Heath Andrew Middleton v Veida Pty Ltd
[2022] FWC 3120
•1 December 2022
| [2022] FWC 3120 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Heath Andrew Middleton
v
Veida Pty Ltd
(U2022/10324)
| DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 1 December 2022 |
Application for an unfair dismissal remedy – application made outside 21-day timeframe – circumstances not exceptional.
Mr Heath Andrew Middleton made an application for an unfair dismissal remedy under s 394(1) of the Fair Work Act 2009 (Cth) (Act) on 25 October 2022. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s 394(3). The respondent, Veida Pty Ltd, raised several objections to the application, including that the application was made outside the statutory timeframe. The respondent opposes the grant of an extension of time and contends that Mr Middleton has not demonstrated exceptional circumstances in support of his application.
For the reasons that follow, I am not satisfied that there are exceptional circumstances. The respondent’s jurisdictional objection is upheld and Mr Middleton’s application for an unfair dismissal remedy is dismissed.
Background
Mr Middleton commenced employment with the respondent on or around 6 October 2021 and held the position of Business Development and Sales Manager.[1]
On 30 September 2022, Mr Middleton was dismissed because his position was made redundant.[2] The redundancy followed a review of the respondent’s operational requirements which identified that the role of Business Development and Sales Manager was surplus to requirements, notwithstanding that Mr Middleton was competent in fulfilling the requirements of the position.
Mr Middleton was paid one week in lieu of notice. Mr Middleton contends that he was entitled to four weeks’ notice in accordance with his contract of employment.[3] This dispute underpins the application to the Commission.
Extension of time
Mr Middleton’s employment with the respondent ended on 30 September 2022. It follows that the 21-day statutory timeframe for filing an application for an unfair dismissal remedy expired on 21 October 2022. Mr Middleton’s application was received by the Commission on 25 October 2022 and was therefore made on the fourth day after the 21-day statutory timeframe had lapsed.
The Commission has the power pursuant to s 394(3) of the Act 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 by the Full Bench in Nulty v Blue Star Group Pty Ltd.[4] 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. 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.
Under s 394(3) of the Act, the matters the Commission must take into account in order to determine whether exceptional circumstances exist are as follows:
(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.
These matters are considered in the analysis which follows.
Consideration
Reason for the delay: s 394(3)(a)
The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or reasonable explanation. 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.[5]
The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application, being the four days commencing 22 October to 25 October 2022.[6] However, the circumstances from the time of the dismissal must be considered in order to determine the reason for the delay beyond the 21-day period.[7]
At the hearing, Mr Middleton explained that following his dismissal on 30 September 2022, he went home in shock. He said that he had not previously been made redundant and did not know what to do. He made telephone calls to “Fair Work and WorkSafe” and was told he would receive an email with further information regarding redundancy and his rights.[8] Mr Middleton gave evidence that he never received this correspondence.
It appears that Mr Middleton’s primary focus was on securing from the respondent the balance of his four-week contractual notice period,[9] of which he submits he is owed three weeks. Mr Middleton sent an email to the respondent’s Chief Executive Officer, Mr Haim Ptasznik, to this effect on 7 October 2022.[10] Mr Middleton gave evidence that his claim for unpaid notice “consumed” the majority of the 21 days statutory timeframe, and “distracted him from going any further.”
Between 12 October and 21 October 2022, Mr Middleton travelled overseas to Manila.[11] At the hearing, Mr Middleton explained that the basis for this travel was “to see a friend and a person regarding potentially getting work.” It appears that Mr Middleton, on the advice of the respondent, sought employment with an overseas company with whom the respondent had a business relationship. Mr Middleton said that he also met with clients of the respondent and the overseas company.
Mr Middleton said that his overseas trip distracted him from making an application for an unfair dismissal remedy, and he had not received any assistance in making such an application at this point. Mr Middleton contacted a former colleague of the respondent to seek advice on how to contest the redundancy.[12] The former colleague advised Mr Middleton what he had to do to make an application.
