Dennis Kamau v OC Connections

[2020] FWC 4641

[2020] FWC 4641

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dennis Kamau
v
OC Connections
(U2020/10441)

COMMISSIONER BISSETT MELBOURNE, 3 SEPTEMBER 2020

Application for an unfair dismissal remedy – filed out of time - circumstances not exceptional - application dismissed.

[1] Mr Dennis Kamau (Applicant) has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The Applicant’s employment with OC Connections (Respondent) was terminated with effect from 7 July 2020. The Applicant’s unfair dismissal application was lodged on 2 August 2020.

[3] Section 394(2) of the FW 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 period of 21 days ended at midnight on 28 July 2020. The application was therefore filed 5 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3). The Respondent opposes this request.

[4] The FW 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

[5] Section 394(3) of the FW Act 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.

[6] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application.

[7] In this matter the Respondent also disputes that the Applicant was a regular and systematic casual employee such that, it claims, he has not served the minimum employment period necessary to enable him to make a valid application to the Commission. This is not a matter canvassed in this decision but will be a matter for determination should the extension of time be granted and the application be subject to further hearing.

Reason for the delay

[8] The FW 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. 3

[9] The Applicant cited several matters as reasons for the delay in lodging the application.

[10] The Applicant said that the email from the Respondent to which was attached the notice terminating his employment went into the “junk” folder in his email account. He agrees that it was sent to him on 7 July 2020. He said that on 29 July 2020 he was cleaning up his emails to create more storage space on his email account when he came across the email from the Respondent in his junk folder.

[11] The remainder of the delay is attributable to the Applicant “trying to gather information on how the Commission works”.

[12] The Applicant said that he received advice from a friend on 29 July 2020 that he could make an unfair dismissal application to the Commission. He discovered that there was a 21 day time limit on making an application and then spent time trying to gather the information necessary to make an application. This included information on how to make an application. He discovered an unfair dismissal application could be made by post or online, realised that post would not work because of COVID-19 restrictions and so made an online application.

[13] The Applicant said that he did not check his emails every day and did not regularly monitor his junk email folder.

[14] The Applicant agreed that the email address that the Respondent emailed his termination letter to was the same email address the Respondent has used to corresponded with him during the time of his employment.

[15] The Applicant agreed that he received correspondence from the Respondent on 25 May 2020 with respect to JobKeeper. 4 That email was delivered to his junk email folder. He said he noticed that email on that day and responded to it. He said that he checked his junk email folder that day as he does on a lot of days. Further he said that around this time he had checked his junk folder regularly.

[16] The Applicant also agreed that he received an email on 4 June 2020 at 3:29pm from the Respondent, again to his junk email folder, and that he replied to that email on the same day at 3:31pm. 5 That email correspondence was also in relation to JobKeeper.

[17] On 5 June 2020 the Applicant sent a further email to the Respondent in relation to JobKeeper and received a reply from the Respondent a few minutes later that indicated that his JobKeeper form had been forwarded to payroll. 6

[18] The Applicant said that after 5 June 2020, knowing that his JobKeeper application had not been rejected, he checked his emails for the next two weeks but, after that, he gave up.

[19] The Applicant said that between 7 and 29 July 2020 he might have checked his emails but cannot remember if he checked his junk email folder and also that he might have gone for a few days without checking his junk email folder.

[20] Ido not consider thata notice of termination of employment being delivered to a junk email folder of the Applicant where that email address has been used in the past by the Respondent to send correspondence to the Applicant and where emails from the Respondent regularly go into the junk email folder provides a reasonable explanation for the delay in making the application to the Commission. It is not an uncommon matter and, in this case on the evidence before the Commission, was very common for emails from the Respondent to go into the Applicant’s junk email folder. In any event, I note that this time lapse only explains 1 day of the delay beyond the 21 day period within which an application is required to be made.

[21] I would observe that the Applicant was not assisted by his evidence where he variously said that he did not check his emails regularly, that he was checking his emails regularly around June 2020 but then “gave up” and that he went for a few days without checking his junk email folder between 7 and 29 July 2020. He either did or did not regularly check his emails and the junk email folder. There appears to be no other period where he has gone for 21 days without undertaking such a check.

