George Gabrielson v Zwift International Pty Ltd
[2018] FWC 4579
•3 AUGUST 2018
| [2018] FWC 4579 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
George Gabrielson
v
Zwift International Pty Ltd
(U2018/4932)
DEPUTY PRESIDENT COLMAN | MELBOURNE, 3 AUGUST 2018 |
Application for an unfair dismissal remedy – jurisdictional objection - application filed out of time – no exceptional circumstances – application for a further period declined – small business – minimum employment period not completed – application dismissed
[1] This decision concerns an application by Mr George Gabrielson for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). Mr Gabrielson was employed by Zwift International Pty Ltd (Zwift) as a business partner manager from 26 April 2017 until his dismissal on 20 April 2018. He claims that his dismissal was unfair and seeks an order for compensation.
[2] Zwift objects to the application on jurisdictional grounds. It contends that the application was lodged out of time, and that Mr Gabrielson had not completed the minimum employment period. Alternatively, it contends that the dismissal was consistent with the Small Business Fair Dismissal Code.
[3] The company’s jurisdictional objections were listed for hearing before me on Friday, 27 July 2018. Shortly before the commencement of the hearing, Mr Gabrielson contacted the Commission and advised that he was ill. At the scheduled commencement time, I called the matter on. The company’s representatives were present in the court room. My associate contacted Mr Gabrielson by telephone. He said that he was not able to attend the Commission and sought an adjournment. This was opposed by the company. I asked Mr Gabrielson whether he felt well enough and was willing to participate in the proceeding by telephone. He said that he was. There was no objection to this course from the company. We proceeded accordingly.
Extension of time
[4] It was common ground that Mr Gabrielson was dismissed on 20 April 2018. His unfair dismissal application was lodged after midnight on 12 May 2018. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s.394(3). The period of 21 days ended at midnight on 11 May 2018. Mr Gabrielson’s application was lodged some 30 minutes late. He asks the Commission to allow a further period for the application to be made.
[5] Before I deal with the specific matters that the Act requires me to take into account, I will make some brief observations about the principles that are to be applied in considering whether I should exercise my discretion to extend time. The Act allows me to extend the period within which an unfair dismissal application must be made only if I am satisfied that there are ‘exceptional circumstances’.
[6] The test of ‘exceptional circumstances’ establishes a high hurdle for an applicant. 1 The meaning of this expression was considered by a Full Bench of what was then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty),2 where it was noted 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. The Full Bench also noted 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.3 Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning is applicable also to s.394(3).
[7] Section 394(3) requires the Commission to 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] As the parties were unrepresented, I read out these considerations during the hearing, and invited them to make any further submissions in relation to them and the question of whether there were exceptional circumstances.
[9] I will deal with the above matters in turn.
Reason for the delay
[10] 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 a credible, 4 acceptable5 or a reasonable explanation.6
[11] The reason for the delay advanced by Mr Gabrielson is as follows. He completed his unfair dismissal application at 11.45pm on 11 May 2018, but when he sought to lodge it electronically, he was prompted for credit card details in order to make payment, which he did not have available. He explains in his submissions that he was applying to have costs waived on the basis of financial hardship, and was under the impression that he could complete and lodge the application, and then make the payment at a later stage. He says that he was not aware that payment needed to be made at the time of lodgement, and that by the time he had completed the application and waiver forms, it was 12.20am. The Commission’s records show that the application was received at 12.33am.
[12] I do not consider this to be a credible, acceptable or reasonable explanation for Mr Gabrielson’s delay in lodging the application. In Nulty, the Full Bench noted that ignorance of the statutory time limit is not itself an exceptional circumstance. I do not see why ignorance of the payment and lodgement requirements should be considered exceptional. I note that the Commission’s website makes available material on how to lodge unfair dismissal applications online. It explains that if a person considers that paying the application fee would cause financial hardship, and wishes to seek a waiver, the relevant form should be completed and submitted together with the application. In any event, Mr Gabrielson was evidently not ignorant of the procedures. He succeeded in submitting his documents. He simply left it to the last minute.
[13] The lack of a credible, acceptable or reasonable explanation for the delay in Mr Gabrielson lodging his unfair dismissal application weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[14] Mr Gabrielson’s application states that he was notified of his dismissal on the same day that it took effect. The company agrees. As a consequence, Mr Gabrielson had the full period of 21 days to lodge an unfair dismissal application. This is not a case where the person became aware of the dismissal after the date on which it took effect, and therefore did not have the full benefit of the 21 day period for lodging an unfair dismissal claim. This consideration therefore does not weigh in favour of an extension of time.
Action taken to dispute the dismissal
[15] In his submissions, Mr Gabrielson does not point to any particular actions he took to dispute the dismissal. This consideration therefore does not weigh in favour of an extension of time.
Prejudice to the employer
[16] I cannot identify any particular prejudice that would accrue to the company if an extension of time were to be granted. However, the mere absence of prejudice is not itself a factor that would warrant or point in favour of the grant of extension of time. I consider this to be a neutral factor in the present case.
Merits of the application
[17] The Act requires me to take into account the merits of the application in considering whether to allow a further period. For this purpose, I put to one side the jurisdictional objections raised by the employer, and note the following. An application to extend time is essentially an interlocutory matter that does not allow for a substantive testing of the relevant merits. There is insufficient material before me to make any detailed assessment of the merits.
