Joshua Bradley v Jban Pty Ltd
[2018] FWC 6363
•19 OCTOBER 2018
| [2018] FWC 6363 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Joshua Bradley
v
JBAN Pty Ltd
(C2018/5040)
COMMISSIONER WILSON | MELBOURNE, 19 OCTOBER 2018 |
Application for an unfair dismissal remedy – extension of time – no exceptional circumstances – application dismissed.
[1] This matter concerns an application made by Joshua Bradley for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Mr Bradley was first employed by the Respondent, JBAN Pty Ltd (JBAN), on or around 9 October 2017, and his application relates to the termination of his employment by JBAN which operates two “Oporto” franchises on Melbourne’s Peninsula Link freeway. Mr Bradley’s application was received by the Commission on 27 August 2018.
[2] Section 366 of the Act provides that an application made under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. My finding below is that Mr Bradley was dismissed on 3 August 2018. Accordingly, his application is out of time by three days.
[3] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires satisfaction that there are exceptional circumstances to warrant the extension, taking into account the criteria which are specified within s.366(2) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.366(2) involves the exercise of a discretion.2
[4] In this decision, I have considered whether an extension of time should be granted to Mr Bradley for the making of his application and, for the reasons set out below, I am not satisfied that a further period should be allowed.
BACKGROUND
[5] The Applicant, Joshua Bradley, was represented and assisted in these proceedings by his father, Craig Bradley. JBAN was represented by its owner and Director, Barton Smith.
[6] Mr Bradley was employed by JBAN at the Oporto Store on the Peninsula Link at Baxter, Victoria on or around 9 October 2017. His employment was on a part-time basis with him working up to three to four shifts per week. The way the franchise operated was apparently that employees who were required for work would be informed of their rosters in advance. That information was provided to them through an email generated by a system operated by the franchise. Employees were expected to endeavour to themselves arrange an alternative employee in the event that they were unable to attend for a rostered shift for some reason.
[7] Mr Bradley reports “having issues with his employment in July” at around the same time that he had commenced training for a new supervisory position.
[8] Also during July 2018 Mr Bradley submits that he noticed that his rostered shifts began to reduce. While he had previously been rostered for between three to four shifts per week, Mr Bradley’s shifts were first reduced at the start of July to less than two shifts and then to no shifts at all from about mid-July. Mr Bradley reports trying to engage Mr Smith in a discussion about the reason for the reduction. That engagement was apparently through text messages initiated by Mr Bradley. Mr Bradley says about this circumstance in his application form that “Barton refused to enter into communication with Joshua on this. On the 26th of July Barton sent a text stating that he would only discuss in person in his next shift. This statement made Joshua uncomfortable as he felt that Barton was going to let him go, Josh did not turn up to his next shift as he was unsure what to do and had not experienced this situation before.”
[9] The reference to not attending for the next rostered shift is apparently in relation to a shift that was rostered on 31 July 2018. Mr Bradley’s explanation for not attending for that shift is that he felt intimidated in doing so, because of what was by then a deteriorating employment relationship between himself and Mr Barton.
[10] Mr Smith notes that prior to 31 July 2018 that there had been two occasions on which Mr Bradley failed to attend rostered shifts, ostensibly for reason of illness. On 4 July 2018 Mr Bradley had advised by text message at 11:54 AM that he was unable to attend, for reason of illness, a five-hour rostered shift that day otherwise due to commence from 4:30 PM. On or around 23 July 2018 Mr Bradley had advised by text message at 11:34 AM that he was unable to attend, again for reason of illness, a shift otherwise rostered for that day from 4:30 PM.
[11] After not attending his rostered shift on 31 July 2018 Mr Smith sent Mr Bradley an email seeking an explanation about the circumstance. The email was headed “No show shift 31/7 4.30 - 9.30pm Northbound” and was sent on Wednesday, 1 August 2018 at 12:13 PM and was in the following terms:
“Attn Joshua Bradley
You were rostered on a close shift at Northbound on Monday 31/7 and failed to show.
The shift supervisor attempted to contact you via text and received no reply
I attempted to call you on your mobile contact number at 12.05 on 1/8 and left a message for you to contact myself re your status with oporto.
If you fail to respond by this email or voice message by this Thursday 2nd August (by 5pm) via a call or in person then your employment will be deemed
to be treated as an abandonment of your employment.
