Dermot Lindley v Tennis Australia Limited
[2022] FWC 683
| [2022] FWC 683 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Dermot Lindley
v
Tennis Australia Limited
(C2022/820)
| DEPUTY PRESIDENT LAKE | BRISBANE, 11 APRIL 2022 |
Application to deal with contraventions involving dismissal - whether application made outside of statutory timeframe
Mr Dermot Lindley (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) for the Commission to deal with a general protections dispute in relation to the termination of his employment by Tennis Australia Limited (the Respondent).
It is disputed between the parties as to the date the Applicant’s employment was terminated by the Respondent. The Applicant submits that he was terminated on 12 January 2022, whereas the Respondent argues that with his last shift as a casual employee was his termination date being on 6 January 2022. If the Applicant was dismissed on 6 January 2022, and the Applicant lodged the present application on 30 January 2022, the application would thereby be 3 days outside of the statutory time limit prescribed by s.366(1) of the Act. If the dismissal was effective on 12 January, the application would then be within time. It is therefore necessary to ascertain the date of dismissal prior to determining whether a further period should be allowed under s.366(2) of the Act for the application to be made.
The Respondent objects to the granting of an extension of time. Directions were issued and material filed by each party regarding the question of whether the Applicant should be granted the extension. A hearing was held before me via Microsoft Teams on 28 March 2022.
Date of dismissal
Section 386(1) of the Act defines dismissal as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
In their submissions, the Respondent advised that it had notified the Applicant, via message, that the 6 January 2022 was his last required shift. The Applicant, on the other hand, advised that he was not made aware of the termination until 12 January 2022. He explained that the email notifying of his termination was sent to his personal email which was subsequently filtered into his Spam folder.
I note that a copy of the termination email was not provided to me.
Whilst the termination email was sent by the Respondent on 8 January, there is no requirement that the email be read or acknowledged. Rather, the requirement is that the employer notifies the employee they are terminated. In the recent Full Bench case ofAustralian Rail, Tram and Bus Industry Union v Pacific National Services Pty Ltd T/A Pacific National,[1] the requirement for notice were considered. In that decision it was said:
“[14] However, in the Federal Court Full Court decision in Nguyen v Refugee Review Tribunal, Sundberg J said: ‘[a] requirement that a person be given notice of something does not demand that the thing be brought home to the person’s understanding or knowledge… notice is not synonymous with knowledge’.
…
[19] …However, the receipt of notice does not mean that the content of the communication needs to be known and understood by the recipient. For example, the Full Bench in Ayub said in relation to the provision of notice of dismissal from employment by email:
‘[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee.’”
The Applicant had been told on the 5th or 6th of January that he was not to return to site until further advised. In his testimony, he stated that he had been working up to 60 hours per week. I would think it unlikely that he would not have followed up in the days following to determine when or if he were to return to site. He contends that he did not view the email when it was sent on 8 January 2022 as it went to his spam folder. No evidence was put forth to support this contention. I find that this is an improbable scenario. He was working long hours up until he was told not to return until notified; to assert that he made no contact or follow up until he looked in the spam folder on the 15 January lacks credibility. If he was keen to understand whether he was employed or not, then the Applicant would have been perusing his email for any sign of contact. He did not make any calls to the Respondent inquiring about work.
I determine that 8 January 2022 is the effective date for the Applicants dismissal as that is when he was informed via email that he was no longer going to be employed. Up until that point he may have been re engaged as a casual noting that engagement as a casual is on a daily or shift basis however the communication on 8 January makes it clear that the employment relationship is over.
In which case, the application is out of time by one day and I will now determine if an extension is to be granted.
Should a further period be granted?
Section 366(2) of the Act provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The test of ‘exceptional circumstances’ establishes a higher barrier for an applicant.[2] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bence of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australia stated that:
“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.”[3]
The Applicant submits that exceptional circumstances exist due to the following:
· The Applicant did not become aware of his termination until 12 January 2022 as the termination email was sent to his personal email and was auto filtered to his Spam folder.
· The Applicant was homeless from the period between 15 January 2022 to 21 January 2022 due to one lease falling through because of his unemployment status.
· The Applicant was unable to establish an internet connection until 28 January 2022 due to the aforementioned homelessness issue. Due to his broken smart phone, he was unable to hotspot and that all text messages sent were through his Nokia phone. The Applicant advises he did not get his smartphone fixed until 20 February 2022.
· The damage done to the employer is very minimal as it was lodged on a Sunday when human resources and management employees were very unlikely to be working. It was also the day of the Australian Open final which further limited any disadvantage that the Respondent may have faced.
The Respondent submits that:
· The Applicant was dismissed on 6 January 2022. This is on the basis that the Applicant was a casual employee with no guarantee of ongoing employment by the Respondent. This was made clear in the Applicant’s employment contract. With the Applicant’s last shift being on 6 January 2022 and was made aware that this was his last required shift via message, the Respondent submits that the Applicant had lodged his application 24 days after the Applicant’s employment ended.
