Elliot Baer v Cdm Australia Pty Ltd
[2023] FWC 1432
•21 JUNE 2023
| [2023] FWC 1432 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Elliot Baer
v
CDM Australia Pty Ltd
(U2023/2881)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 21 JUNE 2023 |
Application for an unfair dismissal remedy
The issue and outcome
On 4 April 2023, Mr Elliot Baer (the Applicant) made an unfair dismissal application having been purportedly dismissed by CDM Australia Pty Ltd (the Respondent).
The Applicant claims that his employment with the Respondent was terminated (at the initiative of the Respondent) on 21 March 2023.
The Respondent submits that the Applicant verbally resigned his employment on 13 March 2023 and later, on that same day, provided his resignation in writing. The Respondent therefore asserts that the Applicant lodged his unfair dismissal application with the Commission outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act), and was not ‘dismissed’ within the meaning of the Act.
Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect. The other three preliminary matters are not presently relevant.
It is not in dispute that if the Applicant’s effective date of ‘dismissal’ was 13 March 2023, his application would have been lodged one day outside of the 21-day statutory time limit.
The Applicant’s primary position is that, on the evidence, his application was not lodged out of time in that his dismissal occurred on 21 March 2023, and he lodged his application on 4 April 2023 (within the 21-day time limit).
This is to be contrasted with the position of the Respondent which submits, on the basis of the evidence tendered by it at hearing, that the Applicant resigned his employment on 13 March 2023 (effective 13 March 2023), meaning that the Applicant was not ‘dismissed’ (within the meaning of ss 12 and 386 of the Act), and that the application filed 4 April 2023 is out of time.
Turning to the issue of whether the Applicant was dismissed, in Herc v Hays Specialist Recruitment (Australia) Pty Ltd, the Full Bench of this Commission observed that the question of whether an application for an unfair dismissal remedy is made outside the statutory timeframe is not strictly a jurisdictional objection.[1] This view was reached notwithstanding s 396(a) of the Act. Nevertheless, it appears accepted that an unfair dismissal application made outside the time required in s 394(2) is not validly made unless and until a further period has been granted.[2] The proper approach, according to the Full Bench, is to first consider whether an application is made within the required statutory period and if not, whether a further period should be granted, before contending with an argument that, for example, there has been no dismissal.[3] This of course requires an assumption that an applicant is an employee for this purpose and that the employee has been dismissed.[4]
It therefore follows that the contentious issues in this matter can be summarised as follows:
a) what was the date that the Applicant’s dismissal took effect (notwithstanding it was a purported dismissal);
b) did the Applicant make his unfair dismissal application outside of the statutory timeframe provided in s 394(2) of the Act; and
c) if the unfair dismissal application was made outside of the statutory timeframe, are there exceptional circumstance that warrant granting an extension of time in which to make the unfair dismissal application, and is it fair and equitable for an extension to be granted.
For the reasons that follow, I have found that the Applicant’s employment ended on 13 March 2023. It follows that the Applicant’s application was made one day outside of the statutory period. Having considered the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 394(2). Accordingly, the application is dismissed. An Order[5] to this effect will be issued with this decision. It is noted that I allowed an amendment to the name of the Respondent pursuant to s 586 of the Act.
Background
2.1 The Applicant’s evidence
The Applicant commenced in his role as an Account Manger on 4 April 2022.[6] It is apparent from his evidence that in early 2023 there were issues concerning how the Applicant responded to and managed a backlog of emails.[7] The Applicant stated that he asked his Manager, Thi Hellyer, for assistance, but Mr Hellyer purportedly dismissed the Applicant’s concerns and suggested that the Applicant forward the backlog of emails to him to take care of.[8] Following that, the Applicant stated he asked his new Team Leader, Vas Naumoski, for assistance, and received a similar response to that provided by Mr Hellyer.