Regards Barton Smith
Oporto store code 3220
Peninsula Link (Southbound) Baxter VIC 3911
Franchise Partner: Barton Smith”
[12] Mr Bradley did not respond to this email. His explanation for why he did not respond has been provided in several parts. The first being that because his phone was not functioning correctly his preference was to view emails on a computer, which he did not check as frequently as his phone. He recalls having seen the heading of the email, but not its contents, within the range of 1 – 3 August 2018 and did not read the full text until later in August, shortly before having made his general protections application, on 27 August 2018. His explanation for not having opened the email and read its contents at an earlier stage is that he was afraid to do so because of what it may contain. Mr Bradley concedes having received a missed phone call from Mr Smith on 1 August 2018 however, objects to a voice message having being left with the missed call.
[13] Having not received a response from Mr Bradley about the email sent on 1 August 2018, Mr Smith sent a further email to Mr Bradley on 3 August 2018 which set out the following (with omission of email addresses and a telephone number):
“From: PeninsulaLink3220 Oporto
Date: Fri, Aug 3, 2018 at 9:51 AM
Subject: Re: No show shift 31/7 4.30 - 9.30pm Northbound
To: [Josh Bradley]
Cc: PeninsulaLink3225 Oporto [and other addressees, omitted]
Attn Joshua Bradley
As we have not heard from you in relation to your employment status with Oporto, you have been deemed as having
abandoned your employment effective at 5pm 3rd August 2018.
Failure to return your uniform by Friday 10th August will result in a deduction of $50 out of any accrued annual leave entitlements on your final
pay Tuesday 14th August.
Any questions or matters pertinent to this then please call Barton Smith direct on [telephone number omitted].
Regards Barton Smith
Franchisee
Oporto
Peninsula Link South and North
Baxter Vic 3911”
[14] Mr Bradley submits that he did not realise that he had been sent this email or reviewed its contents until 26 August 2018, after he went to see his father about his employment situation.
[15] After these dates in early August Mr Bradley endeavoured unsuccessfully to communicate with Mr Smith about his employment situation and sent two text messages to his employer which were not responded to. The texts on 15 and 20 August 2018 were in following terms:
• Sent on Wednesday, 15 August 2018 at 5.51 PM;
“Barton,
As I have officially ceased employment with Oporto. I believe I am entitled for my annual leave to be paid to me on my departure.
It's been well over a week and no such payment has been made.
I would appreciate if we could sort this out as soon as possible.
Thanks, Joshua.”
• Sent on Monday, 20 August 2018 at 7.54 PM;
“Hey Barton,
Given that I haven't gotten a response to this message. I'll give you another 48 hours. Or I’ll have no choice but to take things further.
Sincerely, Joshua”
[16] Since he did not receive a response from Mr Smith to these communications, Mr Bradley sought advice from his father, Mr Craig Bradley on 26 August 2018. At that time the two searched Mr Bradley’s emails and found the email referred to above, from Mr Smith dated 3 August 2018. It is submitted on behalf of Mr Joshua Bradley that at the time of receipt of the first of the two text messages that there was no knowledge of any actual termination on his part, with it being said about the context of the texts that:
“Note in the text Joshua makes the statements “As I have officially ceased employment with Oporto” and “It’s been well over a week” which refer to his assumptions that his employment had ended as he had not received any shifts for a number of weeks. At that time however Joshua was not aware of any actual termination date or notification.” 3
[17] Having seen on 26 August 2018 the termination email dated 3 August 2018, Mr Joshua Bradley immediately commenced a general protections application in the Fair Work Commission. The review of his circumstances and the emails received occurred on Sunday, 26 August 2018 with the application then being lodged the next available business day, on Monday, 27 August 2018.
[18] The alleged contravention set out within the application is in following terms:
“The employer failed to provide any true reason for the drop in shifts and further stopped communicating with the Joshua. Joshua has had no choice but to commence these proceedings to get the answers and results needed. Joshua was promised a promotion and commenced training as a manager. Around 2 weeks in to his training his shifts were significantly reduced without explanation. Joshua made multiple attempts to obtain the reason which was only met with further reductions and eventually a termination.”
LEGISLATION
[19] Relevant to the Commission’s consideration of this question are the provisions in s.366 of the Act:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
CONSIDERATION
[20] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”:
“[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”. 4
[21] The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to extend the time limit. It may be the case that even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 5
[22] In considering whether an extension of time should be granted to Mr Bradley, I am required to consider all of the criteria in s.366(2), which I now do.
Date of termination
[23] Mr Bradley argues three matters in respect of the date of termination.
[24] The first is that being a part-time employee he was entitled to be given notice of his termination of employment which in his case should have been not less than one week’s notice. The second matter raised in respect of the date of termination is that since Mr Bradley did not see the termination email until 26 August 2018 that the termination could not take effect until that date. The third being that notice of termination was not provided in the prescribed form and therefore notice of termination was not “ officially provided” and as such the “effective date of termination could be 14 August 2018 when Mr Bradley assumed he was no longer employed and sent the text message” to Mr Barton requesting to be paid out his legislative entitlements.
