Fair Work Act 2009_

s 394 - Application for unfair dismissal remedy

Sydney Property Finders Pty Limited t/as Sydney Property Finders

Application for relief from unfair dismissal - whether application lodged 'out of time' - applicant paid four weeks in lieu of notice - whether dismissal effective at expiry of notice period - whether dismissal effective once notice paid - dismissal effective on date advised of termination - application lodged 'out of time' - whether 'exceptional circumstances' established - confusion as to date of termination not made out - waiting for resolution of underpayment not an 'exceptional circumstance' - seeking other employment not an 'exceptional circumstance' - no 'exceptional circumstances' - application dismissed.

[1] This decision concerns an application for an unfair dismissal remedy, lodged by Mr Peter John Sutherland (the 'applicant'), pursuant to the provisions of Chapter 3, Part 3-2 of the Fair Work Act 2009 (the 'Act'). The applicant was dismissed from his employment as a Senior Valuer with Sydney Property Finders Pty Ltd (the 'respondent') for alleged poor performance over a long period. The applicant's unfair dismissal claim was lodged with the Fair Work Commission (the 'Commission') on 15 September 2014.

[2] At this juncture, I record the terms of the letter said to have been received by the applicant on 27 August 2014. It reads as follows:

This letter confirms the summary termination of your employment, due to unsatisfactory performance, effective immediately.

As discussed with you on 22 August 2014 the reason for your dismissal is continual unsatisfactory performance of your duties at Sydney Property Finders.

Your termination payments will include applicable notice in lieu in addition to any outstanding entitlements.

Please ensure that you return all work related items of property to us immediately.

[3] The date of the applicant's dismissal was the subject of disagreement between the parties. The applicant claimed that his dismissal was effective at the expiry of the four weeks notice period (19 September 2014) he had received at a disciplinary meeting with the respondent on 22 August 2014, or alternatively, when he received a written notice of his termination in a letter he received by post on 27 August 2014. The respondent objected to the application on jurisdictional grounds, in that the applicant was dismissed with immediate effect at the meeting on 22 August 2014 and/or the respondent, as a small business (as defined) had complied with the Small Business Fair Dismissal Code (the 'Code') when the applicant was dismissed.

[4] Obviously, from the opposing positions, if either of the applicant's contentions is accepted, his application for an unfair dismissal remedy was filed within the statutory time limit expressed in s 394(2)(a) of the Act. If the respondent's position is accepted, the application was filed 3 days outside the statutory time limit and the applicant would need to satisfy the tests under s 394(3) of the Act that he could demonstrate 'exceptional circumstances', such as to allow the Commission to exercise its discretion to permit the application to be filed outside the statutory time limit.

[5] Section 396 of Act requires the Commission to determine a number of jurisdictional matters before considering the merits of an unfair dismissal application. These are:

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

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; and

(d) whether the dismissal was a case of genuine redundancy.

[6] As mentioned earlier, the respondent raised objections to the application based on sub-sections (a) and (c) of s 396 above. For completeness, I am satisfied that the applicant was a person protected from unfair dismissal and his dismissal was not a case of genuine redundancy. This decision will determine whether the application was firstly lodged within the statutory time period of 21 days and, if not, whether the applicant has established 'exceptional circumstances', pursuant to the provisions of s 394(3) of the Act, such as to allow his application to be accepted 'out of time'.

[7] In order to get to the latter question, it is necessary to establish the effective date of the applicant's dismissal. Both parties were directed to file and serve any evidence and/or submissions as to this question. The application was listed for hearing on 16 January 2015. Mr P Macken, Solicitor appeared with permission for the applicant, pursuant to s 596 of the Act and Mr L Bayne from the Real Estate Employers' Federation appeared for the respondent.

[8] The applicant provided written and oral evidence. The respondent relied on the written evidence of Mr Dennis Kalafonos, Director and the notes and oral evidence of Ms Donnalee Cohn, the respondent's Business Manager.

