Benjamin Lay v The Editors Pty Ltd

[2021] FWC 3754

[2021] FWC 3754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin Lay
v
The Editors Pty Ltd
(U2021/4194)

DEPUTY PRESIDENT EASTON SYDNEY, 1 JULY 2021

Application for unfair dismissal remedy – unfair dismissal application filed out of time – genuine redundancy – circumstances not exceptional – application dismissed

[1] Mr Lay was dismissed from his employment with The Editors Pty Ltd (“The Respondent”) in March 2021. Section 394(1) of the Fair Work Act 2009 (“the Act”) requires that Mr Lay make his application for an unfair dismissal remedy within 21 days after his dismissal took effect. In this matter I must decide whether Mr Lay made his application within 21 days and, if not, whether to grant Mr Lay an extension of time to make his application.

[2] There was a contest in the proceedings about the effective date of the dismissal. For the reasons below I find that the dismissal took effect on 23 March 2021. The last day for Mr Lay to file his application within time was therefore 13 April 2021. Mr Lay did not make his application until 17 May 2021 and therefore requires an extension of time.

[3] For the reasons outlined below I am not satisfied that there are exceptional circumstances. Therefore I have no jurisdiction to grant an extension of time and Mr Lay’s application must be dismissed.

Section 394 – Exceptional Circumstances

[4] An unfair dismissal remedy must be made within 21 days after the dismissal took effect 1, or within such further period as the Commission allows.2

[5] The Commission may only allow a further period if it is satisfied that there are “exceptional circumstances”. The Full Bench in Nulty v Blue Star Group Pty Ltd 3described exceptional circumstances as follows:

“[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.

…

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[6] Section 394(3) specifically requires the Commission to take into account the following matters when considering whether there are exceptional circumstances:

“(a) the reason for the delay; and

(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

(e) the merits of the application; and

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

[7] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 4 the Full Bench found that:

(a) generally the Commission must consider all of the relevant circumstances because factors considered in combination might support a finding of exceptional circumstances even though no one particular factor is exceptional (at [17] and [38]);

(b) the obligation to "take into account" the matters set out in s.394(3) means that each of the listed matters must be treated as a matter of significance in the decision-making process, insofar as it is relevant (at [19]);

(c) no one factor needs to be exceptional in order to enliven the discretion to extend time (at [38]); and

(d) individual matters might not be particularly significant when viewed in isolation, but the Commission must consider the matters collectively and ask whether they disclose exceptional circumstances (at [39]).

Reason for the delay

[8] I am required to take into account “the reason for the delay”. 5 The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.

[9] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay.⁶ That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist - at least exceptional circumstances that support an extension of time.

[10] A good, credible or reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good, credible explanations for delay do not receive an extension of time because they cannot firstly establish that exceptional circumstances exist.

[11] Mr Lay worked for the Respondent from 2012 until March 2021. On 22 March 2021 the Respondent met with Mr Lay to advise him that it was considering making his position redundant. The Respondent gave Mr Lay a letter inviting him to a meeting the next day because the Respondent “would like to hear any ideas [Mr Lay] might have about the operational changes or any alternatives to redundancy [Mr Lay] might wish to suggest.” The letter indicated that Mr Lay was suspended from duty and that he was not to “attend the workplace or access any of [the Respondent’s] systems” from that point onwards. The letter also provided an estimate of Mr Lay’s termination package, which included four weeks’ pay in lieu of notice of termination and 14 weeks redundancy pay.

[12] Mr Lay says that from this meeting he understood that “the Editors were suspending me from my duties and had started the consultation process that could potentially make my employment with The Editors Pty Ltd redundant.” Mr Lay argued that this period of suspension and consultation lasted until 17 May 2021. As will become apparent, I do not accept that this understanding was reasonably available.

[13] Later that day Mr Lay sent a text messages to the Respondent (Ms McCartney) asking: “Can I accept a freelance job maybe starting towards the end of this week? As in am I free to work for another employer?” Ms McCartney advised by return text message: “That’s fine Ben but you will need to sign a [non-disclosure agreement] tomorrow morning when we meet up.”