[25] In relation to the first proposition, being the matter of the date from which a notice of termination takes effect, the Applicant submits that:
“As per the NES (National Employment Standards) and Section 117 of the Fair Work Act, Part time employees who have been employed for 1 year or less are to be give 1 weeks notice of termination. This would mean that the effective date of the termination would be 1 week from the email, which would make it the 10th of August, therefore lodging on the 27th of august would then be classed as with-in the 21 day time frame.” 6
[26] In relation to the second matter, being that the date of termination is 26 August 2018, since that is the date on which Mr Bradley first saw the email from Mr Smith, the Applicant relies on considerations developed by the Full Bench in Ayub v NSW Trains 7 (Ayub). Mr Bradley submits in relation to Ayub that there are limitations on when the date of termination occurs based on when and how termination has been communicated. Mr Bradley argues that the Full Bench in Ayub “held that the 21-day period to lodge an application for an unfair dismissal remedy could not begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this”.8
[27] In relation to the third matter, being the form that the notice of termination was given in, the Applicant submits that:
“…Paragraph 1 of Section 117 refers to sections 28A and 29 of the Acts Interpretation Act 1901 which states how notice should be given
Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:
(a) delivering it personally; or
(b) leaving it at the employee’s last known address; or
(c) sending it by pre-paid post to the employee’s last known address.
The notice was actually sent via email, which under the Act is not listed as an acceptable method. Based on this it could be argued that as no notice had been officially provided and the effective date of termination could be the 14th of August when Joshua assumed he was no longer employed and sent the text message to Barton requesting a payout of his annual leave as constructive termination.
Further to this, the effective date of termination could even be determined as the 26th of August when Joshua opened and read the email.”
[28] Drawing these matters together, Mr Bradley argues that there are three possible dates of his termination from which the statutory period for filing a general protections application should be counted:
• 10 August 2018; derived by adding one additional week’s notice to the purported date of termination of 3 August 2018;
• “14th of August when Joshua assumed he was no longer employed and sent the text message to Barton requesting a payout of his annual leave as constructive termination”; or
• “26th of August when Joshua opened and read the email”. 9
Matter 1 – Is the effective date of dismissal extended by the period of required notice?
[29] The proposition that since Mr Bradley was entitled to notice of his termination of employment and he was not paid anything in lieu of the requisite giving of notice, his termination could not take effect until such time as the period of notice had been completed has no proper basis either in the Act or in the authorities established by the Commission on the subject of when a dismissal takes effect. The Act provides at s.386 the circumstances in which a person is “dismissed”. Those circumstances include, so far as is relevant for this matter, the situation when a person has been terminated on the employer’s initiative (s.386(1)(a)). It is also well-established that a termination of employment takes effect when it has been communicated to the employee.
[30] In relation to the question of termination at the initiative of the employer, it has been held that termination for reason of abandonment of employment still requires an employer to “take the additional step of terminating the employment and if it does not do so employment continues”. That is, there is no automatic termination. 10 Rather it is the act of the employer that brings about the termination of employment.11
[31] To the extent that the email from Mr Smith to Mr Bradley of 3 August 2018 may be regarded as an effective communication of Mr Bradley’s termination (which is a matter addressed below), then while he may be entitled to payment in lieu of notice, that is not a matter for this application and the absence of a payment in lieu of notice does not extend the date upon which it may be regarded that the dismissal took effect.
[32] For the purposes of this decision, if the email of 3 August 2018 is a valid notice of termination of employment, then the date on which termination would take effect would be the date stated within the notice, that is, 3 August 2018.
Matter 2 – When was the notice of termination communicated?
[33] The argument advanced by Mr Bradley in relation to Ayub is that in the course of the Full Bench consideration of that matter it accepted that there was support within the proper construction of s.394(2)(a) of the Act, dealing with the statutory time period for making an unfair dismissal application, for termination of employment taking effect when an employee learns of the subject. Further, the Full Bench considered the possibility of a strict application of a “postal delivery rule” in which it could be said that delivery of a document to an employee’s usual address complied with the obligation to notify them of their dismissal:
“[38] The restricted timeframe provided for by s.394(2)(a) is certainly consistent with that part of the object which refers to the procedures for dealing with unfair dismissal being “quick”. It may also be the case that the emphasis on reinstatement as a remedy in s.381(1)(c) is supported by a requirement to initiate proceedings in a short period after dismissal. However it would not be consistent with a system that addresses the needs of employees as well as employers and is intended to ensure that a “fair go all round” is accorded to employees as well as employers that the practical opportunity to lodge an application is diminished or eliminated by treating any dismissal as having retrospective effect.
