Ian William Edmondson v A Whistle & Co Pty Ltd

[2021] FWC 6313

[2021] FWC 6313

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ian William Edmondson
v
A Whistle & Co Pty Ltd
(U2021/8255)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 15 NOVEMBER 2021

Application for an unfair dismissal remedy

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 1 November 2021. Mr Ian William Edmondson (Applicant) was dismissed from his employment with A Whistle & Co Pty Ltd (Respondent) with effect on 20 August 2021. Although both parties proceeded on the basis that the dismissal took effect on 19 August 2021, the letter of termination is the only material which properly sets out and puts the Applicant on notice that his employment would come to an end, and that letter specifies that the employment ended on 20 August 2021. It must be accepted that in order for notice of termination to be effective the termination date must be certain and properly communicated, and as I indicated, the only written evidence about that is the letter of termination.

[2] Whether the dismissal took effect on 19 or 20 August 2021 ultimately does not make a difference in this application because Mr Edmondson lodged his application under s 394 of the Fair Work Act 2009 (Act) seeking a remedy in connection with his dismissal, which he alleges was unfair, on 14 September 2021. That application, accepting that the date of termination of employment was 20 August 2021, was lodged four days outside the time prescribed in s 394(2) of the Act. Section 394(2) requires an application for an unfair dismissal remedy to be made within 21 days from the date on which the dismissal took effect, or within such further period as the Commission may allow. It is necessary, therefore, to consider whether Mr Edmondson should be granted a further period within which to lodge his application.

[3] The Act allows the Commission a discretionary power to extend the period within which unfair dismissal remedy applications may be lodged, but that power is only exercisable after the Commission is satisfied there are exceptional circumstances taking into account various matters that are set out in s 394(3) of the Act. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, or unusual, or special or uncommon, but the circumstances need not be unique, or unprecedented, or even very rare. Exceptional circumstances might be a single event which is exceptional or a combination of unexceptional factors which when combined amount to exceptional circumstances.

[4] As indicated, s 394 requires me to take into account particular matters in assessing whether there were exceptional circumstances. Those matters are set out in s 394(3) as follows:

“(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.

[5] Each of these matters needs to be taken into account, assessed, and appropriate weight must be given to each taking into account the evidence that has been given.

[6] I will deal then with each of the considerations, beginning with the reason for the delay. The reason for the delay, or the delay period, is the period after the 21-day period has elapsed. This should be evident from the fact that an application that is lodged within the 21-day period is not delayed. We are here concerned about an explanation or a reason which might explain the whole of the period of the delay, in this case four days.

[7] In his evidence Mr Edmondson gave the following reasons for the delay. Firstly, the dismissal caused a severe blow to his wellbeing, that it took him some time to rationalise the effect of the dismissal and to be able to communicate with members of his family for support. Secondly, Mr Edmondson said that following his dismissal he did not have a motor vehicle or adequate internet and telephone devices, and that he had to purchase a new telephone and it took him some time to establish internet access and to be able to send and receive emails. Thirdly, he said that he had to rely on public transport, which made it difficult to handle these issues. Fourthly, he said that he spent some time waiting for confirmation from his employer in relation to the termination payments and long service leave entitlements. Finally, he noted that he needed the assistance of his brother to lodge his unfair dismissal remedy application.

[8] As to the first reason proffered, Mr Edmondson did not provide any medical evidence suggesting that the impact on his wellbeing was so significant as to impair his capacity to make an unfair dismissal application on a timely basis. Indeed, his evidence was that he did not consult a doctor at all and he accepted that the impact on him was not so significant as to warrant consultation with a medical professional. In those circumstances I do not accept that the impact of the dismissal on his wellbeing was so significant as to explain the delay. As I have previously stated, it is not uncommon for the loss of employment to cause employees to be shocked or distressed as a consequence. Losing one's employment is a significant incident in life, but absent any evidence of impairment, the shock or distress caused by the dismissal or experienced by an applicant for an unfair dismissal remedy, without more, is not a matter which satisfactorily explains the delay and does not in this case.

[9] As to the other matters proffered, it is apparent on the evidence that approximately a week after the employment of Mr Edmondson came to an end, he purchased a new mobile phone and a Wi-Fi device enabling him to access the internet. On his own evidence, he communicated by email with his brother on or about 29 August 2021 and there were other facilities available a short journey from his residential address where he could access the internet and attend to the lodgement of an application. In those circumstances, I do not accept that the absence of a motor vehicle or adequate internet or telephone devices adequately explains the delay. It is apparent on the evidence that Mr Edmondson commenced preparing his unfair dismissal remedy application on 8 September 2021. At that stage the application, had it have been lodged, would have been within time.

