Colin Crowder v Kretchmer Enterprises Pty Limited t/a All Lift Forklifts
[2023] FWC 2302
•12 SEPTEMBER 2023
| [2023] FWC 2302 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Colin Crowder
v
Kretchmer Enterprises Pty Limited t/a All Lift Forklifts
(C2023/3731)
| COMMISSIONER YILMAZ | MELBOURNE, 12 SEPTEMBER 2023 |
Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – whether there are exceptional circumstances - extension of time denied.
On 26 June 2023, Mr Colin Crowder lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Kretchmer Enterprises Pty Limited t/a All Lift Forklifts (All Lift). Mr Crowder commenced employment as workshop manager on 21 November 2022 and his dismissal took effect on 17 May 2023.
Mr Crowder initially submitted that his employment concluded on 24 May 2023[1], however, uncontested evidence confirmed that on 17 May 2023, All Lift communicated to Mr Crowder that his employment was terminated effective immediately with payment in lieu of notice. Mr Crowder confirmed that all company resources were returned on the same day that he was escorted from the premises and this was his last day of employment. On this basis the parties agreed, and I am satisfied that the communication that the dismissal took effect on 17 May 2023 was clear. As the application was lodged with the Commission on 26 June 2023, the application was lodged 40 days after the dismissal.
Mr Crowder submits that his employment was terminated 4 days prior to the conclusion of his probation period and in terms of process he submits that he was denied a support person and he further challenges the reasons of performance for his dismissal.[2] In respect to merit of the general protections application, Mr Crowder states that he was denied 24 hours’ notice of the dismissal meeting which also prevented him from selecting a support person and that he had no prior warnings regarding performance.[3] Mr Crowder cites contravention of s.340 Protection of Workplace Rights under the Act.
All Lift escorted Mr Crowder from the premises at around 8.00am on 17 May 2023 after a meeting where he was informed that he did not meet their performance expectations.[4] A letter of termination was sent on 17 May 2023 at 10.47am which states that it evaluated and addressed performance over the probationary period of employment and found concerns with professionalism and creating a positive work culture. It determined to dismiss Mr Crowder immediately with one week of notice paid in lieu. This letter effectively confirmed in general terms, that the dismissal that was effected earlier in the morning.
All Lift object to the application on the basis that it was lodged out of time, and it denies any contravention of the general protections provisions. It further submits that there are no exceptional circumstances to grant an extension of time. It submits that Mr Crowder made this application on having realised that he did not have any protection from unfair dismissal because he did not meet the minimum employment period.
All Lift were represented by Employsure and Mr Crowder was self-represented.
Mr Crowder gave evidence and Ms Natalia Turner, National HR Manager was a witness for All Lift.
Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 19 days after the 21-day statutory time limit.
Applicant’s submissions
Mr Crowder submits that four days before the expiry of his probation period, on the morning of 17 May 2023 he was called to a meeting with less than 24 hours’ notice and was informed that he was unsuccessful in his probation period. This lack of notice, he submits denied him the opportunity to have a support person of his choosing.
After being escorted from the premises, Mr Crowder submits that he was in shock and sent an email with his resignation and sought further particulars regarding the allegations concerning his performance.[5] He submits that he did receive a letter via email later in the morning which stated that he was dismissed for the reason of performance. He challenges the reason of performance, submitting that he never received a warning.
While Mr Crowder refers to a contravention of s.340 of the Act, he relied on his understanding that there are Victorian based rights for 24 hours’ notice prior to a meeting to effect a dismissal and the right to select his own support person.[6] No further particulars were provided in regard to this alleged general protection right.
During proceedings Mr Crowder submitted that after his dismissal he researched the Commission’s website and lodged an unfair dismissal application prior to this application but withdrew it. He further submits that his general protections application and unfair dismissal application were identical in substance.[7]
Mr Crowder in challenging the reason for dismissal submits that had his performance been unsatisfactory, he would have been spoken to and not have received a $5,000 per year pay increase at the three-month point. He submits the pay increase was contingent on performance in the role.[8]
Respondent’s submissions
All Lift objects to the application because it was lodged outside the 21-day statutory time limit. It submits that Mr Crowder was employed in the position of Workshop Manager and his employment was dismissed during the probation period on 17 May 2023. It further states that the employment was dismissed because Mr Crowder did not meet the performance expectations set for the role by All Lift.
All Lift submit that Mr Crowder was afforded discussions regarding his performance.