[39] At least in relation to dismissals on notice, support for the conclusion that s.394(2)(a) is to be read as requiring the communication of a dismissal to the employee for it to take effect is derived from s.117(1), which is part of the National Employment Standards provisions concerning termination of employment and redundancy. It provides (underlining added):
Notice specifying day of termination
(1) An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).
Note 1: Section 123 describes situations in which this section does not apply.
Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:
(a) delivering it personally; or
(b) leaving it at the employee's last known address; or
(c) sending it by pre-paid post to the employee's last known address.
[40] Section 117(1) prohibits a termination of employment to which it applies taking effect before the day on which notice of the termination is given. Section 123 has the effect of excluding from the operation of s.117(1), among other things, employees dismissed for serious misconduct and casual employees. These exceptions are ones in relation to which the common law does not require a period of notice of termination to be provided. However s.117(1) establishes that a termination of employment cannot occur by way of a retrospective notice.
[41] We therefore do not consider that there is any proper exception to the general proposition established by the authorities under the WR Act and the FW Act that a dismissal cannot take effect for the purposes of those statutes before it is communicated to the employee. There is little support for the existence of any such exception which may be derived from the common law. While it is not inconceivable, as earlier stated, that a contract of employment might expressly provide that it may be terminated by the employer on notice to the employee effective from a time prior to receipt of the notice by the employee, we do not consider for the reasons we have stated that any such contract could be treated as determining the date of effect of a dismissal for the purposes of s.394(2)(a). Termination of employment in accordance with such a provision would be in contravention of s.117(1). Statutory industrial instruments such as modern awards and enterprise agreements could also conceivably allow a date of dismissal which is effectively retrospective (although we are not aware of any which actually do so), but again this could not be treated as determinative of the operation of s.394(2)(a) in a particular case such as to deprive a dismissed employee of the full time period allowed by the provision. In relation to statutory provisions governing public sector employment, we have already noted what was said by the Full Bench in ATO v Wilson about the Public Service Act 1999. We do not consider that such legislation could establish an effectively retrospective date of effect of a dismissal for the purpose of s.394(2)(a) of the FW Act unless that was made clear by express words or by necessary implication. There is no such provision in the Public Service Act as it currently stands.
[42] We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document. That is, we do not consider that s.394(2)(a) requires the strict application of a “postal delivery rule” where the employee has a legitimate explanation for not being able to read the document immediately upon delivery. The circumstances in which this may be the case are undoubtedly manifold, but for example if an employee is on an approved period of annual leave and is holidaying away from home when a dismissal letter is delivered, there is no reason to conclude that the date of dismissal is the date of delivery and not when the employee returns home and first has a reasonable opportunity to read the letter.” 12 (reference omitted)
[34] The factual circumstances in Ayub include that allegations of certain conduct were put to the applicant in September 2015. Those allegations were then responded to and dealt with over the course of October, November and December 2015 after which the applicant’s employer moved in January 2016 to terminate his services. There was said to have been a telephone call from one of the respondent’s managers on 14 January 2016 to a union organiser, which was denied by the person concerned. A letter dated 15 January 2016 was then sent to Mr Ayub with the respondent contending that it was sent to him on 18 January 2016. The applicant then did not see and open the email until 19 January 2016. 13 He subsequently commenced an unfair dismissal application on 8 February 2016, with the Senior Deputy President at first instance finding that the applicant’s date of termination was 14 January 2016, being the date on which it had been said the respondent’s manager spoke with his union representative.14 On appeal Mr Ayub contended that his application had not been lodged outside the statutory period since:
“… A dismissal takes effect only when it is communicated to the employee, which occurred on 19 January 2016 when Mr Ayub opened and read the email attaching the Outcome Letter and the Dismissal Letter. Any communication with the RTBU did not constitute notification of the dismissal, and the Outcome Letter was never delivered directly to Mr Ayub (except insofar as it was sent together with the Dismissal Letter as an attachment to the 18 January 2016 email).” 15
[35] In the course of the appeal the respondent argued that the correspondence from 23 November 2016 providing the appellant with advice of the outcome of the decision-making process constituted notice of the dismissal. While the final outcome letter was dated 14 January 2016 in accordance with the earlier correspondence from 23 November his dismissal became effective from that date. 16
[36] After detailed consideration of the law surrounding these matters as well as circumstances of the particular case the Full Bench found that the phone call from the respondent’s manager could not be relied upon and that it did not constitute a communication to the appellant of his dismissal effective of 14 January 2016. 17 In doing so though it found that the dismissal took effect “not earlier than 18 January 2016”,18 being the date on which the correspondence was emailed to the appellant.
