Harrison Edwards v Sheroz Hire Pty Ltd

[2021] FWC 4922

[2021] FWC 4922

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 – Unfair dismissal

Harrison Edwards
v
Sheroz Hire Pty Ltd
(U2021/5937)

DEPUTY PRESIDENT LAKE BRISBANE, 10 AUGUST 2021

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.

[1] Harrison Edwards (theApplicant) lodged an application with the Fair Work Commission (theCommission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Sheroz Hire Pty Ltd (theRespondent).

[2] The question before was whether an extension of time was required and, if so, whether such an extension should be granted. A hearing was held before me via Microsoft Teams on 10 August 2021, at which the Applicant appeared on his own behalf and Mr Mitchel Sheridan appeared on behalf of his company (the Respondent).

Date of dismissal

[3] It is uncontentious that the Applicant’s employment was terminated on 23 May 2021, effective immediately, when the Respondent sent the Applicant the following email:

“Hi Harry,

I would hope that you agree that we both need to move on and as you gave your four weeks notice four weeks ago, I am happy for you to finish at Sheroz Earthworks, effective immediately.

Super will be paid out tomorrow, along with your final pay on Thursday with annual leave included.

If your happy to do this then I’ll continue with the pay out.

I would also require all sheroz property back tomorrow afternoon by close of business you can either drop this off to workshop at your own accord or I can have someone collect.

Hope your future endeavours are fruitful and good luck to you.

Regards

Mitchel
Sheroz”

[4] However, the events leading up to the dismissal – particularly in respect of whether four weeks’ notice had been provided – were contested. While not determinative on my decision, given the parties agree on the termination date, it is worth setting out the evidence provided regarding the events leading up to the termination.

Applicant’s submissions

[5] The Applicant states that he did not resign in early April or give four weeks’ notice. His evidence was that, on or around 7 April 2021, he advised the Respondent that he wished to leave his employment or move to a more casual or part time arrangement. The Respondent told him to put his resignation in if he wanted to leave. The Applicant said no and did not do so. He was concerned that if he resigned he would not have access to the Centrelink payment.

[6] On or around Tuesday 18 May 2021, the Applicant indicated that he did not want to resign but did want to go casual and part-time so that he could work more on his own business. The Respondent asked the Applicant to stay on, which he did. The Applicant understood that this meant he would stay on his in normal role, with no changes to his hours or pay. In other words, the things would continue with business as usual.

[7] Between 18 May 2021 and 23 May 2021, there was no additional communication about whether or when the Applicant’s employment would be terminated.

[8] On 23 May 2021, the Applicant received the email above from Mr Sheridan and understood that his employment had been terminated by the Respondent. The Applicant understood that the Respondent would pay out his entitlements. He was paid his finally weekly wage on 28 May 2021. He then received his annual leave paid out in multiple instalments and his superannuation was also paid out.

[9] The Applicant says that on 21 June 2021, he sent a follow up email asking for confirmation of final payment and request termination pay or payment in lieu of notice. The Respondent said there would be no payment in lieu as the Applicant had resigned. At that time, the Applicant stated he never provided a letter of resignation but had indicated seven weeks earlier that he wanted to leave due to the abusive environment. The last time they spoke about it was on 18 May 2021 when the Applicant offered to change to a part-time or casual contract so he could have more freedom. At that time, he was asked to stay on. He agreed to do so until the company was sold.

[10] The Applicant assisted the Respondent with one piece of work in early June 2021 but was not paid a wage for this service.

Respondent’s submissions

[11] In early April 2021, the Respondent says the Applicant indicated that he wished to leave his employment but it was agreed that he would stay on for a while to help with a few things.

[12] The Respondent referred to an email received from the Applicant on 7 April 2021, which stated:

“Applicant: Alright wanna have a chat about me leaving? I can text or email through my options for you. Or a call. I’m happy to go with the option that doesn’t affect you or your business in a way so that I can get out easily and get centre link. And if we take that option I’ll agree to my annual and super being being paid out over time cause otherwise you’ll have to pay out rougky [sic] 25k within the 7 days of me leaving formally.

“Respondent: The choice is yours I’m just over the cocky shit man in all honestly I’m probably going to sell the company so hang in there for now I guess … Just want ya to change the attitude towards me don’t stir me up as you know what I’m like… Just wanted a straight answer the other day man

“Applicant: Yeh Nah pretty keen to bail out and start my own stuff. Probs won’t stick around to watch her get sold…

[13] The Respondent understood that following this conversation, the Applicant would work a month and then from week to week as needed.

[14] Mr Sheridan and the Applicant had a falling out in the week before the termination email.

[15] On 23 May 2021, the Respondent communicated that the Applicant’s employment would be terminated and would accept the resignation of April 2021. The Applicant did not reply to that email at that time, so the Respondent assumed that he had accepted the contents of the email. The Applicant never offered or communicated that he wanted to work out his four weeks’ notice. Had he done so, the Respondent would have required that he worked the four weeks’ notice.