[9] The applicant provided two statements, which were tendered in the proceeding. In the first statement, the applicant said that he had requested a formal termination letter at the meeting on 22 August 2014, so he could better understand why his employment was terminated and in order for him to discuss the matter with his lawyer. As this letter arrived by post on 27 August, he understood his claim was still lodged within the 21 day time period. The applicant further submitted that he had delayed filing his unfair dismissal claim because of the following:

(b) an agreed payment of six weeks pay was reduced to four weeks and he had made a number of unsuccessful calls to Mr Kalafonos to rectify the underpayment;

(c) his main priority and focus was to find work. This had been a daunting process involving much preparation time and mental and emotional input;

(d) he claimed that he incorrectly recorded 27 August 2014 in his Form F2 when it should have been four weeks later; and

(e) his dismissal was a 'blatant case of unfair dismissal.' He had received no warnings of the discipline to be imposed or of his alleged poor performance, which he rejected.

[10] In a second statement the applicant, reiterated that he believed his dismissal was at the end of his notice period (19 September 2014). He noted that the four weeks payment in lieu of notice was not paid on 22 August 2014, nor on the next scheduled pay date. It arrived nine days later on 3 September 2014.

[11] The applicant disputed Mr Kalafonos' and Ms Cohn's statements as to the words used in the 22 August meeting. He could not recall the phrase 'effective immediately' and disputed that the phrase 'immediately dismissed' had been said.

[12] The applicant acknowledged that there had been three occasions when he had been 'pulled aside' and vaguely accused of making 'mistakes'. However, he believed that this was more akin to bullying and harassment, rather than any formal warning process. No work program had been offered and no warning letter issued.

[13] The applicant disputed the posting of the termination letter and Mr Kalafonos' use of the expression 'on or about 22 August'. The applicant believed that it was immaterial that he did not work during the notice period. Even if the application was three days late, the applicant maintained it made no difference, because of the injustice imposed on him by his 'blatant unfair dismissal'.

[14] In oral evidence, the applicant confirmed much of what he had said in his two statements. In cross examination, the applicant said that in the meeting of 22 August 2014, Mr Kalafonos had actually told him that the four weeks' notice was given so that his dismissal was to take effect at the end of the notice period. However, when pressed, he conceded he could not remember exactly what Mr Kalafonos had said. The applicant agreed that he had not worked out the notice because that had not been communicated in the meeting.

[15] The applicant accepted that even though he was unclear as to whether he had been terminated or not, rather than attend for work and seek clarity, he opted to stay at home and not return to the office. The applicant claimed that he had notes of the 22 August 2014 meeting, but had not produced them.

[16] In questions from me, the applicant agreed he had handed back his keys, passes and other material belonging to the employer on the day of the meeting (22 August 2014) and packed up his personal belongings and took them away that day.

[17] Mr Kalafonos provided a written statement but was not required for cross examination. Mr Kalafonos stated that in the meeting with the applicant and his support person on 22 August 2014, he had dismissed the applicant 'effective immediately'. His version of the conversation was:

'Despite several warnings about your continual mistakes and unsatisfactory performance, your performance hasn't improved in nearly three years. This is no longer acceptable & for this reason you are being dismissed for continual unsatisfactory performance effective immediately. You will be given 4-week's pay in lieu of notice.'

[18] Mr Kalafonos said the applicant was not required to work out any period of notice and he did not do so. He had been paid four weeks pay in lieu of notice. Mr Kalafonos said that 'on or about the 22 August' a letter of termination dated that day was posted to the applicant (see para [2]).

[19] Ms Cohn attended the meeting with the applicant on 22 August 2014. She took notes of the meting and reproduced them for the Commission (Exhibit C).

[20] In cross examination, Ms Cohn had understood that when the applicant said, 'Please put what you've said in writing', it was a reference to the notes Mr Kalafonos was taking independently to her own notes. Later in the meeting, he had asked for a letter of termination. Ms Cohn believed it was clear that the applicant had known that his termination was from the end of the meeting. She had then posted a termination letter on Monday of the following week.