· The reason for the Applicant’s delay are not circumstances which are out of the ordinary course, unusual, special or uncommon in the reasons submitted by the Applicant as to the late lodgement. The Respondent noted that it would not be unduly difficult for the Applicant to obtain access to a computer or phone with internet access during this time.
· The Respondent has made payment to the Applicant, in full, for work performed on 5 January 2022 and payment for a phone allowance.
· The Respondent disputes the merits of the case and the reasonableness of the outcome sought. The Respondent submits that the Applicant was not dismissed as a result of raising a health and safety concern, but rather the Applicant had no guarantee of ongoing work by nature of their casual employment and pursuant to their employment contract.
· The Applicant was not offered further shifts as a result of his failure to demonstrate the requisite skills for the role, performance issues and behavioural issues.
· The Respondent further noted that the Applicant filed his submissions six days after the directions, and no reasons were provided for this second instance of delay. The Respondent submitted that this suggests a pattern of behaviour and disregard to the Commission’s rules and time.
Consideration
I now turn to each of the factors set out in s.366(2) of the Act.
Reason for delay
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable,[4] or a reasonable explanation.[5] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.”[6]
It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[7]
The Applicant provides for several reasons for his lateness, chiefly that he was informed belatedly due to the termination email going to a spam folder, as well as further issues with internet and a broken phone were also offered as reasons for the late application.
The Applicant states in his evidence that he was effectively homeless and without internet access from 16 to 28 January. In spite of some evidence pointing to his inability to secure a lease on a property and alleged homelessness, he would have been able to avail himself of a friend’s laptop or access a public library. He further states that his phone was broken or the screen smashed. However, once again, I find there are a number of ways of lodging an application to the Commission.
The website of the Commission contains all the relevant information to apply and the various methods of completing a Form F8 to initiate a claim as well as clearly stating the 21-day application time requirement.
The Applicant could have asked a friend to assist to access the web site and/or gone to a library or a publicly accessible PC at a shopping centre. There are a multitude of options that if he were genuinely trying to make an application that he could have got all the relevant information on how to apply. He would have been able to download an application and emailed it to a friend where he could have completed it with the minimum of effort either online or handwritten and returned to the Commission via email or taken a photo on his friend’s phone camera and sent the document in to the Commission.
If he had no friends and no transportation to travel, he could have rung the toll free number on a public phone or non-smart phone, and if he genuinely was unable to access the website and complete a form, one of the registry attendants would have been able to complete the application via the phone. It is disingenuous for the Applicant to put forth the argument that because of his lease expiry and lack of NBN and a cracked phone that he was unable to complete the application in time. These are not exceptional circumstances either on their own or together, rather they are a series of unfortunate events.
I find the Applicant’s reasoning for the delay weigh against an extension.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant does not dispute that the email advising of his termination was sent on 8 January 2022. The Applicant, however, provides that this email was filtered into his Spam folder and he did not view this email until 12 January 2022.
As I have stipulated above, I found this to be an unlikely scenario. Irrespective of the unlikelihood of the Applicant not making enquiries about his employment, I find this consideration a neutral factor.
Action taken to dispute the dismissal
No evidence has been put to me as to whether the Applicant had taken any action to dispute the dismissal other than the Applicant’s decision on the day to leave the site. This is a neutral factor.
Prejudice to the employer
The Applicant states that there is no prejudice to the employer, and I weigh this as neutral.
Merits of the application
In Kornicki v Telstra Network Technology Group, the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”[8]
The Applicant claims that he was terminated as a result of his making a complaint regarding a safety matter, whereas the Respondent states that he was not required for more shifts as a result of his attitude and behaviours. Without a proper hearing and assessment of all the evidence in this matter, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the person and others in a like position
The Commission may have consideration to fairness in matters in a similar kind that are currently before the Commission or have been decided in the past.[9]
The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Conclusion
The Applicant was dismissed on the 8 January and filed his application on the 30 January 2022. This was outside the 21 days statutory time limit by one day. Whilst I do sympathise the Applicant in relation to the difficulties he had faced post his termination, I do not find that these are unusual or exceptional circumstances. There was an array of options in which the Applicant could have availed himself of to file the Form F8 within the statutory timeframe and that did not require access to his own NBN. Some ways included to call the Commission to lodge an application by way of phone, or to access the public library.
Having regard to all the matters that I am required to take into account under s.366 of the Act, I am not satisfied that exceptional circumstances exist in this matter. I order that the application be dismissed.
DEPUTY PRESIDENT
[1] [2022] FWCFB 23.
[2] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 [14].
[3] [2019] FWC 25.
[4] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].
[5] Roberts v Greystances Disability Services; Community Living[2018] FWC 64, [16]
[6] [2018] FWCFB 901, [39].
[7] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31] – [33]; and Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[8] Print P3168, 22 July 1997.
[9] Green v Bilco Group Pty Ltd [2018] FWC 6818 at [31].
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