Jon Wright v Peoplesmove Pty Ltd T/A Carhood
[2017] FWC 4418
•24 AUGUST 2017
| [2017] FWC 4418 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jon Wright
v
Peoplesmove Pty Ltd T/A Carhood
(U2017/6966)
COMMISSIONER MCKINNON | MELBOURNE, 24 AUGUST 2017 |
Application for an unfair dismissal remedy - extension of time.
[1] On 29 June 2017, Mr Jon Wright applied to the Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The application relates to the termination of his employment by Peoplesmove Pty Ltd (Peoplesmove).
[2] Under the Act, an application for an unfair dismissal remedy must be made within 21 days after the dismissal “took effect”, or such further period as the Commission allows if there are exceptional circumstances. 1
[3] Peoplesmove objected to the application because it was lodged more than 21 days after the dismissal took effect. There is some uncertainty about the actual delay in lodgement, because of when the dismissal is said to have ‘taken effect’. If the dismissal took effect on 24 May 2017 when the actual dismissal occurred, the application was made 15 days late. If the dismissal took effect on 7 June 2017, as stated in the letter of termination, the application was made one day late. Either way, it seems to be agreed that the application was filed out of time.
[4] The parties filed materials in support of their positions on 26 July 2017 and 1 August 2017. 2 On 11 August 2017, a hearing was held to deal with the jurisdictional objection. The parties were self-represented. Mr Wright and Mr Steven Johnson, Executive Director and Founder of Peoplesmove, gave evidence.
[5] This decision deals with whether there are exceptional circumstances that warrant a further period of time being allowed for Mr Wright to file his application.
When did the dismissal take effect?
[6] Mr Wright’s application for an unfair dismissal remedy identified 26 May 2017 as the date he was notified of his dismissal, and stated the date the dismissal took effect as 8 June 2017. Later materials filed by Mr Wright indicated that the dismissal took effect on 24 May 2017. 3 All materials filed in the Commission by Peoplesmove indicated that the dismissal took effect on 24 May 2017.
[7] It appears to be agreed that Mr Wright’s last day of employment was 24 May 2017.
[8] On that day, the parties met in the afternoon and Mr Johnson told Mr Wright that his employment was terminated. 4
[9] At approximately 8.30pm that evening, 24 May 2017, Mr Wright received an email from Mr Johnson with the subject heading “Employment Termination”. 5 Attached to the email was a letter of termination, which included the following:
“We consider that your performance and conduct is still unsatisfactory and have decided to terminate your employment for the following reasons:
Your continued unsatisfactory performance in the role of Customer Service Manager;
Failure to be on premises for the required 38 hours of the working week.
Failure to produce regular reports when asked
Misconduct towards colleagues
Based on your length of service, your notice period is two (2) weeks therefore your employment will end on Wednesday the 7th June, 2017. Peoplesmove Pty Ltd trading as Carhood has decided that in the best interests of the business, we will pay you the two (2) weeks in lieu in the following pay run (24th June, 2017).”
[10] In my view, Mr Wright’s dismissal took effect when he was told verbally that his employment was terminated on the afternoon of 24 May 2017. That was his last day of work. The dismissal was then confirmed in writing to Mr Wright at approximately 8.30pm that evening. Rather than require Mr Wright to work out his two week notice period, Peoplesmove decided to make a payment in lieu of notice to Mr Wright. 6 This decision did not alter the effective date of dismissal.
[11] I find that the dismissal took effect on 24 May 2017. This means that Mr Wright’s application for an unfair dismissal remedy was filed 15 days late.
Should the Commission allow extra time for the application to be filed?
[12] As set out above, the Commission can allow additional time for an unfair dismissal application to be filed if there are exceptional circumstances. The decision to extend time is a discretionary one.
[13] Section 394(3) of the Act requires the Commission to take into account a number of factors in considering whether a period of time longer than 21 days should be allowed for a person to lodge an unfair dismissal application. The factors are:
- the reason for the delay;
- whether the person first became aware of the dismissal after it had taken effect;
- any action taken by the person to dispute the dismissal;
- prejudice to the employer (including prejudice caused by the delay);
- the merits of the application; and
- fairness as between the person and other persons in a similar position.
