Belinda Brown v Hypdup Constructions Pty Ltd

[2021] FWC 1658

[2021] FWC 1658

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Belinda Brown
v
Hypdup Constructions Pty Ltd
(U2021/1221)

DEPUTY PRESIDENT DEAN SYDNEY, 29 MARCH 2021

Application for an unfair dismissal remedy – effective date of dismissal – extension of time

[1] This decision concerns an application by Belinda Brown (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. The Applicant had been employed by Hypdup Constructions Pty Ltd (the Respondent) from 30 April 2018 until her employment was terminated for reason of redundancy.

[2] Section 394(2) of the Act requires that an application for an unfair dismissal remedy is made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3).

[3] There was a conflict as to when the Applicant’s dismissal took effect. In her application for an unfair dismissal remedy, the Applicant stated that her dismissal took effect on 29 December 2020, however she subsequently contended that her employment ended on 25 January 2021. The Respondent says the employment ended on 29 December 2020. The application was filed on 15 February 2021.

[4] If the Applicant’s employment ended on 29 December 2020, her application was made 27 days outside the statutory time limit and cannot proceed unless the Commission grants a further period for the application to be made

[5] A hearing by telephone was held on 26 March 2021 to determine whether the application was lodged within the required time, and if not, whether an extension of time should be granted.

[6] At the hearing, the Applicant appeared on her own behalf. Ms Melissa Hay and Mr Warwick Hay appeared for the Respondent.

When did the dismissal take effect?

[7] The term ‘dismissed’ for the purposes of the unfair dismissal jurisdiction is defined in s.386 of the Act. Section 386 provides that a person is dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative, or 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.¹

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed 2 and can be communicated orally.3

[9] Where payment in lieu of notice is made, the dismissal usually takes effect on the last day worked unless the employer specifies a different date of dismissal. 4

[10] It is not in dispute that the Applicant was advised on 29 December 2020 that her employment was terminated due to redundancy, and that she did not perform work after that date.

[11] The termination letter used by the Respondent was based on a template available from the website of the Fair Work Ombudsman and is titled ‘Termination of your employment by reason of redundancy’ (the template). The template provides four options to cover scenarios where the employee would either be required to work their notice period or be paid in lieu of notice, and whether the employee was or was not eligible for redundancy pay.

[12] In this case the Respondent appears to have adopted two of the options from the template in the termination letter . As a result, the letter included the following:

“Based on your length of service, your required notice period is 3 weeks.

As agreed previously, we will give you 4 weeks. Therefore your employment will end on 25/1/2021.”

[13] And it goes on to state the following:

“Your employment will end immediately. Based on your length of service, your notice period of 3 weeks. Instead of receiving notice, you will be paid an additional 2 weeks pay in lieu (includes additional week).”

[14] Ms Brown and Ms Hay gave evidence. Ms Brown said she was told during her discussion with Ms Hay on 29 December 2020 that she was being made redundant because of a restructure and was told she was not required to return to work. Ms Hay agreed with this and added that she made it clear to Ms Brown that her employment was ended as at that date.

[15] Ms Hay explained the inconsistency in the termination letter as attempting to make clear to Ms Brown that she would be paid 4 weeks in lieu of notice, as there was an agreement between them that this would be the notice period provided.

[16] Ms Hay also provided a copy of Ms Brown’s payslips for the two weeks immediately after the redundancy. She explained that the final pay was made over two payments because her accountant was on annual leave, and she wanted to ensure Ms Brown was paid correctly. Accuracy was particularly important, she said, because Ms Brown had told her she would be ‘going to Fair Work’.

[17] Having considered the evidence and submissions made by the parties, I am satisfied and find that the Applicant’s employment ended on 29 December 2020, based on the following:

a. The Applicant in her application for an unfair dismissal remedy stated that her dismissal took effect on 29 December 2020.

b. While the termination letter was unclear and inconsistent, I nonetheless accept that Ms Brown was told on 29 December 2020 that her employment was ending on that day due to redundancy.

c. Ms Brown performed no work from that date onwards.

d. She was paid her final pay, albeit over two pay periods, in full by 12 January 2021.

e. Had Ms Brown been unclear about the date her dismissal took effect, she could have queried it with the Respondent.

[18] Given my finding, the Applicant’s application filed on 25 January 2021 was made 27 days outside the statutory timeframe. I now turn to consider whether an extension of time should be granted.

Extension of time

[19] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3).

[20] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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 nor unprecedented, nor even very rare. 5 Exceptional circumstances may 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 can be considered exceptional.6

[21] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

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

[22] 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. I now consider these matters in the context of the application.

Reason for the delay

[23] 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. 7

[24] The Applicant contended that her application was not late and otherwise provided no reason for the delay. This weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[25] The Applicant was notified of her dismissal on 29 December 2020. She therefore had the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances

Action taken to dispute the dismissal

[19] The Applicant did not take any action to dispute the dismissal until the present application was lodged. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[26] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[27] The Act requires me to take into account the merits of the application in considering whether to extend time.

[28] The Applicant argued that the dismissal was not a genuine redundancy as the consultation requirements of the relevant award were not complied with.

[29] In the absence of tested evidence it is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[30] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[31] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

B Brown on her own behalf.
M Hay for Hypdup Constructions Pty Ltd.

Hearing details:

2021.
Canberra and Sydney (By telephone):
March 26.

Printed by authority of the Commonwealth Government Printer

<PR728128>

1 Section 386 of the Act.

 2   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at para. 24.

 3   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at para. 24.

, Whelan C, 10 December 1998).

 4 Siagian v Sanel Pty Limited [1994] IRCA 2 (27 May 1994), [(1994) 122 ALR 333 at p. 355].

 5   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 6   Ibid.

 7   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].