[2012] FWA 9059 |
|
DECISION |
Fair Work Act 2009
s.394—Application for unfair dismissal remedy
Patricia Bucknor
v
Aero-Care Flight Support Pty Ltd
(U2012/12280)
COMMISSIONER BULL |
SYDNEY, 2 NOVEMBER 2012 |
Application for an unfair dismissal remedy - jurisdictional objection - application made out of time, exceptional circumstances demonstrated, time for filing extended.
[1] This matter is an application under s.394 of the Fair Work Act 2009 (the Act) made by Ms Patricia Bucknor (the Applicant) alleging that her former employer terminated her employment in circumstances which were unfair.
[2] Ms Bucknor’s employment was terminated with payment of four weeks salary in lieu of notice. The parties are in dispute as to the date on which the termination of employment actually took effect. Accordingly, the application is out of time by either three or five days.
[3] On 13 August 2012, the Applicant filed a valid application by facsimile for an unfair dismissal remedy with Fair Work Australia (FWA).
[4] Ms Bucknor submits she was terminated on Friday 27 July 2012, when she received an email from Mr Michael Tabone, the Respondent’s Manager - Airports, stating that she was terminated and advising that the termination would be confirmed in writing. The Applicant subsequently received correspondence from Mr Tabone dated 2 August 2012, stating that her termination of employment was effective from 27 July 2012.
[5] The Respondent filed an Employer’s Response to Application for Unfair Dismissal Remedy on 27 August 2012. 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, based on the timeframe specified in s.394(2) of the Act.
[6] 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.
[7] The matter was listed for hearing in order to determine whether an extension of time for the lodgement of the application should be granted.
[8] The parties filed written submissions in advance of the hearing date.
[9] At the hearing Ms Bucknor represented herself and gave evidence.
[10] Mr Daniel Houlihan, a paid agent, was granted leave (there was no objection from the Applicant) to appear for the Respondent and made submissions but called no evidence to support the Respondent’s assertions.
Date of Termination
[11] The Applicant submits that on Monday 23 July 2012 she received a telephone call from Mr Tabone, who commenced the telephone call by asking her how her weekend was. Mr Tabone then informed the Applicant that she would be stood down on full pay pending the outcome of an investigation being conducted into allegations that she had bullied and harassed co-workers. A meeting was arranged for the Applicant to attend on Wednesday 25 July 2012.
[12] Ms Bucknor deposed that at this meeting she was told by Mr Tabone that she was to be terminated immediately and paid four weeks pay in lieu of notice. Ms Bucknor states that she suggested a counter offer to Mr Tabone for the payment of three months’ salary along with the Respondent providing her the opportunity to tender her resignation. In response, Mr Tabone informed the Applicant that “he would get back to her”, the implication being that the Applicant’s counter offer would be considered by the Respondent.
[13] Later that day, Mr Tabone telephoned and advised the Applicant that the Respondent had rejected her counter offer.
[14] The Applicant stated, that she was taken “completely off guard” by Mr Tabone’s response and as a result, sent him an email on Friday 27 July 2012 stating that:
“Contrary to our telephone conversation the other day, I would like to return to our original offer of my resignation plus 3 month salary and all entitlements, as opposed to your suggestion of my resignation, one months salary plus entitlements.
I look forward to your response.”
[15] Mr Tabone responded by email on the same day 27 July 2012 in the following terms:
“I acknowledge your email and that you have decided to revoke your acceptance of the terms of our agreement. As such, I revert to my original decision that the company will terminate your employment and offer you severance terms as per your employment contract. The company will pay you in lieu of notice, as suck (sic) you are not to attend the workplace except to return company property. I will confirm this to you on Company letterhead in the near future.’
[16] Mr Tabone then forwarded a letter to the Applicant’s PO Box address, dated 2 August 2012 which stated, inter alia, the following:
‘I confirm the advice I provided to you that the Company has taken action to terminate your employment with effect from 27 July 2012 and you will be paid four (4) weeks pay in lieu of notice from this date, without the notice period required to be worked by you....”
(My underline)
[17] Ms Bucknor states that the letter was post marked 6 August 2012 and she retrieved it from her PO Box on 10 August 2012.
[18] In the Respondent’s Form 3 at Question 4, Mr Houlihan on behalf of the Respondent contends that the dismissal took effect on either 25 July or 27 July 2012. In the Respondent’s written submissions the Respondent states that the dismissal took effect on 25 July 2012.
[19] At the hearing, Mr Houlihan submitted that the termination occurred on 25 July 2012, which was consistent with all the documentary evidence. When requested by the Tribunal to explain why the Respondent’s termination letter of 2 August 2012 stated that the termination was effective from 27 July 2012, he submitted for the first time, that Mr Tabone had made a mistake with the date. However, Mr Tabone was not called to give evidence in these proceedings.
[20] Mr Houlihan could not explain why if the Applicant was dismissed on 25 July 2012 a letter of termination was not drafted until 2 August 2012. Mr Houlihan acknowledged that the termination letter appeared to be inconsistent with an employer’s obligation under s.117(1) of the Act to provide written notice to the employee on the day of termination.
[21] I find based on the Respondent’s written advice to the Applicant, and the Applicant acting on this advice and without any evidence to the contrary, that the effective date of dismissal was 27 July 2012. On this basis the unfair dismissal application has been filed three days out of time having been required to be filed by Friday 10 August 2012, but not being filed until Monday 13 August 2012.
