Glenn Kennedy v LCL Plumbing & Drainage Pty Ltd

[2019] FWC 3433

[2019] FWC 3433

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glenn Kennedy
v
LCL Plumbing & Drainage Pty Ltd
(U2019/2858)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 17 JUNE 2019

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

[1] On 14 March 2019, Mr Glenn Kennedy made an application for an unfair dismissal remedy pursuant to s.394 of Fair Work Act 2009 (Cth) (the Act). Mr Kennedy was employed by LCL Plumbing & Drainage Pty Ltd (the respondent) as a Plumbers Labourer. 1

[2] On 2 April 2019, the respondent filed an employer response in which it objected to the application on jurisdictional grounds. It contends that the application was not made within 21 days after the dismissal took effect as required by s.394(2)(a) of the Act. Alternatively, it contends that the dismissal was consistent with the Small Business Fair Dismissal Code. 2

[3] This decision concerns the respondent’s jurisdictional objection that Mr Kennedy’s application is out of time.

[4] A determinative conference was held before me on 17 May 2019. Mr Kennedy was self-represented and gave evidence on his own behalf. Ms Lauren Cooper, the respondent’s Human Resources/Marketing Manager, appeared for the respondent and gave evidence on its behalf, as did Mr Luke Lane and Mr Liam Farrell.

Date of dismissal

[5] There is a dispute between the parties as to Mr Kennedy’s effective date of dismissal. The respondent submits that Mr Kennedy’s effective date of dismissal was 20 December 2018 making his application more than 60 days out of time. 3

[6] Mr Lane, the Managing Director, said that he handed Mr Kennedy a termination letter on 5 December 2018. 4 This letter stated that termination will be in effect ‘as of’ 20 December 2018, meaning effective on 20 December 2018. Mr Kennedy denied receiving this letter while giving sworn evidence before me.5 I had the opportunity of observing both Mr Kennedy and Mr Lane giving evidence, and I prefer the evidence of Mr Lane. Mr Lane’s version of events is also supported by other evidence. 

[7]  Firstly, Mr Kennedy claims in his written submissions that ‘there was ambiguity created by the Respondent as to the status of [Mr Kennedy] in his employment.’ 6 I do not accept his evidence on this given the contradictions, but even if this is the case, he clearly knew where he stood by 14 January 2019 on his own documents. Secondly, no reason was given as to why Mr Lane would draft a termination letter on 5 December 2018 and then not give it to Mr Kennedy. This would appear to be odd behaviour. Thirdly, Mr Kennedy was given a further termination letter dated 14 January 2019 confirming his termination as of 20 December 2018,7 and Mr Kennedy agreed that he received this letter.8 This letter is consistent with Mr Lane’s version of events because it shows that the respondent continued to act on that basis. Fourthly, a text of 14 January 2019 sent by Mr Kennedy indicates that he knew at least then that he had been terminated.9 The text stated ‘I basically should be given [an] employment separation certificate form and it should be [dated] the 24/12/18’.10 Mr Kennedy agreed that this was his text.11 Finally, an employment separation certificate for Mr Kennedy dated 6 March 2019 states 21 December 2018 as ‘date employment ceased’.12 Mr Kennedy agreed that he had filled out the form.13 He further conceded while giving evidence that his termination date was 21 December 2018.14 On the submissions and evidence before me, I find that Mr Kennedy’s effective date of dismissal was 20 December 2018 or in the alternative, 21 December 2018 as conceded by Mr Kennedy. Mr Kennedy’s application was not filed until 14 March 2019 making it out of time.

[8] Mr Kennedy therefore seeks an extension of time to make his application pursuant to s.394(2) of the Act.

Legislation

[9] Section 394 of the Act provides:

‘394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.’

[10] The Fair Work Commission has to be satisfied that there are exceptional circumstances to allow an extension of time. The meaning of the expression ‘exceptional circumstances’ was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd. 15

[11] In Nulty, the Full Bench said:

‘[13] 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.’

[12] Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning is also applicable to s.394(3).

[13] I will now deal with each of the matters in s.394(3) in turn.

