, due to the postal delays associated with the receipt of the documents from FWA given the location of the property. She also submitted that as a result of the electricity and internet being disconnected, she had to rely upon the post, instead of the more instant capability of the internet.

[40] The Respondent submitted that the explanations of the delays were not genuine and did not sufficiently meet the requirement of ‘exceptional circumstances’, as she had internet access until 13 May 2010, and had notice of the dismissal since 8 April 2010. The Respondent further submitted that the Applicant had opportunities to post the application that would have allowed the application to be within time. Further, the Respondent submitted the Applicant could have driven to Eulo, from Mooning Station to post the application, which would have avoided the postal delays to the property.

[41] The Applicant further claimed that her application, after lodgement, was further delayed due to a lack of funds in her account. However, the routine practice of the FWA Registry is that if the application fee is paid later, the date of lodgement will be the date the application was filed, not the date payment was received.

[42] The Respondent submitted he was aware that the Applicant knew of the unfair dismissal processes, as she had previously advised him that her daughter’s partner had made an unfair dismissal claim against his former employer. It was further submitted that the Applicant could have researched the 14 day time limit on the FWA website in the time after the Respondent’s initial email was received when the internet was connected.

s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect

[43] The Respondent submitted that the Applicant was aware that the email dated 8 April 2010 constituted the termination of her employment. The Respondent submitted that because the email contained a one month notice period, the date the dismissal took effect was 8 May 2010. The Respondent submitted that the Applicant recognised the dismissal date as 10 May 2010, as that was the date the Applicant specified in the application made to FWA.

s.394(3)(c) any action taken by the person to dispute the dismissal

[44] The Respondent relied on the 8 April 2010 email; requiring her to vacate the property as effecting the termination of the employment contract. The Applicant took action to query the eviction from the property, but remained in the caretaker’s residence, after the initial notification. There was evidence of further action being taken by the Applicant at a later stage in contacting FWA and lodging the unfair dismissal application.

s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)

[45] The Applicant submitted that she had not been directly notified of the termination. The Applicant also argued that the delay was short, and therefore there could be no prejudice to the Respondent from allowing the application to be heard. The Respondent submitted that it was prejudiced as the Applicant failed to vacate the Respondent’s premises by 8 May 2010.

s.394(3)(e) the merits of the application

[46] The Respondent stated that the dismissal arose due to his dissatisfaction with the Applicant and her further defiance in driving the vehicle which he had deemed was not roadworthy. The Respondent set out that the Applicant had not performed her duties to the required standard and repeatedly refused to comply with his reasonable directions.

[47] The merits of the matter would require further testing; to attribute weight to this element.

s.394(3)(f) fairness as between the person and other persons in a similar position

[48] The Respondent submitted that there are no other persons in a similar position to the Applicant, therefore this consideration is irrelevant.

Conclusion

[49] The Act requires FWA to be satisfied that there are exceptional circumstances in order to extend a period of time for a person to make an unfair dismissal application. In addressing the issue of ‘exceptional circumstances’, I adopt the approach taken by Whelan C in Parker v Department of Human Services 1 (as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery2) as set out below:

“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.

[31] Dealing with the expression ‘exceptional circumstances’ as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:

Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:

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.”

[Mann v Minister for Immigration and Citizenship [2009] FCAFC 150]”

[50] The Applicant in this matter, in summary, explained that the delay was based on the nature of the postal system due to her remote location, the fact that she had not received an express termination of her employment and the confusion caused by the fact that after receiving the notices to vacate the property she was instructed to undertake further duties by the Respondent.

[51] In addition she stated she filed her application promptly after contacting FWA and then later receiving the related documents. She also stated that at the time of receiving the first notice to vacate on 8 April 2010, she did not have legal representation and was living in a remote location. The final valid notice to vacate the property was effective on 17 July 2010 and therefore it was submitted that the application made in June 2010 was within time.

[52] However, the Respondent argued that the Applicant was aware from the 3 April 2010 email that the Respondent was dissatisfied with the employment relationship. Further to this via the email of 8 April 2010, the Respondent submitted he concluded the employment relationship by providing notice to the Applicant to vacate the premises. The employment as a caretaker of the station was dependent on being resident at these premises; accordingly the notice to vacate communicated the finalisation of the employment relationship. Whilst this notice was acknowledged, to be deficient in accordance with the requirements of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld), the Respondent had relied on the 8 May 2010 email and the eviction notice to communicate the end of the employment relationship to the Applicant.

[53] The Respondent stated that he was unaware of the Applicant’s intention to file an unfair dismissal application until he received such on or about 4 June 2010. However he was aware of her contesting the eviction notice and he had in contrast to his communication to vacate the property, then provided further instructions to her in July to show valuers around the property.