[14] An extension of time can only be allowed if the Commission is satisfied that there are “exceptional circumstances”. The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group 7as follows in :
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. 8” [Emphasis added].
Whether the person first became aware of the dismissal after it had taken effect
[15] It is uncontested, and I find, that Mr Wright became aware of the dismissal on the date of termination on 24 May 2017. This factor weighs against the grant of additional time to make the application.
Prejudice to the employer (including prejudice caused by the delay)
[16] Peoplesmove asserted that the lateness of the application had caused it a disadvantage and unfairness by “placing unnecessary prejudice on the matter”. It said it had been “surprised and consumed by the lateness of the application and what impact and unfairness it may have had on former employees.”
[17] The submission is not elaborated on in any way, including what, if any, unfairness might accrue to former employees.
[18] I do not accept that there is any significant prejudice to Peoplesmove arising from the late application by Mr Wright, other than perhaps the additional resources required to deal with a jurisdictional objection. The fact that the parties are each self-represented means that their costs of participating in the proceeding have been relatively contained to date.
[19] I find this factor to be neutral in relation to a grant of additional time to Mr Wright to make his application.
The merits of the application
[20] The application for extension of time is being considered before the merits of the application have been properly considered. However, there is sufficient information in Mr Wright’s application to indicate that if his version of events were accepted in a substantive hearing, the application would not be without merit or lacking in substance.
[21] I find this factor weighs in favour of granting additional time to make the application.
Fairness as between the person and other persons in a similar position
[22] This factor does not appear to be relevant and I find that it is a neutral consideration in this case.
The reason for the delay
[23] As noted above, Mr Wright’s application was filed 15 days late.
[24] Mr Wright attributed the delay to Peoplesmove’s decision to withhold his final pay until one month after his dismissal. Mr Wright says he interpreted this act as a “threat” designed to discourage him from filing his application within the 21 day period.
[25] Mr Wright gave evidence of a conversation with Mr Johnson on the day of his dismissal. According to Mr Wright, the following exchange occurred after he was told that his employment was terminated:
Mr Wright: “All options remain on the table.”
Mr Johnson: “That’s a shame. You need to think carefully about what your next steps are.”
[26] Mr Wright said that from this conversation and the email received later that evening advising that his final pay would be paid one month later, he formed the view that he was being “manipulated” and that he should “just go quietly”. Mr Wright conceded that no actual threat was verbalised by Mr Johnson.
[27] The evidence confirms that Mr Wright was paid monthly by Peoplesmove on the 24th of each month. Mr Wright’s payslip for the period ending 20 June 2017 shows that he was paid for amounts including two weeks’ notice and other “Termination Payments” on 24 June 2017. 9
[28] The letter of termination sent to Mr Wright on 24 May 2017 was written by Mr Johnson and included the following sentence:
“Peoplesmove Pty Ltd trading as Carhood has decided that in the best interests of the business, we will pay you the two (2) weeks notice in lieu in the following pay run (24th of June, 2017).”
[29] During the hearing, Mr Johnson was asked what he meant by the words “in the best interests of the business”. He explained that he meant the decision to make payment in lieu of notice rather than have Mr Wright work out his notice period. He also explained that Mr Wright preferred monthly pay during his employment. He expressly denied that there was anything untoward in his decision to defer Mr Wright’s final payment until 24 June 2017.
[30] I accept that the decision to make payment in lieu of notice is often a decision that is made in the interests of a business. However, in circumstances where Mr Wright’s dismissal occurred on 24May 2017, payment of his final pay, including payment in lieu of notice, could readily have been made in conjunction with the monthly pay cycle, on the day of termination itself. There was no need to delay the payment for another month.
[31] I do not accept that the reference to “in the best interests of the business” was a reference to Mr Wright’s preference for monthly pay.