[21] Ms Cohn explained the confusion over the claim of six weeks pay. The applicant was to be paid the next Monday for two weeks pay for the previous two weeks work and then a separate cheque for four weeks pay in lieu of notice would be sent later. Ms Cohn said she had sent another cheque to him on 15 September 2014 for two weeks outstanding sick pay. This had arisen after she had spoken to him on 12 September to clarify his outstanding entitlements. The cheque for the payment in lieu of notice was sent on 3 September 2014.

[22] After setting out the chronology of events, Mr Macken argued his client's case on three alternative bases. Firstly, the termination of employment was with notice and the employment relationship did not come to an end until the end of the notice period. Mr Macken relied on Mihajlovic v Lifeline Macarthur [2014] FWCFB 1070 ('Mihajlovic v Lifeline Macarthur') in support of this submission. He said it was irrelevant that the applicant did not work the notice period. Secondly, as the applicant did not receive the payment for notice until 3 September 2014, he was still employed up to that date. Thirdly, the employment relationship did not come to an end until the applicant received the letter of termination on 27 August 2014. Mr Macken observed that if any one of these three alternative dates is accepted as the date of the dismissal, his unfair dismissal application is within the 21 day time period.

[23] Mr Macken said it was clearly in the applicant's mind, rightly or wrongly, that the employment relationship did not end until it was confirmed in writing. He had been concerned that not only had he been unfairly dismissed, but he had been underpaid as well. This had not been finally clarified with Ms Cohn until 12 September 2014.

[24] Mr Macken put a further alternative submission that even if the application was filed 'out of time', the Commission would find 'exceptional circumstances' such as to be satisfied that the application should be accepted out of time.

[25] Mr Macken said there was clearly no prejudice to the employer. The applicant had not deliberately delayed filing his application. The merits of the applicant's case were strong in that there was uncontradicted evidence that he had received no written warnings or given any directions on how to improve his performance. It would be unfair to deny the applicant an opportunity to have his substantive case heard when he had a misconception as to when his dismissal took effect; See: Allan v TESA Resources Pty Ltd [PR921219] ('Allan v TESA') per O'Callaghan SDP.

[26] Mr Bayne drew a distinction between the cases cited by Mr Macken in Allan v TESA and Mihajlovic v Lifeline Macarthur. In Allan v TESA, O'Callaghan SDP dealt with a dismissal where the issue was whether the dismissal decision was definitely communicated to the applicant. Unlike in this case, there was no ambiguity or lack of clarity as to when the applicant was dismissed and when he clearly understood he had been dismissed. In Mihajlovic v Lifeline Macarthur, there was also ambiguity about the documentation provided to the applicant. That does not apply in this case.

[27] Mr Bayne submitted that the termination of the applicant did not have to be in writing, nor did it require his acceptance. He was clearly told that he was dismissed on 22 August 2014. If this case is really about some underpayment claim, this application is not the appropriate vehicle for pursuing such a claim. Mr Bayne emphasised that a dismissal does not require the decision to be put in writing, nor does it require the payment of outstanding entitlements or termination pay immediately. It most certainly does not mean that the employment continues on until such conditions are met. These circumstances simply cannot change the date of dismissal.

[28] Mr Bayne argued that it was plain that the applicant knew he had been dismissed. He did not return to work or perform any work for the respondent. At no stage was the applicant told he was being given notice of his dismissal. As to the lateness of the application, the applicant claimed he had not received the letter of confirmation and had been underpaid. Mr Bayne referred to his earlier submissions. His third reason was that he was preoccupied with looking for other work. Mr Bayne said there is nothing 'exceptional' about a dismissed employee looking for other work. Indeed, it would be 'exceptional', if they did not.

