[1] Captain Paul Trood (the 'applicant') was employed as a pilot by Qantas Airways Ltd (Qantas) from 1990. He was based in Brisbane and has around 19,000 hours flying experience of B737 aircraft. However, the applicant has not flown an aircraft since 1 July 2009 as a result of being unfit to fly due to physical and mental illness, including depression, anxiety and physical injuries to his spine and wrist. These proceedings have arisen as a result of the applicant filing an application on 16 July 2012, pursuant to s 394 of the Fair Work Act 2009 (the 'Act'), for an unfair dismissal remedy.

[2] Qantas maintains that the applicant was dismissed in a letter dated 19 June 2012 and sent to him by registered mail ('the termination letter'). The letter is expressed in the following terms:

Termination of your employment with Qantas Airways Limited

I refer to Qantas' letters dated 3 April 2012 and 1 May 2012. I note that your period of leave without pay ended on 13 April 2012.

In the letter dated 3 April 2012 you were directed to contact the resource planning department and your manager in relation to your return from leave without pay. You did not comply with this direction. In the letter dated 1 May 2012 you were asked to tell Qantas why it should not terminate your employment.

As foreshadowed in our letter of 1 May 2012 Qantas has proceeded to make a decision in relation to your ongoing employment on the basis of the material available to it. The company has taken all relevant matters into account. In particular Qantas notes:

• you have not worked as a Captain on a B737 aircraft for Qantas since 1 July 2009;

• you do not currently hold Class 1 and 2 Medical Certificates which are required by CASA to be able to operate an aircraft. Accordingly, you are unable to perform the inherent requirements of your positions as a B737 Captain;

• you have not provided any information or material indicating if or when you will be able to return to work;

• you have failed to follow a lawful and reasonable direction to contact the Company on the expiration of your period of leave without pay;

• you have been absent from your employment without explanation for more than 6 weeks; and

It is apparent that you are either unable or unwilling to perform the inherent requirements of your role as a Captain on B737 aircraft or any other work for the Company. In these circumstances Qantas has no option but to terminate your employment, with notice, effective immediately. You will be paid 5 weeks wages as well as your accrued entitlements accrued up to and including 19 June 2012 [my emphasis].

You are also required to complete a Company clearance procedure which includes the return of all Company property including electronic equipment such as a mobile phone or laptop, uniforms, Qantas ID card / ASIC cards, and any access cards and keys that may have been issued to you.

You should contact Capt Brett Jensen to finalise this clearance procedure. Once the clearance procedure has been completed, your final termination payment will be processed and paid into your account.

Details of your termination payments, including superannuation details will be forwarded to you shortly.

Thank you for your contribution to Qantas in your 22 years of service. We wish you all the very best for the future.'

[3] Accepting the date of this letter - 19 June 2012 - as the date of the applicant's termination of employment (which is disputed) would mean that his unfair dismissal application, filed on 16 July 2012, is outside the statutory time limit of 14 days prescribed by s 394(2) of the Act. However, the applicant asks Fair Work Australia ('FWA') to accept his application on one of two bases.

[4] Firstly, that the termination letter must be read in conjunction with the termination of employment provisions at cl 14.9.1 of the applicable workplace agreement, the Qantas Airways Limited Flight Crew (Short Haul) Workplace Agreement 2007 (the 'Agreement'). To do so would mean that the applicant's effective termination of employment was 5 weeks after the 16 June 2012, that is, 24 July 2012. This contention, it was said, arises from the words in para 4 of the termination letter that 'Qantas has no option but to terminate your employment, with notice, effective immediately.' The corollary of this submission is that the applicant's s 394 application is not outside the statutory time limit and no jurisdictional issue arises.

[5] Secondly, and in the alternative, if the first contention is not accepted by FWA, then there are 'exceptional circumstances', as contemplated by s 394(3) of the Act, which would justify the Tribunal's exercise of discretion to allow his application to be accepted 'out of time'.

[6] The evidence in the proceedings consisted of various documents and the written and oral evidence of the applicant and Captain Brett Jensen, Senior Captain 737 responsible for the 'work, health and safety and the maintenance of standards and discipline of the Brisbane based flight crew.'

[7] As mentioned earlier, the applicant has not worked as a pilot since 1 July 2009. In that year he took compassionate leave and annual leave, caring for his seriously ill wife, who passed away on 24 June 2009. From 1 July 2009, the applicant was on various forms of leave, including long service leave, sick leave, paid personal/carers' leave, annual leave and leave without pay (LWOP). There is no argument that the applicant was suffering from a diagnosed depressive illness between 2009 and 2012. He was diagnosed with a spinal injury in late 2011, which required surgery; although, on specialist advice, this surgery has been put on hold. He also underwent wrist surgery on 29 August 2012.

[8] Relevantly, however, the applicant applied for, and was granted, LWOP for the period 5 November 2011 - 12 April 2012 in order to undergo and recuperate from the spinal surgery. On 13 December 2011, the applicant was sent an email from Eszter Jonathan (Qantas Principal Advisor, Flight Operations) as follows:

I have spoken with Shayne Kennedy in HR and she has advised that LWOP to cover your current absence is fine. We just have to backdate the leave to the date when you finished using all your entitlements (approx. 04 November 2011)

Shayne will put a letter together for you, which will require your signature asap. We'll make the end date of your LWOP 12 April 2012.

[9] The application for LWOP was approved on 4 January 2012. It expressly set out the period of leave as follows:

'The period of absence will be for 160 days commencing on 5 November 2011 and finishing on 12 April 2012.

In addition, the letter placed three obligations on the applicant in respect to his LWOP. These were:

'During the period of LWOP it is your responsibility to keep the company informed of any change of personal details.

To ensure that a refamiliarisation program is scheduled, you will need to contact Flight Crew Resource Planning ... two months prior to the bid period you intend to fly in.

In addition to contacting Flight Crew Resource Planning, you should also contact your Manager at least 4 weeks prior to your intended return date to confirm your intention to return to work.'