[16] The Respondent submits that if the Applicant had been had terminated on 23 May 2021 and then provided four weeks’ notice, he would not have paid the Applicant’s annual leave until after that four weeks had expired. The fact that the annual leave was paid out instalments prior to that date, the Respondent submits, is evidence that the Applicant’s employment was terminated as of 23 May 2021.

[17] The Respondent agrees that the Applicant assisted with one piece of work in early June 2020. However, the Respondent understood that they engaged the Applicant as a contractor as part of the Applicant’s fledgling marketing business.

Consideration

[18] While I accept that the dismissal process was convoluted and contested, both parties ultimately agree that the Applicant’s employment was terminated on 23 May 2021.

[19] I am therefore satisfied that the Applicant’s employment was terminated on 23 May 2021.

Was the application lodged within time?

[20] Section 394(2) of the Act requires that an application for unfair dismissal remedy be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3) of the Act.

[21] The Applicant lodged his application on 7 July 2021. He accepts that his application was made some 44 days after his termination and therefore outside of the 21 days required under s.394(2) of the Act.

[22] The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made.

Should a further period should be granted?

[23] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:

“(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 like position.”

[24] The test of ‘exceptional circumstances’ establishes a high barrier for an applicant. 1 In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),2 the Full Bench of Fair Work Australiastated that:

“[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.”

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

[26] For the Applicant’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the matters in s. 394(3) of the Act.

[27] Given that both parties were unrepresented at the hearing, I specifically asked each party to address each of the factors set out in s.394(3) of the Act.

[28] The Applicant’s submissions may be summarised as follows:

(a) On 23 May 2021, when the Applicant received the termination email, he was unhappy and did not want to think too much about it;

(b) The Applicant received his annual leave paid out in three instalments (4, 5 and 16 June 2021), the last of which was on 16 June 2021. He did not want to challenge anything while he was still receiving payments for fear of jeopardising those payments;

(c) The Applicant says that on 21 June 2021, he sent a follow up email asking for confirmation of final payment and request termination pay or payment in lieu of notice;

(d) On 2 July 2021, the Applicant communicated again with the Respondent about the further payment. On 3 July 2021, the Respondent responded stating that all payments had been made and there would be no further payments;

(e) The Applicant waited from 3 July 2021 to 7 July 2021 to see if any further payment would be made. No payment having been received, he lodged the application on 7 July 2021;

(f) The Applicant did not dispute the dismissal because he no longer wanted to work with the Respondent;

(g) In respect of the unfairness of the termination, the Applicant says that had he been paid or able to work the notice period, he would have been better placed to find a job rather than be sent into lockdown without employment or prospects of employment;

(h) There were no people in a like position; and

(i) The application would have been produced within the seven days of termination if he had have received full termination pay in one go, however he was led to believe there would be another payment the next week.

[29] The Respondent claims that there are no exceptional circumstances in this case. In short, the Respondent’s submissions were that:

(a) The Applicant has not provided sufficient evidence of exceptional circumstances; and

(b) The Applicant and Mr Sheridan did not have a good working relationship and in around early April 2021 it was agreed they would part ways. Any subsequent discussion was simply a discussion about how best to do this.

Consideration

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

[30] 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 3 or a reasonable explanation.4 In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd,5 the Full Bench noted at [39]:

“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.”

[31] 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. 6

[32] While I accept the Applicant thought he was taking a pragmatic approach in waiting until he had been paid out his annual leave and superannuation before requesting any further payment contesting the termination of his employment, based on the material and submissions before me, I do not find that any of the reasons put forward by the Applicant qualify as “exceptional”.

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

[33] The Applicant became aware of his dismissal on 23 May 2021. This consideration therefore does not weigh in favour of an extension of time.

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

[34] The Applicant did not immediately dispute his dismissal generally with the Respondent. He no longer wanted to work in that environment. The Applicant did not reply to the Respondent’s email terminating his employment until he queried the payment on 21 June 2021, nearly a month after being notified of the dismissal. This factor therefore does not weigh in favour of an extension of time.

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

[35] The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time. 7 I consider this factor to be neutral.

Merits of the Application (s.394(3)(e))

[36] In Kornicki v Telstra-Network Technology Group, 8 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.”

[37] However, when considering the merits of a case, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called at an extension of time hearing and as a result of this the Commission ‘should not embark on a detailed consideration of the substantive case.’ 9

[38] 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 Applicant and other persons in a like position (s.394(3)(f))

[39] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. 10

[40] 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

[41] Having regard to all of the matters that I am required to take into account under s.394(3) of the Act, I am not satisfied that exceptional circumstances exist in this matter.

[42] I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR732699>

 1   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].

 2   [2019] FWC 25.

 3   Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 at [9].

 4   Roberts v Greystances Disability Services; Community Living [2018] FWC 64 at [16].

 5   [2018] FWCFB 901.

 6   Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.

 7   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.

 8   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 9   Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14].

 10   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].