Dean Chinnock v Quality Foods Pty Ltd
[2020] FWC 6902
•24 DECEMBER 2020
| [2020] FWC 6902 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dean Chinnock
v
Quality Foods Pty Ltd
(U2020/14317)
DEPUTY PRESIDENT MASSON | MELBOURNE, 24 DECEMBER 2020 |
Application for an unfair dismissal remedy – extension of time - date of dismissal found to be made with 21 day period – extension of time considered in the alternative – extension of time granted.
[1] This decision concerns an application by Mr Dean Chinnock (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act).
[2] The Applicant asserts in his Form F2 application that his employment with Quality Foods Pty Ltd (the Respondent) as a delivery driver was terminated with effect from 13 October 2020. The unfair dismissal application was lodged on 2 November 2020.
[3] 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(2). It appeared on the face of the material that the application was not made within the required 21-day period. The Respondent also raises the jurisdictional objection that the application was filed out of time as they assert the Applicant was terminated on the 23 March 2020.
[4] A determinative conference to deal with an extension of time application was set down for 21 December 2020. Directions were issued for the filing of material by the parties in advance of the conference. At the conference the Applicant appeared and gave evidence on his own behalf and also called Ms Christine Attard to give evidence. Mr F Versace (Director) appeared for the Respondent, gave evidence himself, and also called two other witnesses to give evidence, Ms J Versace, and Ms C Asimakopoulos.
[5] 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
[6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
[7] 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.
[8] 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.
Background and Evidence
[9] Before turning to consider the matters set out at s 394(3) it is useful to summarise the relevant background and evidence.
[10] The Applicant commenced employment with the Respondent on 18 January 2013 and at the time of his dismissal was engaged on a permanent basis as a delivery driver and received a gross weekly wage of $1,126.00.
[11] The Applicant states that he arrived to start work at 6.00 am on 23 March 2020 shortly after which he was advised by the warehouse manager of a significant drop in customer orders due to the start of the Covid 19 pandemic and that as a consequence a smaller number of staff would be required. The Applicant further says that he was told by the warehouse manager to go home that day which would be paid as annual leave, to which the Applicant agreed. 3 A payslip for the pay period from 20 – 26 March 2020 revealed that the Applicant only received payment of 9.5 hours annual leave in that pay period. The Applicant’s partner, Ms Christine Attard, gave evidence that the Applicant returned home from work at approximately 6.30am on 23 March 2020 and that he remained at home for the day.4
[12] The Applicant says that at 3.10 pm on 23 March 2020 he was contacted by telephone by Mr Versace and was advised that he had been stood down on no pay due to low customer orders. At 4.48pm on 23 March 2020 the Applicant sent a text message to Mr Versace requesting advice from Mr Versace as to what was the Applicant’s last paid day before being stood down, that information being necessary for the purpose of a Centrelink benefits application. Mr Versace did not respond to the text according to the Applicant. 5
[13] Contrary to the Applicant’s version of events, Mr Versace gave evidence that the Applicant was requested to attend a meeting with himself on the morning of 23 March 2020. 6 In oral evidence Mr Versace gave evidence of different timing of the meeting and stated that it was at approximately 3.30pm that day. When pressed on this point during the conference Mr Versace says that given the passage of time he could not be sure as to the timing of the meeting. In correspondence received by my Chambers following the hearing, Mr Versace advised that his memory had been ‘refreshed’ by a conversation he had with his Warehouse Manager following the conference. Mr Versace confirmed in his correspondence to my chambers that the meeting with the Applicant occurred first thing in the morning of the 23 March 2020 following which the Applicant left site. Mr Versace also confirmed that he had a subsequent telephone conversation later in the day with the Applicant on 23 March 2020.