[10] It is plain the applicant did not comply with the obligation to notify Qantas as outlined above; indeed, it is suggested that he may not have even received this letter. During the later part of the LWOP period, Capt Jensen made four attempts to contact the applicant and left messages for him to contact him (1 February, 16 February, 29 March and 30 March). On 23 February 2012, presumably in response to the 16 February phone message, the applicant emailed Capt Jensen as follows:

Sorry I couldn't speak last Friday but I had just arrived at a friends house in southern Perth who I have come to help with dealing with her diagnosis of Stage 4 cancer. I am also getting poor mobile coverage over here, I must leave Vodaphone.

In relation to my back in the 2 weeks leading up to the day of surger, the sciatica dissipated substantially leaving me with a weak unstable back at L5S1 and some pain which is under control with 4-5 Nurophen Plus per day. The surgeon basically said that the nerve was no longer impeded by the disc fragment and he would like to hold off on surgery and use 'wait and see' to see what transpires in the next 4 weeks. He did say that there is a 20% chance of reoccurrence. I tried Pilates but this only aggravated the condition. Physiotherapy has helped a little, but they are a little reticent to do much manipulation in case they move the fragment back onto the nerve. I have my own Tens machine and use it daily.

Swimming and pool walking seems to be the best as it is not aggravating anything and I should regain some of the wasted muscle in the lower back. I do this every day and Jill in Perth has a pool so that is uninterrupted.

I tried to see my DAME prior to coming to Perth but he was unable to fit me in until I get back which will be around the 2nd of March.

I am hopeful of continued improvement with the view to a return in April but only time will tell [my emphasis].

Brett as my mobile is a bit dodgy here it is probably best to use email for contact.

P.s. Very bad situation over here with Jill, she has cancer in multiple organs with a very poor prognosis but she was my Jenny's best friend and came over to stay with us for a month to help me with Jen. Although I was aware that this could open old wounds I had no option as I have the utmost respect for her and I owe her my assistance.'

[11] On 3 April 2012, Flight Captain Nic Wright sent a registered letter to the applicant reminding him that his LWOP was due to expire on 12 April and to contact Qantas. On 10 April, Ms Jonathan sent an email to the applicant reminding him of the 3 April letter from Capt Wright. It read as follows:

I have posted a letter to you from Nic Wright last week, on 3 April 2012.

Can you please confirm that you have received this letter and could you contact Capt Nic Wright or Capt Brett Jensen as soon as possible.'

[12] On 1 May 2012, Capt Wright sent a letter by registered post to the applicant requiring him to show cause why his employment should not be terminated. The letter said, in part:

'Paul, you do not currently hold a valid Class 1 and 2 Medical Certificate. Accordingly you are unable to fulfil the inherent requirements of the role of Captain on B737 aircraft with the Company.

Further you are now absent from work without explanation and the Company is unable to contact you.

Qantas now needs to decide whether your employment should be terminated based on your inability to perform the inherent requirements of the role, your continuing unauthorised absence from work and your refusal to contact the company.'

[13] The applicant did not respond to any of these communications. In oral evidence, he said that the letters may have been stolen (as had happened to him and his neighbours previously) and his computer was down at the time the emails had been sent to him. On 22 June 2012 (having received the termination letter) the applicant left a message for Capt Jensen explaining his medical situation and asking Capt Jensen to call him. The applicant also said: 'Oh sorry to be ah not answering the letters that were sent to me um the reason was I've been down at a friend's place in North Eastern Victoria for 4 weeks. [my emphasis]'

[14] Capt Jensen phoned the applicant back and made a file note of the conversation as follows:

'Sorry I've been out of touch and not answering letters.

Been at a friend's place in N.E. Victoria. He has a heated pool and I've been swimming there. Meant to go down for 2 weeks but have been there for 4 weeks.

Came home because I've developed a sore right knee and pain in the right wrist.

Have (Had) and appointment on Monday to look at it with a MRI and XRAY

Underside of Right hand patella is a bladed(?) sore and may be getting arthroscopic surgery to smooth it out.

Wrist is a real problem though. Torn ligament which has allowed two bones to move which are impacting nerves in the hand

Appointment to see wrist surgeon in 4 week's time to see what he wants to do. May not resolve by itself.

Asked him if he had read all the correspondence from the company, to which he said no.

I explained to Paul that he has been terminated by the company on the grounds of abandonment.

Said that he is to see his Psychiatrist soon to discuss going out (of work) on medical grounds.

I explained that he was required back at work on 13 April and there has been no contact with him prior to or after that date, and that the phone call message from him on the Friday was the first contact made by him.

I explained that there is an appeals process which he has to undertake. I explained the terms and conditions of this appeal as I read it from the company policy document.

I advised him to immediately review all company correspondence and that he act immediately if he wishes to launch an appeal.

I advised him that, as per the letter of termination, I am the responsible person for him to make contact with in submitting the appeal.'

[15] Capt Jensen also emailed a colleague in relation to this file note in the following terms:

As per our conversation I wish to clarify the contents of the note title conversation 22 june. With reference to the sentence "Asked him if he had read all the correspondence from the company, to which he said no" I was referring to the first conversation I had with Paul where, as I recall, the conversation went like this.

PT: "Mate I'm going through all these letters and I'm sorry i haven't been in touch but..."

BJ: "Okay Paul have you read all the letters from the company?"

PT "No mate, there's a pile of stuff to go through I'm just going through it now and..."

BJ: "Well I'm sorry to say but in that pile you will find a termination letter from Qantas."

The remainder of the conversation went as per the notes. I draw you attention to the second last sentence which again refers to "all the company correspondence" as this referred to my understanding that he had heap of correspondence.'

[16] The applicant responded on 23 June 2012 as follows:

I went through all the correspondence received from the company and I have no letters other than the termination letter. Also checked emails and the only ones are discussions between you and I and Qantas Medical.

I can only speculate that the letter or letters were stolen. Myself and the neighbours in my complex can attest to this occurring. Last year I had multiple items mailed to me which never arrived including a credit card replacement that was then used to defraud me of $25,000. The police caught someone using it and he was prosecuted. They told me that he was only one in a gang doing this and that they suspected a connection within the post office but had no actionable evidence as he would only admit to using it.

Brett can you please find out when any correspondence was sent to me as I am completely in the dark on this.'

