Jordan Baker-Hall v Origin PC Asia Pacific
[2021] FWC 28
•5 JANUARY 2021
| [2021] FWC 28 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy
Jordan Baker-Hall
v
Origin PC Asia Pacific
(U2020/15173)
DEPUTY PRESIDENT ANDERSON | ADELAIDE, 5 JANUARY 2021 |
Application for an unfair dismissal remedy - extension of time - no exceptional circumstances - application dismissed
[1] On 24 November 2020 Jordan Baker-Hall (Mr Baker-Hall or the Applicant) applied to the Commission under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his dismissal by Origin PC Asia-Pacific (Origin PC, the Respondent or the Employer).
[2] Mr Baker-Hall worked for Origin PC from 1 May 2019 until 11 October 2020 as a computer assembly technician. On 11 October 2020 he was advised by Origin PC that his employment would cease on account of redundancy due to a downturn in work.
[3] Mr Baker-Hall’s application was filed outside the statutory 21-day time limit. It is 22 days out of time. He seeks an extension of time. The Employer opposes that course.
[4] The Commission issued directions on 26 November 2020.
[5] On 4 December 2020 the Respondent lodged a formal response opposing the application.
[6] Mr Baker-Hall filed materials on 7 December 2020.
[7] I heard the matter by phone on 23 December 2020. Both parties were self-represented. I had declined an earlier request by the Respondent for an adjournment of the hearing.
Facts
[8] I heard evidence from both Mr Baker-Hall and Mr Aron Jackson, a Manager of Origin PC. The facts are largely not in dispute. Where there is inconsistency, I prefer the evidence of Mr Jackson, as it is more plausible and consistent with the documentary record.
[9] Origin PC is a business operating from suburban Adelaide in the computer technology industry (computer manufacturing) that has recently been acquired by United States interests.
[10] On Sunday evening 11 October 2020, by an internal messenger system (Flock), Mr Jackson messaged Mr Baker-Hall advising that he was sorry to inform that due to a downturn the business could not continue to employ him. Mr Baker-Hall understood that he would not need to come in the next day and that redundancy details would be sent to him.
[11] Mr Baker-Hall was not entirely surprised by the message as he had experienced some drop-off in his rostered hours in previous weeks. He had however noticed some other new persons working in the business in those previous weeks.
[12] Until then, Mr Baker-Hall had been employed as a permanent part-time employee since 1 May 2019 as a computer-assembly technician.
[13] Mr Baker-Hall immediately sought out alternate work. He attended an interview with a prospective employer on 12 October, and two days later (14 October) commenced new employment. It was full time employment.
[14] On 19 October 2020 Mr Jackson sent Mr Baker-Hall an email 1 attaching a redundancy letter dated 18 October 20202. It was sent to Mr Baker-Hall’s private email address. Mr Baker-Hall’s evidence is that he did not receive this email or the attached letter in his inbox.
[15] On 2 November 2020 Mr Jackson sent Mr Baker-Hall an email 3 (again to the Mr Baker-Hall’s same private email address) re-attaching the redundancy letter dated 18 October 2020. I accept Mr Jackson’s evidence4 that this email was sent after an amicable phone call he took from Mr Baker-Hall earlier that morning in which Mr Baker-Hall said that he was following up the redundancy letter which he had not received.
[16] Mr Jackson re-sent the letter at 11.18am that morning (2 November) after the telephone call from Mr Baker-Hall believing that it would be received by Mr Baker-Hall.
[17] Although sent, Mr Baker-Hall again did not receive the letter in his inbox.
[18] On 6 November 2020, still not having received the letter, Mr Baker-Hall sent a text to Mr Jackson resulting in the following exchange: 5
“Mr Baker-Hall: | “Hey Aron, Its Jordan. I am just curious as to when you will be sending the email through with the details of my redundancy.” |
Mr Jackson: | “Hi Jordan should already have been sent let me chase it can you confirm your email please? “Also I heard you already got a job congratulations” |
Mr Baker-Hall: | “The email is [email protected] 6 and yes I did. Thank you” |
[19] Mr Jackson did not re-send the redundancy letter. He simply checked that the email address sent by Mr Baker-Hall in the text exchange was the same as the one he had previously used.
