Alby Strachan v BSR Concreting Pty Ltd T/A Alpine Sheds
[2022] FWC 224
•7 FEBRUARY 2022
| [2022] FWC 224 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Alby Strachan
v
BSR Concreting Pty Ltd T/A Alpine Sheds
(U2022/711)
| COMMISSIONER LEE | MELBOURNE, 7 FEBRUARY 2022 |
Application for an unfair dismissal remedy
Introduction
Mr Alby Strachan (the Applicant) commenced employment with BSR Concreting Pty Ltd T/A Alpine Sheds (the Respondent) on or about October 2019. The Applicant asserts that he was terminated on 6 December 2021 after a verbal altercation with the employer, Mr Ben Robinson. Among other things, it is alleged that during the altercation Mr Robinson told the Applicant to “leave your fucking tools and get the fuck off my site”.[1]
The Respondent vigorously disputes the Applicant’s version of events regarding the discussion that the two men had on 6 December 2021. The Respondent asserts that the Applicant resigned his employment by way of email on 13 December 2021.
The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). That application was lodged on 13 January 2022.
Application was filed outside the statutory timeframe
Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.
There is a dispute as to the date the Applicant was dismissed. The Applicant says that he was dismissed on 6 December 2021, but he also says that he became aware of his dismissal when Mr Sam Bratson (the Applicant’s co-worker) came and picked up some tools belonging to the Respondent on 7 December 2021.[2] The Respondent says that the Applicant resigned on 13 December 2021 by email. It is apparent there was an argument between the two men on 6 December 2021. The key facts are disputed, in particular, who lost their temper with both claiming it was the other who lost their temper. It is not in contest that the Respondent told the Applicant to leave the site. However, even on the Applicant’s evidence there were no clear words of termination. While the Applicant was clearly told to leave the site, either with or without the use of profanity, there was no clear indication to the Applicant that his employment had been terminated. This is consistent with the evidence that the Applicant gave at the hearing when he stated:
“So therefore to my assumption, I wasn’t sacked, that he had something goin on and I was just going to give him a period of time to calm down…”.[3]
The Applicant’s evidence is that Mr Bratson got in touch with him and said that he wanted to retrieve Mr Robinson’s belongings and that “you’re no longer going to be with us anymore.”[4] While Mr Bratson may well have said something to that effect, Mr Bratson was not the Applicant’s employer and not in a position to terminate the Applicant’s employment, nor does it seem that he was communicating advice of the Applicant’s termination from Mr Robinson. The later evidence is consistent with my findings on this point.
The Applicant did not attend work again after the argument on 6 December 2021. On 13 December 2021, the Applicant sent an email to Mr Robinson’s wife, Ms Kirsty Neville. The Applicant’s evidence was that he considered communications with Ms Neville as a communication with his employer.[5] The email sent on 13 December reads as follows:
“Hi Kristy. Hope your well. I'm just wondering if you might be able to tell me what happens now regarding the annual leave that's there, do I need to put it in on the app ect..
t's very unfortunate I'm no longer going to be working for Alpine sheds. I'm still quite unsure what I did to deserve to be put in that sort of environment. My version of the event was basically this, Ben suggested to have our lunch break, my reply was I wanted to buy lunch as I need to use the toilet anyway. He instantly fired up about not bringing lunch and failed to hear me say more then once, that I had a sandwich and a can of drink on site but i still needed to use the toilet regardless. He aggressively told me to go so I checked my funds and I realised I couldn't buy lunch yet anyway so I tried to suggest that we could keep working for the time being or sit down and eat what I have. But at this point it was to late. He was already extremely aggressively telling me to leave my things behind and go with a last minute change to grab my shit and F off. I'm unsure where things stand but I know for certain I do not want to be on site with or for him again. That's what's leading to my curiosity regarding the annual leave side of things. Thanks Kristy. Mary Christmas.”
It is apparent from this email that the Applicant was clear that he had no intention to continue working for the Respondent, but he was unsure where things stood at that point in time. However, he was sure he did not want to be on site with the Respondent again. Ms Neville replied on 13 December 2021 in the following terms:
“Hey Alby,
I just tried to call you to explain how it works.
As you have expressed you will no longer be working for Alpine Sheds, I will pay out your annual leave in full today.