[14] A meeting took place on 23 March 2021, primarily for Mr Lay to sign a Non-Disclosure Agreement, but also to further discuss Mr Lay’s redundancy. Mr Lay was given the opportunity to suggest other operational changes that would avoid his redundancy, however he did not raise any matters at all that challenged to the genuineness of his redundancy.

[15] At the meeting the Respondent handed Mr Lay a further letter that confirmed his dismissal because of redundancy. However, Mr Lay refused to accept the letter because it was a “boilerplate” letter that was “written by a lawyer”. Mr Lay says of the meeting on 23 March 2021:

“In the meeting on 23 March 2021 I asked about the redundancy process outlined in the letter. It was explained by Jennie and Peter that this was a standard redundancy letter written by an employment lawyer. I asked if this was “boilerplate” and Peter and Jennie confirmed that it was. I explained that I felt that the Respondent management had decided to make me redundant because of my conversations with Jennie McCartney in recent meetings about my employment conditions. I stated that I believed the redundancy consultation process was not genuine and that I was being forced to accept a redundancy without due process. I was asked to sign the copy of the letter I received on the 22nd of March 2021. I refused to sign.”

[16] Mr Lay was sceptical of the origins and authenticity of the letter he was handed in the meeting on 23 March 2021. He did not take a copy of the letter away with him however it was in evidence in the Respondent’s case. In cross-examination Ms McCartney indicated that the two letters were drafted at the same time and drafted with the assistance of the Respondent’s lawyers: the first letter indicating that the Applicant’s position was redundant and inviting consultation about alternatives, and the second letter confirming the dismissal because no alternative to redundancy had been identified. Mr Lay submitted that the preparation of both letters simultaneously establishes that his dismissal was a fait accompli and that the “consultation” undertaken by the Respondent was not genuine. At this stage I do not need to determine whether the consultation was genuine but I can note that if it wasn’t genuine then the merits of Mr Lay’s claim are much stronger. This aspect of the evidence doesn’t assist Mr Lay’s application for an extension of time because if his dismissal was in fact a fait accompli then it is more likely that the dismissal took effect on 23 March 2021.

[17] Mr Lay said that it was his understanding that his dismissal took effect on 17 May 2021 when he received a final letter from the Respondent. As will also become apparent, I do not accept that this understanding was reasonably available.

[18] Within a few hours of the meeting on 23 March 2021 Mr Lay sent an email to Ms McCartney regarding the calculation of his redundancy payments, regarding job-keeper, and providing a “rough list of [his] personal items that [he] will need to collect”. Reading Mr Lay’s email objectively it is quite clear that Mr Lay understood that he would not again perform work for the Respondent.

[19] Mr Lay’s email was the start of an ongoing email exchange lasting several weeks. In this entire email exchange neither Mr Lay nor Ms McCartney made any statement that was consistent with Mr Lay’s employment still being on foot. For this reason I do not accept Mr Lay’s characterisation that he was consulting with the Respondent about a “potential” redundancy – he was in fact consulting by email with the Respondent about the redundancy that took place on 23 March 2021.

[20] Other matters that were consistent with Mr Lay’s employment finishing on 23 March 2021 include:

(a) the Respondent did not pay any further ordinary wages to Mr Lay after 23 March 2021;

(b) none of the communications between Mr Lay and the Respondent after 23 March 2021 contained any challenge to the fact that Mr Lay’s position was redundant, or raised any alternatives to Mr Lay’s position being redundant;

(c) to the contrary, the ongoing dialog between Mr Lay and the Respondent assumed that Mr Lay’s employment had ceased because of redundancy;

(d) from 22 March 2021 Mr Lay was no longer able to access the Respondent’s files and system;

(e) Mr Lay did not perform any work at all for the Respondent after 22 March 2021;

(f) from 23 March 2021 onwards Mr Lay was able to perform work for others and in fact did so; and

(g) the Respondent’s calculation of the termination payment assumed that Mr Lay’s employment ceased on 23 March 2021, and Mr Lay does not appear to have ever taken issue with this assumption.