[20] On 10 November 2020 Mr Baker-Hall, still without the redundancy letter, became more assertive. At 5.10pm he sent Mr Jackson a text leading to the following exchange:
“Mr Baker-Hall: | Hey Aron, I’ve been pretty quiet and fair about all this but I’m gonna the redundancy package details emailed to me BY FRIDAY alongside copies of all of my PaySlips. I have already asked you for it and you still haven’t sent it through. Again my email is [email protected] |
Mr Jackson: | You would need to access your payslips via Xero Do you have access? |
Mr Baker-Hall: | I have access to it but it is not up-to-date, it only goes as far as June |
Mr Jackson: | I doubt that I’ll take a look You will need to download them yourself via the system Just checked your pay slips are on zero Redundancy letter again Sent Let me know if you didn’t get it” |
[21] That day, at 5.47pm 10 November 2020, Mr Jackson re-sent the redundancy letter by email (again to the same address). 7
[22] On this occasion (10 November) Mr Baker-Hall received the email and its attached redundancy letter.
[23] Mr Baker-Hall formed a concern that his redundancy may not be genuine from the day he was told of it by Mr Jackson on 11 October 2020. However, he did not articulate his concerns to the Employer. He kept them to himself. He started conducting research on his rights from that evening (11 October). He was wanting to know what his rights were to notice, to redundancy pay, to possibly challenge the redundancy and whether he had been correctly paid. He searched web sites including that of the Fair Work Ombudsman and the Fair Work Commission.
[24] Once Mr Baker-Hall received the redundancy letter on 10 November 2020 he read it. He learned that the Employer was advising that he would be paid two weeks in lieu of notice (plus accrued annual leave).
[25] The following day (11 November) Mr Jackson, not having heard from Mr Baker-Hall, sought to confirm receipt. The following text exchange ensued:
“Mr Jackson: | Please confirm if you got the email and can access your pay slips |
Mr Baker-Hall: | yes, the email came through. I am going to have to look on my computer when I get home for payslips, they are only up to June on my phone. Also they never got updated to what my new pay was, they only reflect the original |
Mr Jackson: | It’s on your pay slips” |
[26] In the period between receipt of the redundancy letter (10 November) and filing these proceedings (24 November) Mr Baker-Hall further considered his position and conducted further examination of relevant web sites. He says that he also telephoned a fair work help line on nine occasions during his lunch breaks to ask if the Employer’s pay-out was legally correct and to see if he might have a case to get a better redundancy payment, but did not get through to a fair work officer.
[27] Mr Baker-Hall continued in full time work with his new employer.
[28] Mr Baker-Hall filed these proceedings in the Commission on 24 November 2020. He considers that his dismissal was unfair and not a genuine redundancy on the basis that he believes three other persons were employed and are now performing his former role. He seeks compensation.
Submissions
[29] Mr Baker-Hall says that an extension of time should be granted for three reasons:
• he was waiting for the letter of redundancy to arrive from Origin PC, and it did not arrive until 10 November 2020 – almost a month after he was dismissed;
• he was seeking advice from the fair work authorities and did not manage to make direct contact; and
• he was feeling stressed and anxious in a new full time job and became overwhelmed the more he researched his rights.
[30] Mr Baker-Hall says that there is no prejudice to the Employer should an extension be granted.
[31] Origin PC submit that there are no exceptional circumstances justifying an extension of time. It contends:
• Mr Baker-Hall was not confused about having been dismissed on 11 October or the reason for dismissal (redundancy);
• the Employer sent Mr Baker-Hall his redundancy letter on three occasions – 19 October, 2 November and 10 November – each time to the same private email address. If it was not received or opened by Mr Baker-Hall until 10 November 2020 that it not of its doing;
• Mr Baker-Hall was researching his rights from day one of his dismissal and could have filed a claim within 21 days if he really thought the redundancy was not genuine;
• Mr Baker-Hall, already out of time, delayed a further two weeks after reading the redundancy letter before filing the claim; and
• Mr Baker-Hall’s claim on merit is weak because no person was employed to do his former job. The persons he believes took his job were non-employed interns on a formal internship programme with the University of Adelaide ending in December 2020.
Consideration
[32] Section 394(3) of the FW Act provides:
“394 Application for unfair dismissal remedy
…
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person 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 person and other persons in a similar position.”
[33] Mr Baker-Hall’s application can only proceed if he can establish that “exceptional circumstances” exist within the meaning of section 394(3).
[34] An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.8
[35] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant.9 A decision whether to extend time under section 394(3) involves the exercise of a discretion.10
[36] I apply section 394(3) in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd:
“[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.”11
[37] The principles of Nulty have been cited with approval by subsequent full benches of the Commission.
[38] I now consider each of the factors set out in section 394(3).
Reason for the delay (section 394(3)(a))
[39] The reason for the delay in lodging an application is a factor that must be considered. The absence of an explanation for any part of the delay will usually weigh against an applicant. Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though it is ultimately a question of degree and insight.12
[40] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.13
[41] The period of the delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged. That said, regard may be had to any circumstances from the date the dismissal took effect when assessing whether the explanation for the delay is acceptable or credible.14
[42] The 21-day statutory period after Mr Baker-Hall’s alleged dismissal expired on 2 November 2020. Having filed his application on 24 November 2020, it is 22 days out of time.