However, the Applicant noted that his General Manager, Rudi Mistry, noticed that there were a significant number of emails in the Applicant’s inbox and subsequently booked a number of meetings with the Applicant to assist the Applicant to respond to the email backlog.[9]
According to the Applicant, on 13 March 2023, at approximately 11:00 AM, he was approached by Mr Naumoski who asked him how he was going with his emails and asked to check his inbox.[10]
The Applicant said he received a calendar invite from Mr Naumoski a short time later, to a meeting in the boardroom at 1:30 PM on the same day, and the Operations Manager, Rachel Williams, was also to attend.
The Applicant said that at the meeting on 13 March 2023 he was immediately issued with a written warning listing five performance concerns that were deemed to have been decided based on a one-on-one meeting held on 8 March 2023.[11] The Applicant said that during this meeting he became increasingly frustrated and flippantly stated:
...probably not because by the end of close, close of business today, you’ll have my letter of resignation, I’m done.[12]
In respect of the written warning, it stated:
Following our One on One on Wednesday the 8th March 2023, the decision has been taken to
give you a first formal warning under the disciplinary procedure.
The reason for the warning is that your performance has been unsatisfactory in the following
respects;·Unsatisfactory turnaround time of your emails - Total of 15 unread emails, one dating back to 28th Feb - After CDM GM (Rudi) spending 6 hours helping to clear your inbox
·1 appointment set for BTA s between 13th to 17th March - Agreed to 5 appointments
·1 call logged
·1B outbound calls made (refer to call log document)
·$2,035.25 in GP IVTD when should be on approximately $5,250
Failure to improve the above mentioned KPI's may result in further disciplinary action.
I will continue to work with you to help you improve your results, CDM will always provide you the support needed to rectify the above. Feel free to reach out for our help at anytime.[13]
The Applicant noted that at the end of the meeting Mr Naumoski asked him to respond to the letter (presumedly the warning accompanied by the five performance concerns), which he agreed to do.[14] After that, the Applicant said he informed Mr Naumoski that he would be going home as soon as he had done so as he did not have the mental capacity to finish off the day.[15]
The Applicant said that he sent his response to the written warning via an email titled ‘Response to Letter titled First and Formal Warning’ at 5:00 PM on 13 March 2023 and noted that to this day he had not received a response to this email. In part, the Applicant’s email read:
This leads me to my next point and that is a clear lack of training and support throughout my time at CDM.
For most of my time here I have been instructed by my manager to only ask him for information and assistance with anything I need. As the manager of two business locations and with a diminishing WA sales team, he has always been extremely busy.
Although I’m certain Thi does his best, it does not negate the fact that there are significant shortcomings in the onboarding and ongoing training processes in the business.
A few examples of this are;
-Onboarding It took for someone to be locked in the staff toilet for over 2 hours and for Camillo to attend this before I knew who he was. (I asked Thi who he was at the time)
-Staff level management When I started there was 3x Technology Advisors and 6x Account Managers as well as my manager. Within 6 months, one Technology Advisor was dismissed, another resigned and the remaining was moved to an Account Manager role. With this, all Account Managers were then required to perform the duties of both roles. On top of generating leads this also included preparing for and attending meetings, preparing and following up proposals sent as well as completing all after-sales admin tasks all whilst still taking inbound calls and customer walk-ins. Since this time the Account Management team has diminished to just 4. This has certainly put pressure on the whole team and this has been discussed in many meeting so far this year alone. I my myself openly having no Telco experience and little technology knowledge, I have depended heavily on those in the rest of the business for assistance and information, all of which I have had to seek myself not even knowing who to go to when my manager was unavailable.
Ultimately I will not be held responsible for the lack of staff, training and support the business has provided in my time here, especially after numerous requests for support and suggestions for improvement to all involved.
It is because of all of this above and likely more I simply can’t recall as I write this, that I offer my resignation.
Please confirm receipt of this and inform me of how you wish to proceed.[16]
On 15 March 2023, the Applicant called Camillo Della Maddalena, Managing Director of the Respondent, to discuss the events of Monday and Mr Maddalena called the Applicant the following day. It was agreed that a meeting would take place the following Monday, 20 March 2023, to discuss the Applicant’s employment moving forwards.
