Isaac Jahn v 5th Dimension Pty.Ltd ATF the 5th Dimension Trust Trading as Kwoorabup Courier Services
[2023] FWC 1463
•20 JUNE 2023
| [2023] FWC 1463 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Isaac Jahn
v
5th Dimension Pty.Ltd ATF The 5th Dimension Trust Trading as Kwoorabup Courier Services
(U2023/3426)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 20 JUNE 2023 |
Unfair dismissal application filed out of time –circumstances exceptional – extension of time for filing allowed.
Mr Isaac Jahn (Applicant) made an application to the Fair Work Commission (FWC) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with 5th Dimension Pty. Ltd ATF The 5th Dimension Trust Trading as Kwoorabup Courier Services (Respondent).
The Respondent has objected to the application on the ground that the application was lodged out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not lodged of time.
When must an application for an order granting a remedy be made?
S.394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
The hearing
There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing. Accordingly, a hearing was held on Monday, 12 June 2023 to determine the out of time jurisdictional objection.
Permission to appear
As neither party sought to be represented, I was not required to deal with the question of representation before the Commission.
Witnesses
The Applicant gave evidence on his own behalf but did not call any further witnesses.
Mr Stuart Evans gave evidence on behalf of the Respondent but the Respondent did not call any further witnesses.
Submissions
Both the Applicant and Respondent filed their submissions in accordance with the directions issued by the Commission.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 12 March 2023.
When was the application made?
It is not in dispute, and I so find, that the application was made on 26 April 2023.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench further stated, “[i]f the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
As I found above, the dismissal took effect on 12 March 2023. The final day of the 21 day period was therefore 2 April 2023. That day is a Sunday and so the next business day, being Monday 3 April 2023, was the final day for lodgement and the time for lodgement ended at midnight on that day. As I found above, the application was made on 26 April 2023.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Was the application made within such further period as the Commission allows?
Under s.394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances.
A Full Bench of Fair Work Australia (as it then was) found that 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 nor unprecedented, nor even very rare.[3] Exceptional circumstances may 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.[4]
When considering whether there are exceptional circumstances, s.394(3) requires the Commission to take into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[5]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 3 April 2023. The delay is the period commencing immediately after that time until 26 April 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[6]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[7]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[8]
Submissions
The Applicant submitted that the delay was, essentially, because he was unaware of the relevant identity of his employer and it was only after making an application for unfair dismissal in the Western Australian Industrial Relations Commission (WAIRC) that he became aware of this identity.
In relation to the reason for the delay, the Respondent submitted that the Applicant’s failure to determine and provide the correct information in his application should not be grounds for an extension. The Respondent further submitted that the Applicant’s behaviour had been “odd” in that he had waited some time to lodge the initial claim with the FWC.
Evidence
The Applicant’s evidence was that he had never seen the relevant identity of the Respondent or been made aware of the relevant ACN until he was advised of its details by the WAIRC. It was his unchallenged evidence that his payslips and group certificates did not contain the relevant identity. He further claimed and was not challenged that he had not seen an employment contract so that even if that document had contained the relevant identity, it was not relevant.
The Applicant’s evidence set out the chronology of his relevant actions following dismissal, being:
(a) After his termination he promptly contacted the Respondent via email requesting certain particulars relevant to his employment, which he believed would provide him with the Respondent’s ACN.
(b) The Respondent responded via email advising that he would not provide the information sought.
(c) He then lodged an initial application with the FWC within the 21-day time limit, but as he could not source the Respondent’s ACN he lodged it with what information he did have.
(d) He was then advised by the FWC that there was no ACN associated with the ABN he had supplied with his application.
(e) Based on some further information provided by the FWC, the Applicant concluded that the Respondent was not a national system employer and as such made an unfair dismissal application in the WAIRC.
(f) The WAIRC then contacted the employer requesting its Australian Company Number (ACN), which was subsequently provided.
(g) On receipt of the ACN, the WAIRC advised the Applicant that it did not have jurisdiction to hear his claim.
(h) In his evidence the Applicant claimed that this was the first time he had seen the ACN but that having been given that detail he then promptly lodged a second application with the FWC, being the application under consideration in this hearing.
The Respondent did not challenge the events in the Applicant’s chronology or challenge in his cross-examination the Applicant’s evidence about the first time the Applicant became aware of the ACN.
The Respondent did however contend that the Applicant ought to have known the relevant information, or alternatively should have asked the Respondent to provide it. During the Respondent's cross-examination, the Applicant conceded that he had not as part of his requests for information post-termination, asked for the ACN details. It was the Respondent’s further evidence that had the Applicant approached him directly for the details of his ACN and company identity, he would have provided them. This evidence was not challenged and I accept that it is the case.
The Respondent further argued that during the course of the Applicant’s employment the Applicant had received items of correspondence from the Respondent which contained those relevant details and as such the Applicant should have in any case been aware of the relevant identity of his employer. The Respondent submitted as evidence a copy of such an item of correspondence in the form of an email from the Respondent to the Applicant’s email address which contained correspondence from Australia Post which included the relevant name of the Respondent. When questioned about that email the Applicant conceded that it did in fact contain the relevant details of the Respondent, however, the Applicant continued to maintain that he was only ever aware of the ABN of the Company and was not aware of the ACN. When questioned regarding other specific items of correspondence the Applicant may have received the Respondent referred to “some emails” which he did not identify and also said that he thought the group certificates issued to employees contained the ACN. I note that it was the Applicant’s unchallenged evidence that such group certificates did in fact not contain the ACN but rather the ABN.