[43] There are two periods of delay in this matter. The first is the eight day period 2 November 2020 to 10 November 2020 before Mr Baker-Hall received and read the redundancy letter. The second is the fourteen day period from the time Mr Baker-Hall received and read the redundancy letter (10 November) until he filed the application (24 November).
[44] The explanation for the first period of delay is that Mr Baker-Hall was waiting for the redundancy letter to know what redundancy payment he would be receiving, and whether it lined up with what he believed to be lawful and reasonable.
[45] I accept that although Mr Baker-Hall harboured a private view from the time he was dismissed that his redundancy may not be genuine, it was reasonable for Mr Baker-Hall to know of the terms of his redundancy before deciding whether to commence legal proceedings. Given that he had found alternate work quickly, it was reasonable that any such proceedings would seek an order for compensation rather than re-employment. There is an obvious connection between deciding whether an unfair dismissal claim seeking compensation has utility and knowing the amount of redundancy pay being paid by the former employer.
[46] I have accepted Origin PC’s evidence that it did in fact send Mr Baker-Hall (to a correct private email address) the redundancy letter as early as 19 October 2020 (and then again on 2 November and 10 November). However, I have also found that, for reasons that are only speculative 15, that Mr Baker-Hall did not receive the emails into his inbox.
[47] Whilst through no fault of Origin PC the letter of redundancy was not received by Mr Baker-Hall until 10 November 2020, the issue before the Commission is whether there was an acceptable reason for the delay in this period. I accept that there was. Not only was the content of the letter relevant to a decision whether to initiate proceedings under the FW Act, Mr Baker-Hall acted promptly in this first period to follow-up its apparent non-receipt. On three occasions, 2 November (by phone call), 6 November (by text) and 10 November (by text) he did so. Whilst 2 November 2020 was the 21st day after the dismissal and Mr Baker-Hall could have acted earlier to better protect his rights, I accept that his alternate employment was his immediate priority and that he was trusting that the letter Mr Jackson had promised on 11 October 2020 would be sent.
[48] The explanation for the second period of delay is however in a different category. Mr Baker-Hall’s explanations are twofold: trying to contact the fair work authorities, and stress arising from his new job.
[49] Neither explanation is convincing. From that point in time (10 November) Mr Baker-Hall had the information he needed to be able to make a claim. He already had researched fair work web sites and already believed that he was entitled to be paid two weeks. If he already thought the redundancy not to be genuine, there was nothing in Origin PC’s letter that added or detracted from that view. If he already thought two weeks would be paid but the circumstances warranted more, it was immaterial whether it was a lawful payment or not. He could have filed proceedings the next day, or very soon after 10 November given that the 21 day period had already expired. Mr Baker-Hall’s evidence was that he became aware of the 21 day filing period requirement within two to three weeks of his dismissal (about 6 November) 16 – in other words, prior to receiving the redundancy letter.
[50] The claim by Mr Baker-Hall that he continuously rang the fair work help lines on nine separate occasions in this second period of delay (probably he says the Ombudsman’s number) during his 30 minute lunch breaks and was always placed on hold but not answered has an air of convenience and exaggeration about it. Even if on one occasion he encountered this experience, there is no explanation why Mr Baker-Hall did not alternatively call the Commission inquiries line given that he had researched the web sites of both fair work agencies.
[51] The evidence by Mr Baker-Hall that he was too tired after work to make calls or further research his rights is not convincing. Whilst no doubt his new job (being full time) was rightly a priority, there is nothing exceptional about an employee being stressed or tired in a post-dismissal period, whether from taking up fresh employment or otherwise. Nor did Mr Baker-Hall lead evidence (medical or otherwise) to suggest that his level of stress or anxiety (whatever its causation) inhibited him from making the claim he subsequently made.
[52] The evidence of Mr Baker-Hall that during this second period he did not take his wallet to work and thereby did not have his credit card on him to make the application and pay the filing fee is particularly unconvincing. If on one day he encountered a problem with not making a claim due to not having his credit card on him during the day, he could have taken his credit card the next day or done so on-line when he returned home.
[53] Further, on-line lodgement of an unfair dismissal claim does not need to be transacted during the Commission’s (or the Ombudsman’s) business hours. Indeed, as it turned out, Mr Baker-Hall made an on-line lodgement at 5.54pm on 24 November 2020.
[54] Mr Baker-Hall’s explanation for the first period of delay (of eight days) is reasonable but his explanation for the further period of delay of fourteen days is not convincing especially since, by then, he was well aware that he had a 21 day time limit to file proceedings.