[37] In finality, Ayub was not concerned with the question of whether receipt of an email on 18 January 2016 or its reading on 19 January 2016 allowed a finding that the resultant unfair dismissal was within the statutory time limits. Instead, the decision was concerned with whether the date of effect of the dismissal was neither date but was instead 23 November 2015.
[38] Importantly, for the disposition of this case, Ayub deals explicitly with the situation in which an employer chooses to communicate a termination of employment through email. After making the findings set out above to the effect that mere delivery of the notification of termination may be insufficient for an employer to rely upon as being communication of the termination if “the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document”, 19 the Full Bench turned to the circumstances in which an email communication may be sufficient:
“[50] 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.
[51] In Mr Ayub’s case, if the dismissal took effect on 18 January 2016 or later, his application was lodged within the 21-day time period prescribed by s.394(2)(a). The calculation of the 21-day period is calculated exclusive of the day upon which the dismissal took effect, so that if the date of dismissal was 18 January 2016, then 8 February 2016 (when Mr Ayub’s application was lodged) was the 21st day. Accordingly it would need to be concluded that the date of effect of Mr Ayub’s dismissal was before 18 January 2016 in order for him to require an extension of time under s.394(3).” 20 (reference omitted)
[39] Relevant to the determination of this matter is what may be regarded as a deteriorating employment relationship over the course of July 2018. While there is some ambiguity on the evidence before the Commission at this time about why it occurred or precisely when it may have commenced and when it crystallised, there is no doubt that by the end of July the relationship was under some severe strain. Mr Bradley had questioned the allocation of work. His employer seemed prepared to discuss that with him but only face-to-face. Mr Bradley declined to do that and wished the discussions to instead take place through text message, which was his preferred mode of communication. Mr Smith was not prepared to do that including for the reason that he was too busy as an operative worker to respond to text messages and preferred to speak about such matters face-to-face. Mr Bradley saw that possibility as intimidating.
[40] Mr Smith criticises Mr Bradley for missing two shifts for which he was rostered and providing notice to JBAN on each occasion only a few hours before the shift was due to commence and not in accordance with the Respondent’s expectation that where an employee could not make a shift for whatever reason, including illness, that they endeavour to find a replacement from another existing employee, through the means of a closed Facebook group. Mr Smith’s criticism of Mr Bradley apparently escalated to the point of him having enough of Mr Bradley and determining that he should be dismissed when, on 31 July 2018, Mr Bradley simply did not attend for the last shift he was rostered. Mr Bradley’s explanation for his failure to attend for work is that he felt intimidated because he would probably see Mr Smith, the business owner and Director.
[41] With Mr Bradley having failed to attend as rostered on 31 July 2018 Mr Smith simply decided to dismiss him. When, on the following day, 1 August 2018 at 12:13 PM Mr Smith sent an email to Mr Bradley seeking an explanation of why he had not attended for work and why that lack of attendance should not be treated as an abandonment of employment, Mr Bradley chose not to even read the email. He concedes that he saw the title of the email within one to three days of it being received by him, although he did not read it at that time. The email is pointedly entitled “No show shift 31/7 4.30 - 9.30pm Northbound”. The communication being sent by email was consistent with the employer’s practices about communication with employees. There is nothing to suggest that a communication being sent in that way was atypical or unreasonable, or that an employee such as Mr Bradley may reasonably have expected such communication to be sent in some other way.
[42] Mr Bradley’s explanation for not reading the document is that he was afraid to see its contents. Sense is only made of that explanation when the context of the employment relationship in July is taken into account. The relationship sharply deteriorated; shifts were missed at short notice; and Mr Bradley likely expected he would be taken to account as a consequence for those actions. It was an unreasonable action on Mr Bradley’s part to fail to read the email of 1 August 2018. Had he done so, even within one to three days of seeing its heading, he may well have been able to provide a satisfactory explanation for what had occurred during July and thereby somehow salvaged his employment relationship.
[43] Given the overall deteriorated employment relationship and that, at the point of the penultimate communication from his employer, Mr Bradley chose not to read it because he was afraid to do so because of what it may contain, it is more likely than not that he then simply chose to ignore further communications from his employer, which of course included the 3 August 2018 email communicating his termination of employment.
[44] It is also the case of course that the text message Mr Bradley sent to Mr Smith on 15 August 2018 appears to accept that his employment had been terminated by at least at that point. The explanation given by Mr Bradley about the wording of the text, raising as it does that he has “officially ceased employment with Oporto”, is that it was only on “14th of August [that] Joshua assumed he was no longer employed and sent the text message to Barton requesting a payout of his annual leave as constructive termination”. That explanation is largely inconsistent with what had occurred over July and at the time of the penultimate email on 1 August 2018, with its heading seen, but its contents not read. More likely than not, Mr Bradley was avoiding reading the bad news likely to be communicated to him from Mr Smith using his preferred mode of communication, that is, by email. In the absence of cogent evidence on the subject, I do not accept Mr Bradley’s explanation to the effect that he did not have an opportunity to peruse his emails since his phone was malfunctioning and his preferred method of browsing emails was his computer which he accessed only occasionally. That explanation is largely self-serving in the absence of cogent evidence about a true and actual inability to access his emails.