All Lift confirm receipt of the resignation email after Mr Crowder’s employment was dismissed. It also confirms that the employment was dismissed at the initiative of the employer at first instance. A meeting was held with Mr Crowder at or around 8.00am on 17 May 2023, where he was informed that he was unsuccessful in his probation period. Email correspondence with an undated letter titled “unsuccessful completion of probationary period” was forwarded at 10.47am on 17 May 2023. The letter confirms dismissal effective immediately with final payment of entitlements including one week of notice in lieu to be processed on 22 May 2023. The letter requests that all company property be returned, yet the evidence shows that Mr Crowder had returned all property before being escorted off the premises earlier in the morning.[9] The letter states that an assessment of Mr Crowder’s performance in his role was found to be inconsistent with the standards expected of him and while it refers to various reports to management, the letter does not confirm whether these reports were in fact presented to Mr Crowder. The covering email states that due to technical issues preventing printing of the letter it was not given to Mr Crowder when he presented for the meeting earlier that morning.
All Lift further respond in the email of 10.47am, to Mr Crowder’s email of 9.32am of the same morning where he states that due to not yet receiving his letter, he tendered his resignation and advised that he would be obtaining advice over the process which he says was not handled well, including being denied a support person. All Lift state that they provided Mr Crowder with a “representative” who was the All Lift Hire Manager. Due to the position held, All Lift had determined the Manager was appropriately independent and neutral. All Lift did not provide further written particulars in response to Mr Crowder’s request for the detail concerning complaints made against him or where he allegedly fell short in his performance. However, All Lift tendered in evidence, minutes of a meeting held on 15 May 2023 where it states that Mr Crowder was called about not permitting overtime and closing the workshop early. The minutes make other allegations against Mr Crowder. During the hearing Mr Crowder denied ever seeing the minutes prior to these proceedings and denies having received a telephone call about his performance on 15 May 2023. Whether Mr Crowder was contacted during the senior management meeting was contested.
I observe that All Lift tendered in evidence a report from the Hire Controller reporting on her observations of Mr Crowder’s performance sent to management after the dismissal.[10] An exit interview conducted with a workshop employee on 16 May 2023 was also tendered in evidence. It is not contended that Mr Crowder had seen these documents prior to All Lift’s filing for these proceedings.
All Lift further tendered evidence concerning the payment of the $5,000 adjustment to salary. The letter of appointment dated 14 October 2022, confirms the payment of salary per annum with a review at 3 months allowing for the $5,000 adjustment and lists a range of duties and expectations.[11] In addition, All Lift tendered emails of 21 October 2022[12] where Mr Crowder questioned the reference to the salary adjustment in his contract. An email of the same date by All Lift confirms that the adjustment is based on performance of the job with no targets to be met. Further All Lift tendered in evidence an email from Mr Crowder dated 17 January 2023[13] requesting payment of the adjustment based on his understanding that no KPIs or metrics necessitated the adjustment.
All Lift notes that the unfair dismissal application was filed on 7 June 2023 and discontinued on 23 June 2023. All Lift oppose the request for an extension of time for the general protections application lodged on 26 June 2023.
Ms Natalia Turner, National HR Manager tendered a witness statement and gave evidence of the process for the dismissal. She gave evidence that on 15 May 2023 she telephoned Mr Crowder during a senior manager meeting to discuss various performance matters and that she would fly to Melbourne in two days’ time to discuss the matters with him personally including his ongoing employment. She further states that it was at the senior managers’ meeting (not in the presence of Mr Crowder) that it was decided to dismiss Mr Crowder. A meeting did take place subsequently on 17 May 2023. It does not appear that Mr Crowder was given notice of the purpose of the meeting to enable him to bring along a support person. Instead, All Lift decided who on behalf of the business shall be Mr Crowder’s support person. It appears that some comment was made about various complaints against Mr Crowder at the meeting, but the detail of the complaints may have been lacking. I observe that the unfairness to have selected a “support person” who happened to be Mr Crowder’s manager was lost on Ms Turner.
Consideration
General protections applications involving dismissal must be made within 21 days.
However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
‘(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) merits of the application; and
(e) fairness between the person and other persons in a like position.’
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[14] where it was held that:
“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 regular occurrence, even though it can be a on 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]
As Mr Crowder’s application was lodged outside the 21-day statutory limit, I now turn to Mr Crowder’s arguments for an extension of time in relation to each of the considerations of s.366(2).
The reason for the delay
The general protections involving dismissal application was lodged with the Commission 19 days late. Mr Crowder was escorted from the premises and returned all company resources on 17 May 2023 - the date that I am satisfied that the dismissal took effect. There is no evidence that Mr Crowder was unaware of the time limit to file the application. In fact, he submits that the delay was due to lodging an unfair dismissal application on time, which he describes as the wrong form.[16] On taking steps to correct the alleged error, Mr Crowder submits that he was instructed, that despite the delay in this application, it should not be a problem because the unfair dismissal application was lodged within time.[17] No evidence was tendered as to who provided this advice, nor other evidence in support of this contention.