Mr Middleton returned to Australia from his overseas travel on 21 October 2022,[13] being the final day of the 21-day statutory timeframe for lodging an unfair dismissal application in the Commission. Mr Middleton filed his unfair dismissal application on 25 October 2022. In respect of the period between 22 October and 25 October 2022, which represents the entire period of the delay, Mr Middleton explained that his return to Australia on a Friday was immediately succeeded by a weekend, and this provides some explanation for the delay.
In addition, Mr Middleton relies upon the state of his mental health for the delay. Mr Middleton said that the stress occasioned by not holding secure employment meant that he was not thinking clearly.[14] At the hearing, Mr Middleton elaborated on this submission, stating that he was not in a “proper state of mind” during the period of the delay and did not consider that he was in a “capable state of mind to make any real decisions.” Mr Middleton referred to undocumented appointments with his doctor in relation to “mental stress and health.” Mr Middleton also expressed a need for assistance in making the application, which he did not receive.
For the reasons that follow, I am not satisfied that Mr Middleton has provided an acceptable reason for the delay in lodging his application for an unfair dismissal remedy.
While I accept Mr Middleton’s submission that being made redundant was a shock, feelings of shock arising from a dismissal is not, of itself, regarded as giving rise to an acceptable reason for the delay.[15] Further, Mr Middleton has produced no medical evidence in support of his contention that he was not capable, given his “state of mind” and his “mental stress and health” to lodge the application at any stage prior to 25 October 2022. In the absence of medical evidence which provides some insight into the extent to which Mr Middleton was incapacitated during the period of the delay,[16] I do not accept the contention that the delay was occasioned by Mr Middleton’s shock or mental health. Nor does the material before the Commission support such a conclusion. The evidence discloses that in the period following the dismissal, Mr Middleton was capable of travelling overseas to Manila for the purposes of exploring new employment opportunities. In addition, Mr Middleton was able to make reasonable enquiries with the respondent in respect of his contractual claim for notice. While the taking of such steps by Mr Middleton is commendable, they are at odds with a conclusion that Mr Middleton’s state of mind provides an acceptable reason for the delay.
As earlier stated, it appears that Mr Middleton’s primary focus following his dismissal was on securing from the respondent the balance of his four-week contractual notice period. However, there is no evidence of Mr Middleton taking any steps in respect of this matter in the period of the delay between 22 October and 25 October 2022 so as to provide an explanation for the delay beyond the 21-day statutory timeframe. Nor is there any evidence of the respondent making representations to Mr Middleton that it would remedy any contractual breach or otherwise taking steps that may have influenced Mr Middleton to delay filing his unfair dismissal application. Conversely, the evidence is that the respondent remains firmly of the view that it correctly paid Mr Middleton his outstanding entitlements upon termination. However, even if Mr Middleton had taken such steps during the period of the delay, I do not accept that Mr Middleton’s attempts to resolve the contractual claim with the respondent establishes an acceptable reason for the delay.
I also reject Mr Middleton’s contention that the delay is explained by that fact that he did not have any support in making the unfair dismissal application. At the hearing, Mr Middleton submitted that he wanted to make the application “all the way through.” Furthermore, Mr Middleton referred to discussions he had with legal professionals in relation to his rights.[17] These discussions, together with Mr Middleton’s stated intention to make the application prior to the end of the 21-day timeframe, undermines his contention that the absence of support provides an explanation for the delay. In any event, the absence of assistance is not sufficient to establish an acceptable reason for the delay. The Commission’s website is a publicly available resource which provides information to unrepresented persons to assist in making such applications. Mr Middleton confirmed during the hearing that he had considered this material. I otherwise note that Mr Middleton was able to competently complete the application absent any assistance and lodge it on 25 October 2022. Accordingly, I am not satisfied that this contention provides a credible reason for the delay.