The Applicant said that on 17 March 2023, he sent a medical certificate via email regarding the days he was absent from work due to the distress caused by the events of the week.[17] The Applicant stated that Mr Maddalena responded to the emails stating that, ‘the team had assumed you resigned...’ and ‘I look forward to our meeting Monday to understand what you wish to do, we are happy for you to resume your role and we will go through the requirements of the role.’[18]
The Applicant said he attended the meeting with Mr Maddalena, Mr Naumoski and invited his colleague Stacey Brittain to be a witness to this meeting.[19] According to the Applicant, in the meeting it was made clear by Mr Maddalena that he would return to work following the meeting. To that extent, the Applicant recalled meeting Mr Naumoski in the tearoom and being informed that he was to go home and return on Tuesday as his laptop was not ready for him to continue his duties that day.
However, the Applicant said he received a call from Mr Naumoski on Tuesday morning, 21 March 2023, asking him to remain at home.[20] Later that day, he said he was sent an email from Mr Maddalena informing him that his employment had been terminated.
2.2 The Respondent’s evidence
Mr Naumoski gave evidence that the Applicant was not performing to the standard required, particularly with regard to contacting and responding to clients.[21] He further explained that the meeting on 13 March 2023, where the letter of warning was provided, was a further genuine attempt to improve the Applicant’s performance, and the conduct of the meeting was professional and reasonable.[22]
It was Mr Naumoski’s evidence that at the meeting on 13 March 2023, he showed the Applicant the Applicant’s call logs which showed that he made or took not many calls. Mr Naumoski stated:
·…I questioned Elliot what he had been doing if he hadn’t been very active on the phones, in which he had no response other than rolling his eyes.
·At this point he said “I don’t fucking need this shit, you can expect my resignation by the end of the day”
·I told Elliot that he has the right to respond to the email and if he wishes to resign that it was his choice.[23]
The Applicant followed this up with a written resignation to Mr Naumoski on 13 March 2023, after which the Respondent processed the relevant termination payment (including two weeks in lieu of notice) on 14 March 2023.[24]
Mr Maddalena gave evidence that the Applicant did not present for work on 14 March 2023 and then contacted him on 15 March 2023.[25] Mr Maddalena said that he contacted the Applicant on 16 March 2023 with a view to ascertaining what had occurred. A meeting was convened on 20 March 2023.
It was Mr Maddalena’s evidence that at the meeting on 20 March 2023, the Applicant made suggestions on how the Respondent should adopt a different business model. Mr Maddalena was not receptive to the suggestion given the Applicant had no experience in the industry.
Following the meeting, the Applicant put forward an email to the Respondent dated 20 March 2023, which stated:
Hi Vas,
Thanks to both yourself and Camillo for your time today in determining the necessary steps required for all parties moving forwards, working towards our common objectives.
Please confirm in response to this email, the following points as all parties agreed to in our meeting today;·My employment as Account Manager is to continue uninterrupted from my commencement with CDM Australia on Monday 4th April 2022
·Tuesday 14th March 2023 until Friday 17th March 2023 inclusive, will be paid as sick leave in line with the Medical certificate attached and supplied last week
·All previously accrued leave entitlements will be reinstated and uninterrupted as of the commencement of my employment
·All remuneration payments made to date are finalised
·The amount of $4,166.45 with reference “Salary Cdm Australia 10032813/03/2023”, received on Tuesday 13th March 2023 is acknowledged to be remuneration for the additional duties as well as the costs incurred whilst undertaking these duties throughout my employment to date
·I am to present to work tomorrow the 21st March 2023 and moving forwards as described in my employment conditions signed on the 25th February 2022
Please detail the requirements of my role moving forwards in your response for me to review and confirm agreement to.