[45] In all, this is not a circumstance in which the caveat referred to in Ayub, has operation, to the effect that there may be circumstances in which receipt of an email may not constitute a reasonable opportunity to become aware of a termination of employment. 21 The text message of 15 August 2018, referred to above includes that by that date Mr Bradley had “officially ceased employment with Oporto”, with it being assumed by him by at least 14 August 2018 that he had been the subject of a constructive termination. Such assumption though can only reasonably have been formed with some diligence on the part of the Applicant in ascertaining whether or not he actually had been offered any shifts. In an environment in which shifts are notified through emails, formation of the view that one had been constructively terminated could only come about by perusing one’s emails to see whether any had been received from one’s employer, and when there were none, concluding that one had been terminated. I am therefore not able to accept Mr Bradley’s evidence about the emails. The only way he could have formed the view by 14 August 2018 that he had not been offered shifts was to check his emails. More likely than not, Mr Bradley either had read the correspondence of 3 August 2018 proximate to the date upon which it was sent or that he did not become aware of the contents of the 3 August 2018 email because he did not desire to open the two emails entitled “No show shift 31/7 4.30 - 9.30pm Northbound” and read the bad news which may be within such correspondence.
[46] The finding must therefore be made that Mr Bradley’s termination of employment was communicated to him and took effect on 3 August 2018.
Matter 3 – Was the notice of termination validly communicated?
[47] The argument advanced by Mr Bradley is that in accordance with s.117 of the Act that “an employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of termination” with s.28A and s.29 of the Acts Interpretation Act 1901 (the AIA) providing how notice may be given including delivering it personally, leaving it at the employee’s last known address or sending it by pre-paid post to the employee’s last known address. Mr Bradley submits that given his notice of termination was provided by email which is not a prescribed form listed under s.28 and s.29 of the AIA that “as no notice had been officially provided” that the date of termination could be determined to be a date other than on 3 August 2018. 22
[48] While s.117 of the Act does provide that written notice of termination must be provided to employees, this is accompanied by the following wording:
“…
Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:
(a) delivering it personally; or
(b) leaving it at the employee’s last known address; or
(c) sending it by pre-paid post to the employee’s last known address.”
(underlining added)
[49] The use of “may” instead of “must” at s.117 of the Act suggests that while the forms of notice prescribed at s.28A and s.29 of the AIA will be considered as notice for the purpose of s.117 that they are not an exhaustive list and that further forms of notice may be deemed acceptable.
[50] In Ayub the Full Bench discussed the issue of notice of termination in the following terms:
“[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this.”
(underlying added)
[51] In the context of whether the email advising Mr Bradley of his termination on 3 August was in a form which allowed Mr Bradley the “reasonable opportunity to become aware” of his termination it is relevant to note that all Mr Bradley’s rosters and other work related matters were communicated to him via electronic means namely by email, text message or a closed Facebook group. The only other means of communication identified between the parties was in person which as per Mr Bradley’s own submissions he admits he was avoiding given his apprehension as a result of missing two previous shifts.
[52] Mr Bradley has not put forth any extenuating circumstances that would provide an explanation for why being informed of his termination by email could have posed as a barrier to him becoming aware of his termination. Apart from Mr Bradley’s submissions that he did not have an opportunity to peruse his emails since his phone was malfunctioning and his preferred method of browsing emails was his computer which he accessed only occasionally, which can hardly be deemed as extraordinary, there is nothing to explain why Mr Bradley could not have been expected to become aware of his termination via email. The evidence suggests that email communication was the predominant form of communication between the parties leaving it difficult to understand why Mr Smith would not be expected to communicate further with Mr Bradley in this form and expect him to receive such correspondence. As such, I find that the email to Mr Bradley communicating his termination was reasonable in the circumstances and does not affect the date of termination.
Extension of time – the criteria within s.366(2)
[53] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the five nominated criteria. The Full Bench has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application:
“[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”. 23
[54] In considering whether an extension of time should be granted to Mr Bradley, I am required to consider all of the criteria in s.366(2), which I now do.