[55] Considered overall, the reasons for the period of delay (22 days) do not weigh in favour of a finding of exceptional circumstances.
Awareness of the dismissal taking effect (section 394(3)(b))
[56] Mr Baker-Hall was aware of the dismissal on 11 October 2020, and did not thereafter attend for work. He found alternate work the next day and commenced in alternate work three days later.
[57] He was neither confused about the date of dismissal nor the reason for dismissal.
[58] Moreover, Mr Baker-Hall privately harboured a view at the time of dismissal that his redundancy was not genuine – believing that alternate persons had been employed some weeks earlier to perform his work.
[59] He was however unaware of the terms of his redundancy until almost one month later (10 November).
[60] In these circumstances, this is a neutral consideration.
Action taken to dispute dismissal (section 394(3)(c))
[61] Mr Baker-Hall took no action to dispute the dismissal in advance of filing his unfair dismissal application. He chose not to confront Mr Jackson with his private views about persons having taken his former job. Had he done so, he may have been provided with the explanation which emerged in the course of these proceedings.
[62] However, given that knowledge of the terms of his redundancy were relevant to a decision whether to litigate and seek a remedy, it was not possible for Mr Baker-Hall to question the Employer about the adequacy of this redundancy payment until after 10 November 2020. However, he did not do so in the following two week period.
[63] This is at best a neutral factor and does not weigh in favour of granting an extension of time.
Prejudice to the employer (section 394(3)(d))
[64] The Employer would incur limited prejudice should an extension be granted. A claim would have to be responded to, involving time and cost.
[65] These considerations, whilst real, should not be given disproportionate status. Whilst in a limited way they weigh against an extension of time, they would not, in their own right, constitute grounds to refuse the extension sought. The nature of the prejudice in this matter is not unique in any particular respect.
[66] However, the absence of prejudice would not itself be a reason to grant an extension.17
[67] This is a neutral consideration.
Merits (section 394(3)(e))
[68] The merits of this application are likely to concern the reason for the redundancy, whether a consultation obligation existed, and the adequacy of the redundancy payment.
[69] Although Mr Baker-Hall had only a short period of service, and although the Employer has advanced some evidence that Mr Baker-Hall drew an incorrect conclusion about the circumstances of the persons who came into the business (being short term interns not employees), none of these issues have been tested. Nor has there been any evidence of whether a consultation obligation existed under an industrial instrument, or whether the statutory definition of genuine redundancy 18 is made out.
[70] In these circumstances, the merits of the application is a neutral consideration.
Fairness between persons in similar position (section 394(f))
[71] This factor does not arise in this matter.
Conclusion
[72] No factor weighs clearly in favour of Mr Baker-Hall’s request for an extension of time. The explanation for the first period of delay is reasonable but Mr Baker-Hall then waited a further fourteen days before commencing these proceedings despite, by then, being aware that he was already out of time. The explanation for delay during that further fourteen day period is unconvincing.
[73] No other statutory considerations in section 394(3) of the FW Act point to exceptional circumstances.
[74] In the context of a 21-day statutory time limit the period of delay is considerable (22 days) – double the statutory period.
[75] As noted, the statutory test of “exceptional circumstances” establishes a “high hurdle” and must be objectively assessed.
[76] Considered overall, there are no exceptional circumstances in this matter.
[77] That being so, it is not permissible to extend the time for lodgement. As the time for lodgement has not been extended, Mr Baker-Hall’s application is out of time and must be dismissed.
[78] An order 19 to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
J Baker-Hall, the Applicant on his own behalf
A Jackson and L Fletcher, on behalf of Origin PC Asia Pacific
Hearing details:
2020
Adelaide (by phone)
23 December
Printed by authority of the Commonwealth Government Printer
<PR725971>
1 R1
2 A2
3 R2
4 Audio transcript 23 December 2020 0 hour 59 minutes
5 A4
6 Email address in A4; redacted in published decision for privacy reasons
7 R3
8 Smith v Canning Division of General Practice[2009] AIRC 959
9 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
10 Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
11 [2011] FWAFB 975 at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
12 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2019] FWCFB 3288, at [35]-[45]
13 Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
14 Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31] – [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963; Czoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149
15 Mr Baker-Hall’s evidence was that the file may not have transmitted due to possible corruption: audio transcript 23 December 2020 0 hour 33 minutes. Mr Jackson’s evidence was that Mr Baker-Hall advised him that he was having phone/computer synchronisation problems: audio transcript 23 December 2020 0 hour 56 minutes
16 Audio transcript 23 December 2020 0 hour 44 minutes
17 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
18 Section 389 FW Act
19 PR725972
0
8
0