I look forward to continuing my work with you and the team at TBTC Perth North.[26]
In response to the email from the Applicant dated 20 March 2023, Mr Maddalena emailed the Applicant on 21 March 2023:
Further to our meeting yesterday morning, the aim of which was to facilitate a meeting to explore the possibility of you returning to CDM. On numerous occasions I asked, as I did last Thursday, whether you did wish to return to CDM, which based on your response was ambiguous. Then I asked you about your experience with CDM and your role, to which you tabled a business model on mobiles and forwarded the motion that CDM’s business model was flawed. However when we unpacked your suggestions it clearly was not financially viable nor supportable.
I am puzzled by the premise you put forward that you never resigned. On reviewing the events in the meeting with Vas and Rachel on Monday 12th March, you stated ”I don’t need this shit and you can expect my resignation“. You then put your intention to resign in an e-mail which states “I offer my resignation” and your termination payment was processed with two weeks notice on Tuesday 13th March. On my follow up call Thursday morning to your message left at CDM Mt Hawthorn Wednesday afternoon, I asked a number of questions of which included, did you resign and have you received the termination payment, to both you answered no (we are happy on request to provide copy of resignation email ).
We arranged to meet on Monday to explore the events and it was established that the only aspect not followed correctly was giving only 24 hours notice to a meeting to address a significant failing of you not responding to e-mails in a timely manner (i.e.
e-mails outstanding since 28th February) which was also addressed in February and required the General Manager to work through your e-mail going back a few months which was causing significant issues for clients.Please see below the details of the termination payment paid. You demanded below that the termination payment received should be treated as remuneration for additional duties, however as this includes payout of leave entitlements and has been treated as such, this is not possible…
With consideration to the above and our discussions, we believe it is best for both parties that CDM confirms that it accepts your resignation that you communicated verbally and in writing and accordingly your employment with CDM Australia is terminated.[27]
Date of dismissal
The starting point is the consideration of whether the Applicant’s communication on 13 March 2023 conveyed a real and unequivocal intention to resign. Such communication cannot be viewed in isolation. The surrounding circumstances known to the parties factor into the decision of what a reasonable person in the position of the parties would have understood was the objective position of the parties on and from 13 March 2023.
The approach to be adopted when considering the effect of a resignation, was explained at length in Koutalis v Pollett (Koutalis),[28] a judgment of the Federal Court, followed by the Full Bench of this Commission in Canberra Urology Pty Ltd v Lancaster.[29]
In Koutalis, at issue was whether a Mr Pollett resigned or was constructively dismissed.
In relation to the former issue, his Honour said:
The question whether a resignation did or did not occur does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis’ business’ premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:
This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461-462 [22]].
In my opinion, the same considerations apply to the evaluation of the circumstances where parties engage in conversations and conduct that affects their legal rights under a contract, including the assessment of whether or not words and or conduct can be seen to amount to a resignation. Nonetheless, in employment contexts, a court must be conscious that situations can arise in which one or other of the parties acts in the heat of the moment in such a way that a reasonable person in the position of the parties in all the circumstances would not understand the employee to be resigning or the employer to be terminating the employee’s employment, as the case may be. So much is reflected in what May LJ, with whom Croom-Johnson and Woolf LJJ agreed, said in Sovereign House Security Services Limited v Savage [1989] IRLR 115 at 116, namely:
In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.[30]
In support of the proposition that where a resignation is ambiguous, equivocal, or there are ‘special circumstances’, then the employer is obliged to see whether the resignation was really intended, the Applicant referred the Commission to the judgment of the Industrial Relations Court of Australia in Minato v Palmer Corporation Ltd (Minato).[31] In Minato, the Court referred to Sovereign House Security Services Ltd v Savage (Sovereign House)[32], observing that it set out the legal position in respect of ascertaining whether there was a real resignation. It is observed that the opinion of the Court in Sovereign House was referred to in Koutalis.
