James Down v Group 2 Security Pty Ltd
[2022] FWC 1359
•30 MAY 2022
| [2022] FWC 1359 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
James Down
v
Group 2 Security Pty Ltd
(U2022/5264)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 30 MAY 2022 |
Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed. Application for an unfair dismissal remedy
Introduction
This decision concerns an application by Mr James Down (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).
The termination of the Applicant’s employment with Group 2 Security Pty Ltd (Respondent) took effect on 18 April 2022. The unfair dismissal application was lodged on 10 May 2022.
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 9 May 2022. The application was therefore filed one day outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
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 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) 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.
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 will now consider these matters.
Reasons for the delay
The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]
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.[5]
A dismissal takes effect when an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.3 In Ayub v NSW Trains,4 the Full Bench of the Commission explained the situation with respect to email communications to employees as follows:
“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.”
In his unfair dismissal application form, the Applicant accepted that he was notified of his dismissal on 18 April 2022 and that his dismissal took effect on the same day. The Respondent agreed in its response to the unfair dismissal application that the dismissal took effect on 18 April 2022.
The termination letter, which is dated 7 April 2022, was emailed to the Applicant on 18 April 2022. The 18 April 2022 email has the subject “James Down Employment” and simply states “Please see attached letter.” The attached letter is the termination letter.
Another copy of the termination letter was sent to the Applicant by registered post on 20 April 2022. On 6 May 2022, the Applicant collected the letter sent to him by registered post from the Post Office.
The Applicant gave evidence, which I accept, that 18 April 2022 was Easter Monday and he had family commitments during the day. During the night on 18 April 2022 the Applicant noticed that he had received an email from Mr Elliott, Managing Director of the Respondent, but he did not read the email or the letter attached to it until the following day. Having regard to all the circumstances, I am satisfied that the Applicant had a reasonable opportunity to know of his dismissal on 18 April 2022. It follows that his dismissal took effect on 18 April 2022, as stated in both the Applicant’s unfair dismissal application and the Respondent’s response to that application.
On 20 April 2022, the Applicant’s lawyers wrote to the Respondent and acknowledged that the Applicant had “received his notice of termination of employment with Group 2 Security Pty Ltd”. The Applicant’s lawyers requested documents to enable the Applicant to “carry out an audit of his wage payments to discover the extent (if any) of underpayments and to confirm the amounts of money that should have been paid into his superannuation during his period of employment”.
The Applicant says that he did not give the Respondent permission to receive a notice of dismissal by email. He also says that his application for unfair dismissal was filed within 21 days of becoming aware of his dismissal. Submissions filed on behalf of the Applicant make the point that the day on which the letter of termination was emailed to the Applicant (18 April 2022) was Easter Monday, and the covering email to which the termination letter was attached does not indicate or suggest that the Applicant’s employment had been terminated.
Having regard to all the circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing his unfair dismissal application. The Applicant had a reasonable opportunity to read the termination letter on the night of 18 April 2022. The Respondent had communicated with the Applicant by email in June 2021. More importantly, the Applicant read the termination letter on 19 April 2022 and had 20 days to prepare and lodge his unfair dismissal application. The Applicant spoke to his lawyers on 20 April 2022. They sent a letter to the Respondent on 20 April 2022 acknowledging the dismissal and requesting documents in relation to a potential underpayment of wages claim. The evidence does not demonstrate any persuasive reason as to why the unfair dismissal application was able to be filed on 10 May 2022, but not the previous day or any other day toward the end of the 21 day period provided for in the Act.
The absence of an acceptable or reasonable explanation for the delay in lodging the application on 10 May 2022 weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant became aware of his dismissal on the day after it took effect. The Applicant therefore had 20 days to lodge his unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal
The Applicant did not suggest that he took any action to dispute his dismissal, other than lodging his unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. 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
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.
In his unfair dismissal application form, the Applicant contends that his dismissal was unfair for four reasons:
“1. Length of time between incident and dismissal;
2. First offence with no warning;
3.Informed by EML/Icare medical providers that they would do all communication between myself and my previous employer on the basis that I was subject to ongoing harassment by my previous employer/boss.
