Fair Work Act 2009_

s.394 - Application for unfair dismissal remedy

[1] On 6 February 2014, Mr Calvin Tipene (Mr Tipene or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his employment with Norton Gold Fields Limited T/A Paddington Gold Pty Limited (Employer).

[2] The application is made in accordance with s.394 of the Fair Work Act 2009 (FW Act).

[3] On 11 March 2014, the Employer objected to the application on the grounds that the Applicant, at the time he was dismissed, Mr Tipene's annual rate of earnings exceeded the high income threshold and the application was lodged out of time. Consequently, the Employer asserts that the Applicant is not protected from unfair dismissal.

[4] Accordingly, the Commission is required to determine two threshold jurisdictional questions arising from the application prior to determining, if necessary, the merits of Mr Tipene's application alleging he was unfairly dismissed. The questions are:

● can the Commission be satisfied that there are exceptional circumstances, taking into account the criteria in s.394(3) of the FW Act, to allow the application to be made beyond the 21 days after the dismissal took effect pursuant to s.394(2)(b) of the FW Act? and

● in the event that the Commission is satisfied that there are exceptional circumstances to allow the application to be filed on 6 February 2014, is the sum of Mr Tipene's annual rate of earnings less than the high income threshold of $129,300?

[5] To resolve the jurisdictional questions, I issued procedural directions to the parties on 13 March 2014 advising that the matters would be determined by written submissions.

[6] On 8 April 2014, I received the Employer's submission. On 10 April 2014, I received the Applicant's response to the Employer's submission.

[7] The questions in paragraph [4] follow from the legislative provisions relating to unfair dismissals.

[8] A person who alleges that they have been unfairly dismissed may apply to the Commission within 21 days after the dismissal took effect or such further period if the Commission is satisfied there are exceptional circumstances in accordance with s.394(2) and (3) of the FW 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."

[9] In the event the Commission is satisfied that there are exceptional circumstances to allow a further period to lodge the application, in order for Mr Tipene to be protected from unfair dismissal, he must also meet the jurisdictional requirements in s.382 of the FW Act as follows:

"382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold."

[10] It is not in dispute that Mr Tipene met the minimum period of employment. It has not been alleged that an enterprise agreement applies to Mr Tipene's employment or that he is covered by a modern award. Consequently, the question is whether or not his annual rate of earnings was less than the high income threshold.

[11] The term "earnings" is defined in s.332 of the FW Act as follows:

(b) amounts applied or dealt with in any way on the employee's behalf or as the employee directs; and

(c) the agreed money value of non-monetary benefits; and

(d) amounts or benefits prescribed by the regulations.

(2) However, an employee's earnings do not include the following:

(a) payments the amount of which cannot be determined in advance;

(c) contributions to a superannuation fund to the extent that they are contributions to which subsection (4) applies;

Note: Some examples of payments covered by paragraph (a) are commissions, incentive-based payments and bonuses, and overtime (unless the overtime is guaranteed).

(3) Non-monetary benefits are benefits other than an entitlement to a payment of money:

(a) to which the employee is entitled in return for the performance of work; and

(b) for which a reasonable money value has been agreed by the employee and the employer;

but does not include a benefit prescribed by the regulations.

(4) This subsection applies to contributions that the employer makes to a superannuation fund to the extent that one or more of the following applies:

(a) the employer would have been liable to pay superannuation guarantee charge under the Superannuation Guarantee Charge Act 1992 in relation to the person if the amounts had not been so contributed;

(b) the employer is required to contribute to the fund for the employee's benefit in relation to a defined benefit interest (within the meaning of section 291-175 of the Income Tax Assessment Act 1997) of the employee;

(c) the employer is required to contribute to the fund for the employee's benefit under a law of the Commonwealth, a State or a Territory."

[12] I now turn to the jurisdictional questions for determination.

Can the Commission be satisfied that there are exceptional circumstances to allow the application to be filed beyond the statutory timeline of 21 days?

[13] I have previously adopted, and do so on this occasion, the meaning of exceptional circumstances as:

"... a circumstance which is such as to form an exception, which is out of the ordinary, or unusually, 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." R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 at 208.

[14] The Australian Concise Oxford Dictionary defines "exceptional" as "forming an exception, unusual". Further, "exception" is defined as "something that does not follow the rule". The term "exceptional" requires a qualitative examination of the existence of something against the norm.

[15] The majority of employees who make application to the Commission alleging unfair dismissal, do so within 21 days. However, the Parliament has provided the Commission with the discretion to extend the 21 days where there are "exceptional circumstances". Parliament's prescription of having applications filed within 21 days is not to be undermined so that "any time is an appropriate time" to lodge an unfair dismissal application.