[32] The better view is that the words “in the best interests of the business” were referring to the decision to make payment in lieu of notice one month later, on 24 June 2017.
[33] It follows that I do not accept Mr Johnson’s explanation for the decision to withhold Mr Wright’s final pay until one month after his dismissal. Nor does it make sense in light of Mr Johnson’s statement during the hearing that Peoplesmove had no record of “withholding pay” and that to do so would be “highly illegal”.
[34] It is relevant that the letter of termination was sent to Mr Wright some hours after the meeting with Mr Johnson, and after Mr Wright had stated that “all options” remained on the table. I find that the decision to withhold payment of notice was notified to Mr Wright on the evening of 24 May 2017, and that it was intended to advantage the position of Peoplesmove in light of the suggestion by Mr Wright earlier that day that he may challenge his dismissal.
[35] If the only reason for Mr Wright’s delay in making the application was to secure his final pay from Peoplesmove, this factor would have weighed heavily in favour of allowing additional time for his application to be made. However, it accounts for at most, 10 of the 15 days of delay. It was not the only reason for delay.
[36] The following chronology shows the passage of time between the dismissal, payment of Mr Wright’s final pay, and the date the application was made. As the chronology shows, the application was made 5 days after Mr Wright received his final pay.
Date | Event |
Wednesday, 24 May 2017 | Date of dismissal |
Wednesday, 14 June 2017 | Last day of 21 day period |
Saturday, 24 June 2017 | Final pay |
Thursday, 29 June 2017 | Unfair dismissal application filed |
[37] There was no explanation offered during the hearing for the additional 5 days of delay after 24 June 2017, when Mr Wright’s final payment was made.
[38] In my view, it is reasonable to expect that after his dismissal and while he was waiting for his final pay, Mr Wright would have made inquiries, become aware of the 21 day period (if he was not already aware), and prepared his application to the Commission so that it could be made as soon as payment was received.
[39] During the hearing, Mr Wright explained that after his dismissal, he was “initially in a depressive funk”, that the actions of Peoplesmove left him in a “state of disbelief” and that his application was made after “an eventual decision that the truth deserved to be aired.” I accept Mr Wright’s evidence.
[40] It is well established that the effects of dismissal such as stress, shock and confusion are unfortunately not unusual and not in themselves exceptional circumstances. 10
[41] The additional 5 day delay with no explanation is a factor that weighs against the grant of additional time to make the application.
Any action taken by the person to dispute the dismissal
[42] There is no evidence that Mr Wright took action to dispute his dismissal after the date of dismissal until his application was filed on 29 June 2017. It may be that he was influenced by his belief that his final pay was at risk. However, as noted above, that does not explain the additional time it took from the date of payment until the application was made. This factor weighs against the grant of additional time to make the application.
Conclusion
[43] Whether the totality of the circumstances amount to exceptional circumstances is a value judgment properly described as a discretionary decision. 11
[44] Mr Wright was aware of his dismissal from the day it occurred. He was aware from that time that he had “options” in relation to the dismissal. Peoplesmove’s conduct in withholding Mr Wright’s final pay may have contributed to the delay, but I am not satisfied that it was the only contributing factor. There is no explanation for the final 5 days of delay.
[45] For the reasons set out above, on balance, I am not satisfied that there are exceptional circumstances in this case such that an extension of time should be allowed.
[46] The application is dismissed.
COMMISSIONER
Appearances:
J Wright for the Applicant
S Johnson for the Respondent
Hearing details:
2017
Melbourne
August 11
1 FW Act, s.394(3)
2 Exhibits A1, R1 and R2; Bundle of Documents for the Applicant (26 July 2017)
3 Applicant’s Outline of Argument, 26 July 2017
4 Exhibit R1
5 Applicant’s Bundle of Documents, 26 July 2017
6 Letter of termination dated 24 May 2017
7 [2011] 203 IR 1
8 Ibid [13].
9 Exhibit A4
10 Shaw v Australia & New Zealand Banking Group Ltd[2015] FWCFB 287
11 [2015] FWCFB 287
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