This therefore sets a termination date of your employment as at today.
Also, can you please call me to discuss the payment of your accounting fees.
We completed your returns in August, you have well and truly received your refund and I have received no payments to date.
Please call me to discuss a payment plan.
Please call me at the office to confirm the above, I will then process your final pay.
Regards,
Kristy Neville CA”
The Applicant replied the same day indicating how he proposed to deal with the debt for accounting fees and other matters. He did not take issue in the reply with the characterisation from Ms Neville that he had expressed he will no longer be working for the Respondent.
The evidence supports a finding that the Applicant resigned his employment on 13 December 2021 by way of email. Given the Applicant’s contentions as to the behaviour of the Respondent, it is clearly open for the Applicant to argue constructive dismissal if the Respondent’s behaviour is determined to have occurred as is alleged. However, whether or not there was a termination at the initiative of the employer is not a matter to be determined as part of this decision regarding an extension of time. For the purposes of this decision, I am satisfied on the evidence that the termination of employment was on 13 December 2021. That means that the unfair dismissal application is 9 days out of time. In the event that I am wrong, and the employment relationship ended on 6 December 2021 as submitted by the Applicant, then the application is 14 days out of time. Either way the application was lodged late. However, for the reasons set out I will determine the application for an extension of time based on my finding the termination took effect on the 13 December 2021.
Based on a termination taking effect on 13 December 2021, the application for a remedy should have been lodged by no later than 3 January 2022. However, as 3 January 2022 was a public holiday, the application for a remedy should have been lodged by the next business day, being 4 January 2022.
The application was therefore lodged outside of the time prescribed. The application was made in effect, 9 days after the last date on which it could have been made. The Act allows the Fair Work Commission (the Commission) to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.
Before dealing with the evidentiary matters, I will consider the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.
The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
· the reason for the delay;
· whether the Applicant first became aware of the dismissal after the date it took effect;
· any action taken by the Applicant to dispute the dismissal;
· prejudice to the Respondent including prejudice caused by the delay;
· the merits of the application; and
· fairness as between the Applicant and other persons in a similar position.
Each of the matters need to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[6]
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare.[7] I must be satisfied that, taking into account s.394(3) that there are exceptional circumstances.
I now consider these matters in the context of the Application.
(a) Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[8]
The Applicant gave a number of reasons for the delay. In his Form F2, the reasons included:
· That he had no understanding that the 21-day limit was a requirement.
· That he had been experiencing a lot of anxiety and severe depression. During the hearing the Applicant said that:
“You say that part of the reason for your delay is you've taken a great downfall with mental health?‑‑‑Yes.
In what way has that impeded your ability to lodge the application in time?‑‑‑Well, for a number - for about two weeks after the unfair dismissal, I had no confidence, technically, really, basically I just couldn't get out of bed, I didn't want to do anything. I went from feeling as if I belonged - honestly belonged to a workplace. I felt so important working for Ben Robinson, being left on the job sites, being, you know, expected to do my jobs and somebody who'd been so confident in me being able to do my job and fulfil my role like that in the way I was. So, I felt as if I was important to Alpine Sheds and it just went from feeling so secure and happy in my job place and the environment to completely left in the cold like I absolutely meant nothing and didn't matter, and I didn't know what to do, I was lost. I had no way of paying any of my bills after that. It was my son's birthday in a week and I had so many more things that I had to pay for Christmas, so I was - I was left absolutely basically traumatised from his actions on the day to the point where I still don't necessarily want to set foot on another job site just yet, I don't feel confident enough to do that really at the moment. I just - I kind of just want to have a reasonable - I want to resolve this issue with Ben Robinson and put it behind me so I can move on and get on with my life pretty much.”[9]
In his witness statement, the Applicant provided an additional reason for the delay, that being his current email address has been “unavailable due to technical difficulties [and] obvious signs of security breach” and that he could “no longer can gain access whatsoever.”