1. The reason for the delay
[55] It is appropriate in this case to be guided by authorities in relation to similar legislated considerations for an extension of time to the making of an unfair dismissal application. The prima facie position, both in general protections matters, as well as unfair dismissal applications, is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend. 24 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application; it does not include the period from the date of the dismissal to the end of the 21 day period.25 An applicant does not ‘need to provide a credible explanation for the entire period’; there is no pre-condition to the grant of an extension of time to the effect that there must be a credible explanation for the entire period of the delay; it could be that an extension of time may be granted where the application has not provided any explanation for any part of the delay.26 While the “reason for the delay” is a factor that must be taken into account, such does not allow the elevation of a particular matter into a condition precedent to a finding of exceptional circumstances.27
[56] The “delay” to be considered in this case is the period it took after the prescribed period for Mr Bradley to lodge his application.
[57] Having had his termination of employment communicated to him on Friday, 3 August 2018, the final day for Mr Bradley to make an application within time would have been Friday, 24 August 2018. However, he did not see his father on the subject of his employment circumstances until Sunday, 26 August 2018 and at that time says that he was not aware that his employment had been terminated.
[58] The reason advanced by Mr Bradley for the delay in making his application is that, on his view of matters, he was simply unaware until 26 August 2018 that his employment had been terminated.
[59] The circumstances of Mr Bradley’s employment though speak to likely different findings.
[60] By mid-July 2018, or perhaps shortly afterwards, Mr Bradley was aware that his continued employment by JBAN was fraught. He endeavoured to raise with Mr Smith his concerns about his shifts being reduced. When Mr Smith offered him the opportunity of speaking directly with him, but not through text messages, he declined that opportunity, including for the reason that he felt intimidated speaking directly to his employer. Within a day or two of Mr Smith taking up with him by email his failure to attend for a rostered shift on 31 July 2018 Mr Bradley was aware that he had been sent the email which was pointedly entitled “No show shift 31/7 4.30 – 9.30pm Northbound”, yet he did not open it to see what it said. By 15 August 2018 Mr Bradley was sufficiently concerned about the state of his employment relationship to seek that he be paid out annual leave that he thought was owed to him. When that request was not responded to, Mr Bradley purported to give Mr Smith a further 48 hours to respond “I’ll have no choice but to take things further”.
[61] Those circumstances frankly speak to someone who was likely aware by early to mid-August either that their employment relationship had been ended or had deteriorated beyond some point at which it could be retrieved. Even under the light of a strained employment relationship, a reasonable employee would diligently review any and all emails they received from their employer in the same way they would review any and all text messages or phone calls or any other forms of correspondence. That Mr Bradley did not do so is simply procrastination or prevarication on his part. If he was hoping to be restored to the roster, such change of heart on the part of the employer would likely be notified in an email – yet Mr Bradley would have the Commission accept that he had chosen not to look for emails from his employer.
[62] When Mr Bradley did not review the full contents of the email sent to him on 1 August 2018 because he was afraid to do so and when he claims he did not even check his emails to see whether there had been further correspondence from his employer until prompted by his father on 26 August 2018, the only possible conclusion is that Mr Bradley simply did not want to directly address what were probably going to be unpleasant and unfavourable communications. The filing delay is explained not by only finding out on 26 August 2018 that he had been dismissed, but by Mr Bradley’s failure to watch out for correspondence from his employer.
[63] None of those circumstances amount to an acceptable explanation for the delay in making Mr Bradley’s application. As a result, my consideration of this criterion does not resolve in his favour in my consideration of whether an extension of time for filing should be granted.
2. Any action taken by the person to dispute the dismissal
[64] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 28 Mr Bradley does not directly put forward that his two text messages to Mr Smith, on 15 and 20 August 2018 amount to him disputing a dismissal. However, the content of the two text messages could be viewed as a contest of an assumed but not directly stated dismissal. While the contents may be viewed firstly as being intended to elicit payment of accrued annual leave they also raise the proposition of Mr Bradley being returned to JBAN’s roster.
[65] The second of the text messages was sent on 20 August 2018, stating that Mr Bradley would give Mr Smith a further 48 hours to respond or “I’ll have no choice but to take things further”. It is unclear from the evidence what is meant by this. While the phrase likely encompasses these proceedings, it is plainly not restricted in its scope.
[66] In any event, 48 hours from the time the text was sent would have been in the middle of Wednesday, 22 August 2018. An application to the Commission either under the general protections provisions or under the unfair dismissal provisions of the Act made proximate to the expiry of the 48 hour time limit on 22 August 2018 would be within the prescribed time limits if filed no later than Friday, 24 August 2018.
[67] In the circumstances, I do not consider this criterion resolves in favour of Mr Bradley.
3. Prejudice to the employer (including prejudice caused by the delay)
[68] The delay in the filing of the application is three days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.