[29] Mr Bayne put that chasing up alleged underpayments is not disputing his dismissal. Other than this application, there was no action by the applicant to dispute his dismissal. Mr Bayne put that there was significant prejudice to the employer, given that the relevant events were five months earlier. As to the merits, Mr Bayne noted that there had been as many as five warnings to the applicant. In addition, the respondent is a small business and it had complied with the Code when dismissing the applicant.

[30] As to fairness between other parties, Mr Bayne said this case was far less meritorious than other cases where 'exceptional circumstances' had been established. Finally, Mr Bayne said the application should be dismissed.

What was the date of the applicant's dismissal?

[31] Mr Macken relied on the following paragraph from Mihajlovic v Lifeline Macarthur to assert that the applicant's dismissal actually took place on 19 September 2014, being the expiry of the four week notice period for which he had been paid.

'[16] The above passage makes it clear that, under the Industrial Relations Act 1988 a termination of employment, being a termination at the initiative of the employer, occurred at the time that the employment relationship came to an end and, in the case of an employee who had been dismissed on notice, the termination of the employment relationship and therefore the termination at the initiative of the employer occurred when the notice period expired.'

Consequently, this application for an unfair dismissal remedy was made within time and no jurisdictional objection arises.

[32] In my view, Mr Macken's emphatic reliance on Mihajlovic v Lifeline Macarthur was entirely misplaced and misunderstands the context in which that case was decided. Mihajlovic v Lifeline Macarthur is not authority for a general proposition that if an employee receives notice of termination and is paid in lieu of notice, then the termination of employment does not have any legal effect until the expiry of the notice period or at the end of the notice payments. This cannot be right.

[33] For example, where an employee is summarily dismissed for serious misconduct, but may be paid an amount said to be payment in lieu of notice, it could not seriously be suggested that the employment relationship remains 'on foot' until the end of the notice payments. On the other hand, it is undoubted that where an employee actually works out the notice period, the termination of employment occurs at the expiry of that period.

[34] The correct legal position was set out by Wilcox J in Siagian v Sanel Pty Ltd [1994] IRCA 2; (1994) 122 ALR 333 at p 355 where His Honour said:

'It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase "payment in lieu of notice"; it accords with common sense. An employer who wishes to terminate an employee's services, and is prepared to pay out a period of notice without requiring the employee to work, will surely wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment related costs, such as workers' compensation insurance, payroll tax, liability for leave payments etc. The employer also incurs the risk that some new burden will be imposed in respect of the employment during the period.'

[35] Mihajlovic v Lifeline Macarthur does stand as authority for the proposition that each case will be decided on its own particular facts and circumstances. The facts and circumstances of Mihajlovic v Lifeline Macarthur were quite unusual. Mr Mihajlovic had filed an unfair dismissal application, prior to the date on which his dismissal purportedly took effect, namely by the payment of three months pay in lieu of notice. As it turned out, Mr Mihajlovic was not paid the three months notice, so his employment was held to have continued to the expiry of the notice. Perhaps unsurprisingly, the Full Bench said at para [43]:

'The general self evident proposition is that unfair dismissal applications are to be made within 'the prescribed 21-day period after a dismissal takes effect.'

[36] In order to further appreciate the context of the issues in Mihajlovic, it is appropriate to have regard to what His Honour, Hatcher VP said in the case which led to the Full Bench's specific consideration above; See: Mihajlovic v Lifeline Macarthur [2013] FWC 9804. At paras [7]-[8], His Honour said:

'[7] I consider that, where misconduct was not involved, the above provision of the contract permitted termination in two ways: firstly, by the provision of three months' notice, and, secondly, summarily upon the payment of three months' wages in lieu of notice. Under the first option, it would have been permissible for LLM to not require Mr Mihajlovic to attend for work during the three month period and simply to pay him his wages for that period. There is no reason why, in that scenario, the salary could not have been paid in advance as a lump sum.

