Ian James Frances v The Trustee for Dkk Luxton Family Trust T/A Luxton Shutters and Blinds

[2022] FWC 2459

[2022] FWC 2459

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ian James Frances

v

The Trustee For Dkk Luxton Family Trust T/A Luxton Shutters And Blinds

(U2022/6771)

COMMISSIONER YILMAZ MELBOURNE, 16 SEPTEMBER 2022

Application for an unfair dismissal remedy – extension of time  – exceptional  circumstances – extension granted

Introduction

1. This decision was made ex tempore on transcript on 15 September 2022. In making my decision on transcript, I reserved the right to add to or amend my published reasons for decision. An Order giving effect to this decision was published on 16 September 2022 in PR745926.

1. Mr Ian James Frances (the Applicant) commenced employment with Dkk Luxton Family Trust T/A Luxton Shutters and Blinds (the Respondent), on 6 October 2021 in the position of Sales Consultant and was dismissed by reason of redundancy on 8 June 2022. This application was filed on 30 June 2021, one day late of the 21-day statutory time frame.

1. The Respondent is situated in Melbourne and provides installation services for residential shutters, blinds, and security doors. I understand from the Applicant’s Form F2 that Mr Du is the proprietor of the Respondent. The Respondent did not file a form F3 Employer Response despite numerous attempts made by Commission staff to contact the Respondent by way of email, mobile telephone number and the Respondent’s business telephone numbers. There was no appearance for or on behalf of the Respondent at the conciliation conference listed for this matter.

1. Upon allocation to my chambers, the matter was listed for Mention and Directions on 30 August 2022. The Applicant appeared by telephone, however the Respondent failed to attend. Directions were then issued to the parties for the filing of submissions and witness statements. The Applicant failed to comply with those Directions and the matter was listed for a non-compliance hearing on 9 September 2022. During the non-compliance hearing I decided to grant additional time for the parties to file materials and relisted the hearing day from 13 September 2022 to 14 September 2022.

1. I note that the Respondent’s website is no longer active and a Google search indicates that the business is temporarily closed. I record that on 28 August 2022 my chambers contacted a former employee of the company who was listed as a contact for the Respondent. My chambers was advised that the company is now insolvent and its owners are refusing to answer telephone calls or respond to emails. My chambers attempted to contact the Respondent by way of email, text message, telephone and by mail via express post sent to the Respondent on 9 September 2022. The letter enclosed directions for the filing of materials, submission templates, a Notice of Listing for the hearing and advised the Respondent that the matter would proceed and that orders may be issued in its absence. The Respondent was encouraged to contact chambers by email or telephone as a matter of urgency.

1. Despite these efforts to contact the company, no materials were received from the Respondent nor did a representative of the Respondent attend the hearing. I note that ASIC records show that the business is still in operation, and the Applicant submits that he has driven past the business in recent days and could see that the business continues to operate. In these circumstances I am satisfied that the matter should proceed and a determination issued in the Respondent’s absence.

Application was filed outside the statutory timeframe

1. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.

1. The Applicant’s employment was terminated with effect from 8 June 2022 and the application for a remedy should have been lodged by no later than 29 August 2022.

1. The application was therefore lodged outside of the time prescribed. The application was made one day after the last date on which it should have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

1. Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

1. The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:

·   the reason for the delay,

·   whether the Applicant first became aware of the dismissal after the date it took effect,

·   any action taken by the Applicant to dispute the dismissal,

·   prejudice to the Respondent including prejudice caused by the delay,

·   the merits of the application; and

·   fairness as between the Applicant and other persons in a similar position.

1. Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[1]

1. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare.[2] I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.

1. I now consider these matters in the context of the Application.

Reason for the delay

1. 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 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.[3]

1. The Applicant submits that following termination of his employment he experienced declining health in the weeks following, stating that he sufferers from depression, anxiety and bipolar disorder. The Applicant filed evidence with the Commission that a close family member was the subject of family violence and stalking around the time of the termination. As a result of court proceedings and an Intervention Order, the Applicant submits that the resulting depression caused his application to be filed a day late. He states that with the help of his ex-wife, who had been overseas at the time, he was able to submit the application. Evidence of the family violence matter was tendered and a witness statement from Ms Fiona Trudgen which corroborated the Applicant’s evidence was submitted.