[16] The burden lies with Mr Tipene to make out his case that exceptional circumstances existed to satisfy the Commission that the time for filing the application should be extended. I now turn to consider those circumstances set out by the Applicant.

Paragraph 394(3)(a) - what was the reason for the delay in lodging the application?

[17] Mr Tipene concedes in his application that the application was not filed within 21 days of his dismissal taking effect. In response to the question in the application as to the reason for the delay, Mr Tipene responds:

"I am sorry that I have not forwarded this application in time, reason is obvious I have been under stress to try and find future employment, my age seems to be the problem I presume."

[18] Mr Tipene submits that he was unable to lodge the application on time because he was "under stress" in finding future employment where his age appears to be a negative factor. Unfortunately, being dismissed from your employment is not a pleasant experience and is accompanied by financial, emotional and sometimes physical contagion. These factors and feelings are not exceptional. While the impact of dismissal will vary from individual to individual employee, the feeling of stress to find alternative employment is normally encountered, especially for those of more mature years. However, such routine circumstances do not fall within the definition of "exceptional". Put differently, to accept what is normal and routine would enable applicants, and not the Commission, to determine what is "exceptional" and consequently, an extension of time would become the rule, and the standard timeline of 21 days meaningless.

Paragraph 394(3)(b) - the date upon which the Applicant became aware of the dismissal

[19] Mr Tipene advises in his application that he was dismissed and was aware of his dismissal on 14 January 2014.

Paragraph 394(3)(c) - any action by the person to dispute the dismissal

[20] It would appear from Mr Tipene's explanation in his application that he took no formal action to dispute his dismissal until making this application.

Paragraph 394(3)(d) - prejudice to the employer caused by the delay in filing the application

[21] In view of the shortness of the delay in filing the application, I have adopted a neutral position with respect to this criterion.

Paragraph 394(3)(e) - the merits of the application

[22] The application and the Employer's response sets out a number of matters which are contested. While I have taken into account this criterion, it is only after a hearing, if necessary, where evidence is tested, that a full appreciation of the merits of the application can be determined. For this reason, I have adopted a neutral position as to its weight on whether time should be extended to file the application.

Paragraph 394(3)(f) - fairness between the applicant and other persons in a similar position

[23] It would appear that this criterion is not relevant to the application. To the extent that it is relevant, I have adopted a neutral position with respect to this criterion.

[24] For the reasons set out above, I am not satisfied that Mr Tipene has discharged the burden of satisfying the Commission that exceptional circumstances existed which led to the delay in filing his application.

[25] I now turn to the second question for determination.

Was Mr Tipene's annual rate of earnings, at the time of his dismissal, greater or less than the high income threshold?

[26] There is no dispute between the parties that from 1 August 2013, Mr Tipene's annual base salary was $125,500. In addition, the Employer provided invoices which Mr Tipene did not dispute. The invoices state that the Employer paid directly, on the Applicant's behalf, $5,473.75 for private health insurance premiums from January 2013 to the date Mr Tipene's dismissal. I note, in the response to Mr Tipene's application, the Employer previously stated that it paid premiums of $7,980 per annum or $1,995 per quarter on behalf of Mr Tipene.

[27] While there is a monetary discrepancy between the Employer's initial response to the application and the actual invoices relating to the health insurance premiums, I am satisfied that Mr Tipene received, in addition to this salary, the non monetary benefit of private health insurance premiums which were paid by the Employer on his behalf. The monetary value of the premiums, paid on Mr Tipene's behalf, were part of his total earnings while he was employed. The payments were paid regularly and could be ascertained in advance. The private health insurance premiums are not able to be characterised as "payments which cannot be determined in advance" and as such, excluded from his annual earnings.

[28] The legislative context to the meaning of "earnings" is that those amounts which cannot be predetermined in advance, are excluded. For example, bonuses which may be dependent upon individual or group performance are excluded. However, it was not disputed by Mr Tipene that he was entitled to receive, as part of his contract of employment, a benefit, other than his wages which was the payment of private health insurance. These premium payments were made directly by the Employer to the insurer. Notwithstanding that private health insurance premiums vary from insurer to insurer, and Commonwealth government approval is necessary for increases and various rebates, the amounts paid are ascertainable in the ordinary sense, in advance. In any event, I am satisfied that the real monetary value of the benefit was that as set out in the invoices.

[29] The sum of $125,500 and $5,473 is $130,973. Accordingly, Mr Tipene's rate of earnings exceeds the high income threshold of $129,300.

[30] For the above reasons, I am not satisfied that there are exceptional circumstances to allow Mr Tipene to file his application beyond the statutory timeline of 21 days. In addition, or in the alternative, his annual rate of earnings was more than the high income threshold. Accordingly, the application must be dismissed. An order to this effect will be issued with this Decision and Reasons for Decision.

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