Also, the Applicant claimed in his witness statement that he:
“made a application to a fair work ombudsman a short time after the unfair dismissal took place under the impression I was venturing down the correct avenue. It wasn’t until I phoned the Fair work commission to inquire how the process was traveling that I had received the correct information about witch form to fill out (F2).” [10]
I have considered this reason for the delay as part of the consideration of action taken to dispute the dismissal, as the Applicant asserts in respect to that factor that he believed he was in the process of lodging an unfair dismissal application.[11]
I will deal with each of these reasons for delay in turn and consider whether all or any of them are acceptable reasons for the delay.
First, the Applicant claims a lack of awareness of the time frame for lodging an unfair dismissal application. However, a lack of awareness of the time frame is in and of itself, not an acceptable reason for the delay.[12]
Second, the Applicant claims that his anxiety and depression is a reason for his delay. In particular, that he “had no confidence, technically, really, basically I just couldn't get out of bed” for about two weeks after the dismissal.[13] However, no medical evidence was provided by the Applicant attesting to this level of impairment as a result of his mental health. I accept the Applicant’s evidence that for two weeks after 6 December 2021, when the Applicant says the dismissal occurred, there was some impact on his capacity. However, I do not accept he was impaired to the level that he claims. It is evident that on 13 December 2021, in the middle of that two-week period the Applicant claims he could not get out of bed, the Applicant was quite capable of exchanging emails with Ms Neville about his version of events on 6 December 2021. Having been able to do this, I am not satisfied that the Applicant was in such a state that he could not have lodged an unfair dismissal application during that time. I am not satisfied that the Applicant’s claims of anxiety and depression are an acceptable reason for the delay.
Third is the Applicant’s claim that his current email address “[address omitted]@outlook.com” has been unavailable due to technical difficulties and obvious signs of security breach. In his email on 26 January 2021 to my chambers, and contrary to his witness statement, the Applicant claimed that “I can no longer gain access [address omitted]@outlook.com whatsoever”. The Applicant’s evidence on this point is vague and inconsistent and does not align with some key facts.
The very email that the Applicant sent on 26 January 2021 to my chambers, where he claimed he had no access to his outlook email whatsoever, was sent from the outlook email address that he claimed he did not have access to. The Applicant sought to explain that he could still send emails via iMessage on his phone using his outlook email.[14] Assuming that is so, this contradicts the Applicant’s claim that he could not access his email at all.
Ultimately, the Applicant’s evidence changed during the hearing from claiming that he could no longer access his email whatsoever to the following:
“So you can send emails on the [address omitted]@outlook.com ?‑‑‑Yes, and I have been able to throughout the whole time. I just - I cannot receive them, I have not been able to receive them for quite some period of time.”[15]
If the Applicant could send emails throughout the relevant period, this is hardly an acceptable reason for the delay. Further, to the extent that the Applicant has been impeded in his access to his email, this has been an issue according to the Applicant for the two weeks prior to the hearing.[16] However, the Applicant claims that “it could've been quite some time before that”.[17] This evidence was also vague and inconsistent. In any event, on the Applicant’s own evidence, he could send emails from his outlook account throughout the relevant period. It is therefore not an acceptable reason for the delay.
In the circumstances, I am not satisfied that any of the reasons advanced by the Applicant are an acceptable explanation for the delay. That is a matter that weighs against the Applicant in this case.
(b) Whether Applicant first became aware of the dismissal after the date it took effect
Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was advised on 13 December 2021 that his employment would end on that day. That was the effect of the email exchange between the Applicant and Ms Neville.
As noted, there is a dispute as to whether the Applicant resigned or was terminated. If the Applicant was terminated at the initiative of the employer, he was most certainly aware of it on 13 December 2021. In the circumstances, that is a matter that weighs slightly against the Applicant.
(c) Action taken by the Applicant to dispute his dismissal
Turning next to the question of the action taken by the Applicant to dispute his dismissal. The key evidence as to action taken to dispute the dismissal is the claim made by the Applicant that he made an application to the Fair Work Ombudsman (FWO) “a short time” after the dismissal took place. The Applicant gave evidence during the hearing as to what occurred with the FWO. Once again, like much of his evidence, this evidence was very inconsistent.