[17] Capt Jensen had two conversations with the applicant on 25 June and made the following file note:

'Pauls psychiatrist called 0906 and wanted to negotiate a medical termination for Paul. He advised that he would possibly support such a diagnosis. The doctor also expressed an opinion that Qantas choice of not using registered post to communicate with Paul was inappropriate.

I advised that the issue was out of my hands but that I would try to get someone from Qantas to call him back about the matter.

On advice from Shayne Kennedy I instead rang Paul Trood back and left a message at 10:48.

He advised that he had received no other correspondence other than the Termination letter. Interesting for me though is that in our first conversation he had said taht he had received a heap of correspondence from Qantas but at the moment we talked, had not yet opened the letter of termination.

Paul also advised that he had considered taking his life. As a result he has surrendered his gun to the doctor (not sure which one, psychiatrist or GP) and the his doctor (psychiatrist) was trying to get him into a clinic.

I again advised Paul that the Company is not considering his termination, rather that he has been terminated. As such the most appropriate thing for him to do is to submit his appeal, in writing, to me as he has only seven days as of last Friday.'

[18] The applicant appealed the decision to terminate his employment through Qantas' internal procedures on 25 June 2012 as advised to him by Capt Jensen on 22 June. He sought a reversal of the decision in order to allow him to apply to retire on medical grounds. He described his depression and grief over the previous 3 � years and his more recent physical problems. He explained that he believed his mail had been stolen and complained that Qantas had not sent such important mail by registered post. The applicant was admitted to a psychiatric hospital the next day and remained there until 11 July 2012. On 9 July 2012, the applicant's doctor sent Capt Jensen the following email and attached a diagnosis dated 7 April 2010:

I endorse that Paul Trood is unable to perform the requirements of his role as a pilot, and will not be able to for the foreseeable future. I believe that he will therefore lose his pilot's licence, which may carry some implications for the process of retirement that should be followed in his case.

This is a result of him suffering a Major Depressive Disorder (DSM-IV 296.23)

I enclose a copy of a report I wrote to his GP at the time of his referral, dated 7-4-2010 [Report omitted].'

[19] The applicant was advised on 12 July 2012 that his internal appeal had been unsuccessful. The same day, the applicant applied for benefits available to Qantas pilots under a Loss of Licence Insurance Plan. This Plan requires a claim for benefits to be made only while the employee is still employed by Qantas. Qantas denied the claim based on it being made after he was dismissed on 19 June 2012. I was informed by Mr A Slevin of Counsel, for the applicant, that the value of such benefits to the applicant was in the vicinity of $800,000, subject, of course, to the claim being accepted by Qantas on medical grounds. The applicant received his final payment monies on 17 July 2012. The final notice details all payments and accruals due to the applicant up to 19 June 2012.

[20] The applicant maintained that he believed his LWOP ended on 12 June 2012. He could not find his most recent leave form, could not remember signing it and noted it was not addressed to him or signed by him. In addition, he claimed he was not thinking about work at the time. He was focused on his mental and physical recovery. He had also been caring for a close personal friend who was suffering from, and eventually succumbed to cancer, like his wife.

[21] The applicant said he did not read the termination letter until 22 June, although he accepted he had received it on 20 June. He realised he was in trouble for being absent without leave and for not contacting Qantas. He said he was in shock and stressed and had to have a friend come round to read him the letter.

[22] As to the telephone message of 22 June to Capt Jensen (see para [13]), the applicant now says his claim of coming back from interstate to 120 unopened letters was as an overestimate. However, he insisted that, besides the termination letter, there were no letters in the pile from Qantas. The applicant suspected mail theft. He and his neighbours had lodged complaints to Queensland police in 2011 concerning the theft of mail.

[23] In referring to Capt Jensen's return phone call of 22 June 2012 the applicant said he was in a state of disbelief when he told him that he was terminated. He agreed Capt Jensen told him that he could appeal the decision internally, and that Capt Jensen had read him extracts from the relevant Qantas policy (Standards of Conduct Policy ('SOC Policy')). In oral evidence, he said Capt Jensen never mentioned anything about applying for relief from unfair dismissal in FWA. The applicant believed that he was still an employee of Qantas until a final determination of his internal appeal.

[24] The applicant said that when he was admitted to a psychiatric hospital on 26 June 2012, he was suffering from severe depression and anxiety. He believed that the circumstances leading to his hospital admission were the loss of his job and the third anniversary of his wife's passing. He had been told to go to hospital by his treating psychiatrist, Dr Straton and his treating doctor, Dr Mortimore. In hospital, he was medicated and undertook Cognitive Behavioural Therapy and Mindfulness Training. Dr Straton had advised the applicant that he not be contacted by Qantas during this time.

[25] In oral evidence, the applicant said he had no recollection of Ms Jonathan's email of 13 December 2011 dealing with his LWOP request. However, he acknowledged that the request had been made to allow him to undergo spinal surgery in January 2012 and to recuperate for two or three months, but the surgery was postponed because he had made substantial improvement. Nevertheless, there was a very high possibility of the surgery being required in the near future. The applicant believed he had informed Qantas around 12 January 2012 that he would not be having the surgery, despite Qantas claiming that it only knew in late February.

[26] The applicant conceded he had received the LWOP Agreement which clearly spelt out 12 April 2012 as the return to work date. However, he had made no contact with Capt Jensen between 23 February - 22 June, notwithstanding he had been on LWOP before and he had read the latest LWOP Agreement.

[27] The applicant said he was in a 'horrendous situation' around 23 February 2012. This being the case, he could not recall if he had checked Capt Jensen's messages and could not remember what he had sent in reply. The applicant agreed that he knew, at that point of time, that his LWOP expired in April. He had arrived home in early March, but again made no contact with Capt Jensen.

[28] The applicant claimed that he saw no record of Capt Jensen's messages on his phone. Nevertheless, Vodafone had confirmed that two calls from Capt Jensen had been made around that time. He said he could not recall when he spoke to Vodafone and was very confused over dates. The applicant again denied receiving Qantas' letters of 3 April and 1 May or the email from Ms Jonathan of 10 April 2012. He claimed to have no internet access or home phone from 29 March - 21 June. This was despite telling Qantas that email was the best means of contacting him. He had not called anyone to indicate email contact was a problem.