Mr Crowder gave evidence that he conducted research prior to filing his unfair dismissal application and says that he did not research general protection applications.[18] He did say that due to the payment of notice in lieu he was unsure how the notice effected the date of dismissal. Despite this confusion he submits that he filed the unfair dismissal application within the 21-day statutory time frame.
All Lift submit the reason given for the delay cannot satisfy the Commission of exceptional circumstances warranting an extension of time.
The Commission records confirm the oral evidence that Mr Crowder filed an unfair dismissal application on time and online on the 21st day following his dismissal. On 14 June 2023, Mr Crowder was informed by the Commission that he did not meet the minimum employment period and he subsequently withdrew his application on 23 June 2023. Mr Crowder was evidently aware of the statutory time limit to file a dismissal application and while he submits that the delay was due to incorrectly filing an unfair dismissal application, there were no explanations for the whole period of the delay, including the delay from 14 June 2023 (when advised that he did not meet the minimum employment period) until 26 June 2023 (the date of this application).
Both the unfair dismissal and general protections involving dismissal applications were filed online. This means that Mr Crowder accessed the Commission’s website to lodge his applications. The Commission’s website clearly displays the criteria to identify who is protected from unfair dismissal and this information refers to the minimum employment period. At the time of Mr Crowder’s dismissal, he had not met the minimum employment period and had he read the information on the website and checked against his period of employment he would have known this when he lodged his application online, despite the confusion over the effect of any notice in lieu. Furthermore, the statutory time limit for both applications is evident on the website.
There must be a credible reason for the delay.[19] Mr Crowder made no submission nor presented any evidence to support a credible reason for the delay. I do accept that he did file an unfair dismissal application, and should I accept this was a credible reason for the delay, which I do not, no reasons were given to support the further period of delay from at least when he was informed that he did not meet the minimum period of employment to qualify for protection from unfair dismissal. The Commission’s website was accessed and the information on who qualifies for unfair dismissal is clear. The fact that Mr Crowder submits that the two applications are identical, infers that the intention was to challenge the fairness of the dismissal, not a contravention of any general protection, hence why he made the unfair dismissal application despite his ineligibility. I observe that Mr Crowder submits that the notice in lieu confused him about his date of dismissal. As Mr Crowder was employed for a period of 5 months and 27 days and paid in lieu of notice, it is reasonable to conclude that he intended an unfair dismissal application, particularly as one considers his email where he questions why “throughout the last 6 months” he “never received any negative feedback.”[20] Despite the requirement to meet the minimum employment period for an unfair dismissal application, I am satisfied that Mr Crowder intended an unfair dismissal claim and it is not a case of completing the wrong form.
Further I do not accept that this is a case of filing the wrong form as the two types of matters are different. The filing of an unfair dismissal application, only to change the application when advised that the minimum employment period was not met is a common practice that many applicants mistakenly attempt. This reason based on the facts of the matter is common enough when applicants contest the fairness of their dismissal but do not meet the eligibility of such an application. However, to file an identical application but for the form it was filed in does not appear to support the submission that the filing of the wrong form should be an exceptional reason.
The reason given by Mr Crowder for the delay cannot be accepted as being exceptional, unusual, out of the ordinary, uncommon or special. I am not satisfied that Mr Crowder has demonstrated credible reasons regarding this consideration and the absence of reason for part of the delay does not weigh in his favour.
Actions taken to dispute the termination
All Lift submit that no steps were taken to challenge the dismissal in the 21 days post dismissal except for the filing of an unfair dismissal application. All Lift further submit that it received notice of resignation via email after the dismissal.
I do observe that in the same email where Mr Crowder offers his resignation, he raises concerns about the process. The full email is below:
“As I haven’t received any formal notification that I haven’t met my probation period, and All Lift have made the decision to let me go, please accept this email as my formal resignation from All Lift.
I will be seeking advice on this matter as I don’t believe this situation has been handled well,
I should have been given 24hrs notice and also allowed a support person, for a meeting of this nature, which I wasn’t.
I would also like to request details of complaints made about me, and why this wasn’t followed up at the time, if the complaint was made 4 months ago
Regarding meeting expectations on my probation period, again I would like written details on where I have fallen short.
As throughout the last 6 months I have never received any negative feedback, in fact, quite the opposite.”[21]
I do observe that in the first sentence, Mr Crowder attempts to have the dismissal converted to a resignation in light of not receiving formal notification of the dismissal. Of course, notice of resignation does not change the dismissal that was communicated in clear terms earlier that morning. The language used in the email goes to concerns raised about process and not any allegation of contravention of any general protections, including a workplace right within the scope of s.340 of the Act. While Mr Crowder indicates that he intends to take advice, I am not satisfied that the email places All Lift on notice that the termination is to be contested, noting further Mr Crowder made no attempt to communicate further with All Lift after this email. I consider this communication neutral for the purposes of s.366 (2)(b) of the Act.