[21] This aspect of Mr Lay’s case is very significant. If the redundancy did not take effect until 17 May 2021 then Mr Lay’s claim is not late and he does not require an extension of time. If the termination due to redundancy was effective in March 2021 then Mr Lay’s claim is late.

[22] I find that the dismissal of Mr Lay from his employment was effective on 23 March 2021.

[23] Mr Lay’s primary explanation for the delay in commencing the proceedings was that he did not think that the dismissal was effective until 17 May 2021. As canvassed above, I do not accept that this belief could have been reasonably held. Even if he did labour under this misapprehension, it was not exceptional circumstances for him to do so when taking into account the surrounding events and the communications between the parties. That is, Mr Lay’s apparent confusion about when the dismissal took effect, in light of the surrounding events, was not exceptional circumstances nor does it generally provide a satisfactory explanation for his delay.

[24] One further explanation proffered by Mr Lay for the delay was that he waited until after his severance package was finalised before making his claim. Mr Lay said that might have decided differently about making his application “if the money was right.” Even if I accept this to be correct, this is not a reasonable explanation for Mr Lay’s delay in filing.

[25] Mr Lay’s alternative submission was as follows:

“If it is somehow determined that my application was not submitted on time it should be noted that I was busy applying for Jobs and working freelance at Flying Bark productions. I communicated regularly with Jenny Mcartney via email. The stress caused by my uncertain employment status caused me to lose a lot of sleep. If I was made redundant before the 17th of May then this was not made clear to me in the regular email communications I had with Jenny McCartney between 22 March 2021 and 17 May 2021 perhaps in part due to sleep deprivation.”

[26] It is unfortunate that Mr Lay was stressed and sleep deprived in the intervening period. It is well recognised in earlier decisions of the Commission that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual and do not constitute exceptional circumstances. 7

[27] In taking into account all of the above, Mr Lay’s explanation for the delay does not point towards the existence of exceptional circumstances. More so, even if I were to find that there were exceptional circumstances, Mr Lay’s explanation for the delay does not support the exercising of the Commission’s discretion to grant an extension of time.

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

[28] I am also required to take into account “whether [Mr Lay] first became aware of the dismissal after it had taken effect”. 8

[29] This factor has been canvassed above as part of my consideration of Mr Lay’s explanation for the delay. Mr Lay submits that there was uncertainty about whether the dismissal took effect on 23 March 2021. I have found, against Mr Lay’s submission, that the dismissal took effect on 23 March 2021. In separately considering whether Mr Lay first became aware of the dismissal after it had taken effect, as I am required to do by s.394(3)(b), I do not consider that the uncertainty claimed by Mr Lay points towards there being exceptional circumstances. Even if I were to find that there were exceptional circumstances, this factor does not support granting an extension of time.

[30] I accept the somewhat obvious proposition that exceptional circumstances might exist when an applicant is not aware that a dismissal has taken effect until a later date. On the evidence before me I do not accept that exceptional circumstances of this kind arose.

Action taken to dispute the dismissal

[31] In taking into account “any action taken by the person to dispute the dismissal” (s.394(3)(c)) I note that Mr Lay and the respondent exchanged several emails after 23 March 2021 regarding the termination of his employment. As noted above Mr Lay did not dispute the dismissal itself in any of his communications after the meeting on 23 March 2021. There was significant communication about the calculation of Mr Lay’s severance entitlements, but no communication at all disputing the fact that Mr Lay’s position was redundant.

[32] This is not a factor that supports the existence of exceptional circumstances nor the exercising of the Commission’s discretion to grant an extension of time.

Prejudice to the employer

[33] I must consider the “prejudice to the employer (including prejudice caused by the delay).” 9

[34] The Respondent accepts, quite properly, that there was no specific prejudice to the Respondent caused by the delay. 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

[35] Section 394(3)(e) requires that I take into account “the merits of the application” when considering whether there are exceptional circumstances and the extension of time more generally.