The Applicant’s evidence during the hearing on the point was as follows:
“What application do you say you made to the Fair Work Ombudsman?‑‑‑I think it may have been an F13. I can't gain - see, the problem here is I cannot gain access to that email account, therefore I cannot get what - I cannot find the correspondence I received from that because I basically received correspondence at that time, because it's quite some time ago when I still had access to my email account, that I have sent it to the wrong people, and then I thought I'd reinstated it and did it correctly until I had a phone call - I had a phone call and I believe I spoke to the person I spoke to yesterday on the phone and she advised me that I've chased up the wrong avenue and I need to fill out an F2.”[18]
The Applicant’s claim that he cannot access his account to provide this evidence contradicts his claim only minutes earlier during the hearing that he:
“was able to get in contact with Outlook directly and resolve my account and it changed the passwords to re-establish the security for that account, so, therefore, I was able to get into that account at the very last minute, basically, and submit everything that was requested for this case.”[19]
I note that an email was sent to the Applicant as well as an alternative email address that he provided prior to the hearing. The email requested that the Applicant provide any evidence of his claim that he had tried to make an application to the FWO. No evidence was received. During the hearing, the Applicant claimed that he did not receive that email from my chambers, despite it also being sent to the alternative email address that the Applicant had provided. Subsequent to the hearing, an email was sent by the Applicant to my chambers which outlines dates on which enquiries were made and advice provided. It is not clear from the email what its meaning is, and the Applicant did not respond to correspondence sent by my chambers seeking further information. I have assumed that the document represents evidence that the Applicant has made contact with the FWO. At the bottom of the email there is the border of some text which would suggest that this is so. Assuming the document does evidence the Applicant’s interactions with the FWO, it evidences that the Applicant made enquiries on various dates and that advice was provided and that ultimately the enquiry was closed with a note “Not submitted”. There is no indication from this document that the Applicant lodged an application with the FWO.
The Applicant maintains that the form he submitted to the FWO may have been a Form F13. I note that a Form F13 is an application for the Commission to deal with a stand down dispute. The Applicant claims what he recorded on this form was “basically it would be exactly the same as what I've submitted to you guys now”.[20]
Notably, the Applicant then gave the following evidence:
“You say you filled out a form with the Fair Work Ombudsman that had 'Unfair Dismissal Application' written on it, did you?‑‑‑No, it may not have had 'Fair Work Unfair Dismissal'. It was basically just chasing the Fair Work Commission, anything that had 'Fair Work Commission' on it was, to my understanding, the correct place that I was after.”[21]
It seems on this evidence the Applicant understood that the Commission was the correct place to lodge an application, yet then on his evidence, he sent an application to the FWO.
As to when the Applicant took the steps to lodge an application with the FWO, that evidence was inconsistent. At first, his evidence was that he did so “within a day or two after the dismissal took place.”[22] As the Applicant maintained the dismissal took effect on 6 December 2021, it can be inferred that the Applicant’s evidence was that he lodged an application on around 7 to 9 December 2021. However, the Applicant then gave evidence that he lodged the application with the FWO on 25 December 2021, on Christmas day.[23]
The Applicant claims that he then he rang the Commission “a couple of weeks ago” to enquire to how his application was going, and that is when he “figured out” that he made the wrong application.[24]
Having considered the rather inconsistent and vague evidence of the Applicant on this point, it is by no means clear what the Applicant claims to have lodged with the FWO. His evidence was that he had made the “wrong application” and that he sent the wrong application to the wrong location, despite his evidence that he was “basically just chasing the Fair Work Commission.”[25]
All things considered, the Applicant’s evidence on this point lacked credibility. Despite claiming at one point that he thought the Commission and FWO were one in the same, on his own evidence, he clearly understood that the Commission was the correct organisation to lodge an unfair dismissal application with. The Applicant’s evidence is that he understood he lodged an unfair dismissal application with the FWO on 25 December 2021.[26] However there is no supporting evidence that the Applicant lodged anything with either the FWO or the Commission on that date. At best the evidence indicates that the Applicant made enquires of the FWO on or around that date. Having regard to the evidence, I am not satisfied that the Applicant actually lodged any sort of application with the FWO on 25 December 2021 or at any other time.
Ultimately, I accept that the Applicant has taken some action to contest his dismissal by making inquiries of the FWO, and I accept that the action taken to make enquiries of the FWO was action taken to dispute the dismissal. In the circumstances, that is a matter that weighs slightly in favour of the Applicant.
d) Prejudice
Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time. The Respondent made no submissions on this point.[27] The Applicant made submissions that were largely irrelevant to the consideration. In the circumstances, that is a matter that is neutral in the instant case.
e) Merits of the application
As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate to make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant’s case at its most favourable.