Prejudice to the employer
Mr Crowder does not address this consideration,
All Lift do contend that should there be an extension of time it would be prejudiced because of the unnecessary time and costs associated with having to defend itself and that it is entitled to rely upon the time limit being complied with.[22]
A relevant prejudice is one that the respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. The costs incurred in defending a claim in respect of which an extension of time has been granted are not a relevant prejudice. They are costs that the respondent would have incurred, had the application been made within 21 days of the dismissal taking effect.[23] Nevertheless a lack of prejudice to the employer does not necessarily weigh in favour of concluding that exceptional circumstances exist.[24] I am satisfied that there is no prejudice to All Lift, but absence of prejudice is insufficient to grant an extension, therefore this consideration is neutral.
Merits of the application
Mr Crowder refers to a contravention of s.340 of the Act, stating that he understands that he was entitled to 24 hours’ notice of the dismissal meeting and to select a support person for the meeting. A workplace right is a benefit or responsibility under workplace law, a workplace instrument or order made by an industrial body, or a right to initiate or participate in proceedings or to make a complaint or inquiry under workplace law.[25] The alleged rights Mr Crowder refers to do not appear to be any rights conferred by a particular law or instrument, but relates to his concerns regarding fairness of the dismissal. I note the alleged notice of the meeting and the right to a support person concern the criteria for considering harshness in an unfair dismissal application.
Mr Crowder provided no further particulars other than stating that it related to Victorian law. However, should the rights that Mr Crowder refers to relate to s.387 of the Act, they are unlikely to be covered by the scope of s.340 of the Act. Mr Crowder also refers to the decision of All Lift to dismiss his employment four days before the expiry of the probation period and that no warnings were given before the dismissal, both of which are neither within the scope of s.340 or could be characterised as the adverse action because of a workplace right. On this basis alone the submissions appear to lack merit.
All Lift contend that the application lacks merit for a general protections claim and attempts to claim unfair dismissal.[26]
As I raised earlier in this decision, I am satisfied that Mr Crowder intended to claim unfair dismissal and not a contravention of general protections. Despite the allegations concerning notice and support person, All Lift contend that Mr Crowder was given notice of the meeting which he disputes and they say they provided him with an independent support person. These facts are contested.
Having considered the submissions and evidence tendered, I cannot conclude that Mr Crowder has a workplace right or that there is a causal link between the alleged workplace right with the dismissal. On this basis I cannot conclude that Mr Crowder has a meritorious application. Consequently, this consideration does not favour an extension of time.
Even though All Lift’s process may have had unfair elements, this is not relevant to the matter of an extension of time in a general protections application.
Fairness between the person and other persons in a like position
Neither Mr Crowder nor All Lift advance any matters either currently before the Commission or previously decided that is relevant to this matter. On this basis I find that this consideration is neutral.
Conclusion
In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.
It is on the balance of the considerations that I have decided not to grant an extension of time. Prejudice and fairness I find both neutral considerations, while I find the steps taken to dispute the termination to be neutral, even if I was inclined to grant the consideration in Mr Crowder’s favour it would not favour an extension on balance of the matters to be considered under s.366(2). Neither the reason for delay nor merits were strong considerations in favour of an extension of time.
Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the matter is dismissed.
An order[27] to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr C Crowder for the Applicant
Ms A Chand for the Respondent
Hearing details:
Thursday 10 August 2023
[1] Applicant’s Form F8 question 1.3.
[2] Ibid question 3.1.
[3] Applicant’s reply to Form F8A.
[4] Ibid.
[5] Email of 17 May 2023 at 9.32am.
[6] Applicant’s outline of submissions and oral submissions.
[7] Ibid.
[8] Applicant’s outline of submissions and oral submissions.
[9] Witness Statement of Natalia Turner para 15.
[10] Email of 17 May 2023 at 3.34pm.
[11] Signed by Mr Crowder on 17 October 2022.
[12] Emails at 9.12 and 9.22am.
[13] Email at 11.14am.
[14] [2011] FWAFB 975.
[15] Ibid [13].
[16] Applicant’s outline of submissions.
[17] Ibid.
[18] Applicant’s oral evidence.
[19] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
[20] Email of 17 May 2023 at 9.32am.
[21] Ibid.
[22] Outline of written submissions of the Respondent [80] – [81].
[23] Clarke v Service to Youth Council Inc [2013] FCA 1018, [31].
[24] Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890, [21].
[25] Summation of s.341 Fair Work Act 2009.
[26] Outline of written submissions of the Respondent [83] – [87].
[27] PR766049.
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