[14] Mr Versace states that during the meeting he advised the Applicant that sales volumes had declined 80% and as a consequence there was a need to review resources. Mr Versace says in his witness statement that the Applicant was advised that “his employment would be terminated effective immediately.” 7 In oral evidence he gave a different version of what was said claiming to have used words to the effect “I’m going to have to let you go” when advising the Applicant of his dismissal. He states that he told the Applicant that all of his entitlements would be paid to him in the next weekly pay cycle. According to Mr Versace, the Applicant was very understanding and mutually agreed that the decision was best for the business and said that he would seek alternate employment. Mr Versace says that following the meeting with the Applicant he asked Ms Versace to process the Applicant’s termination pay in the next pay cycle.8
[15] Supporting Mr Versace’s version of events, Ms C Asimakopoulos, who is the Credit Controller for the Respondent, gave evidence that she entered Mr Versace’s office during his meeting with the Applicant on 23 March 2020 to pass a message to Mr Versace. While present in the office she says in her witness statement that she overheard Mr Versace advising the Applicant that “his position/employment with Quality Foods would no longer be required effective immediately (that same day).” 9 When pressed during cross examination as to the specific words used by Mr Versace, she stated that the words used in her statement were paraphrased and the actual words she heard Mr Versace use were along the lines of the Applicant being “let go”. Ms Asimakopoulos was uncertain as to the time of the meeting although she stated in oral evidence that she could specifically recall that she was on her way to the bathroom when she stopped into Mr Versace’s office to pass on a message.
[16] Mr Versace also states in his evidence that the Respondent did not include the Applicant in its list of employees covered by JobKeeper. He referred to a Group Tax Report 10 and the Respondent’s ‘Business enrolment for JobKeeper wage subsidy’11 which he says identified there were only eight employees included and did not include the Applicant. This he says shows that the Respondent believed it had terminated the Applicant’s employment on 23 March 2020.
[17] At 4.16 pm on 25 March 2020 Ms J Versace sent an email to the Applicant in the following terms;
“Hi Dean
Unfortunately due to coronavirus and loss of work and income we have decided to payout your holidays to assist you with some income and for you to go ahead with Centrelink benefits or other employment. Hopefully as business improves we can look at reemployment options. Good luck and stay safe.
……………” 12
[18] At 7.30pm on 25 March 2020 the Applicant sent an email to Mr Versace in reply to her earlier email and relevantly said as follows;
“Hi Julie
Thankyou for your email. Currently battling the many in the same situation and trying to get signed up with Centrelink……For my dealings with Centrelink and Services Australia can I clarify my employment classification as these terms have a bearing on their levels of support. Am I stood down, unpaid or am I now redundant, unemployed?
……………..” 13
[19] At 4.10 pm on 26 March 2020 Mr Versace replied to the Applicants email of 25 March 2020 in the following terms;
“Hi Dean,
At this stage you are only stood down but we have paid out your holidays and hopefully we can look to putting you back on in the next few months depending on how business improves but if you can gain new employment meanwhile that is your decision.
……………” 14
[20] Ms Versace stated during her oral evidence that while she used the term “only stood down” in her response to the Applicant on 26 March 2020, she understood the Applicant to have been terminated and used the term “only stood down” because the Respondent hoped to re-employ the Applicant at some future point when business picked up.
[21] At 2.42 pm on 31 July 2020 the Applicant sent an email to Ms Versace in which he provided details of changes to his superannuation account for the Respondent’s administrative purposes. In the email the Applicant also indicated an intention to contact Mr Versace “in a few weeks” regarding staffing requirements as pandemic lockdown restrictions in Victoria eased. Ms Versace replied in general terms acknowledging the difficulties being confronted by many people during the lockdown. 15
[22] At 4.36 pm on 12 October 2020 the Applicant again wrote to Ms Versace requesting further information to assist him in relation to his Centrelink interactions and to help him prepare if he were successful with any of his job applications. He relevantly stated as follows;
“Good afternoon Julie
…………………
First up, can I get detail of my current accrued entitlements please?
Secondly, are you accessing JobKeeper for business/salary support through the ATO (I have been asked by Centrelink and my assigned employment agency more than once, despite me telling them you are not).
Finally for now, how is the business environment at present? Are there any indications of increase in customer spend which may lead to any hours of work for myself?
