Jackson Aldridge v Cadence Asset Management Pty Limited
[2023] FWC 2764
•24 OCTOBER 2023
| [2023] FWC 2764 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jackson Aldridge
v
Cadence Asset Management Pty Limited
(U2023/8746)
| DEPUTY PRESIDENT DEAN | CANBERRA, 24 OCTOBER 2023 |
Application for an unfair dismissal remedy – extension of time – application dismissed.
Mr Jackson Aldridge (the Applicant) has made an application for an unfair dismissal remedy in respect of his dismissal from Cadence Asset Management Pty Limited (the Respondent).
The Applicant’s dismissal took effect on 25 May 2023 and this application was lodged on 12 September 2023.
Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s 394(3). The Applicant filed his application 89 days outside the 21-day period and so the application can only proceed if the Commission grants a further period for it to be made.
The matter was listed for hearing by telephone on 23 October 2023. The Applicant appeared and gave evidence on his own behalf. The Respondent was represented by its Managing Director, Mr K Siegling.
For the reasons set out below, I find there are no exceptional circumstances and will dismiss the application.
Extension of time
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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 nor unprecedented, nor even very rare.[1] 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.[2]
The onus rests with the Applicant to demonstrate that there are exceptional circumstances.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
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. I now consider these matters in the context of this application.
Consideration
Reason for the delay
The Act does not specify what reason for the 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]
The Applicant said the reason for the delay in lodging this application was representative error. He said:
“Despite my insistence to initiate an application to the FWC forthwith, I was misadvised by incorrect legal counsel to pursue a contractual dispute instead. This misguided counsel delayed my application considerably. This pathway, based on erroneous guidance, consumed significant time and diverted me from submitting a timely application to the FWC. (I have attached a letter from CLS advising this was the case.) Upon securing more reliable advice on 5 September, I corrected course and submitted to the FWC on 12 September promptly. This diversion is demonstrative of representative error…”
It is worth noting that Mr Aldridge is seeking “lost wages and missed bonus payment of approximately $579,611.00” as a remedy in respect of his dismissal.
The Applicant provided a letter dated 9 October 2023 from his former solicitors which read as follows:
“We were instructed by Mr Jackson Aldridge to provide advice regarding Mr Aldridge's dismissal by his former employer, Cadence Asset Management Pty Limited (Cadence).
Mr Aldridge wished to pursue a claim against Cadence for unfair dismissal. However, after considering advice from Counsel, our advice was that a claim arising from a breach of contract would have a higher likelihood of success”.
The Applicant also relied on being overseas for a period of 11 days from 26 May 2023, being the day after his dismissal, and on “financial and emotional strain”, as additional reasons for the delay.
The Respondent submitted that:
“There was no relevant error here as there was no instruction by the Applicant to his lawyers to file an application with the Fair Work Commission on time (or at all). On the contrary, it is clear that the Applicant and his legal team deliberately considered the options available to the Applicant and the Applicant selected to go down the path of court action until he changed his mind and filed his application in the Fair Work Commission almost four months after his termination. The Applicant blames his lawyers for advising him to take the path of court proceedings which he considers was a ‘representative error’. That is hardly the case. The Applicant was not coerced into accepting his legal advice – he chose to follow it. Further, there is a difference between incorrect legal advice (not apparent in this case) and remorse over the legal strategy adopted by the Applicant when it has become inconvenient for him.”
Having considered the matters raised by the Applicant, I am not satisfied that the Applicant has made out an acceptable explanation for the whole period of the delay in lodging this application.
I am not satisfied that the legal advice provided to the Applicant could reasonably be considered ‘representative error’. Given the Commission cannot provide the remedy the Applicant sought, the advice provided to him, on its face, seems sensible. In addition, I agree with the submissions made by the Respondent that the Applicant was not coerced into accepting the advice provided by his lawyers and Counsel, and remorse over the legal strategy adopted does not meet the threshold of representative error.
Even if the Applicant’s overseas travel for 11 days was an acceptable reason for part of the delay, it does not explain a delay of 89 days.
As to financial and emotional strain, this is not out of the ordinary or uncommon.
Overall, this weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant was aware of his dismissal when it took effect. This weighs against a finding that there are exceptional circumstances.
Action taken to dispute the dismissal
The Applicant took action to dispute the payments made to him on termination, and the payment of a bonus the Applicant says he would have been eligible for a short time after his dismissal, but he did not take any action to dispute the dismissal until the present application was lodged.
This weighs against a conclusion that there are exceptional circumstances.
Prejudice to the employer
A delay of 89 days is relatively long. The Applicant contended that there is no prejudice to the Respondent if time was extended. The Respondent noted the policy rationale behind the 21 day time limit, that being to balance the rights and interests of both the employee and employer, and submitted that as a small business having already had to respond to various communications from the Applicant’s lawyers, it could ill afford to divert more resources to this matter.
I consider this factor weighs slightly in favour of the Respondent and against a finding that there are exceptional circumstances, given the length of the delay and that it is a small business.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case.
The Respondent submitted that the real dispute between the parties is the Applicant’s eligibility for a bonus payment. It also submitted that the Applicant’s annual salary was above the High Income Threshold, and that the Applicant was dismissed for unsatisfactory performance in accordance with the terms of his employment contract. As such the merits of the application are poor.
The Applicant submitted that his dismissal was a clear breach of the Small Business Fair Dismissal Code.
On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar 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. However, cases of this kind will generally turn on their own facts.
Neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.
Conclusion
As noted earlier, the onus is on the Applicant to demonstrate there are exceptional circumstances, and the test of ‘exceptional circumstances’ establishes a high hurdle.
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
J Aldridge on his own behalf.
K Siegling for Cadence Asset Management Pty Limited.
Hearing details:
2023.
By telephone:
October 23.
[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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