Reason for delay - s.394(3)(a)

[14] Mr Kennedy submits that the reason for the delay was ‘ambiguity created by the Respondent as to the status of [Mr Kennedy] in his employment.’ 16 I had the opportunity of observing the witnesses giving evidence and I do not accept Mr Kennedy’s evidence, and prefer that of the respondent. In any event, there was no ambiguity from at least 14 January 2019 when Mr Kennedy sent a text stating that he had been terminated as of 24 December 2018. Mr Kennedy could have filed an unfair dismissal application then, but he did not. He waited until March 2019 to file an application. There was no reason for the delay after 14 January 2019, even on Mr Kennedy’s own version of events. Mr Kennedy knew that he had been terminated on 21 December 2018 as acknowledged in his employment separation certificate and in evidence, or alternatively on 24 December 2018 in his text. In relation to the period before 14 January 2019, I am satisfied for reasons already stated that Mr Kennedy received the 5 December 2018 termination letter, and it is clear on its face. I am not satisfied that there was any ambiguity created by the respondent as to the status of Mr Kennedy’s employment. In my view, there was no satisfactory reason for the delay in filing an application.

Whether the person first became aware of the dismissal after it had taken effect - s.394(3)(b)

[15] Mr Kennedy was aware on 5 December 2018 when Mr Lane handed him the termination letter that he had been terminated and his termination would take effect as of 20 December 2018. The letter is clear in its terms. Mr Kennedy was not in a state of confusion. Even if he was, that was cleared up by 14 January 2019 for the reasons already given.

[16] I do not accept that there was any ambiguity as to Mr Kennedy’s effective date of dismissal. I accept Mr Lane’s evidence that Ms Cooper was to engage Mr Kennedy as required, 17 and Ms Cooper’s evidence to that effect.18 I do not accept that anything more than that was provided to Mr Kennedy, and this is supported by the documentation referred to above. It is true that Mr Kennedy returned to work on 14 January 2019,19 but I do not accept Mr Kennedy’s evidence that he continuously worked after that date. Rather the payslips suggest that he only worked intermittently.20

Action taken to dispute the dismissal - s.394(3)(c)

[17] Mr Kennedy did not dispute the dismissal until he lodged his unfair dismissal application. 21

Prejudice to the employer - s.394(3)(d)

[18] The respondent agreed in evidence that there was no prejudice as the delay was short. 22

Merits - s.394(3)(e)

[19] This is a neutral consideration, given the need for evidence to be heard. 23 This was not in dispute.

Fairness as between persons - s.394(3)(f)

[20] It is agreed that this is a neutral consideration.

Conclusion

[21] I have had regard to all the submissions and evidence before me and taking into account my findings above, I am not satisfied that there are exceptional circumstances warranting an extension of time. An order dismissing the application is contained in PR708434.

DEPUTY PRESIDENT

Appearances:

G Kennedy on his own behalf.

L Cooper for the respondent.

Hearing details:

2019.

Melbourne:

May 17.

Printed by authority of the Commonwealth Government Printer

<PR708432>

 1   Exhibit L1, Attachment LL1.

 2   Respondent’s outline of argument: objections, 13 May 2019, 1.

 3   Ibid, 2.

 4   Exhibit L1, Attachment LL3

 5   Transcript PN290-297.

 6 Applicant’s Outline of Submissions, 3 May 2019, 5 [19].

 7   Exhibit L2, Attachment LF2.

 8   Applicant’s Outline of Submissions, 3 May 2019, 2 [4] and Transcript PN473-480.

 9   Exhibit L2, Attachment LF1.

 10   Ibid.

 11   Transcript PN501-502.

 12   Exhibit L3, Attachment LC5.

 13   Transcript PN499-500.

 14   Transcript PN288-289.

 15   [2011] FWAFB 975.

 16 Applicant’s Outline of Submissions, 3 May 2019, 5 [19].

 17   Exhibit L1, 2 [13]-[14].

 18   Exhibit L3, 1 [7]-[8].

 19   Exhibit L2, 2 [10] and Transcript PN323.

 20   Exhibit L3, Attachment LC6.

 21   Transcript PN386-387.

 22   Transcript PN487-492.

 23   See Kyvelos v Champion Socks Pty Limited, Print T2421.