[29] The applicant said he did not open the termination letter until two days after he received it because he was very distressed about events and people in his personal life and did not want to get more distressed. Nevertheless, he realised he was in trouble for being on LWOP without approval.

[30] The applicant agreed that in the phone call to Capt Jensen on 22 June 2012, it was 'pretty clear that they'd terminated me' and that he knew that was the Company's position. Capt Jensen had mentioned his right to appeal, but had not said the decision was on hold or pending until the appeal was determined. The applicant said he wasn't aware that receipt of his final payments was dependent on the return of all Company property, despite this requirement being included in the termination letter. He went to hospital the next day.

[31] In oral evidence, Capt Jensen reiterated that the first he knew that the applicant's spinal surgery had been postponed was in the applicant's email of 23 February 2012.

[32] In cross examination, Capt Jensen acknowledged that the applicant had always been very frank with him and told him about his circumstances. Capt Jensen said that LWOP had been approved to apply retrospectively to the applicant. Capt Jensen believed there were about fifty pilots currently on LWOP with Qantas. He agreed there was a surplus of pilots at the moment.

[33] Capt Jensen confirmed that he had told the applicant about his appeal rights under the SOC Policy. He had not provided the applicant with a copy of the policy, as the applicant did not want one. Capt Jensen had read the relevant part of the policy to the applicant. He had not mentioned an unfair dismissal application, because that was not in the Policy. Capt Jensen did not know why the applicant's last payment was not made until 17 July 2012.

[34] Firstly, Mr Slevin submitted that the applicant's unfair dismissal application was not 'out of time' because:

a) the letter of 19 June 2012 was not effective as a notice of termination, as it was uncertain in specifying a time when the termination took effect; and

b) the 12 July 2012 notification of the failure of the applicant's appeal against the decision to terminate his employment, gave certainty because it indicated that as a consequence of that failure, payment in lieu of notice would be provided. This indicated that the date of dismissal was the date of the appeal determination, that is 12 July 2012;. See: Fardell v Coates Hire Operations (2010) 201 IR 64 ('Fardell').

[35] Mr Slevin highlighted the juxtaposition of the words 'with notice' and 'effective immediately' in the termination letter of 19 June 2012. He put that it could mean the notice ran from 19 June or it could mean that the termination was effective immediately, requiring the payment in lieu of notice. While the letter refers to five weeks payment, it is not described as 'payment in lieu'. Mr Slevin referred to the only circumstances where termination arises in the context of the Agreement. The relevant provisions are as follows:

A flight crew member's employment is terminable by the Company or the flight crew member:

a) by giving fourteen (14) days' notice in writing during the first twelve months of employment or during any extended period of probation;

b) by giving twenty-eight (28) days' notice in writing at any time thereafter, except that if the flight crew member is over forty five (45) years old and has completed at least two (2) years of continuous service with the Company, the period of notice that must be provided by the Company under this sub-clause 14.9.1(b) will be increased by 1 week;

c) by payment to the flight crew member of fourteen (14) days or twenty-eight (28) days' pay in lieu of notice as aforesaid; or

d) by forfeiture by the flight crew member of fourteen (14) days or twenty-eight (28) days' pay in lieu of notice as aforesaid.

Where a flight crew member gives notice of termination, the period of notice will begin from the date on which it is given.

14.9.2. Period of notice may be reduced or waived

The period of notice to be given by the flight crew member as set out in sub-clause 14.9.1 may be reduced or waived by mutual agreement between the Company and the flight crew member.

14.9.3.1 Nothing in this Agreement will derogate from the Company's right at common law to dismiss a flight crew member without notice for sufficient cause.

14.9.3.2 A flight crew member who is summarily dismissed pursuant to this sub-clause 14.9.3 will be paid up to the date of dismissal only.

[36] Mr Slevin submitted that Qantas had not complied with the terms of the Agreement in that the termination letter described the termination as being 'on notice', yet the termination had immediate effect. It cannot be both. The background to the dealings between the parties was always that the applicant was on LWOP. This created uncertainty as whether the notice applied. The applicant only understood the finality of the decision on 12 July 2012 when his appeal was rejected. Mr Slevin said that if the applicant was not on notice, but to be paid in lieu, then the final termination pay should have accompanied the letter. The final payment was not made until 17 July 2012. Capt Jensen did not know the reason for the delay.

[37] In the alternative, Mr Slevin put that should the Tribunal find that the termination letter was the date of dismissal, there were 'exceptional circumstances', within the meaning of s 394(3) of the Act, justifying an extension of time being granted. These circumstances were:

i. the 19 June 2012 letter was uncertain as to the effective date of termination;

ii. the Qantas policy allowing appeals from decisions to dismiss is unclear as to the status of the decision during the appeal process and fails to advise that the statutory time period runs whilst the appeal is being considered;

iii. Captain Trood was in a psychiatric hospital from 26 June 2012 to 11 July 2012; and

iv. Captain Trood was not informed that his appeal against termination was unsuccessful until 12 July 2012.

b. Captain Trood did not become aware that Qantas was considering terminating his employment until he received the 19 June 2012 letter, which was after the decision was made (s394(3)(b));

c. Captain Trood took action to dispute the dismissal by appealing the decision under Qantas' Standards of Conduct Policy (s394(3)(c));

d. As Captain Trood made it clear to Qantas that he disputed the dismissal in accordance with its policy there is no prejudice to Qantas by the granting of the application (s394(3)(d)

e. Captain Trood's application has merit (s394(3)(f)

See: Nulty v Blue Star [2011] FWAFB 975 ('Nulty') and Ho v Professional Services Review Committee No 295 [2007] FCA 388.

[38] Mr Slevin outlined the merits of the applicant's case by submitting that he had an unblemished flying record with Qantas of twenty years. He suffered from a serious depressive illness exacerbated by personal tragedies and had recently suffered spinal and wrist injuries. While Qantas claims it had attempted to contact him, the applicant denied seeing the letters of 3 April and 1 May 2012. Importantly, the applicant's medical condition means that he cannot retain his flying licence. This meant he would be entitled to a loss of licence insurance payout which had been denied by Qantas because he was no longer employed.