[8] The date of termination of employment would be different depending upon which of these two contractual options LLM was exercising in the dismissal notice. Under the first option, the employment would terminate upon the expiry of the three months' notice period - that is, on 5 September 2013. Under the second, it would terminate forthwith. This is consistent with the approach taken by the Industrial Relations Court of Australia (Wilcox CJ) in Siagian v Sanel Pty Ltd. In that case, where the identification of the date of the applicant's dismissal was critical to the competence of his application, the Court said:

"Counsel's second argument is that, because of the payment in lieu of notice, the termination did not occur on 29 March but at the date of expiration of the period for which payment was made, 15 April. If this argument is correct, s.170EE orders are available.

This argument also raises a complex problem. The problem arises because of the ambiguity inherent in the words "payment in lieu of notice". The ambiguity was pointed out by Waite J, in Leech v Preston Borough Council [1985] ICR 192 at 196:

"... it is clear from the authorities cited to us, ... all of which are confirmed by the experience of our lay members, that the expression 'payment in lieu of notice' is regularly used throughout industry in one or other of two quite different senses. The first, which is the grammatically correct one, is when it is used to describe the payment to an employee whom it is proposed to dismiss summarily of a lump sum representing compensation for the wages or salary which he would have received if he had been given the notice to which he is entitled by law. The second, which is the colloquial and grammatically inaccurate one, is when the term is used as a convenient shorthand way of telling an employee that he is being given the full period of notice to which he is entitled by law but is at the same time excused any duty (and refused any right) that he would otherwise have under his employment contract to attend at the workplace during the notice period."

Although Waite J did not spell out the result that flowed from each meaning, it is clear from other decisions that, in the first case, the employee's employment terminates upon the date of payment of the lump sum. In the second case, the employment extends until the expiration of the period for which the payment was made.

The question whether a payment in lieu of notice immediately terminates the employment is always one of fact. In Leech at 196-197 Waite J said that the proper inference as to the sense in which the expression is used may turn upon "very subtle indications or nuances of wording which will have to be weighed carefully according to their context". The difficulty, of course, is that the parties will normally not have made the position clear. They will probably not have averted to the distinction made by Waite J. The Court will be left to put its own interpretation on their actions." [footnotes excluded, emphasis added]'

[37] In his consideration above, His Honour relied on the expressed and clear terms of Mr Mihajlovic's termination letter. Similarly, I relied on the terms of a resignation letter in Fagone v Hilton Hotels of Australia Pty Ltd t/as Hilton Sydney [2013] FWC 2513, where the applicant in that case having resigned, sought to extend her employment relationship by two weeks, because she had sought and was granted a two weeks ex gratia payment. Her notice of resignation was expressed as follows:

I wish to formally notify you that I am resigning from my position as Safety and Security Officer with The Hilton Sydney, with immediate effect.

I served my last day of employment on the above date. I also kindly request that due to my personal circumstances, I be paid the final two (2) week notice period up until 11 December 2012, without actually working this period.

I can be contacted on [phone number supplied] if you require any further information.'

'[75] It must be stressed that the plain, ordinary meaning of the termination letter does not permit any qualification or impute any 'pending' status of her employment. Its language was clear and unequivocal. The fact that she had sought an ex gratia payment of two weeks pay in lieu of notice was nothing more than an attempt to extract further monies from the respondent to which she was not entitled as a matter of law. There is nothing necessarily wrong or sinister about that request, but to suggest that it somehow put her employment 'on hold' or her employment was 'pending' until she received an answer was misconceived and wrong.'

[39] So it is in this case. The evidence, including from the applicant himself, is replete with references to him having been terminated with 'immediate effect' and with him having accepted this to be the case. For example:

(a) In the applicant's Form F2 application at para 3.2, he said:

'2. A 'summary termination' is absolutely unwarranted as I have done nothing worth of such harsh treatment.

4. At around 6-00PM on Wednesday 20th August Mr Kalofonos [sic] called me to inform me that we were to meet the following morning at 8-00am to discuss my immediate dismissal. He kindly advised me that I could bring a witness [my emphasis].'