…..” 16
[23] On 13 October 2020 the Applicant received a phone call from Mr Versace during which he was advised by Mr Versace that his employment had been terminated in March 2020, that his annual leave had been paid out but due to an administrative error his long services leave had not been paid. 17 Subsequent to this phone call Ms Versace replied to the Applicant’s email of 12 October 2020 at 1.54pm on 13 October 2020 and advised that the Respondent had not been in receipt of JobKeeper payments for the Applicant as they had terminated his employment and payed out his accrued annual leave. Ms Versace also advised the Applicant that due to an administrative error the Respondent had failed to pay out his accrued long service leave and that this would be paid into his account that day.18
[24] On 16 October 2020 the Applicant wrote to the Respondent confirming the advice he had received on 13 October 2020 that his employment had been terminated in March 2020. He raised with the Respondent issues of unpaid entitlements including accrued annual leave, incorrectly calculated long service leave entitlements and 5 weeks’ notice of termination which had not been paid. He sought payment of these outstanding amounts within 7 days. 19
[25] On 21 October 2020 the Respondent replied to the Applicant’s correspondence of 16 October 2020 confirming that his employment had been terminated on 23 March 2020, confirming the oversight with respect to pay-out of long service leave and that both annual leave and long service leave entitlements had now been paid. The Respondent also advised the Applicant that he would be paid 5 weeks pay in lieu of notice. 20
[26] On 28 October 2020 the Respondent emailed the Applicant a pay slip with his final notice of termination payment 21 and on 26 November 2020 the Applicant received a Separation Certificate which stated that the date of his termination was 23 March 2020.22
[27] Ms Versace gave oral evidence that the delays in relation to the payment of the Applicant’s entitlements were an administrative oversight. She did however acknowledge in her oral evidence that she was aware of the requirement to provide notice of termination or payment in lieu. She was unable to say whether other employees that were terminated at the same time as the Applicant were subject to similar administrative oversights in relation to the processing of any termination entitlements.
Consideration
Was the application filed within the 21 day statutory period?
[28] It is evident that there is some uncertainty as to when the Applicant’s employment ceased. Identification of the date on which the dismissal took effect is a necessary step in determining the jurisdictional objection to the extension of time application.
[29] The date on which a dismissal should be considered to take effect is the date that the employee becomes aware that the dismissal has occurred. In the decision Mohammed Ayub v NSW Trains 23 the Full Bench explains as follows:
“[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.” (Emphasis added)
[30] Turning firstly to the date of dismissal, there is a fundamental conflict in the evidence of the Applicant and the Respondent regarding that date. The Applicant states that he was sent home on the morning of the 23 March 2020 soon after arriving for work and was subsequently advised by telephone by Mr Versace later that day that he was to be stood down without pay due to the effects of the Covid 19 pandemic. It was, according to the Applicant, only on 13 October 2020 that he was advised that his employment had been terminated.
[31] By contrast, Mr Versace states that he met with the Applicant in his office on 23 March 2020 and advised him that he was to be terminated with immediate effect due to the Covid 19 induced business downturn. Following this meeting Mr Versace says he instructed Ms Versace to process the termination payments in the next pay cycle. His evidence as to the timing of the alleged meeting changed through the course of the proceedings and following. In his witness statement he says that the meeting occurred ‘in the morning’. In oral evidence he stated that the meeting was around 3.30pm in the afternoon and following conclusion of the conference he advised after his memory was ‘refreshed’ that the meeting was held first thing in the morning. Ms Asimakopoulos was similarly unsure of the time of the alleged meeting.
[32] The evidence of Mr Versace and Ms Asimakopoulos as to what was specifically said by Mr Versace to the Applicant during the alleged meeting was also unsatisfactory with both witnesses changing their evidence during the conference from what was contained in their witness statement. Their explanations of the inconsistencies in both their recollections of the time of the alleged meeting and what was specifically said to the Applicant was unconvincing. I find their evidence unreliable.