[39] Mr Slevin relied on the decision of Cargill C in Caine v State Transit Authority of NSW [2003] AIRC 1476 ('Caine') to demonstrate that the applicant was clearly not 'sitting on his hands' in respect to challenging his dismissal through the Qantas internal appeal process. Mr Slevin noted that, shortly after coming out of hospital and being told his appeal was unsuccessful, he advised his Union to file an unfair dismissal claim.

[40] Ms R Bernasconi, Solicitor, submitted that there could be no ambiguity about the terms of the applicant's termination letter of 19 June 2012. It expressly stated the applicant was terminated effective immediately and all of his entitlements, up to 19 June 2012, were to be paid. Even adopting a more generous approach in that the applicant was told by Capt Jensen on 22, 23 and 25 June that his employment was terminated, still leaves his unfair dismissal application out of time.

[41] Ms Bernasconi put that the applicant's case is not assisted by the appeals process under the SOC Policy, as an appeal is only available after a decision to terminate has been made (cl 18.6). There is nothing in the Policy which provides for a termination not taking effect until an appeal is determined.

[42] In oral submissions, Ms Bernasconi said that the distinction in the Agreement between giving notice and being paid notice is not the correct distinction. The distinction to draw is with summary dismissal, without notice (cl 14.9.3). The letter is perfectly clear as to what occurred and what the applicant himself understood to have occurred. In addition, the advice from Capt Jensen was not that Qantas was thinking about termination or giving a show cause notice, but that Qantas had actually terminated the applicant's employment. There was nothing said to the applicant to give him any indication that the decision was reversed pending the outcome of his appeal.

[43] Ms Bernasconi added that termination payments are irrelevant to when a dismissal takes effect. The final payment was clearly conditional on the return of Company property. In any event, the payment date does not line up to the five weeks notice. In addition, on the applicant's own evidence, he did nothing about the termination letter and did not read it fully until a few days after he received it.

[44] Ms Bernasconi relied on a number of authorities in respect to the meaning of 'exceptional circumstances'; See: Patrick Morgan McConnell v A & PM Fornataro T/A Tony's Plumbing Service [2011] FWAFB 466, Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251, Sparkes v Chubb Fire and Security Pty Ltd [2012] FWA 5204, Sweres v D & H Servo Pty Ltd [2012] FWA 4827. She then dealt with each of the factors in s 394(3) of the Act and concluded that the applicant's reasons for not lodging his claim in time should be rejected as not being 'exceptional'. Moreover, these circumstances did not prevent the applicant from lodging an internal appeal. There was no evidence of what other steps the applicant took, after 19 June 2012, to obtain advice from his Union.

[45] Ms Bernasconi said the applicant was made aware of his dismissal on 20 June 2012 or, at the very latest, on 22 June 2012. While the applicant took steps to appeal the decision, the appeal had no effect on the decision to terminate his employment. Qantas had suffered prejudice as a result of the lengthy delays caused by the applicant's failure to contact it, which were compounded by the delay in bringing this application. As there is little likelihood of the applicant being able to return to work and no reasonable prospects of success with his application, Qantas would suffer further prejudice if the application to extend time is granted.

[46] As to the merits of the application, Ms Bernasconi said that the applicant is unable or unwilling to perform the inherent requirements of his job. This was confirmed by medical evidence. There was no basis to a claim that the applicant did not have an opportunity to respond to the reasons for his dismissal. He was contacted by letters, phone messages and email and, in the 1 May 2012 letter, expressly requested to provide Qantas with any additional information as to why his employment should not be terminated. He failed to respond. It followed that Qantas had a valid reason for the applicant's dismissal.

[47] Ms Bernasconi said that the applicant only seeks reinstatement for the sole purpose of making an insurance claim, which he could have done, at any time, over the previous three years. This was an improper basis to claim that his dismissal was 'harsh, unreasonable or unjust'. She added that there were no relevant matters going to fairness between the applicant and other persons in a similar position.

[48] In further oral submissions, Ms Bernasconi, put that even if all of the communications from Qantas were not received by the applicant, he had an earlier document which clearly stated 12 April 2012 as his LWOP end date. In addition, the applicant's own email of 23 February 2012 refers to a return in April. Ms Bernasconi said the various reasons raised by the applicant as to why he did not receive Qantas' communications were simply not plausible.

[49] Ms Bernasconi submitted that the fact an employee does not exercise a right within a required period does not mean the actions of the employer bringing the employment to an end is unfair. Finally, Ms Bernasconi said the Caine decision relied on by Mr Slevin was irrelevant because it was decided on a less stringent test under the Workplace Relations Act 1996 for deciding if unfair dismissal applications 'out of time' should be accepted.

[50] In reply, Mr Slevin said that the loss of insurance issue went directly to the harshness of the applicant's dismissal and as a contested issue would need to be considered as to the merits of his claim.

[51] In my view, the answer to this question can be found by posing three sub-questions relevant to the following words in the termination letter:

'In these circumstances, Qantas has no option but to terminate your employment, with notice, effective immediately. You will be paid 5 weeks wages as well as your accrued entitlements accrued up to and including 19 June, 2012'

The three sub-questions are, firstly, what do the words actually mean; secondly, if there is any doubt as to their meaning, what was the intention of the words used; and thirdly, what did the applicant understand the words to mean?

[52] Mr Slevin argued that these words were capable of at least two meanings. Firstly, that the applicant was given five weeks notice of the termination of his employment or, alternatively, that he was terminated with immediate effect and paid five weeks pay in lieu of notice. Given these competing interpretations, the words of the letter were uncertain and unclear; See: Fardell. Accordingly, the applicant was entitled to believe he remained employed by Qantas for a further five weeks.