(b) Mr Kalafonos' uncontested evidence records the following about what he said in the 22 August 2014 meeting:

'Despite several warnings about your continual mistakes and unsatisfactory performance, your performance hasn't improved in nearly three years. This is no longer acceptable & for this reason you are being dismissed for continual unsatisfactory performance effective immediately. You will be given 4-week's pay in lieu of notice [my emphasis].'

(c) Ms Cohn, who took notes of the meeting, gave evidence that Mr Kalafonos had used the words, 'We've decided to terminate your employment effective immediately [my emphasis].'

(d) Exhibit C, the notes of the meeting records the following at the end:

'D. Because of this continual unsatisfactory performance we've decided to terminate your employment effective immediately. You will get 4-week's pay in lieu of notice [my emphasis].'

(e) Even the applicant's support person, Tim Conroy, records as follows:

'Mr Sutherland requested a written termination letter, however, none was provided.'

(f) The letter of termination (see para [2]) is in plain and unequivocal terms.

[40] Despite this evidence, which I accept, I am troubled that in the applicant's Form F2 he referred to the meeting to discuss his 'immediate dismissal', but just two months later, he could not recall hearing the words 'effective immediately' and he disputed the phrase 'immediate dismissal' in Mr Kalafonos' statement. I have difficulty reconciling this contradiction.

[41] In addition, the applicant's claim as to a lack of clarity as to when he was dismissed sits rather uncomfortably with his own evidence, on oath, that on 22 August 2014, he returned the office keys and passes, packed his personal belongings and left the office. He made no attempt to question the date of his dismissal or attend for work subsequently.

[42] I have absolutely no doubt that the applicant knew full well that he had been dismissed on 22 August 2014 and he acted according to that belief. His lack of recall about what was said in the meeting 'rings rather hollow' in the context of unequivocal evidence to the contrary.

[43] As to Mr Macken's second alternative date - 3 September 2014 - when the applicant received the notice payments, I do not accept that this date constituted the date of the termination of the employment relationship. This is so because the delay in making the notice payments arose from confusion as to what were the applicant's outstanding entitlements. So much is obvious from the evidence of the applicant and Ms Cohn. It was made very clear to the applicant that he would be paid four weeks notice and he was paid that amount; albeit late.

[44] Given the plain effect of the applicant's dismissal on 22 August 2014, the fact that there was some delay in making the in lieu payments cannot be held to prolong the employment relationship until such payments are made. Moreover, it is not uncommon for dismissed employees to challenge the payments made to them on termination. Often the payments are not made for many weeks, while the dispute is resolved or is simply delayed because of a company's pay cycle. To suggest that these circumstances somehow means the employment relationship 'remains on foot' is illogical nonsense.

[45] As to Mr Macken's further submission that the applicant was waiting for written confirmation of his dismissal and did not receive the letter until 27 August 2014, such a complaint takes the applicant's case nowhere. Given the clear and unequivocal words used by Mr Kalafonos' at the meeting on 22 August 2014, it was unnecessary for the applicant to have confirmed what he already well knew to be the position.

[46] As the applicant was dismissed on a Friday and Mr Kalafonos said that 'on or about 22 August', the termination letter was posted to the applicant, it is quite likely that he did not receive it until Wednesday 27 August 2014. But that is not the point. There is no statutory basis or implied contractual term which requires an employer to confirm a dismissal, in writing. Of course, it is preferable for the employee to have written reasons for his/her dismissal, as it may become a relevant issue if the merits of an application is reached. That is not the case here. In circumstances where the applicant not only knew the basis for his dismissal, but strongly contested the reasons at the time, there is absolutely no doubt that he was dismissed on 22 August 2014.