The parties provide two different accounts of what was said in the meeting on 13 March 2023. Those accounts are provided by the Applicant and Mr Naumoski. The Applicant states that he communicated to Mr Naumoski in the meeting, ‘…probably not because by the end of close, close of business today, you’ll have my letter of resignation, I’m done’,[33] and Mr Naumoski says that the Applicant said, ‘I don’t fucking need this shit, you can expect my resignation by the end of the day’.[34] I note that whilst Mr Naumoski’s evidence on this point was drawn from an email from Mr Naumoski to Mr Maddalena on 24 March 2023, some time after 13 March 2023, it accords with his evidence given at hearing. Further, whilst there exists a difference in the language used, what is evident is that both accounts acknowledge that the Applicant made it known to Mr Naumoski that he would have the Applicant’s resignation by the end of the day or close of business on 13 March 2023. There is nothing unequivocal in the words used. On any objective level, the Applicant expressed his intent to resign in the meeting on 13 March 2023.
The Applicant argues that the resignation was tendered in the heat of the moment. Evidently when the abovementioned exchange occurred the Applicant was in receipt of feedback concerning his performance. Clearly, he was unreceptive to such feedback and if Mr Naumoski’s account is to be believed, the Applicant would appear to have been in a heightened reactive state at that point of time. However, what bears consideration is what occurred after the meeting on 13 March 2023.
After the meeting on 13 March 2023, the Applicant took time to draft a two-page email detailing at length the shortcomings of the Respondent business and its management. As was indicated in the meeting earlier on 13 March 2023, the Applicant sent the email to Mr Naumoski at or around 5:00 PM. The email concluded:
Ultimately, I will not be held responsible for the lack of staff, training and support the business has provided in my time here, especially after numerous requests for support and suggestions for improvement to all involved.
It is because of all of this above and likely more I simply can’t recall as I write this, that I offer my resignation.Please confirm receipt of this and inform me of how you wish to proceed.[35]
The Applicant argues to the effect that because he asked for confirmation of receipt of his letter and asked how the Respondent wished him to proceed, this further negates the contention that he resigned.
The argument that the Applicant did not resign on 13 March 2023 cannot be sustained when the totality of the evidence is considered.
First, the verbal communication to Mr Naumoski in the meeting on 13 March 2023 was that he would receive the Applicant’s resignation at the end of the day.
Second, the Applicant took time to compose the two-page email that detailed shortcomings of the Respondent business and thereafter used unambiguous words of resignation. That same email was sent by the end of the day. Whilst there was reference to a request of how the Respondent wished ‘to proceed’, such statement does not detract from a finding that on any objective level the Applicant had resigned. In the circumstances, it is reasonable to infer that such statement, that is, how the Respondent wished to proceed, was made to seek clarification on what the next steps would be, given the Applicant’s resignation.
Third, the Applicant did not present for work the next day and did so in circumstances where he did not notify Mr Naumoski or any other person in the business that he would not be presenting for work on the Tuesday, 14 March 2023, or for that matter the remainder of the week. Whilst the Applicant refers to having departed on 13 March 2023 and indicating that he was not able to remain at work for the remainder of the day, the evidence does not support a finding that the Applicant notified the Respondent on 13 March 2023 or 14 March 2023 that he was on personal leave from Tuesday to Friday of that week.
Fourth, the Applicant tendered into evidence a medical certificate dated 17 March 2023 that refers to the Applicant having been reviewed on that same day and having been deemed medically unable to attend work from 14 March 2023 to 17 March 2023. In my view, the medical certificate does not assist the Applicant in his argument that he did not resign from his employment on 13 March 2023. The Applicant was not reviewed by a medical practitioner until 17 March 2023 and hence the assessment was not contemporaneous. The argument that the Applicant did not present for work in that period on the basis of incapacity rather than because he had resigned, is implausible on the evidence presented. Further, the Applicant appears to have been sufficiently able to have communicated with the Respondent in that period to secure a meeting with Mr Maddalena.
Fifth, regarding the communication and subsequent meeting with Mr Maddalena on 16 March 2023 and 20 March 2023, I have found that whilst there was, more likely than not, discussion about the Applicant’s possible re-employment with the Respondent, such discussions did not nullify the resignation provided on 13 March 2023.
