Glen Exelby v Brogen Investments Pty Ltd
[2022] FWC 3083
•2 DECEMBER 2022
| [2022] FWC 3083 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Glen Exelby
v
Brogen Investments Pty Ltd
(U2022/10281)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 2 DECEMBER 2022 |
Application for an unfair dismissal remedy
The issue and outcome
Mr Exelby (the Applicant) applied for an unfair dismissal remedy having been dismissed from Brogen Investments Pty Ltd (the Respondent). He lodged his unfair dismissal application with the Commission on 23 October 2022, arguably outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). The Respondent objected to the application on the basis that the application was filed outside of time. This decision deals with that objection.
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.
In this case, there is disagreement between the parties about the date on which the Applicant’s dismissal took effect. The Applicant considers his dismissal took effect on 1 October 2022 and as such he was due to file his application by Saturday, 22 October 2022. However, if the final day of the 21-day period falls on a weekend or a public holiday (when the Commission is closed), the timeframe will be extended until the next business day.
The Respondent contends that the Applicant was notified of his dismissal on 30 September 2022 and that his dismissal took effect on 30 September 2022. The Respondent therefore considers that the Applicant was due to file his application by Friday, 21 October 2022. Having lodged his application on 23 October 2022, the Respondent considers that the Applicant’s application was lodged one day late.
The contentious issues can be summarised as follows:
a) what was the date that the Applicant’s dismissal took effect;
b) did the Applicant make his unfair dismissal application outside of the statutory timeframe provided in s 394(2) of the Act;
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
d) is it fair and equitable for an extension to be granted.
In the lead up to the hearing, directions were issued on 17 November 2022 and the Applicant was due to file his materials in support of his extension of time request, on 24 November 2022. Instead of filing those materials, on 24 November 2022, the Applicant filed a list of the materials that he intended to file. Chambers emailed the Applicant in the afternoon of 24 November 2022, reiterating that the Applicant was required to file the materials upon which he wished to rely, not a list of them. The Applicant did not file is materials in the requisite timeframe.
On 25 November 2022, Chambers issued further directions such that the Applicant was to write to Chambers and explain his non-compliance with the directions and seek an extension of time in which to file his materials. The Applicant responded to the directions of 25 November 2022 in a timely manner, noting that he had experienced technical issues with links provided in the directions and would seek to file his materials over the course of the weekend. Whilst the Respondent objected to this course, I nevertheless extended the period in which the Applicant could file his materials observing that neither party would suffer prejudice in doing so. Furthermore, pursuant to s 586 of the Act, I permitted an amendment to the name of the Respondent, from Brogaen Investments to Brogen Investments Pty Ltd – as identified on the Form F3.
The Applicant filed his materials on 27 and 28 November 2022. However, whilst those materials dealt with the substantive issues in the application, they did not traverse the issue of the dismissal date or a request for an extension of time in which to file the materials. However, such matters were traversed at hearing, with both Applicant and Respondent having been afforded the opportunity to provide viva voce evidence. In addition, the Applicant had included in his Form F2 reasons that he attributed to the delay in filing his application.
In short, the Applicant’s dismissal took effect on 30 September 2022 and his unfair dismissal application was therefore filed late. Regarding whether the circumstances are exceptional such that an extension of time is warranted, they are not, and considering all the evidence, I do not consider it fair and equitable for an extension to be granted. Accordingly, the application for an extension of time is refused, the jurisdictional objection is upheld, and the substantive application for an unfair dismissal remedy is dismissed. My reasons follow.
Background
The Applicant states that he was notified of his dismissal on 30 September 2022 and that his dismissal came into effect on 1 October 2022.[1]
The Respondent states that the Applicant was advised of his dismissal by email on 30 September 2022.
At the hearing, Mr Simon Jacob, Chief Executive Officer of the Respondent, gave evidence that he stood down the Applicant to investigate the alleged misconduct. He provided the Applicant with the allegations, conducted an investigation into the Applicant’s alleged misconduct and as part of that investigation met with the Applicant via video conference to allow the Applicant to respond to allegations and to his potential dismissal. The Applicant was accompanied by a support person. Having conducted an investigation, which involved talking to several people, he formed the view that the Applicant had failed to comply with lawful and reasonable directions. Mr Jacob notified the Applicant of his dismissal via email sent to the Applicant’s work email address.
The Applicant acknowledged that he had received Mr Jacob’s email on 30 September 2022, at which time he read that he was dismissed from his employment.