[18] The reasons cited by the company for dismissing Mr Gabrielson were repeated lateness for work and unsatisfactory performance. The company submits that it implemented a performance improvement plan to assist Mr Gabrielson to achieve the required standard. Despite this, it says, he did not show any improvement: he continued to be late for work, did not keep records on sales communications with clients, and did not submit weekly sales reports on time. He was issued with a written warning. A week later he was over an hour late for work without informing management. Mr Gabrielson was asked to explain himself. The company was not satisfied with the explanation, and terminated Mr Gabrielson’s employment.
[19] Mr Gabrielson says that he was a good performer with high sales figures. He says he was allowed to ‘run his own race’ and to ‘do as he pleased’, without having to notify management of his whereabouts. 7 He contended that most employees of the company are late for work, and that this is accepted. He maintains that he was a good employee and was always on call for the company’s clients. He does not accept the company’s criticisms of his performance or conduct.
[20] These matters, and the merits more generally, would need to be tested, including under cross-examination, if an extension of time were granted (and no other jurisdictional impediment to the claim existed), and the matter were to proceed. Much would depend on findings of fact. Given the interlocutory nature of an application to extend time, and mindful that the material has not been fully explored or tested, I do not consider the merits of the case to tell for or against an extension of time.
[21] In the circumstances I consider the merits of the case to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[22] Applications to extend time generally turn on their own facts. The parties did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between Mr Gabrielson and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion in relation to extension of time
[23] The time limit that applies to the exercise of a person’s right to bring an unfair dismissal application reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there will be some cases where a late application should be accepted, namely where there are exceptional circumstances.
[24] Having regard to all of the matters that I am required to take into account under s.394(3), I am not satisfied that exceptional circumstances exist. There is no credible, acceptable or reasonable explanation for the delay in filing the application. None of the other factors weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.
[25] I decline to grant an extension of time under s.394(3). Accordingly, Mr Gabrielson’s application for an unfair dismissal remedy must be dismissed. However, although it is not necessary to do so, I will also determine the company’s second jurisdictional objection, namely that Mr Gabrielson has not completed the minimum employment period.
Minimum employment period
[26] The Commission can only order an unfair dismissal remedy if a person was ‘protected from unfair dismissal’. 8 This in turn requires that the person has completed a period of employment that is at least the minimum period of employment.9 If the relevant employer is a small business employer, that period is one year; otherwise, it is six months.10
[27] Mr Gabrielson was employed for a continuous period from 26 April 2017 to 20 April 2018, six days short of one year. If Zwift is a small business employer for the purposes of the Act, Mr Gabrielson has not completed the minimum employment period.
[28] Section 23 defines a small business employer as one that employs ‘fewer than 15 employees’ at the relevant time. The person who has been dismissed and is seeking to bring an unfair dismissal application is included in the count, as are casual employees employed on a regular and systematic basis, and employees of any associated entities.
[29] The company submitted a list of the persons it employed at the time of Mr Gabrielson’s dismissal. It shows 14 names, including Mr Gabrielson. Three of the 14 employees are identified as casual employees. Mr Chandler, who gave evidence for the company, explained that these three casual employees are employed on a regular and systematic basis. The company says that the 14 employees listed are the only employees of the company and any associated entity.
[30] Mr Gabrielson submitted a list of persons he says are employed by the company. His list contains 15 names, being the same 14 names on the company’s list, but showing also a Sharon Chandler, who he says works in accounts. Mr Chandler gave evidence that this person is his mother, and that she is not an employee of the company.
[31] At the hearing, Mr Gabrielson suggested that Mr Chandler was an employee of the company, because he is a director of the company. It is a common misconception that a corporate office-holder is necessarily also an employee. That is not the case. Mr Chandler gave evidence that he is not an employee. I accept this evidence.
[32] Mr Gabrielson also stated at the hearing that he thought Mr Chandler’s sister was an employee. The company’s written outline of argument identifies Mr Chandler’s sister as a casual employee who is not employed on a regular or systematic basis, and hence excluded from the count, as she attends work only occasionally to help out. At the hearing, Mr Chandler gave evidence that his sister is in fact not an employee at all, but a family member who does odd jobs and is paid for this. She has no roster and is never required to come to work. I accept Mr Chandler’s evidence, which was clear and convincing. The facts do not establish any employment relationship between the company and Mr Chandler’s sister. It is not uncommon for family members to help out in the running of a small business without being employees. I find that Mr Chandler’s sister is not an employee. In any event, even if she were a casual employee, it is quite clear that her working arrangements are not regular and systematic, and that she would therefore not be a relevant employee for the purposes of s.23 of the Act.
[33] Accordingly, I find that Zwift is a small business employer and that Mr Gabrielson has not completed the required one year minimum employment period. For this reason too his application must be dismissed.
Conclusion
[34] Mr Gabrielson’s unfair dismissal application is dismissed for want of jurisdiction.
DEPUTY PRESIDENT
Appearances:
B. Chandler for Zwift International Pty Ltd
G. Gabrielson for himself
Hearing details:
2018
Melbourne
27 July
Printed by authority of the Commonwealth Government Printer
<PR609692>
1 Stogiannidis v Victorian Frozen Foods DistributorsPty Ltd[2018] FWCFB 901 at [14]
2 [2011] FWAFB 975
3 At [13]
4 Stogiannidis, op. cit., for example at [39]
5 Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, per Gostencnik DP at [9]
6 Roberts v Greystanes Disability Services; Community Living [2018] FWC 64, per Hatcher VP, at [16]
7 Mr Gabrielson’s F2 application, section 3.2(2)
8 Section 390
9 Section 382(a)
10 Section 383
0
3
0