[22] The remainder of the delay in making the application is attributable to the Applicant “trying to gather information on how the Commission works”. The Applicant submits that he was not familiar with the Commission processes and the Applicant attempting to determine how the Commission works explains the remainder of the delay from 29 July 2020 to 2 August 2020.

[23] The Applicant in this case was aware on 29 July 2020 that he had 21 days from the date of his dismissal to make his application. The further delay of 4 days is inexplicable in these circumstances. I do not consider that the reason given for the delay after 29 July 2020 presents an acceptable reason for the delay in making his application.
[24] My findings in this respect weigh against the grant of an extension of time.

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

[25] The Applicant says that he did not became aware of his dismissal until 29 July 2020 when he discovered the termination letter in his junk email folder. There is, however, no dispute that the email was delivered to his email address on 7 July 2020.

[26] The Applicant agreed that between 7 and 29 July 2020 he “might have gone some few days without checking the junk emails” and that was when the termination letter arrived.

[27] I am satisfied that the Applicant, had he shown adequate attention to what was in his junk email folder, could have been aware of the letter of termination well before 29 July 2020. Whilst he might not have become aware of the termination letter for some days after it was sent I am satisfied that he had a reasonable opportunity within the 21 day period to become aware of the termination but, for inexplicable reasons, he did not or chose not to see the email from the Respondent.

[28] This delay is even more inexplicable in circumstances where there was a possibility of JobKeeper payments and that the Applicant knew he would receive such notification from the Respondent via email and that the Respondent’s emails went into his junk email folder.

[29] Given the failure of the Applicant to monitor his emails this factor weighs neither in favour nor against the grant of an extension of time.

Action taken to dispute the dismissal

[30] The Applicant took no action beyond making his application to the Commission to dispute his dismissal. This is therefore a neutral matter.

Prejudice to the employer

[31] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted and the Respondent does not claim any prejudice. This is therefore a neutral consideration.

Merits of the application

[32] The FW Act requires me to take into account the merits of the application in considering whether to grant an extension of 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 and I do not repeat them here.

[33] In this case the Respondent terminated the Applicant’s employment as he had not worked for the Respondent since end of August 2019. The Applicant was a casual employee. The Respondent submits that, while he may be able to establish that he was a regular and systematic casual employee up until August 2019, since that time he had not been offered or accepted any shifts with the Respondent. Such an extensive break in time in which shifts were not offered or accepted strongly supports the contention that the Applicant could no longer have any expectation of work. For this reason the Respondent says the Applicant could not meet the minimum employment period requirements of the FW Act and his application must fail. The Respondent contends that there is, therefore, no merit to his claim.

[34] The Applicant says that the Respondent cancelled many of his shifts from August to November 2020 and that, from November 2019 he was subject to an investigation by the Department of Health and Human Services which meant that he could not seek or accept work in the disability sector. He says that the investigation has since been resolved.

[35] The Applicant also said that he had grievances with the Respondent and these remain unresolved.

[36] Having considered the submissions and material provided, it is evident to me that the merits of the Application are contested and that there are factual matters (including the minimum employment period) which would need to be resolved if an extension of time was granted and the matter was to proceed. It is not possible to make any firm or detailed assessment of the merits at this stage. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[37] 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

[38] The test of exceptional circumstances in s.394(3) of the FW Act is a stringent one. Having considered each of the statutory criteria, I am not satisfied that there are exceptional circumstances that support an extension of time. 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).

[39] The application for an unfair dismissal remedy is therefore dismissed. An Order 7 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

D. Kamau on his own behalf.

R. Catanzariti for the Respondent.

Hearing details:

2020.
Melbourne by telephone.
August 26.

Printed by authority of the Commonwealth Government Printer

<PR722347>

 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].

 4   Exhibit R1, attachment LE-5.

 5   Exhibit R1, attachment LE-6.

 6   Exhibit R1, attachment LE-7.

 7   PR722348.