[22] Section 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:
(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.
Reasons for the delay
[23] Ms Bucknor provided three grounds in submitting that an extension of time should be granted which can be summarised as follows:
[24] The issue relating to a friend’s death was not included in the Applicant’s written submissions and only raised at the hearing. I am not satisfied that this matter relates directly to the out of time application. Nor do I find the Applicant’s decision to wait until 9 August 2012 to file her application due to awaiting details of her final payout is directly relevant to the out of time application, as such these two issues are not exceptional circumstances warranting an extension of time to file the application.
Confusion between FWA and FWO
[25] Ms Bucknor’s evidence was that she posted her unfair dismissal application on Thursday 9 August 2012 to the FWO’s office in Cairns and then realised on Friday 10 August 2012 that the application should have been sent to the FWA office.
[26] The late filing arose from the following circumstances.
[27] The original application was posted on 9 August 2012 and not faxed, as she did not have access to a scanner to attach her signature.
[28] On the evening of Friday 10 August 2012, the Applicant had a conversation with a friend, where amongst other things, she discussed her unfair dismissal application. During this conversation a comment was made regarding the application fee. Ms Bucknor then realised that she had not made any payment with her application. On checking the FWA website she confirmed a payment was required.
[29] Ms Bucknor says she realised she would have to wait until Monday 13 August 2012, when the offices of FWA would be open to complete the application, as she did not have access to a scanner to attach her signature.
[30] On Monday 13 August 2012, the Applicant telephoned FWA to advise that her unfair dismissal application did not include the required payment and advised the office that she would personally come into the FWA premises in Grafton Street, Cairns to make the appropriate payment. The FWA operator advised her that the FWA office was in Brisbane.
[31] Ms Bucknor told the operator that she was looking at a website that clearly stated there were two offices in Cairns. The FWA operator then advised Ms Bucknor that they were the offices of the FWO in Cairns.
[32] Ms Bucknor then informed the operator that she had addressed her application to FWA and sent the application to the FWO Grafton Street address and asked what her options were?
[33] Ms Bucknor was told to fax her application and was given a Brisbane FWA fax number. The application was then faxed to that number by the Applicant later that morning.
[34] Ms Bucknor told the Tribunal that on enquiring with the FWO offices in Cairns, she was told that her incorrectly addressed application would have normally been sent on to the FWA but they did not keep these records. The whereabouts of the original, incorrectly addressed application is unknown.
[35] The veracity of Ms Bucknor’s evidence was not seriously challenged in cross examination.
[36] The Respondent without stating that the Applicant’s evidence was false submitted that there was no evidence before the Tribunal that the Applicant had actually sent an application to the FWO address in Cairns. Further, that it is difficult to confuse the two websites of FWA and FWO.
The merits of the application
[37] This is a case involving disputed facts and competing arguments. On the basis of the evidence before the Tribunal, the final events leading to the Applicant’s termination are not clear. As such I am unable to conclude that the application is lacking in merit without hearing more from both parties.
Whether the Applicant first became aware of the dismissal after it had taken effect
[38] Ms Bucknor was made aware of her termination by email on 27 July 2012 by Mr Tabone.
Action to dispute the dismissal
[39] Ms Bucknor states that at the 25 July 2012 meeting she disputed much of what was put against her by Mr Tabone.
Prejudice to the employer (including prejudice caused by the delay)
[40] The Respondent did not submit that the late application would prejudice its defence of the application.
Fairness as between the Applicant and other persons in a similar position
[41] No persons in similar positions were identified.
Do exceptional circumstances exist?
[42] The expression “exceptional circumstances” is not defined in the Act but I adopt the meaning given to the word “exceptional” in the decision of Lord Bingham of Cornwall CJ in R v Kelly (Edward) (1999) UKHL 4; [2000] 1 QB 198 at 208:
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.
(My underline)
(See also Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290)
[43] This definition has been accepted and applied by this Tribunal and the Federal Court. 1
[44] If the Tribunal accepts the evidence of the Applicant, then concomitant with that must come a finding that Ms Bucknor made a genuine bona fide attempt to file her application within time and in the right jurisdiction. The application then went awry due to the incorrect address placed on the postal envelope by the Applicant.
[45] On the balance of probabilities which is the test that must be met in this Tribunal, I find that the Applicant did attempt to file her application in FWA within the prescribed statutory timeframe and immediately upon being made aware that that this had not occurred, filed her application with FWA.
[46] The public confusion between the two statutory bodies FWA and FWO is notorious. 2
[47] In all of the circumstances, and in the sense that exceptional need not be unique or unprecedented but not routinely or normally encountered, the Applicant has satisfied the Tribunal that exceptional circumstances do exist to allow the requisite further period for filing the unfair dismissal application as per s.394(3) of the Act.
[48] The time limit specified in s.394(2) is extended to 13 August 2012.
COMMISSIONER
Appearances:
P Bucknor on her own behalf.
D Houlihan Agent for Aero-Care Flight Support Pty Ltd.
Hearing details:
2012.
Brisbane:
18 October 2012.
1 Mann v Minister for Immigration and Citizenship [2009] FACFC 150; Johnson v Joy Manufacturing Co Pty Ltd [2010] FWA 1394.
2 See Towards more productive and equitable workplaces - An evaluation of the Fair Work legislation 2012 at chapter 12 Fair Work Australia and Fair Work Ombudsman; Ron McCallum and others.
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