4.I believe that this is an act of retribution on the part of the fact [sic] I am seeking all available remedies in accordance with my legal rights and obligations.”
The Applicant commenced a workers’ compensation claim on 2 March 2021 in relation to alleged bullying and harassment. The Applicant has not worked for the Respondent since that date.
On 10 June 2021, the Applicant sent an email to the director of the Respondent stating that he was “ready to return to work on 11/6 I will require a roster and access to the app.” On 11 June 2021, the Respondent informed the Applicant that it would “need a full medical assessment as to your fitness to work and your capacity to undertake the inherent requirements of the your position” before a return to work could be considered. On 23 June 2021, the director of the Respondent sent a further email to the Applicant requesting “a written medical opinion from your treating medical practitioner that addresses the specific questions below” concerning the Applicant’s injury, and whether or when the Applicant was expected to make a full recovery from his injury. The email also informed the Applicant that “If your treating practitioner is unable to provide the report or the response is not sufficient, Group 2 may require you to attend a medical assessment by a medical practitioner or our selection”.
The Respondent did not receive any medical information or communication from the Applicant after 23 June 2021.
On 7 July 2021, the Respondent received from icare a certificate of capacity dated 3 June 2021 and completed by the Applicant’s treating doctor. The certificate includes the following relevant information:
(a)As to whether the Applicant had been referred to another health service or rehabilitation provider, the certificate states “Psychologist to be arranged>awaiting report”
(b)In the category of “capacity for activities” other than “pre-injury work”, the certificate states “Other: not to return to current employer”; and
(c)In the category of “capacity for work”, the certificate states in effect that the Applicant:
(i)is not fit for pre-injury work;
(ii)has capacity for some type of work from 4/6/2021 to 4/7/2021 for 8 hours/day 5 days/week; and
(iii)has no current capacity for any work from 13/5/2021 to 10/6/2021.
The reasons for termination stated in the termination letter are that the Applicant failed to comply with the email sent to him on 23 June 2021 requesting medical information to assess his fitness for work and the Respondent had been advised by icare that the Applicant was not fit to return to work with the Respondent and therefore was not fit to perform the inherent requirements of his job. The Respondent also submits that the Applicant has not been fit to work for the Respondent since March 2021, it did not receive any communication from the Applicant since 23 June 2021, the Applicant remains unfit for work, and the Respondent cannot be expected to continue the Applicant’s employment indefinitely. The Respondent denies that its decision to terminate the Applicant’s employment was an “act of retribution”. The Respondent also says that the Applicant had been in receipt of workers’ compensation payments for about 14 months prior to his dismissal.
On the information presently available to the Commission, I am of the view that the Applicant has at least an arguable case that his dismissal was unfair. Although the Applicant had not worked for the Respondent for about 13 months prior to his dismissal and the Respondent cannot be expected to keep the Applicant’s job available for him on an indefinite basis, the Respondent did not warn the Applicant that his employment was at risk or give him a further opportunity to provide medical information concerning his injury or his potential return to work prior to his dismissal on 18 April 2022. Nor did the Respondent direct the Applicant “to attend a medical assessment by a medical practitioner of our selection”, as it foreshadowed was a potential option in its communication to the Applicant on 23 June 2021. Instead, the Respondent moved directly to the termination of the Applicant’s employment on 18 April 2022, having last corresponded with him on 23 June 2021. Any workers’ compensation payments received by the Applicant since the termination of his employment with the Respondent would be relevant to any assessment of compensation.
In all the circumstances, the merits of the Applicant’s unfair dismissal application weigh in support of his application for an extension of time.
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 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.
Conclusion
Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the Applicant’s unfair dismissal case has some merit, the Applicant does not have an acceptable or reasonable explanation for the delay in lodging his application and the balance of the relevant considerations are not of any significant weight. Having regard to all the evidence, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.
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 must be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr K Vierboom, solicitor, for the Applicant
Ms J Wilson, solicitor, for the Respondent
Hearing details:
2022.
Newcastle (by telephone):
May 30.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[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] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
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