[33] By contrast to the evidence of Mr Versace and Ms Asimakopoulos, the Applicant was clear and consistent in his recollection of events on 23 March 2020 both as to being directed to go home shortly after starting work that day and also in respect of the phone call from Mr Versace that afternoon during which the Applicant says he was advised that he was to be stood down. Furthermore, his return home at 6.30 am that morning was confirmed by his partner’s evidence which was not directly challenged by the Respondent.
[34] What then followed the alleged meeting and the claimed instruction to Ms Versace to process the Applicant’s termination entitlements does not support Mr Versace’s evidence of a dismissal having been affected on 23 March 2020. In fact, the weight of evidence tells in favour of the contrary version of events provided by the Applicant. This can be readily seen in the following.
[35] The Applicants payslip for the pay period 20-26 March 2020 indicates that the Applicant was in fact on annual leave on 23 March 2020 which is consistent with his evidence that he was sent home soon after arriving for work that morning and that he was told by his supervisor that he would be on annual leave for that day. Mr Versace’s correspondence to my chambers following the conference effectively concedes this point.
[36] No formal notice of termination was provided to the Applicant following the alleged meeting between Mr Versace and the Applicant. Nor did the Applicant receive any advice as to his final termination payments in the wake of the “meeting” or in the following pay cycle. Further, the text message sent by the Applicant to Mr Versace on the afternoon of 23 March 2020 seeking clarification as to his last paid day before being ‘stood down’ is at odds with the claimed dismissal having been communicated by Mr Versace to the Applicant earlier that day.
[37] Further reinforcement of the Applicant’s belief as to having been stood down can be seen by the specific clarification he sought from Ms Versace on 25 March 2020 as to whether he was “stood down, unpaid, redundant, or unemployed.” In response Ms Versace specifically advised the Applicant on 26 March 2020 that “at this stage you are only stood down.” There was no ambiguity in the Applicant’s query or Ms Versace’s response. I consequently do not accept Ms Versace’s explanation that she understood the Applicant to have been terminated and that her use of the words “only stood down” was a reference to the Applicant’s dismissal.
[38] Tellingly and contrary to Mr Versace’s claimed instruction to Ms Versace on 23 March 2020, she did not process the Applicant’s termination entitlements in the next pay cycle. No notice of termination or payment in lieu was processed by Ms Versace despite acknowledging in her evidence that she understood that when an employee was dismissed they were required to be given notice or payment in lieu. Nor was the Applicant’s accrued long service leave entitlement paid out.
[39] Ms Versace paid out the Applicant’s annual leave for the stated reason of assisting the Applicant with some income which she confirmed in her email to the Applicant on 25 March 2020. The tone and content of that email is entirely consistent with a decision by the Respondent to exercise a discretion to pay out the annual leave in circumstances where the Applicant remained employed but had been stood down. Had the Applicant been dismissed as contended by the Respondent, no such discretion would have been available. The Respondent would have been compelled to provide notice of termination or payment lieu and pay out all accrued annual leave and long service leave entitlements.
[40] Further evidence can be seen of the Applicant’s belief that he had been stood down when regard is had to the email he sent to Ms Versace on 31 July 2020 regarding his superannuation account and his stated intention to contact Mr Versace in “a few weeks” once the lockdown eases. Ms Versace in her response did nothing to disabuse the Applicant of a clearly apparent belief that he remained employed.
[41] In the Applicant’s further email to Ms Versace on 12 October 2020 he raised a query regarding his accrued leave entitlements, how the business was going and whether it had been receiving JobKeeper payments through the ATO. These queries were again consistent with the Applicant’s belief that he remained employed, albeit stood down without pay. It was in response to this email that his employment termination was confirmed by Mr Versace in a telephone call and in an email from Ms Versace 13 October 2020.
[42] Following the Applicant’s emails of 12 & 16 October 2020 the Respondent processed payment of the Applicant’s accrued long service leave entitlements and 5 weeks pay in lieu of notice of termination. The fact that payment of the Applicant’s statutory entitlements occurred more than 6 months after the alleged date of termination, if that date were to be accepted, suggests either an administrative oversight, incompetence on the part of the Respondent, or more concerningly a deliberate withholding of the Applicant’s statutory entitlements.