1. In the circumstances, I am satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs in favour of the Applicant in this case.

Whether Applicant first became aware of the dismissal after the date it took effect

1. Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was dismissed with immediate effect on 8 June 2022 and paid notice in lieu.

1. The Applicant states that he was called into a meeting with the Respondent’s Director and verbally advised that his employment had been terminated with immediate effect. A letter of termination was given to Mr Francis on the same day.

2. In the circumstances, this consideration is neutral, in that it does not weigh for or against the Applicant in respect of the delay.

Action taken by the Applicant to dispute his dismissal

1. I now turn to the question of the action taken by the Applicant to dispute his dismissal.

1. The evidence was that the Applicant told the Respondent that the dismissal was unfair as he was the longest serving of the Sales Representatives and had more experienced than other employees in the same position. He submits that he objected to the dismissal on the basis that he had higher sales performance figures than other sales representatives.

1. As there is no evidence contrary to the Applicant’s submissions, I accept that Mr Francis challenged both his dismissal and the reasons for his dismissal. This is sufficient to put the Respondent on notice that the dismissal is contested. Under these circumstances this consideration weighs in the Applicant’s favour.

Prejudice

1. Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.

1. The Applicant submits that the delay caused the Respondent no prejudice or disadvantage. There is no evidence to the contrary, so I do not consider there is any prejudice to be considered. This consideration is therefore neutral.

Merits of the application

1. As to the merits of the application, Mr Francis submits that he was the most experienced salesperson but less experienced salespeople were retained. He further submits that while the reason for termination was redundancy, the Respondent was advertising and employing new staff not long before his dismissal. On the day of the hearing, Mr Francis reported that he was aware that the Respondent had as recently this week recruited sales representatives through a recruitment agency. Mr Francis submits that his termination of employment occurred without any prior discussion or warning and did not anticipate any prospect of redundancy, as he was informed prior to leaving his employment to take the position with the Respondent that the role was intended to be long term. 

1. In cases such as this, where the substantial merits of an application are not fully examined or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the Applicant’s case.

1. Mr Francis submits that he drove past the premises and could see that the Respondent continued to operate, despite the mobile phone numbers and landline not responding. On the site the Respondent manufactures blinds, shutters and security doors. Staff perform sales and installation from the base of the premises.

1. It seems to me at least arguable that the dismissal may not have been a genuine redundancy on the basis that provisions of the industrial instrument were not met, and further that there were procedural deficiencies. Mr Francis also challenged the reason for the dismissal. In the absence of evidence against the Applicant’s submissions, I find that the Applicant may have an arguable case and therefore his case weighs in favour of an extension of time.

Fairness as between the Applicant and other persons in a similar position

1. As to fairness between the Applicant and other persons in a similar position, the Applicant submitted as follows:

·   Other less experienced Sales Representatives were retained by the employer.

·   Other Sales Representatives who had worked for the employer for shorter periods of time were retained

·   That he was terminated with immediate effect and had no opportunity to find secure alternative employment or have security of income while he sought other employment.

·   Three Sales Representatives had been employed only twelve weeks prior to his termination of employment.

·   He states that that the situation is unfair due to his age and was terminated without notice. He states this was particularly unfair as other Sales representatives were still in their probation period and were performing well below his sales figures

1. Cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application.

1. In the absence of contested material, I accept the submissions of the Applicant that he was treated differently to persons in the same position of sales representative. Having been treated less fairly than the other sales representatives I consider this to weigh in the Applicant’s favour.

Conclusion

1. Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

1. A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect, and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must consider in respect to section 394(3) of the Act, I am satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

1. As I have indicated, I have found that the considerations weigh in the Applicant’s favour, except for s.394(3)(b) and (d) which I consider to be neutral factors. On balance I consider that Mr Francis has established exceptional reasons for an extension of the period within the application has been made. The period for the extension in exercising my discretion is one day. The matter will now be listed for a further conference and programming.

COMMISSIONER

Appearances:

Mr I. Frances on his own behalf.

Hearing details:

2022
Melbourne (By Video using Microsoft Teams)
15 September 2022

[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]

[2] Ibid

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]

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