As set out earlier in the decision, there are significant factual disputes that would need to be resolved. The Respondent disputes that the termination was at the initiative of the employer. The Applicant maintains that he was terminated by the employer. Assessing the case at its most favourable for the Applicant, it could be determined that the Respondent’s conduct on 6 December 2021 was such that the Applicant was in fact dismissed on that day, or alternatively, had no choice but to resign on 13 December 2021. That is, the Applicant was constructively dismissed. This would require a finding that at least some of the conduct alleged by the Applicant occurred, such as Mr Robinson allegedly storming towards him as if he was about to strangle him and swearing at him. Mr Robinson denies the allegations he acted in an aggressive manner and his evidence is that in fact the Applicant lost his temper and has done so on more than one occasion. Indeed, the Applicant accepted that:
“maybe a couple of times here and there where I may have been a bit hot-headed and whatnot, but there wasn't a time that I hadn't apologised for it and it was resolved promptly.
So you have lost your temper at work from time to time?‑‑‑Once. There was actually one occasion where I would say I have lost my temper and then, other than that, no.”[28]
The Applicant also claims that the loss of employment has impacted him financially,[29] which if found to be accurate would weigh in favour of a finding of harshness.
It seems to me that his claim is, on a preliminary assessment basis, not without merit. However, nor is it a particularly meritorious claim. In the circumstances, that is a matter that is neutral.
f) Fairness as between the Applicant and other persons in a similar position
As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts. however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application.
The Applicant’s submissions on this point were:
“I believe the actions of Ben Robinson on the 6th of December were extremely unfair and absolutely not acceptable. I went to work at 7am while experiencing extreme tooth pain and still performed my duties well and within time without issue with a positive attitude. I am now in severe financial dept and are on the verge of being evicted from our current rental property due to the unforeseen cut of employment caused by Ben Robinson’s actions.”[30]
Other than this submission, which is not particularly relevant to this factor, neither party put any other submissions on this issue, nor did any party bring to my attention any relevant decision of the Commission which is in terms similar to the facts in this case or where the Commission granted an extension of time or found exceptional circumstances on facts that are similar to the facts before me. Consequently, that matter is a neutral consideration in the present circumstances.
Conclusion
Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in s.394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.
For the reasons set out, I am not satisfied there is an acceptable reason for the delay. This weighs against the Applicant. I have determined that the Applicant was aware the employment had terminated on 13 December 2021. This weighs slightly against the Applicant. The Applicant took some action, as described, to contest the dismissal, and this weighs slightly in favour of the Applicant. All other factors are neutral considerations. Taking into account all of the matters as I am required to do, I am not satisfied that, on balance the factor that weighs in favour of the Applicant, that being the action taken to dispute the dismissal, outweighs the other factors considered.
In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order to that effect will separately be issued.
COMMISSIONER
Appearances:
A Strachan, Applicant.
B Robinson, Respondent.
Hearing details:
2022.
Microsoft Teams;
January 28.
[1] Form F2 at Q3.2; Transcript at PN78.
[2] Applicant’s Witness Statement, emailed on 26 January 2022; PN73 and PN79.
[3] PN97.
[4] PN79.
[5] PN92.
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[7] Ibid.
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[9] PN83.
[10] Applicant’s Witness Statement, emailed on 26 January 2022, paragraph 1.
[11] Ibid at paragraph 4.
[12] see for example Rose v BMD Constructions Pty Ltd[2011] FWA 673 (Roe C, 1 February 2011).
[13] PN83.
[14] PN21.
[15] PN38.
[16] PN23.
[17] PN25.
[18] PN41.
[19] PN20.
[20] PN49.
[21] PN51.
[22] PN52.
[23] PN54.
[24] PN59.
[25] PN51.
[26] PN 57 - 58.
[27] PN138.
[28] PN117 - 116.
[29] PN83.
[30] Applicant’s Witness Statement, emailed on 26 January 2022.
Printed by authority of the Commonwealth Government Printer
<PR738007>
0
2
0