[54] In relation to the correspondence from FWA and the delay attributed to the mail service the Applicant stated:

‘....Because of my remote location, mail often takes many days to be delivered, as it has to pass through many centres before it reaches Mooning Station. Usually, a letter sent on a Tuesday would reach Charleville the following day and Cunnamulla the day after that. On that basis, the letter from Fair Work Australia would not have been delivered to Mooning Station until Monday 31st May 2010...’

[55] The Applicant stated in relation to the date of dismissal she recorded on the Application as follows:

‘...When I completed the application, I said the date on which the dismissal took effect was “10/5/10 but in practice 17/7/10”. I inserted those dates because the respondent’s first Notice to Leave gave me one month’s notice to vacate Mooning Station, by 10 May 2010. The Notice, however, was invalid. The second Notice, dated 16 May 2010, required me to vacate Mooning Station by 17 July 2010. I understood the second notice replaced the first and that it meant I remained employed by the respondent until at least 17July 2010.

At the time I completed and returned the application to Fair Work Australia, I believed I was still employed by the respondent....’

[56] The Applicant stated the application was received by FWA on 4 June 2010 and that the fee accompanying the application was successfully debited from her account on 7th June 2010.

[57] The Applicant stated she considered her employment continued until July 2010 as follows:

‘...I continued to carry out my duties until Mr O’Keefe, on the respondent’ instructions, removed the utility during the week commencing 17th May 2010. Since then, I have had no means of travelling around the properties to check the cattle, the water troughs or the fences. I have continued to maintain the house on Mooning Station and the “house yard.

In July 2010 the respondent instructed me to collect a valuer and show him around the properties. The respondent arranged for the utility to be returned to Mooning Station so that I might carry out the instruction. The utility was returned in a filthy condition, both inside and out, and I spent several hours cleaning it. I then had to drive it to Eulo to obtain fuel, it having been returned close to empty. I then collected the valuer from the airstrip, and spent the majority of the day driving him around the three properties, including providing him with lunch. ..’

[58] The Respondent’s representative put to the Applicant that she was aware she had 14 days to make the application. Mr Healy further put to the Applicant that she could have posted the application on any day after the 11 May 2010, and it then would have been within the time frame. However the Applicant stated she did not have the application forms from FWA at this time.

[59] The Applicant stated that because of her remote location she did not receive the forms for at least a week to 10 days after speaking with FWA. The Applicant confirmed that after reading the forms she became aware of the 14 day timeframe.

[60] The Respondent’s Counsel suggested to the Applicant that when she did not receive the documents as expected from FWA, she could have driven to the nearby town of Eulo to use a computer to download the forms.

[61] The Applicant was on notice from the Respondent’s 3 April 2010 email; that he was unhappy with the employment relationship. Further to this; the Applicant was aware that maintaining residency at the Station was a necessary and integral part of the employment relationship and being able to discharge the required duties.

[62] The initial eviction notice; communicated the end of the employment relationship even though it is recognised it did not refer to the termination of the Applicant’s employment. The further notifications were to remedy the deficiency in the notice against the Tenancy legislation, but did not undermine the Respondent’s intention to end the Applicants employment. However the Respondent’s actions in returning the vehicle to the Applicant and instructing her to perform further duties; to show valuers around the property; repudiated the Respondent’s earlier notice of severance of the contract. This instruction to perform these duties in July 2010 was evidence of an ongoing employment.

[63] Therefore this later instruction of employment duties considered in line with the Applicant’s location and in combination with the Applicant’s endeavours to contest the eviction notices (which the Respondent was aware of) and the fact that she had made an unfair dismissal application in June 2010, prior to undertaking the further duties, present as an aggregate as ‘exceptional circumstances’. These circumstances cannot be deemed to be regular, routine or normally encountered.

[64] The Full Bench in, Cheval Properties Pty Ltd trading as Penrith Hotel Motel v Janette Smithers 3 characterised exceptional circumstances as:

“[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.

[65] The circumstances in relation to the manner of the dismissal, made by way of a direction to vacate the residence, the issues with the eviction notices (the last of which became effective after the lodgement of the application), the delays experienced with the postal service to a remote location, but together with the Respondent’s further instructions (after the date of the proposed termination and the eviction notice) to perform further employment duties constitute an unusual and extraordinary matrix of events that represent exceptional circumstances.

[66] Taking into account the matters in s.394(3)(a) to (f) I am satisfied that exceptional circumstances exist and accordingly exercise the discretion pursuant to s.394(3) of the Act to extend the statutory time limit to make the unfair dismissal remedy application. I Order accordingly.

COMMISSIONER

Appearances:

Mr H.A Scott-MacKenzie, Counsel- for Vee Gillian Kelly

Mr M Healy, Counsel - for William Stewart Bentley

Hearing details:

5th November 2010

4th February 2011

 1 [2009] FWA 1638.

 2 [2010] FWA 1394.

 3   Acton, SDP; Cartwright, SDP and Thatcher, C [2010] FWA 7251 at [5]

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