Having concluded that Mr Middleton has not provided an acceptable reason for the any part of the four-day delay, I consider that this factor weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect: s 394(3)(b)
Mr Middleton became aware of the dismissal the day it took effect on 30 September 2022.[18] It follows that Mr Middleton had the benefit of the full period of 21 days to lodge an unfair dismissal application in the Commission. This weighs against a finding of exceptional circumstances.
Action taken by the person to dispute the dismissal: s 394(3)(c)
Where an applicant takes action to dispute an alleged dismissal, it will put the employer on notice that the termination of employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time.[19]
Mr Middleton submits that he questioned his redundancy with Mr Ptasznik.[20] Mr Ptasznik gave evidence at the hearing and accepted that Mr Middleton had raised with him his discussions with legal professionals in relation to his contractual right to notice. However, Mr Ptasznik was firmly of the view that, until he read the Form F2 application, he had not understood Mr Middleton to have any issues with the fairness of his dismissal.
Consistent with this, in its written materials[21] the respondent submitted that “In none of the emails between the 30th of September and the 10th of October, did he suggest that he felt his dismissal was unfair, or that he had an intention of making an FWC claim?”[22] Mr Middleton’s responsive submission appears to accept this proposition, noting Mr Middleton’s view that, “I have no obligation to inform [the respondent] that i am going to lodge an Unfair Work Claim.”[23]
I accept that Mr Middleton raised with Mr Ptasznik that he was shocked and surprised by his dismissal. However, the respondent’s account is consistent with the material before the Commission. While the email correspondence from Mr Middleton to Mr Ptasznik discloses that Mr Middleton made a contractual claim for notice, the material does not demonstrate that Mr Middleton indicated an intention to take action to dispute the dismissal for the purposes of s 394(3)(c). I therefore find that the respondent was not on notice of the possibility of Mr Middleton making an application for an unfair dismissal remedy before it was made.
I am not satisfied that Mr Middleton took action to dispute his dismissal prior to making this application. This weighs against a finding of exceptional circumstances.
Prejudice to the employer: s 394(3)(d)
The respondent has not advanced any submissions addressing any prejudice in the relevant sense.[24]
I do not consider that any prejudice to the respondent would arise if an extension of time were to be granted. However, the mere absence of prejudice is not a factor that would tell in favour of the grant of an extension of time.[25] I therefore regard this as a neutral consideration.
Merits of the application: s 394(3)(e)
For the consideration in s 394(3)(e) to weigh in favour of a finding of exceptional circumstances, it must be shown that there is some merit in the substantive application.[26] However, this proceeding is essentially interlocutory in nature and does not enable a fulsome examination of these matters. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[27]
Mr Middleton’s contention with respect to the merits of the application are, in summary, as follows:[28]
(a) There was no internal review of his position, contrary to the respondent’s contention and the content of the termination letter.
(b) Mr Middleton had completed his six-month probation period.
(c) Mr Middleton had performed well in the position.
(d) There was workplace bullying.
(e) The respondent’s director did not want to make his role redundant.
The respondent primary contention is that Mr Middleton’s role was made redundant, and that the redundancy was genuine. It submits that its business is small and Mr Middleton’s role, which did not generate profit, could not be sustained.[29]
It is not possible to assess the relative strength of the respondent’s contention that the dismissal was a case of genuine redundancy in the absence of evidence:
(a) in respect of the respondent’s operational review, or other material which demonstrates that Mr Middleton’s role was no longer required because of changes in the operational requirements of the employer's enterprise;
(b) that the respondent complied with any obligation in a modern award that applied to Mr Middleton’s employment to consult about the redundancy; and
(c) that the respondent reasonably considered redeployment opportunities available to Mr Middleton within its enterprise or any associated entity.
Further, the respondent raises a number of additional jurisdictional objections to the application that require resolution before the substantive elements of Mr Middleton’s application can be considered. The respondent submits that Mr Middleton’s employment does not meet the minimum employment period as the respondent is a small business employer and it complied with the Small Business Fair Dismissal Code.