[53] In my opinion, Mr Slevin's reliance on Fardell is misplaced. Rather than supporting the applicant's case, it seems to me to do the opposite. The words in the termination letter are to be construed according to how they would be understood by a reasonable bystander. To my mind, they are capable of only one meaning - that the applicant's employment came to an end on 19 June 2012 and he was paid five weeks pay in lieu of notice, according to cl 14.9.1(b) of the Agreement. Mr Slevin adopted a far too literal and ultra-technical view of the words 'with notice, effective immediately'. This phraseology is an unremarkable expression. It is invariably used in circumstances where employees are dismissed for cause or redundancy, as distinct to dismissal for misconduct where, usually, no notice or pay in lieu thereof, is made.

[54] I can find no basis for a conclusion that there is any uncertainty or a lack of clarity arising from the words used, let alone an interpretation capable of two meanings. Moreover, when the words are read in the context of the following sentence (which they must be), it is pellucidly clear that the applicant's accrued entitlements were to be paid up to, and including 19 June 2012. If it had been otherwise, the entitlements would continue to accrue until some future point in time. Nowhere in the letter is such a strange proposition either expressed or inferred.

[55] Given the termination letter's unequivocal terms, I do not see how it is possible for the applicant to contend that he was not dismissed on 19 June 2012. Moreover, the applicant's own evidence both in his statement and orally, was that when he spoke to Capt Jensen on 22 June 2012, 3 days later, he said, 'it wasn't until he actively said the words to the effect that 'I was terminated' that I realised the ramifications. I was in disbelief.' In oral evidence as to the same phone conversation he said, 'it was pretty clear that they'd terminated me.'

[56] In other words, despite what is now posited, there was no doubt, at the time, that the applicant knew he had been dismissed on the 19 June 2012 as confirmed by Capt Jensen on 22 June 2012. It was simply 'clutching at straws' to micro-analyse the words of the termination letter to arrive at an interpretation completely inconsistent with what the applicant perfectly understood to be the true position. Indeed, it was contrary to commonsense.

[57] There was some reliance on the fact the applicant was not paid his final termination payments until 17 July 2012 and if he was dismissed on 17 June, he should have been paid all outstanding entitlements on that day. This submission takes the applicant's case nowhere. The termination letter makes clear that his final payments were conditional on the return of Company property, which did not take place for some time. Moreover, while a month does seem a long time for the payment of termination payments, it is not unusual for such payments to be paid some time after an employee's dismissal. This is as a matter of practical reality. Indeed, the calculation of correct termination payments often becomes a source of ongoing dispute between the former employee and the employer long after the relationship has ended.

[58] In any event, there was no relevant connection with the giving of five weeks notice and the payment of final termination monies, as the period of five weeks is not in sync with the day the final payments were made. What is critical, in this sense, is that the payments were calculated, up to and including, 19 June 2012. I note there does not appear to be any claim by the applicant that he had further outstanding entitlements beyond that date.

[59] Even putting aside the correct interpretation of the termination letter and the applicant's understanding of when he was actually dismissed, Mr Slevin's submission has one obvious and fundamental flaw. If the contention is that the applicant's termination was in fact, five weeks after the notice was given, ie 24 July 2012, then it means that the applicant's application for an unfair dismissal remedy was filed before he was dismissed, as the application was filed on 16 July 2012.

[60] This creates an obvious jurisdictional dilemma in that the unfair dismissal jurisdiction of FWA can only be invoked when there has been a dismissal of the employee. So much so is clear from the meaning of 'dismissed' at s 386 read in conjunction with s 385 of the Act as follows:

A person has been unfairly dismissed if FWA is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

It is axiomatic that if the applicant had not been dismissed until 24 July 2012, then his application filed on 16 July 2012, cannot be a valid application for the purposes of the Act. It would follow that FWA would be obliged to dismiss the application as ultra vires.

[61] I turn now to the applicant's submissions concerning the internal appeal process and a belief held by the applicant that his termination of employment was somehow suspended, put on hold, reversed or was not acted upon, because he had appealed the decision in accordance with the SOC Policy. It followed, so the argument goes, that he was not really dismissed until his appeal was determined; that is, on 12 July 2012. In my view, this is an entirely erroneous and unfortunate belief, which is unsupported by the evidence or the actual terms of the Policy itself.

[62] There was no dispute that Capt Jensen had told the applicant of his appeal rights under the Policy and actually read the relevant section of the Policy to him. At no time, did Capt Jensen either expressly, or impliedly, inform the applicant that the termination decision was on hold or that it was otherwise not in effect. Moreover, such a belief could not be drawn from the words of the Policy itself. In my view, the appeal process is undoubtedly predicated on a termination decision having been made. There is nothing in the Policy to suggest the decision is suspended, reversed or put on hold, until the appeal process concludes.

[63] Cl 18.6(a) of the Policy is in unequivocal terms:

'Where an Employee's employment is terminated and the Employee is aggrieved by the decision, the Employee may appeal against the decision on any grounds set out at 18.3. The process to be followed is:

a) The appeal must be received by the Nominated Person within 7 calendar days of the Employee receiving written notification of termination of employment. Appeals lodged outside of this 7 day limit will generally not be considered by the Company.

Note: If an employee has not been provided with details of a Nominated Person, the appeal may be submitted to the relevant People/HR Representative.

b) Appeals must be in writing and must set out the grounds on which the appeal is made (see 18.3 above).

c) Once a written appeal has been received, the department Head or their nominee and a representative from the relevant Entity/Business Unit People/HR team or Corporate People team, will review the written appeal and other relevant documentation and information.

d) If the Appellant or any other person is required to attend any meetings as part of the appeal process, they may have a Support Person present.

e) Appeals against termination of employment will be determined by the Company, wherever possible, within 10 calendar days of receipt of a written appeal.'

Cl 18.8, as to outcomes, refers to one outcome being reinstatement. In other words, a person must have been dismissed before an appeal process decides to reinstate him/her. This is not an insignificant matter, as the same remedy is available under s 392 of the Act for an unfairly dismissed employee. Importantly, however, jurisdiction of FWA to make such an order is predicated on a dismissal having occurred (again, see: ss 385 and 386 of the Act).

[64] While Mr Slevin relied on the decision of Cargill C in Caine, it seems to me that this decision is entirely distinguishable to the present case, as it was determined in 2003 under a very different legislative regime and where the hurdle of demonstrating an 'acceptable reason' for failing to lodge an unfair dismissal application, within time, is significantly lower than under the Fair Work Act's 'exceptional circumstances' test.