I further observe that the Respondent processed the Applicant’s termination payment on 14 March 2023. Whilst the Applicant gave evidence that he was unaware of the payment having been for the payment of notice, accrued leave and other amounts owed, it is evident from his own email to Mr Maddalena dated 20 March 2023 that he was cognisant of the payment made and that the monies were surplus to those he would otherwise be provided. The Applicant noted in that email:
…The amount of $4,166.45 with reference “Salary Cdm Australia 10032813/03/2023”, received on Tuesday 13th March 2023 is acknowledged to be remuneration for the additional duties as well as the costs incurred whilst undertaking these duties throughout my employment to date…[36]
Before providing my concluding reasons on this issue, there is something to be said in respect of the Respondent’s evidence. The Applicant’s representative, appropriately in my view, took issue with the Respondent’s version of the email the Applicant sent to Mr Naumoski on 13 March 2023, identifying that it was significantly different to that tendered by the Applicant. That difference being the omission of paragraphs that detailed the numerous shortcomings of the Respondent. The Respondent failed to provide explanation on why the Applicant’s email had been so doctored. At this juncture, it is relevant to note the seriousness of providing false and misleading evidence to this Commission. The provision of such attracting a penalty of imprisonment for 12 months.[37] It is observed that the Respondent’s evidence in this respect is not relied upon. Further, I note that it was not apparent that the Respondent had internal human resources capability and the materials filed were rudimentary and ill-put together. Whilst Mr Maddalena expressed on multiple occasions that the Respondent had not previously been involved in legal proceedings before the Commission, it does not excuse the provision of doctored evidence.
However, when the all the evidence is considered, particularly the evidence of the Applicant, I have found that on 13 March 2023, the Applicant resigned from his position and as such the termination of his employment took effect on that date. The Applicant’s resignation was both real and unequivocal. It was a resignation that was acted upon by the Respondent. Notwithstanding the efforts of the Applicant in the latter part of the week after the resignation was given and the following Monday, it was unable to be clawed back by the Applicant once given.
It follows that the Applicant’s unfair dismissal application was filed outside of the statutory period set by s 394(2) of the Act. Therefore, consideration turns to whether an extension of time in which to make his unfair dismissal application should be granted.
Extension of time
For the Applicant’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[38] It is accepted that 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, can be considered exceptional.[39]
4.1 Reason for the delay
In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[40] 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.[41]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[42] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[43]
Clearly the focus of the parties in this case was on the date of dismissal notwithstanding that both were given clear directions both in writing and on the day of hearing, that if the termination of employment took effect on 13 March 2023 then the unfair dismissal application was made outside of the statutory period and the Commission must then consider whether to grant an extension of time. In this respect, the factors in s 394(3) of the Act were traversed for the parties at the commencement of the hearing, and it is observed that the Applicant was represented by an industrial officer of the Communication Workers’ Union. Notwithstanding, no reason was provided for the delay and this therefore weighs against their being exceptional circumstances.
4.2 Whether the person first became aware of the dismissal after it had taken effect
As noted, I am of the view that the Applicant became aware of the termination of his employment on 13 March 2023. I am appreciative that the Respondent did not process the termination of employment until 14 March 2023, but am also appreciative that the Applicant’s resignation was provided at the end of the working day. In the circumstances, I consider this factor to be a neutral consideration when weighing whether the circumstances are exceptional.
4.3 Action taken by the person to dispute the dismissal
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal prior to making the unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
4.4 Prejudice to the employer
The Respondent submitted reasons in respect of prejudice. Such reasons are misguided and are irrelevant to the factor under consideration. It is however noted that a ‘lack of prejudice is a positive factor but not a major factor’ in considering exceptional circumstances.[44] I consider that the factor of ‘prejudice’ is a neutral consideration in all the circumstances of this case.
4.5 Merits of the application
In Telstra-Network Technology Group v Kornicki,[45] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:
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.[46]
Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[47] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. As such, the merits in this case are a neutral factor. It is however noted that the Applicant did not elect to advance an argument that he had resigned because he was forced to do so, and it is evident that I did not find that his resignation was provided in the heat of the moment.
4.6 Fairness as between the person and other persons in a similar position
The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[48]
Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party, and as such, I consider it a neutral consideration.