Date of dismissal
It is well-established that a termination of employment takes effect when it has been communicated to the employee. The Respondent argues that this date was 30 September 2022. For his part, the Applicant stated that his dismissal came into effect on 1 October 2022.
In Ayub v NSW Trains (Ayub),[2] the Full Bench considered that a dismissal without notice is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Part 3-2 of the Act until the employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[3] The Full Bench explained at paragraph [42] of Ayub:
[42] We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document…
The issue before me now is whether the Applicant had a reasonable opportunity to find out he had been dismissed on 30 September 2022. For the reasons that follow, I am satisfied that he did.
It is accepted that in a situation where an employee is informed by email that she or he has been dismissed, the employee can usually be regarded as knowing, or having had a reasonable opportunity to know, of the dismissal when the email is received in the inbox of the employee’s usual email address.[4]
The Applicant acknowledged that he had received Mr Jacob’s email on 30 September 2022 and read it on that same date. It follows that the date when the dismissal took effect was that same date – 30 September 2022. Therefore, the Applicant’s unfair dismissal application was made one day late.
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.[5] 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.[6]
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.[7] 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.[8]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[9] 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.[10]
In the decision of Nulty, the Full Bench considered the statutory time limit in the context of the discretion to extend time for making such applications on the existence of ‘exceptional circumstances’. The Full Bench said that:
In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.[11]
It is accepted that ignorance of an available remedy and associated time limits does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[12]
In respect of the delay, the Applicant explained that he was unsure if it was 21 working days or 21 calendar days from the date of dismissal in which to submit the Form F2. However, the Form F2 that the Applicant submitted to the Commission reads:
1.Lodge your application, along with any accompanying documents, with the Commission within 21 calendar days after your dismissal took effect. You can lodge your application online using the Commission’s Online Lodgement Service (OLS) or by post, fax or email, or in person at the Commission’s office in your state or territory.
It is therefore difficult to comprehend why the Applicant lacked clarity on whether the 21 days referred to calendar days rather than working days. The Form F2 is self-explanatory in this respect and in the absence of any other contributing factor on this point, I am unpersuaded by the Applicant’s reason.
The Applicant further explained that he experienced difficulty in accessing the website, he was moving house, and he did not have internet access as he had been working at sites with unreliable internet access. The Applicant continued that he was unable to access and complete the forms on his phone or tablet due to connectivity issues.
In relation to the technical difficulties asserted by the Applicant, the Applicant has not provided any evidence of the nature of those difficulties beyond the bare assertions made. Without any evidence in support of his submissions, I cannot accept those bare assertions. As it is, if the Applicant was aware of internet connectivity issues and that access to the Commission website would prove difficult, he should have taken steps to plan for that eventuality.[13] In such circumstances, these issues are not uncommon.
Furthermore, whilst the submission of an unfair dismissal application can be made via the internet, there are other avenues for making such an application, such as via post and telephone.
Accordingly, I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances. In arriving at my finding, I have considered the delay as the period beyond the 21-day period.
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 such dismissal on 30 September 2022. I therefore consider this to be a neutral consideration.
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 application on 23 October 2022. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
4.4 Prejudice to the employer
The Respondent submitted that it did not assert any prejudice. It is noted that a ‘lack of prejudice is a positive factor but not a major factor’ in considering exceptional circumstances.[14] 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,[15] 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.[16]
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.[17] 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
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.[18]
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 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 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.
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[19] to this effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Mr G Exelby, Applicant
Mr S Jacob, for the Respondent.
Hearing details:
2022.
Perth (by telephone):
1 December.
[1] Form F2 Unfair dismissal application, [1.4], [1.5].
[2] (2016) 262 IR 60 (‘Ayub’).
[3] Ibid 79 [48].
[4] Ibid 80 [50].
[5] (2011) 203 IR 1, 5 [13] (Nulty).
[6] Ibid 6 [13].
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (2018) 273 IR 156, 165 [39].
[8] Ibid.
[9] Long v Keolis Downer (2018) 279 IR 361, 371 [40].
[10] Shaw v Australia and New Zealand Banking Group Limited (2015) 246 IR 362, 366 [12].
[11] Nulty (n 6) 6 [14].
[12] Rose v BMD Constructions Pty Ltd[2011] FWA 673, [11].
[13] Malhotra v People Living with HIV AIDS Victoria Inc[2021] FWC 1982, [24].
[14] Caire v Imscan Technologies[2013] FWC 3154, [16].
[15] (1997) 140 IR 1.
[16] Ibid 11.
[17] 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].
[18] [2015] FWC 8885, [29].
[19] PR748138.
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