[10] He sought assistance from his brother on that day, and there is no real explanation why the application was not lodged until 14 September 2021. I do not accept that there were numerous materials that needed to be gathered in order to prepare the application. As is evident from the content of the application that was lodged by Mr Edmondson, it contained minimal information. All of the information that is set out in that application could have readily been populated on 9 or 8 or 10 September 2021. On his own evidence he sat on his hands and the application was not lodged until 14 September. I am therefore unpersuaded that any of the reasons proffered by Mr Edmondson for the delay amount to a satisfactory or acceptable explanation for the delay. In those circumstances, the absence of any explanation or satisfactory explanation for the entirety of the delay means that this consideration weighs against a conclusion that there are exceptional circumstances.

[11] An additional factor that is relevant in assessing the explanation for the delay is the fact that, on Mr Edmondson's evidence, he communicated with the Commission on 9 or 10 September 2021. If it was not already apparent to Mr Edmondson on reading the information at the front of the application, he was told, on his evidence, on that day that his application was out of time. Nonetheless, the Applicant waited until 14 September to file the application which in the circumstances is not only surprising but remains unexplained.

[12] Turning then to the notice of the date on which the dismissal took effect, it is uncontroversial that the Applicant received a letter from his employer advising him of the termination. In his application, the Applicant proceeded on the basis that his termination took effect on 19 August. It is apparent from the text of the termination letter that the dismissal took effect on 20 August. Nonetheless, the Applicant knew that his dismissal took effect either on or before that date. In those circumstances he had the benefit of the full period of 21 days within which to lodge an application but did not do so and these circumstances also weigh against Mr Edmondson.

[13] As to any action Mr Edmondson took to dispute his dismissal, Mr Edmondson's evidence was that whilst he responded to the opportunities provided to him in relation to the allegations about poor performance following the dismissal, he did not take any step to dispute his dismissal with his employer or otherwise, other than lodging this application. If an applicant disputes a dismissal with his or her employer, or brings the dispute to his or her employer's attention, the employer is on notice that there is a controversy about the dismissal, and so in such circumstances this might weigh in an applicant's favour. However, in this case there has been no such dispute raised with the employer and consequently the absence of taking any step to dispute his dismissal also weighs against the Applicant.

[14] As to prejudice, the Respondent submits correctly that it would not suffer any prejudice generally or as a consequence of any grant of an extension of time. The delay period was quite short, and it would be surprising if any particular prejudice would ensue. The absence of prejudice in and of itself is not an exceptional circumstance, but I am prepared to weigh this consideration in Mr Edmondson's favour.

[15] As to the merits of the application, at this preliminary stage it is only appropriate to make a general and very preliminary assessment of the merits. Obviously there has not been an opportunity to test the dispute in contention, but that which is apparent from the evidence is that Mr Edmondson had received three warnings about his performance and conduct before his dismissal, that he was given a letter of allegations before his dismissal, that he was given a letter to show cause why his employment should not be ended, and that he had an opportunity to respond and in fact responded to the allegations that were raised. He was then given written notice of his dismissal, which again reiterated the reasons for dismissal. Whilst I note in the application the Applicant disputes the reasons for dismissal, at this preliminary stage given the state of the material, I consider that whilst the Applicant's claim is not unarguable, it is not very strong. Given that assessment, I consider the appropriate weighting to be given to this consideration is a neutral weighting.

[16] As to the question of fairness as between the Applicant and others in a similar position, these matters, or this consideration can be referrable to circumstances of previously decided cases, or circumstances in respect of cases which are currently before the Commission. The Respondent has made reference to a number of cases which are factually very similar but not identical. It is fair to say that it is not uncommon for applicants to raise the kinds of reasons that Mr Edmondson has raised in this case as explaining the delay, and it is also not uncommon for the Commission, as is evident from the cases cited by the Respondent, to not regard those circumstances as particularly persuasive in explaining the delay, and in this case in particular, because there is no probative evidence that any of the matters raised by Mr Edmondson in fact caused or explain any delay in the lodgement of his application. Most of the matters that he raised were rectified well before the time for lodgement had expired. In the present circumstances I consider that the fairness consideration also weighs slightly against the Applicant.

[17] It is evident from an assessment of the various factors which I am required to take into account that there is only one factor that weighs in Mr Edmondson's favour – the question of prejudice – and that is in the instant case a minor consideration in the context of giving weight to all of the other considerations. The absence of an adequate explanation for the delay weighs heavily against Mr Edmondson, and the other factors either weigh against him or in the case of merits weighs neutrally. In those circumstances I am simply not persuaded there are any exceptional circumstances which warrant the consideration of my exercising a discretion to allow a further period. As there are no exceptional circumstances the application for an extension of time is refused. Consequently, the unfair dismissal remedy application that was made out of time must be dismissed. I therefore order that the application to allow a further period within which Mr Edmondson might lodge his unfair dismissal remedy application is refused, and as the application is lodged outside of the time prescribed by s 394(2) the application was not made in accordance with the Act and must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr I Edmondson on behalf of himself
Ms C Vincent on behalf of the Respondent

Hearing details:

2021
Melbourne (via video)
1 November

Final written submissions:

Applicant, 14 October 2021
Respondent, 28 October 2021

Printed by authority of the Commonwealth Government Printer

<PR735663>