[47] In summary then, it is simply not open for an employee who has been told in clear and unequivocal terms that his/her dismissal has immediate effect and where the employee accepts that to be the case, for the employee to reconstruct the facts in order to assert the exact opposite. It is besides the point that monies were paid either in lieu of notice or according to the terms of a contract of employment. Here, the applicant was clearly told on 22 August 2014 that his dismissal was effective immediately, he accepted this factual proposition in his Form F2 application, but now says "ignore all that, my employment really came to an end when my four weeks in lieu of notice payments ended on 19 September 2014". Apart from being wrong at law, such a proposition is illogical and disingenuous. It is an attempt to recreate history. In any event, as the decision in Mihajlovic v Lifeline Macarthur makes clear, in the usual course, an application for an unfair dismissal remedy cannot be lodged before a person is dismissed. As the application was lodged on 15 September 2014 and the applicant claims he was really dismissed on 19 September 2014, his application would be premature and likely fail for want of jurisdiction on that basis.

[48] I find that the date of the applicant's dismissal was 22 August 2014. As he filed his application on 15 September 2014, the application was filed three days outside the statutory time period permitted by s 394(2) of the Act. Having so found, I turn now to consider whether there were any 'exceptional circumstances' which would satisfy me that the Commission's discretion should be exercised to allow this application to be filed 'out of time'.

[49] The relevant legislative framework, guiding the exercise of the Commission's discretion in relation to 'out of time' applications, is set out at s 394 of the Act as follows:

(a) within 21 days after the dismissal took effect; or

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

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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

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

[50] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 ('Nulty'). While Nulty was decided under the General Protections provisions of the Act, the definition of 'exceptional circumstances' has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3). In Nulty, a Full Bench of the Commission said:

'[10] It is convenient to deal first with the meaning of the expression "exceptional circumstances" in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:

"[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."

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression "exceptional circumstances" was considered by Rares J in Ho v Professional Services Review Committee No 295 a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

"23. I am of opinion that the expression 'exceptional circumstances' requires consideration of all the circumstances. In Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant's circumstances:

'Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.'

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen [2004] HCA 45; (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [1999] UKHL 4; [2000] QB 198 at 208, namely:

'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.'

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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' in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services."

[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.

[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.

[15] A finding that there are "exceptional circumstances", taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when "exceptional circumstances" are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended [Endnotes not reproduced].'

[51] It is plain from the above extract from Nulty that all of the factors outlined in s 394(3) above, must be considered when deciding whether or not 'exceptional circumstances' have been established. Even if 'exceptional circumstances' are established, this is merely the jurisdictional gateway for the exercise of the Commission's discretion to extend the time for filing an unfair dismissal application. In other words, 'exceptional circumstances' may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application 'out of time'; See: Nulty at para [15]. A recent Full Bench of the Commission in Lombardo v Commonwealth of Australia [2014] FWCFB 2288 succinctly described the Commission's decision making process under s 394(3) of the Act as: 'The test for granting an extension of time involves both a broad discretion and a high hurdle of 'exceptional circumstances.' I turn now to each of the criteria set out under s 394(3) of the Act.

[52] The applicant put that even if his application was 'out of time', the Commission would be satisfied that there were 'exceptional circumstances' such as to allow the Commission to extend the time for filing. As I understood it, his reasons for the delay were threefold.

[53] Firstly, he was unaware of the effective date of his dismissal. I have already dealt with this matter. In any event, even accepting that the applicant may have been confused (which I don't), the state of being confused should have meant that he would file an application just to be sure (particularly as he was very 'live' to the view that he had been unfairly dismissed). It is unclear to me whether the applicant was seeking legal advice around this time, but if he had, he would have been well advised to file an unfair dismissal application and sort out his underpayment claims separately and, if necessary, through the Fair Work Ombudsman. However, as there was no submission put concerning 'representative error', I need take this issue no further.

[54] Secondly, the applicant said he was waiting to sort out his underpayment claim before filing his unfair dismissal claim. There is simply no reason why the two claims cannot be pursued concurrently. Waiting to resolve an underpayment claims does not prevent the filing of an unfair dismissal application.