[43] I do not accept that non-payment of the Applicant’s statutory entitlements was an administrative oversight, particularly given Ms Versace’s direct evidence that she was aware of notice payment obligations. Nor am I able on the material before me to conclude that the entitlements were deliberately withheld. Rather, I am of the view in the circumstances that the reason why accrued long service leave and payment in lieu of notice was not paid out immediately following the 23 March 2020 was simply because at that stage the Respondent had not made a decision to terminate the Applicant, but rather had decided to stand him down.
[44] As regards the Respondent’s claim that events around and after 23 March 2020 were confusing and had not been previously confronted, I find that submission unconvincing. On Mr Versace’s evidence there was no confusion in his mind that he had terminated the Applicant on 23 March 2020 and claimed to have immediately instructed Ms Versace to pay out the Applicant’s entitlements in the next pay cycle. Given the Respondent’s business had been in operation for some 20 years it is scarcely believable that the Respondent was unsure as to what was required in processing the Applicant’s entitlements in circumstances where they claim to have terminated his employment on 23 March 2020.
[45] Finally, the Respondent belatedly provided the Applicant with a Separation Certificate in November 2020, the timing being some 8 months after the alleged date of termination.
[46] Having regard to the all the above matters I find that Mr Versace and Ms Asimakopoulos version of events surrounding the alleged meeting and termination of the Applicant on 23 March 2020 are not to be believed. Their accounts of the alleged termination of the Applicant’s employment in a meeting on that day is simply not supported by the weight of evidence of the subsequent correspondence and actions on the part of both the Applicant and Respondent.
[47] The correspondence between the parties supports the Applicant’s account, and I accept that, he was advised on 23 March 2020 that he was to be stood down without pay because of the business downturn caused by the Covid 19 pandemic. In circumstances where the Covid 19 pandemic restrictions persisted in Melbourne for several months it is unremarkable that the Applicant maintained a belief throughout that period that he remained employed by the Respondent, although stood down. He also attempted to maintain contact with the Respondent during the period of Covid restrictions. I am satisfied that it was not until the 13 October 2020 that he was notified in writing that his employment had been terminated, following which he received payment of his outstanding leave entitlements and required payment in lieu of notice.
[48] The only evidence that lends any weight to the Respondent’s claim that the Applicant was terminated on 23 March 2020 are the Group Tax Report 24 and Business enrolment for JobKeeper wage subsidy25 documents. The former document provides a list of names and wages payment and tax deduction details for March 2020 over which handwritten notes have been made with names including that of the Applicant, variously struck through which apparently indicates that they were not included in the list of employees for which JobKeeper payments were sought. The latter document simply specifies the number of eligible employees for the purpose of JobKeeper but does not identify the specific employees included. I find the documents unhelpful in determining whether the Applicant was or wasn’t dismissed on 23 March 2020 and I consequently place little weight on it.
[49] It follows from the foregoing that I do not accept that the Applicant’s employment was terminated on 23 March 2020 but rather, the dismissal took effect on 13 October 2020. I am therefore satisfied that as the date of the Applicant’s termination was 13 October 2020 the application for an unfair dismissal remedy was filed within the 21-day time limit prescribed under the Act given that the application was filed on 2 November 2020.
[50] If my conclusion regarding the date of termination is wrong such that the date of termination is taken to be the 23 March 2020 as contended by the Respondent, and that the application was not filed within the 21 day statutory time limit, I must have regard to and weigh each of the considerations set out in s 394(3) of the Act in determining whether “exceptional circumstances” exist to warrant an exercise of the discretion to extend time in which the application may be made. I now turn to consider the matters set out at s 394(3) of the Act.
Reason for the delay
[51] 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.26
[52] The elapsed time between the Applicant’s dismissal on 23 March 2020 and the filing of an application for an unfair dismissal remedy on 2 November 2020 was 224 days, which is 203 days beyond the 21 day period for the filing of an application.