[69] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to a general protections application itself creates some prejudice to the former employer. However, the Commission’s consideration of this criterion looks to prejudice beyond the usual requirement of having to respond to a claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 29
[70] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted. Accordingly, this matter also is a neutral factor in my consideration.
4. The merits of the application
[71] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses reasonable prospects of success.
[72] In relation to the Commission’s consideration of the merits of an application, when undertaking an analysis of whether an extension of time for the filing of a general protections application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.30
[73] In general protections matters, s.361(1) of the Act presumes that adverse action was taken for an alleged prohibited reason, unless the employer proves otherwise, with the onus on the employer to be discharged on the balance of probabilities in light of all the evidence. It has been held that the practical effect of s.361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question. 31
[74] The reasoning put forward by Mr Bradley for the making of his general protections application is set out in the “background” section of this decision above. That material only obliquely references matters that would likely fall within the general protections provisions of the Act. More than likely Mr Bradley’s application has been made under the incorrect part of the Act and that his intention was to make an unfair dismissal application under the Act’s Part 3 – 2 (Unfair Dismissal). Nonetheless this matter is not such an application and is instead one made under the Act’s Part 3 – 1 (general protections) and falls to be considered within the context of those provisions.
[75] While adverse action in the form of a termination of employment is reasonably discernible, there is only a slight connection between that adverse action and any of the proscribed reasons within Part 3 – 1.
[76] The little connection in that regard which appears on the material before the Commission includes either or both an allegation that Mr Bradley had his employment terminated at the employer’s initiative because he exercised a workplace right to complain about being rostered for a reduced number of shifts, or because he may have been terminated for reason of exercising a workplace right to take personal leave owing to illness. In either case there is insufficient material before the Commission to form any view about the likely merits of Mr Bradley's case, were it to proceed to a Court or to be the subject of a consent hearing before the Commission.
[77] Accordingly, consideration of this criterion is a neutral factor in my overall consideration of whether there are exceptional circumstances that would warrant the extension of time.
5. Fairness as between the person and other persons in a like position
[78] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other general protections applicants whose applications are either currently before the Commission, or have been decided in the past. 32 There is no evidence on such matters and I consider this to be a neutral consideration in Mr Bradley’s case.
[79] Consideration of the statutory criteria in relation to exceptional circumstances shows that none of the criteria resolve in favour of Mr Bradley and in particular there is not an acceptable explanation for the delay in making his application. Consequently, and after consideration of the whole of the material before me and the legislative criteria, I am satisfied that there are not exceptional circumstances that would allow a further period for a general protections application to be made by Mr Bradley.
[80] For these reasons, I decline to grant an extension of time pursuant to s.366 of the Act and will issue an Order dismissing Mr Bradley’s application at the same time as this decision.
COMMISSIONER
Appearances:
Mr C. Bradley support person for the Applicant.
MR B. Smith for the Respondent.
Hearing details:
2018.
Melbourne:
8 October.
Final written submissions:
9 October 2018; 10 October 2018
Printed by authority of the Commonwealth Government Printer
<PR701305>
1 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 [21].
2 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 [9].
3 Correspondence to the Commission, Mr Craig Bradley, 10 October 2018, 12.34 PM.
4 Nulty v Blue Star Group, 2011, 203 IR 1 [13].
5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901, [38].
6 Correspondence to the Commission, Mr Craig Bradley, 10 October 2018, 2.06 PM.
7 [2016] FWCFB 5500.
8 Correspondence to the Commission, Mr Craig Bradley, 10 October 2018, 2.06 PM.
9 Ibid.
10 Bienias v Iplex Pipelines Australia Pty Ltd[2017] FWCFB 38, [40] – [41].
11 Ibid, [43], relying upon Mahony v White [2016] FCAFC 160, [18].
12 [2016] FWCFB 5500.
13 Ibid, [5] – [7].
14 Ibid, [8] – [9].
15 Ibid, [11].
16 Ibid, [12].
17 Ibid, [55].
18 Ibid, [56].
19 Ibid, [42].
20 Ibid.
21 [2016] FWCFB 5500, [50].
22 Correspondence to the Commission, Mr Craig Bradley, 10 October 2018, 2.06 PM.
23 Nulty v Blue Star Group, 2011, 203 IR 1 at [13].
24 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299]-[300].
25 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287.
26 Ibid, [40].
27 Ibid, [41].
28 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
29 Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (unreported, 2003) PR927201 [16].
30 Haining v Deputy President Drake (1998) 87 FCR 248, 250.
31 Keep v Performance Automobiles Pty Ltd[2014] FWCFB 8941 [50], (2014) 246 IR 92, with reference to Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, (2012) 220 IR 445.
32 Wilson v Woolworths [2010] FWA 2480 [24]‒[29].
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