The Respondent further contended that the Applicant had erred in not pursuing his first application to the FWC. In the Respondent’s evidence he pointed to an email from the FWC that the Respondent claimed provided advice to the Applicant that suggested that the Applicant could have pursued his first application further with the FWC and as such been within time for lodgment. When questioned, the Respondent conceded that in fact the email contained additional information for the Applicant. In my view, that additional information cast some doubt on whether the Applicant was in the correct jurisdiction. It was the Applicant’s contention, which I accept, that he took the information from the FWC as being advice to pursue his matter with the WAIRC.
Findings
Having regard to the above, I find that the reason for the delay was that the Applicant was unaware of the relevant identity of the Respondent for the purposes of lodging an application with the FWC alleging unfair dismissal until such time as he was advised of that identity by the WAIRC. While I appreciate that the Respondent claims that the Applicant should have known the relevant identity, the evidence he submitted in support of that contention was one email to the Applicant. Given the volume of other documentation that the Applicant received from the Respondent, for example by way of payslips and group certificates which did not contain the relevant identity, I cannot accept that this one email provides a compelling argument that the Applicant should have been aware.
Further, I am satisfied that regardless of whether or not he ought to have known the relevant identity, the Applicant clearly did not know such identity. His actions over the chronology outlined above strongly suggest that had he been aware of the relevant identity, he would have used it promptly, as he clearly intended to pursue the matter of his dismissal.
While I accept that the Respondent was quite genuine in his claim that he would have provided the detail if requested, it is nonetheless quite understandable that the Applicant did not make such a request. The Applicant’s evidence, which I accept, is that he sought to acquire the relevant identity by way of making a request to the Respondent for documents that he believed may contain the information he required. It is not in contention that the Respondent did not comply with this request and advised the Applicant that he (the Respondent) had no further obligations to the Applicant. It is not unusual in a situation where an employer has terminated an employee that either or both parties regard the post-termination relationship as a hostile one. Given the Respondent’s refusal to comply with the Applicant’s request and statement regarding future obligations it is not unusual that the Applicant did not seek to engage further with the Respondent, particularly to seek information that was necessary for him to commence an action against the Respondent. This observation should not be seen in any way as a criticism of the Respondent’s actions but rather an explanation of those of the Applicant.
Employees are granted rights under the FW Act to challenge their dismissal. Those rights are very difficult to exercise if the employee is genuinely unaware of the relevant identity of his employer. In this case, the Applicant has gone through a number of actions in good faith, including pursuing a course of action suggested by the FWC, before he finally found the information he required to make this current application to the FWC. Taking all of the above into account, I find that the Applicant being unaware of the relevant identity of his employer is a factor which weighs in favour of granting him an extension of time.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. Given the circumstances of this particular case, I find that this is a neutral issue in determining whether there are exceptional circumstances.
What action was taken by the Applicant to dispute the dismissal?
The actions taken by the Applicant are set out above in paragraph 27 and there is no need for me to repeat them here, save to note that again the evidence regarding this chronology was not challenged and I accept that it is accurate. Given that chronology, it is clear to me that the Applicant intended to challenge his dismissal from the outset and has done so via three separate applications. Although the Respondent raised concerns about some of the delays in certain steps of the process followed by the Applicant, he conceded that both the initial application to the FWC and the subsequent application to the WAIRC both were lodged within the timeframes allowed in those two jurisdictions. The initial delay in lodging the first of the applications is, I find, due to the delay in the Respondent confirming to the Applicant that he would not provide the information sought as per subsection (a) of paragraph 27 above. I find that the Applicant’s actions taken to dispute his dismissal weigh in favour of granting an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. Accordingly, I find that this is a neutral issue in determining whether there are exceptional circumstances.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials. Some of the material filed by the Respondent suggests there may have been performance issues with the Applicant in the past. However, the incident that gave rise to his termination, and appears to have been a major contributing factor in the Respondent’s thinking, is a matter about which there are a number of factual disputes.
It is evident to me that, primarily, the merits of the application may, subject to my observations in paragraph 41 below, turn on these contested points of fact. Evidence in respect of these points would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[9] and the same applies to s.394(3)(e).
I should note that the Respondent has submitted that it is a small business as defined for the purposes of the FW Act and if this is the case can claim a further jurisdictional objection on the basis that it has complied with the Small Business Fair Dismissal Code. Compliance with the Code, particularly on the issue of whether the grounds for the Respondent’s belief about conduct were reasonable may be relevant in considering the merits of the case. However, at this time I have no specific submissions on how the Respondent claims it has complied with the code, and as such, I am not prepared to make any assessment of the merits of the claim as it might apply specifically to a small business.
Given the absence of a hearing of the evidence, including evidence of how the Respondent may have complied with the Small Business Fair Dismissal Code, it is not possible to make any firm or detailed assessment of the merits. I find therefore that this is a neutral issue in determining whether there are exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that this is a neutral issue in determining whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now decide whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding the matters at s.394(3) of the FW Act, being:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) the actions taken by the Applicant 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 Applicant and other persons in a similar position.
Having regard to my consideration of all of those matters as set out above, I am satisfied that there are exceptional circumstances.
Conclusion
Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.
Having regard to those exceptional circumstances and the object stated at s.381(2) of the FW Act to ensure a “fair go all round”, the Commission is satisfied that it is appropriate to extend the period for the application to be made to 26 April 2023. An order to that effect will be issued, and the parties will receive directions regarding a hearing to determine the merits of the matter in due course.
DEPUTY PRESIDENT
Appearances:
The Applicant Mr Isaac Jahn on his own behalf
Mr Stuart Evans on behalf of the Respondent
Hearing details:
Held by videoconference on Monday 12th June 2023
[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A; Stedman v Transdev NSW Pty Ltd [2015] FWCFB 1877.
[3] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[4] Ibid
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[8] Ibid [40].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
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