[36] Little evidence was led by the parties and it is not possible or appropriate to make any firm or detailed assessment of the merits that at this juncture. There are sound reasons why the Commission should not receive evidence and make factual findings on contested issues at this stage of the proceedings: most notably because parties should not have to present their evidentiary case twice. 10

[37] In this context it is sufficient that an applicant establish that his claim is not without merit. 11 The weight to be given to this consideration is dependent on the extent to which there is merit in the substantive application.12

[38] The Respondent submits that the dismissal was a genuine redundancy and that it is entitled to the benefit of that jurisdictional objection. Mr Lay’s case in this regard is not strong. On the evidence before me it seems that the Respondent made a decision that it no longer requires Mr Lay’s job to be done by anybody and that he has not been replaced. Mr Lay was critical of the fact that the Respondent obtained and [presumably] acted on legal advice in dismissing him from his employment.

[39] Mr Lay accepts that the Respondent did go through a consultation process with him in relation to his redundancy, but he claims that the redundancy consultation process was not genuine. If Mr Lay makes good this proposition it might disentitle the Respondent from relying upon the genuine redundancy exception.

[40] In my preliminary assessment I do not think it is likely that Mr Lay will succeed on this point. Between 23 March 2021 and the commencement of these proceedings Mr Lay did not raise with the Respondent any particular matter that would call into question the probity of the Respondent’s decision to make his position redundant, or any option that would be a viable alternative to redundancy. Similarly, in the proceedings so far, Mr Lay has not raised any such matter.

[41] The Respondent did engage in a process that invited Mr Lay to raise any alternatives to redundancy. Mr Lay said at hearing that he did not raise any specific alternatives to redundancy because he formed the view that the Respondent was not open to genuinely considering any alternative options. Generally Mr Lay has been tenacious in rigorously pursuing what he believes to be his rights both before and after making his application, and has persistently attacked the Respondent’s conduct and its bona-fides. I am reasonably sure that if Mr Lay was aware of a viable alternative to redundancy that he would have raised and prosecuted his case for that alternative.

[42] I strongly doubt that Mr Lay has an arguable case that can overcome the Respondent’s foreshadowed jurisdictional objection. I do not consider that the merits of the present case point towards a finding that there are exceptional circumstances.

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

[43] Finally I must take into account “fairness as between the person and other persons in a similar position.” 13

[44] 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. However, cases of this kind will generally turn on their own facts. I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Lay and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

The mandatory factors collectively

[45] As referred to above, the Full Bench in Stogiannidis reasoned that no one factor needs to be exceptional in order to enliven the jurisdiction to extend time and individual factors might not be particularly significant when viewed in isolation, but that I must also consider the matters collectively and ask whether they disclose exceptional circumstances. 14

[46] In this case none of the above matters considered individually point towards there being any exceptional circumstances. For completeness I am still not satisfied that there are exceptional circumstances after reviewing the above matters collectively.

Conclusion

[47] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by Mr Lay, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or collectively. 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:

Mr B Lay, Applicant
Ms A Koelmeyer, for the Respondent

Hearing details:

2021.
Sydney (By Video)
22 June 2021.

Printed by authority of the Commonwealth Government Printer

<PR731167>

 1   Fair Work Act 2009 (Cth), s.394(2).

 2   Fair Work Act 2009 (Cth), s.394(3).

 3   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975

 4 (2018) 273 IR 156, [2018] FWCFB 901.

 5   Fair Work Act 2009 (Cth), s.394(3)(a).

6 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (2018) 273 IR 156, [2018] FWCFB 901 at [30]-[40] and Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [36].

 7   Shaw v Australia and New Zealand Banking Group Ltd (t/as ANZ Bank) (2015) 246 IR 362, [2015] FWCFB 287 at [15].

 8   Fair Work Act 2009 (Cth), s.394(3)(b).

 9   Fair Work Act 2009 (Cth), s.394(3)(d).

 10   Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [72].

 11   Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [33], citing Kornicki v Telstra-Network Technology Group (1997) 140 IR 1 at 11, Print P3168

 12   Keith Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [71]

 13   Fair Work Act 2009 (Cth), s.394(3)(f).

 14   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901 at [38]-[39].