Dain Sheridan v Woolworths Group Limited
[2023] FWC 2571
•6 OCTOBER 2023
| [2023] FWC 2571 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dain Sheridan
v
Woolworths Group Limited
(U2023/8471)
| DEPUTY PRESIDENT DEAN | CANBERRA, 6 OCTOBER 2023 |
Application for an unfair dismissal remedy – extension of time – application dismissed.
Mr Dain Sheridan (the Applicant) has applied pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of his dismissal from Woolworths Group Ltd (the Respondent).
The Applicant was employed in the role of Innovation Manager with the Respondent until he was dismissed on 10 August 2023.
The Applicant lodged this application on 6 September 2023. 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). The Applicant filed his application some 6 days outside the 21-day period and so his application can only proceed if the Commission grants a further period for it to be made.
The matter was listed for hearing on 5 October 2023. The Applicant was represented with permission by Ms J Woodward. The Respondent was represented by Ms C McNair.
For the reasons set out below, I find there are no exceptional circumstances and will dismiss the application.
Extension of time
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.[1] 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.[2]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
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.
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 this application.
Consideration
Reason for the delay
The Act does not specify what reason for the 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.[3]
The Applicant’s representative provided the following explanation as to the delay in making this application:
“The Applicant acknowledges that the termination date was presented as 10 August 2023 and therefore, provided a late submission by 6 days. The Applicant was relying on further communication from the Respondent and processing the termination payment (which should have been conducted within 7 days of termination). However, the Respondent was silent in further communication which left the Applicant unsure of the correct process and had no true clarity of the effective termination date. A delay in termination payment and silence in further communications, by which the Respondent terminated the Applicant is characterised by repeated acts of bad faith.
Prior to 10 August 2023, Mr Sheridan requested, in writing, a meeting to discuss the terms on which he would leave the employment of the Respondent. It is the Applicant's view that these were unfair and unreasonable delaying tactics designed to deny procedural fairness, because the Respondent had formed the intention to dismiss the Applicant without any genuine intention to investigate allegations of misconduct.
On 10 August 2023, Mr Bracic and the Applicant attended a video conference whereby the outcome of an investigation conducted resulted in termination. In that meeting, Mr Bracic made it clear that although the decision of termination would not change, he was willing to negotiate a severance agreement with Mr Sheridan. In reply, Mr Sheridan made it clear that if no negotiations took place, or if the Respondent did not agree to reasonable terms, he would lodge an unfair dismissal claim with FWA. Further, Mr Sheridan made it very clear to Mr Bracic and the other attendees of the meeting that he would request severance negotiations in writing.
On 17 August 2023, the solicitor acting for Mr Sheridan, Ms Karen Ansen, wrote to Mr Bracic to follow up on the verbal request made in the 10 August meeting to have a severance negotiations meeting. To this date, Mr Bracic never replied to this email. It is the Applicant's belief that Mr Bracic deliberately misled him as to the possibility of any negotiations taking place after termination, so as to delay any lodgement with FWA.
Were it not for the bad faith of the Respondent, Mr Sheridan would have filed before the 21 day deadline. For example, had Mr Bracic, in the meeting of 10 August, stated the true position of the Respondent, which was that there was no intention to discuss or negotiate a severance agreement, Mr Sheridan would have had reasonable notice to file with FWA before the deadline elapsed.
This bad faith conduct is out of the ordinary course, unusual and uncommon.”
During the hearing, the Applicant confirmed he was aware his dismissal was effective from 10 August 2023.
The Respondent submitted that the Applicant had not provided any sensible explanation about why he did not lodge his application between 10 August and 31 August, when the time limit expired, or on any of the six days of the delay. The Respondent noted the Applicant was represented by a lawyer at the time of his dismissal and was aware of his right to make an unfair dismissal claim. Further, he had indicated his intention to do so within the time period and was able to take this course of action but did not do so.
I am not satisfied that the Applicant has provided an acceptable explanation for the delay in lodging his unfair dismissal application.
There was nothing in the evidence that supports a finding that the Applicant was in any way prevented from making his application within time. He was legally represented and was aware of his right to make an unfair dismissal application.
The conduct of the Respondent that was the subject of complaint by the Applicant was not misleading, nor could it be characterised as ‘bad faith conduct’. There is nothing unusual or improper in parties negotiating the terms of the cessation of employment after a person had been dismissed. I accept the evidence of Mr Bracic that he told the Applicant and his lawyer that while the Respondent was open to receiving settlement offers, he did not have the authority to sign off on any settlement himself. I further agree with the Respondent that it was not under any obligation to negotiate a settlement having dismissed the Applicant.
This weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware of his dismissal on 10 August 2023. This weighs against a finding that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant advised the Respondent at the time of his dismissal that he intended to bring an unfair dismissal claim. This weighs slightly in favour of a finding that there are exceptional circumstances.
Prejudice to the employer
The delay is not long and I cannot identify any prejudice that would accrue to the Respondent 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
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission should not embark on a detailed consideration of the substantive case.
The Applicant asserted his dismissal was unfair because he denies the allegations of misconduct and submitted the Respondent did not have a valid reason to dismiss him. He contended that his responses to the allegations were not given due and proper consideration and there were serious procedural deficiencies in the dismissal process.
The Respondent submitted that there was a valid reason for the dismissal, following an investigation into conduct by the Applicant, and the dismissal was procedurally fair.
On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar 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. However, cases of this kind will generally turn on their own facts.
The Applicant made no submissions as to this criterion.
The Respondent submitted that given the Applicant had not demonstrated exceptional circumstances, it would be unfair to other persons who did not demonstrate exceptional circumstances and did not have time extended for them if time was extended for the Applicant.
Given no particular person or persons were raised as comparators, I consider this to be a neutral consideration.
Conclusion
As noted earlier, the onus is on the Applicant to demonstrate there are exceptional circumstances, and the test of ‘exceptional circumstances’ establishes a high hurdle.
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, 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 is dismissed.
DEPUTY PRESIDENT
Appearances:
J Woodward for Dain Sheridan.
C McNair for Woolworths Group Limited.
Hearing details:
2023.
By telephone:
October 5.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
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