Jai Ceratops v Phones & Photos T/A Ave Adoberg

[2020] FWC 3441

[2020] FWC 3441

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jai Ceratops
v
Phones & Photos T/A Ave Adoberg
(U2020/8077)

DEPUTY PRESIDENT CLANCY MELBOURNE, 30 JUNE 2020

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed.

[1] This decision concerns an application by Mr Jai Ceratops for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Phones & Photos T/A Ave Adoberg (the Respondent) purported to terminate Mr Ceratops’ employment with immediate effect from 24 April 2020. The unfair dismissal application was lodged on 11 June 2020.

[3] 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 period of 21 days ended at midnight on 15 May 2020. The application was therefore filed 27 days outside the 21-day period. Mr Ceratops asks the Commission to grant a further period for the application to be made under s.394(3). The Respondent opposes this request.

[4] 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

[5] 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.

[6] 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 the application.

Reason for the delay

[7] 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

[8] Mr Ceratops submits that he received his termination letter via email, which was not the usual manner in which he communicated with the Respondent. He submits that communication between the Respondent and himself was exclusively via text message and telephone calls during their six-year employment relationship and that emails were used only for the receipt of pay slips. As a result, Mr Ceratops says he did not find the termination email until 28 May 2020, 34 days after it was sent, and contends that the manner in which the termination was communicated contributed to the delay.

[9] Prior to becoming aware of his dismissal, Mr Ceratops says he had been stood down as a result of the Respondent’s store shutting down due to the effects of the COVID-19 pandemic. He recalls being advised upon being stood down that he would receive a text message when or if the store would reopen. Mr Ceratops says he reset his mobile device to factory settings on 21 April 2020, but did not reconnect his email account until 28 May 2020 because he had no use for it.

[10] On 23 April 2020, Mr Ceratops sent a text message to Ms Ave Adoberg, the owner of the business, to request that it organise JobKeeper payments, believing he was eligible. Although he was aware his colleague had completed some documentation for JobKeeper payments, Mr Ceratops said he did not think that it was necessarily a requirement that he complete any documentation ahead of receiving JobKeeper payments because he had friends who had received JobKeeper payments before doing so. On 25 April 2020, Mr Ceratops said he received an amount from the Respondent “roughly the amount of JobKeeper”. It was his net termination payment of $1561.11. On that basis, Mr Ceratops says he believed his JobKeeper request had been approved and it was not until no payment was received a fortnight later that he considered enquiring with the Respondent about his employment status. However, Mr Ceratops submits that he felt anxious and uncomfortable each time he thought about contacting the Respondent.

[11] Mr Ceratops did not contact the Respondent until he discovered the termination letter dated 24 April 2020 on 28 May 2020. He sent a text message to Ms Adoberg asking why JobKeeper had not been considered as an alternative to termination because it would not impose a cost on the business. Ms Adoberg responded with a text message later that day stating:

•  It was a difficult decision;

•  JobKeeper is a temporary measure;

•  The termination was due to a massive drop in turnover, a lack of work and the unforeseeable future of the business.

[12] Mr Ceratops said that he began researching unfair dismissal the next day, 29 May 2020. He says he discovered then that due to the delay in receiving the termination letter dated 24 April 2020, he was “very much outside” the 21-day time period. He said it took time for him to gather his thoughts and evidence and he wanted to make sure he understood what was involved. He said he had discussions with friends regarding whether he should take action.

[13] The Respondent disputes Mr Ceratops’ claim that email communication was used exclusively for the receipt of pay slips. It asserts that email communications were also used to perform work-related tasks, such as repair orders and client job requests. Ms Adoberg claims Mr Ceratops was very savvy with technology and a regular user of his phone and its applications. Ms Adoberg also said that Mr Ceratops was very attentive to the details of payments he received during the course of his employment and would query what he considered were discrepancies.

[14] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period, which ended at midnight on 15 May 2020. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period. 4

[15] The Full Bench in Ayub v NSW Trains (Ayub) 5 discussed when a termination of employment at the employer’s initiative can be said to have taken effect for the purpose of s.394(2)(a) in the following way:

“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective.” (my emphasis)

[16] The Full Bench in Ayub also concluded that a dismissal may not take effect prior to it being communicated to the employee. 6

[17] Mr Ceratops claims that he did not know he had received the letter dated 24 April2020 sent to him by email until he checked his email on 28 May 2020. In this regard, I note it was further stated in Ayub:

“In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.” 7

[18] Without deciding whether the circumstances in this case are circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal, I note that after becoming aware of his dismissal it took Mr Ceratops until 11 June 2020 to lodge his unfair dismissal application. Having regard to Mr Ceratops’ evidence outlined at [12] above, I am not persuaded that he has provided an acceptable or reasonable explanation for why it took him a further 14 days, to lodge his unfair dismissal application.

[19] The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[20] Mr Ceratops says he first became aware of his dismissal on 28 May 2020, which was 34 days after the termination letter was emailed to him. By this time, he was already outside the 21-day time period to make an unfair dismissal application. I consider this factor weighs only marginally in favour of a finding that there are exceptional circumstances.

Action taken to dispute the dismissal

[21] As outlined in [11] above, Mr Ceratops sent a text message to Ms Adoberg on 28 May 2020 asking why JobKeeper had not been considered as an alternative to termination because it would not impose a cost on the business. If this could be said to constitute “action to dispute the dismissal”, I would attribute it minimal weight.

Prejudice to the employer

[22] I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[23] The Act requires me to take into account the merits of the application in considering whether to extend time.

[24] Mr Ceratops seeks reinstatement until at least until the JobKeeper initiative has ended, at which point he says the Respondent can reassess its financial position. He submits that his dismissal was unfair since the JobKeeper initiative was designed to keep employees employed at “effectively no cost to the employer during these uncertain times”. He asserts that the reason for his dismissal, being the cost of keeping him employed, was unreasonable given the intent of the JobKeeper initiative. Mr Ceratops also cites the lack of communication by the Respondent in the lead-up to his termination.

[25] Ms Adoberg submitted that Mr Ceratops’ dismissal was a genuine redundancy and that the decision to dismiss him was on the basis of survival of the business. It is apparent the Respondent will assert Mr Ceratops’ termination was due to a massive drop in turnover, a lack of work and the unforeseeable future. Ms Adoberg also says that all reasonable care was taken in calculating Mr Ceratops’ outstanding entitlements, and that the payment was remitted the same day as his termination, including a payment in lieu of notice.

[26] Having heard from the parties and considered the materials filed, it is evident to me that the substantive merits of the application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits except to say Mr Ceratops has in some respects at least an arguable case, and the Respondent a prima facie defence. I do not consider the merits to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[27] 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 brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration in the present matter.

Conclusion

[28] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.

[29] I have not been persuaded there is an acceptable or reasonable excuse for the delay and while I am prepared to attribute minimal weight to when Mr Ceratops says he first became aware of his dismissal and the single act Mr Ceratops took to dispute the dismissal, the other matters I am required to take into account are neutral. Having regard therefore to the matters I am required to take into account under s.394(3), and all of the matters raised by Mr Ceratops, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

[30] As 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(4). Accordingly, Mr Ceratops’ unfair dismissal application must be dismissed.

DEPUTY PRESIDENT

Appearances:

Mr J Ceratops for himself.
Ms A Adoberg for Phones & Photos T/A Ave Adoberg.

Hearing details:

2020.
Melbourne (by telephone):
June 29.

Printed by authority of the Commonwealth Government Printer

<PR720639>

 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].

 4   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].

 5   [2016] FWCFB 5500.

 6   Ibid at [35] and [41].

 7 Ibid at [50].