Conclusion
The test of exceptional circumstances in s 394(3) of the Act is a stringent one. The Applicant has not provided a satisfactory explanation for the entirety of the delay in making his application. The remaining matters I need to consider tell neither for nor against the application for an extension of time. In these circumstances, having considered all evidence and submissions, I am not convinced there are exceptional circumstances such that an extension of time should be granted.
Further, having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that it is fair and equitable to grant the extension. No reasons were provided for the delay and in the circumstances the remaining factors are unpersuasive in respect to their being exceptional circumstances.
The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. The application for unfair dismissal remedy is therefore dismissed. An Order[49] to this effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
C Thomas of the Communication Workers’ Union for the Applicant.
C Maddalena for the Respondent.
Hearing details:
2023.
Perth (by telephone):
14 June.
[1] [2022] FWCFB 234, [15].
[2] Ibid.
[3] Ibid [17].
[4] Ibid.
[5] PR763164.
[6] Witness Statement of Elliot Baer (Baer Statement); Digital Hearing Book Part 2, 4 (DHB Part 2).
[7] Baer Statement (n 6); DHB Part 2 (n 6) 4.
[8] Baer Statement (n 6); DHB Part 2 (n 6) 4.
[9] Baer Statement (n 6); DHB Part 2 (n 6) 4.
[10] Baer Statement (n 6); DHB Part 2 (n 6) 4.
[11] Baer Statement (n 6); DHB Part 2 (n 6) 4.
[12] Baer Statement (n 6); DHB Part 2 (n 6) 4.
[13] Applicant’s document list, attachment B; DHB Part 2 (n 6) 22.
[14] Baer Statement (n 6); DHB Part 2 (n 6) 4.
[15] Baer Statement (n 6); DHB Part 2 (n 6) 4.
[16] Applicant’s document list, attachment D; DHB Part 2 (n 6) 25.
[17] Baer Statement (n 6); DHB Part 2 (n 6) 5.
[18] Baer Statement (n 6); DHB Part 2 (n 6) 5.
[19] Baer Statement (n 6); DHB Part 2 (n 6) 5.
[20] Baer Statement (n 6); DHB Part 2 (n 6) 5.
[21] Witness Statement of Vas Naumoski (Naumoski Statement); DHB Part 2 (n 6) 33.
[22] Naumoski Statement (n 21); DHB Part 2 (n 6) 33.
[23] Naumoski Statement (n 21) attachment 2; DHB Part 2 (n 6) 40.
[24] Witness Statement of Raymond Spry; DHB Part 2 (n 6) 32.
[25] Witness Statement of Camillo Della Maddalena; DHB Part 2 (n 6) 31.
[26] Naumoski Statement (n 21) attachment 4; DHB Part 2 (n 6) 45–6.
[27] Naumoski Statement (n 21) attachment 4; DHB Part 2 (n 6) 44.
[28] (2015) 235 FCR 370.
[29] [2021] FWCFB 1704.
[30] Ibid 379–80 [43]–[44] (emphasis omitted).
[31] (1995) 63 IR 357.
[32] [1989] IRLR 115.
[33] Baer Statement (n 6); DHB Part 2 (n 6) 4.
[34] Naumoski Statement (n 21) attachment 2; DHB Part 2 (n 6) 40.
[35] Applicant’s list of documents, attachment D: DHB Part 2 (n 6) 25.
[36] DHB Part 2 (n 6) 46.
[37] Fair Work Act 2009 (Cth) s 678.
[38] (2011) 203 IR 1, 5 [13].
[39] Ibid 6 [13].
[40] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (2018) 273 IR 156, 165 [39].
[41] Ibid.
[42] Long v Keolis Downer (2018) 279 IR 361, 371 [40].
[43] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12].
[44] Caire v Imscan Technologies[2013] FWC 3154, [16].
[45] (1997) 140 IR 1.
[46] Ibid 11.
[47] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
[48] [2015] FWC 8885, [29].
[49] PR763164.
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