[55] Thirdly, the applicant said his time was preoccupied with looking for another job. While that is a commendable submission, it could not possibly be held to be an 'exceptional circumstance'. I agree with Mr Bayne that it would rather be to the contrary - that a dismissed employee, not looking for alternate employment, would be the exception.

[56] In my opinion, none of the reasons proposed by the applicant, either singly or cumulatively, constitute 'exceptional circumstances' within the meaning of the statute.

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

[57] For the reasons earlier expressed, I find the applicant's dismissal occurred on 22 August 2014 and he was aware of his dismissal on that date. This circumstance weighs against the grant of an extension of time.

Any action taken by the person to dispute his dismissal (s 394(3)(c))

[58] There is no evidence that the applicant took any steps to contest his dismissal until the filing of this application. I do not accept that querying his termination pay constituted disputing his dismissal. It was an entirely different and separate matter. These circumstances weigh against the grant of an extension of time.

[59] This criterion was not elaborated upon by the applicant; although the respondent pointed to the applicant's dismissal as having occurred some months ago as grounds for a finding of prejudice to the employer. I consider this factor to be a neutral consideration in this case.

[60] In his written statement, the applicant denied that he had been given 'several' warnings about his poor performance. He recalled being 'pulled aside' on three occasions and told in an aggressive, but vague manner, that he was making mistakes and that his work required improvement. There were no warnings in writing. There had not been any performance improvement program.

[61] The applicant also stated that he had been dismissed shortly after a period of leave he had taken to deal with his father's medical emergency, which had first become apparent on 21 July 2014. He set out the chronology leading to his dismissal in his Form F2 application as follows. The applicant had left work, with permission of the respondent, to be with his father in Canberra on 21 July 2014 and returned on 25 July 2014. With the apparent support of the respondent, he then flew to Melbourne to be with his family on 28 July and returned to work on 15 August 2014. On 19 August 2014, he was directed by Mr Kalafonos to take the next day off to consider his future working for the respondent. At 6:00pm on Wednesday 20 August, he was directed to attend a meeting the following morning to discuss his 'immediate dismissal'. He was able to reschedule the meeting to Friday so he could bring a witness. The termination letter he had subsequently received set out poor performance as the reason for his dismissal, but did not set out specifics.

[62] The respondent's materials were largely addressed to the question of the date of the applicant's dismissal, but made reference to a number of warnings issued to the applicant. Mr Bayne noted that the respondent was a small business employer, as defined, and he submitted that the respondent relied on its compliance with the Code.

[63] It is appropriate to note that a consideration of the merits of an application at such an early stage in the proceedings and without the benefit of tested evidence, will only ever be on a prima facie basis; See: Kyvelos v Champion Socks Pty Limited Print T2421, 10 November 2000. However, it seems clear that the applicant was dismissed on performance based grounds and that, even on his own evidence, he had been spoken to about his performance. For the above reasons and, considering that the applicant will face a further jurisdictional hurdle in establishing that his dismissal was not compliant with the Code, I am satisfied, on a prima facie basis, that the applicant's prospects of success are negligible. This factor weighs against an extension of time being granted.

Fairness as between the person and other persons in a similar situation (s 394(3)(f))

[64] I do not consider the applicant's position in relation to another person in a similar position is unfair. His dismissal appears to be a conventional dismissal with notice, on the grounds of poor performance. This is a neutral factor in my consideration.

[65] Having considered all of the matters which the Commission is required to take account under s 394(3) of the Act, I am not satisfied that there are 'exceptional circumstances' which would warrant my granting an exception to the statutory time limit for the lodgement of this unfair dismissal application. The circumstances, as disclosed during the proceeding, are not 'out of the ordinary course, unusual, special or uncommon'. Accordingly, this application for an unfair dismissal remedy must be dismissed. An order to this effect will accompany the publication of this decision.

Mr L Bayne of the Real Estate Employers' Federation for the respondent.

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