[53] As I have found above, the Applicant was not notified of his dismissal until 13 October 2020, that being 203 days after the date of dismissal on 23 March 2020. During that period the Applicant reasonably understood that he had been stood down as a consequence of the Covid 19 pandemic. In the wake of notification of his dismissal the Applicant then engaged with the Respondent between 13 October 2020 and 28 October 2020 in relation to outstanding notice and statutory leave entitlements. In the period following formal notification of his dismissal the Applicant also researched his options for pursuing an unfair dismissal application which was subsequently filed on 2 November 2020.
[54] In the circumstances detailed above I am satisfied that the Applicant has provided a credible reason for the delay in the filing of the application. This weighs in favour of granting an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[55] The Applicant was not notified of his dismissal until 13 October 2020 several months after his dismissal took effect. The delay in advice to the Applicant regarding the termination of his employment weighs in favour of granting an extension of time.
Action taken to dispute the dismissal
[56] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time. 27
[57] While the Applicant pursued concerns with the Respondent regarding payment of his statutory entitlements following confirmation of his termination of employment on 13 October 2020, he took no action to contest the dismissal, other than lodging his unfair dismissal application. In the circumstances, I regard this as a neutral consideration.
Prejudice to the employer
[58] The delay of several months in the application for an unfair dismissal remedy being filed is significant. Consequently, I accept that some prejudice would accrue to the company if an extension of time were to be granted. However, if I were to consider the prejudice as favouring of an extension, I would in the circumstances attribute it little weight in my consideration of whether there are exceptional circumstances.
Merits of the application
[59] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed. The Respondent contends that the termination was initiated due to a business downturn arising from the circumstances of the Covid 19 pandemic. However, it is the manner of communication of the termination, the lack of proper notice and payment of termination entitlements that is at the heart of the Applicant’s contention that his dismissal was unfair.
[60] While unable to make a final assessment of the merits due to some factual disputes between the parties, I have had regard to the notice of termination failures of the Respondent of which I have made findings above. I am satisfied that these notice of termination failures on the part of the Respondent, which go to the merits of the application, weigh in favour of a finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position
[61] 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.
[62] 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
[63] I have found that the termination took effect on 13 October 2020. The application for an unfair dismissal remedy was made on 2 November 2020. The application was therefore filed within the required 21 day time period.
[64] In the alternative, if I am wrong on the date of termination such that the date of termination was actually 23 March 2020 meaning that the application was made out of time, I have determined to exercise my discretion to grant an extension of time on the grounds that the Applicant has established exceptional circumstances exist. In reaching this conclusion, I have taken into account all of the relevant matters under s 394(3).
[65] The application for an extension of time is granted. The jurisdictional objection of the Respondent is dismissed. An Order granting the Applicant an extension of time within which to file his Application will be issued with this decision.
[66] The matter will now proceed for programming of the substantive application.
DEPUTY PRESIDENT
Appearances:
Mr D. Chinnock on his own behalf
Mr F. Versace for the Respondent
Hearing details:
2020
Melbourne
December 21
Printed by authority of the Commonwealth Government Printer
<PR725638>
1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
2 Ibid.
3 Exhibit A1, Witness Statement of Mr Dean Chinnock
4 Exhibit A2, Witness Statement of Ms Christine Attard
5 Ibid
6 Exhibit R1, Witness Statement of Mr Frank Versace
7 Ibid
8 Ibid
9 Exhibit R2, Witness Statement of Ms C Asimakopoulos
10 Exhibit R5, Group Tax Report dated 1/3/2020 – 31/3/2020
11 Exhibit R6, Business enrolment for JobKeeper wage subsidy
12 Exhibit A3, Emails and text messages between Applicant and Respondent
13 Ibid
14 Ibid
15 Ibid
16 Ibid
17 Exhibit A1
18 Exhibit A3
19 Exhibit A4, Correspondence from Applicant to Respondent dated 16 October 2020.
20 Exhibit A3
21 Exhibit A6
22 Exhibit A7, Separation Certificate dated 26 November 2020.
23 [2016] FWCFB 5500.
24 Exhibit R5
25 Exhibit R6
26 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [39]
27 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
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