[65] Of course, in Caine, Cargill C found that recourse to another Tribunal (Transport Appeals Board) and that a delay pending its determination was 'an acceptable and reasonable explanation for the delay' in the applicant not filing his unfair dismissal application within time. However, I consider that a more recent decision of the Full Bench of FWA in Gao v Department of Human Services [2011] FWAFB 5605 ('Gao') is a better statement of the law applicable to the current Act and the present circumstances. Gao was an appeal from a decision of Hamilton DP, in which His Honour refused to exercise his discretion to extend time for filing an unfair dismissal application, finding no 'exceptional circumstances' had been demonstrated. One of the grounds of appeal concerned the applicant's application for an internal review of his dismissal, which led him not to lodge an unfair dismissal, until the review was complete. In respect to this ground, the Full Bench said at para [11]:

'[12] The third ground of appeal involves an allegation that DHS had encouraged Mr Gao to believe that DHS was reviewing his dismissal under the DHS Fair Treatment policy and that this had led him not to lodge an application until the review had been completed and the result notified to him. It is sufficient if we indicate that it was open to the Deputy President to take the view, as His Honour obviously did, that any belief which Mr Gao had about the possibility of a favourable review under the Fair Treatment policy did not provide an adequate excuse for delaying the lodgement of the application until December 2010.'

[66] There was, I think, some implied criticism of Capt Jensen for not informing the applicant of his unfair dismissal rights under the Fair Work Act in the telephone conversation on 22 June or subsequently. This criticism (if it be such), is unwarranted. Putting aside the obvious fact that there is no obligation on an employer, either under the Act or under Qantas policy, to inform an employee of their unfair dismissal rights, it should not be lost sight of that the applicant is an experienced and well educated person in a highly skilled and responsible position. He is a member of a professional and competent industrial organisation. While I accept the applicant was not clearly or properly focused at the relevant time, he did have the perspicacity to appeal the termination decision internally. Given what he stood to lose - his highly specialist career and significant earnings - it beggars belief that he would not have been aware that an internal appeal was not his only recourse from an alleged unfair dismissal, or that he did not seek advice about any other options.

[67] For all the foregoing reasons, I find that the date of the applicant's dismissal was 19 or 20 June 2012. His application for an unfair dismissal remedy was therefore 'out of time' by 12 or 13 days. I turn now to consider whether FWA should exercise its discretion to extend the time for filing his application, pursuant to the provisions of s 394(3) of the Act.

Should FWA grant an extension of time for the filing of this application?

Relevant statutory context and applicable principles

[68] Subsection 2 of s 394 of the Act is as follows:

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

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

When considering whether to extend time for the filing of an unfair dismissal application under s 394(2)(b), FWA is required to take into account the following matters under s 394(3) of the Act:

(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:

(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.

[69] A considerable body of authority has now been developed within FWA as to the meaning of 'exceptional circumstances' in the statutory context of s 394(3) of the Act. Many of the authorities were referred to me by the parties, but one stands out. A Full Bench of FWA in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 summarised the meaning of the expression in the following way; albeit in the context of a general protections application:

'[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.'

See also Cheval Properties Pty Ltd t/a Penrith Hotel Motel v Smithers [2010] FWAFB 7251.

[70] I will now deal with each of the matters to be taken into account by FWA pursuant to s 394(3) of the Act.

[71] Mr Slevin identified the following reasons for the delay in the applicant filing his unfair dismissal claim:

i. the 19 June 2012 letter was uncertain as to the effective date of termination;

ii. the Qantas policy allowing appeals from decisions to dismiss is unclear as to the status of the decision during the appeal process and fails to advise that the statutory time period runs out whilst the appeal is being considered;

iii. Capt Trood was in a psychiatric hospital from 26 June 2012 to 11 July 2012; and

iv. Capt Trood was not informed that his appeal against termination was unsuccessful until 12 July 2012.

Earlier, I dealt with (i), (ii) and (iv) above. I do not consider any of them constitutes 'exceptional circumstances' as reasons for the delay. However, I am prepared to accept that the period when the applicant was in hospital (26 June - 11 July 2012) would - all other things being equal - constitute an 'exceptional circumstance', as comprehended by s 394(3)(a) and the relevant authorities.

[72] There can be no dispute that the applicant became aware of his dismissal on 20 June 2012 and had it confirmed on 22 June by Capt Jensen (s 394(3)(b). However, even if one accepts that the applicant was not 'sitting on his hands', but had actively challenged his dismissal after Capt Jensen told him of his appeal rights on 22 June 2012 (s 394(3)(c)), this does not explain why no other steps were taken to lodge an unfair dismissal application in the four days before being admitted to hospital, or in the five days between being discharged and when the application was actually lodged.

[73] Pursuant to subsection (d) of s 394(3), I am prepared to accept that the combination of lengthy delays and considerable effort made by Qantas in unsuccessfully attempting to contact the applicant over many months, together with his unfortunate, but erroneous view of the internal review process, has led to a prejudice to Qantas which tells against the grant of the application to extend time in this case.

[74] However, far more critically, I think, is the submission of Ms Berlasconi as to the unlikely prospects of success with the applicant's substantive application, given there appears to be no prospect of him performing the inherent requirements of the work of a pilot, even if he was to be reinstated. Mr Slevin made a number of submissions as to the merits of the applicant's case (See para [37]). There is no dispute that the applicant had an unblemished disciplinary record over twenty years, albeit he has not flown for the last three years. Nor is there any doubt that he experienced a number of personal tragedies and depressive illnesses during the last three years.

[75] However, the other of Mr Slevin's submissions are far more problematic. Primarily, these were: firstly, that the applicant had not received any correspondence from Qantas prior to the termination letter and therefore had no opportunity to respond to the reasons for his dismissal; and, secondly, unless the applicant is reinstated, he stands to lose a significant entitlement - the loss of the capacity to make a claim under the licence insurance policy. Presumably, this last submission goes to the harshness or economic impact of the applicant's dismissal, as to whether the dismissal was 'harsh, unjust or unreasonable' within the meaning of s 387 of the Act.