In the absence of a hearing of the evidence in respect of these matters, it is not possible to make any firm or detailed assessment of the merits of Mr Middleton’s application for an unfair dismissal remedy. Accordingly, I regard this factor as a neutral consideration in my overall assessment of exceptional circumstances.
Fairness as between Mr Middleton and other persons in a similar position: s 394(3)(f)
Mr Middleton contends that he was performing well at his role, and he had been assured that the respondent was financially sound.[30] However, Mr Middleton’s submissions in respect of this factor do not raise considerations relevant to the inquiry under s 394(3)(f). Nor do I consider any issues of fairness in this context arise. I therefore regard this as neutral in my consideration.
Are there exceptional circumstances?
The test of exceptional circumstances in s 394(3) of the Act is a stringent one, establishing a high hurdle for an applicant for an extension.[31] Having regard to my consideration of the statutory criteria, and the conclusions reached, none of the s 394(3) factors weigh in favour of a finding of exceptional circumstances. I am not satisfied that the matters raised amount to exceptional circumstances either when the various circumstances are considered individually or together.
Disposition
As I am not satisfied that there are exceptional circumstances in this case, there is no basis for me to allow further time for Mr Middleton’s unfair dismissal application to be made.
The respondent’s objection is upheld Mr Middleton’s application for an unfair dismissal remedy is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr H Middleton on his own behalf
Mr H Ptasznik on behalf of the respondent
Hearing details:
18 November 2022, by Microsoft Teams
[1] Court Book (CB) 22; cf CB 8 at [1.1]
[2] CB 48; CB 10 at [3.1]; CB 63
[3] CB 9 at [2.1]
[4] [2011] FWAFB 975; (2011) 203 IR 1
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[6] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]
[7] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]
[8] CB 16 at [4]
[9] CB 35; CB 41
[10] CB 80-81; cf CB 16 at [6]
[11] CB 16 at [4]; CB 78-79
[12] CB 16 at [4]
[13] Ibid
[14] Ibid
[15] See eg, Susan Rose v BMD Constructions Pty Ltd[2011] FWA 673 at [10]; Nicholas Haritsos v H & D Retail Pty Ltd T/A Toymate[2020] FWC 2850 at [13]; Mr Nicholas Wallace v DP World Brisbane Ltd[2022] FWC 239 at [11]; Susan Thinee v Multiple Sclerosis Society of Queensland [2014] FWC 2785 at [18]; Marcus Palmer v The Salvation Army [2020] FWC 834 at [16]; Winnie Wai Ling Leung v On Luck Chinese Nursing Home T/A Chinese Community Social Services Centre Inc[2015] FWC 88 at [22]
[16] Australian Postal Corporation v Lili (Karen) Zhang[2015] FWCFB 5285 at [21]-[22]; Woolworths Ltd v Lin[2018] FWCFB 1643; (2018) 273 IR 380 at [65]-[67]; Becke v Edenvale Manor Aged Care[2014] FWCFB 6809 at [9]
[17] CB 50
[18] CB 8 at [1.4]; CB 15 at [1]-[2]
[19] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298
[20] CB 16 at [5]
[21] Email from the respondent dated 8 November 2022 attaching submissions in response to application for extension
[22] CB 52
[23] CB 50
[24] CB 74-75
[25] C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [38]
[26] Long v Keolis Downer (t/as Yarra Trams)[2018] FWCFB 4109 at [71]
[27] Kyvelos v Champion Socks Pty Ltd[2000] AIRC 540, Print T2421 at [14]
[28] CB 10 at [3.2]; CB 17 at [7]
[29] CB 63-64
[30] CB 18 at [8]
[31] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; (2018) 273 IR 156 at [14] citing Lombardo v Commonwealth[2014] FWCFB 2288 at [21]
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