[76] I have earlier made some comments about the applicant's evidence as to not receiving correspondence, text messages or emails from Qantas prior to the termination letter. Mr Slevin put that if I reject the applicant's version of events, I would be making an adverse credit finding against him and that such a finding was not open to the Tribunal. I disagree. On the applicant's own evidence, he seems to have reconstructed events to fit his case and, in some instances, made exaggerated claims that he later acknowledged. For example, he conceded that he had not received 120 letters he was wading through after returning home from interstate (see para [22]).

[77] That said, I simply cannot accept the proposition that the applicant believed his LWOP ended on 12 June 2012. The applicant's email of 23 February 2012 makes clear that he had not only been contacted by Capt Jensen via text message the week before when he said 'Sorry I could not speak last Friday...', but he knew he was due to return to work in April, not June, when he said 'I am hopeful of continued improvement with the view to return to work in April, but only time will tell'. This email was not some incoherent or confused ramblings of a person totally unfocused or uncertain of what was expected of him.

[78] In addition, the applicant agreed in oral evidence that he had received the LWOP agreement which had clearly outlined his obligations and the end of his LWOP as 12 April 2012. Despite this evidence, the applicant proffered four reasons why he was still unclear of his return date:

1. he may not have received the LWOP agreement as he could not find it and Qantas' copy was unsigned;

2. he was focusing on his physical and mental health;

3. he was caring for a close friend in Perth who was suffering from the same condition which had taken his wife; and

4. he believed the 6 months LWOP commenced from the date of the letter, being 4 January 2012.

This last excuse can be readily dismissed, because 6 months from 4 January 2012 would be 4 June, not the date of 12 June he now believes was the date of his return.

[79] I have no doubt that the applicant was preoccupied with his own health and that of his close friend in Perth. I sympathise with him in this regard. However, taken together with so many other unlikely or improbable explanations and excuses, such as not receiving Qantas' letters as they were probably stolen, not receiving text messages from Capt Jensen, with no explanation as to why Vodafone had records of the messages having been sent and not receiving an email from Ms Jonathan because his internet was down, leaves me to conclude that the applicant's belief that he was to return to work on 12 June 2012 to be, on the balance of probabilities, unacceptable. So many improbable coincidences are just not plausible. In any event, as earlier noted, the applicant's own email of 23 February 2012 defeats any doubt a reasonable person might have of believing the applicant on this issue (see para [10]). I am fortified in this finding by the following observations about the excuses the applicant offered for not receiving any communications from Qantas between 23 February and 20 June 2012 - a period of four months.

[80] Firstly, as to the theory of the stolen letters, this explanation sits rather uncomfortably with his other evidence that, on his return from Perth and Victoria, he had a pile of letters to wade through (later retracting that it was around 120 letters). In other words, the applicant would have the Tribunal believe that, at a time when two very significant letters had been sent to him by Qantas on different days (3 April and 1 May 2012), they just happened to be the ones stolen, whereas dozens of others were not, including, curiously, the final termination letter.

[81] Secondly, as to the claim of the internet fault, there was no evidence the email sent to his personal email address was not received at the time. Moreover, the dates the applicant claimed he was uncontactable by email were between 29 March and 21 June 2012. At best, this seems to be an extraordinary coincidence. Further, I note that having told Qantas that email was his best means of contact, at no time, during these crucial three months, did the applicant take any step to inform Qantas that he was no longer contactable by email. I also observe that the applicant had no recollection of Ms Jonathan's email of 13 December 2011, expressly setting out the end of his LWOP as 12 April 2012.

[82] Thirdly, the transcript of a phone message the applicant made to Capt Jensen on 22 June 2012, records the applicant saying, 'Um, Brett sorry to be out of touch for so long and ah sorry to be ah not answering the letters that were sent to me'. There was no submission put that this transcript did not accurately record the conversation; indeed the applicant agreed with Capt Jensen's general account of the conversation. The corollary of this is that there was not one letter the applicant was sorry for not responding to, as he expressly used the plural - 'letters'. To me, this can only mean the applicant was referring to more than just the termination letter. Despite his denials now, I believe he knew the contents of one, or both, of the letters of 3 April and 1 May 2012 and deliberately decided not to respond to them.

[83] I turn now to Mr Slevin's submission which seeks the applicant's reinstatement, assuming success in this matter, in order for him to qualify to apply for the loss of his licence insurance benefit. There is no doubt that to be eligible to make such an application, a pilot must be employed by Qantas at the time. So much so is acknowledged by the applicant because reinstatement is what he seeks in future proceedings, for that express purpose.

[84] Notwithstanding his recent personal tragedies and illnesses, with which I sympathise, I do not see how it is possible to justify a position that the real purpose of his unfair dismissal application is to correct a mistake he has made about an entitlement that he may have had during his employment and for which he is now barred from applying. I do not apprehend that the unfair dismissal provisions of the Act were intended for such a purpose.

[85] Obviously, the reality of the situation has enormous financial consequences for the applicant, but the circumstances have little to do with a claim of unfair dismissal against Qantas. Unfortunately, it seems to me, the situation has been one of his own creation. Moreover, it is extraordinary that an experienced pilot who has had three years of being unable to undertake the inherent requirements of his job, would not have inquired, or even just contemplated, what options might be available to him if he was not able, in the foreseeable future, or at all, to return to work as a pilot. This must be particularly so, given the opinions of his treating doctors as far back as April 2010.

[86] In addition, given my doubts as to when the applicant really knew his job was in jeopardy, it is simply unbelievable that he took no steps to activate a claim for the insurance benefit some months earlier.

[87] Regrettably, for the foregoing reasons, I am unable to conclude that the applicant has demonstrated that there are 'exceptional circumstances' to justify the exercise of my discretion to extend the time for filing of his unfair dismissal application. The application must therefore be dismissed. An order to this effect will be published jointly with this decision.

Mr A Slevin, Counsel, instructed by Mr K Bolwell, Solicitor for the Applicant

Ms R Bernasconi, Solicitor with Mr R Dampney, Solicitor for the Respondent

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