Joshua Wilkinson v Live with Power Pty Ltd

[2021] FWC 5314

[2021] FWC 5314

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Wilkinson
v
Live With Power Pty Ltd
(U2021/6634)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 27 AUGUST 2021

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

Introduction

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

[2] The termination of the Applicant’s employment with Live With Power Pty Ltd (Respondent) took effect on 28 June 2021 because that is when the Applicant received a letter from the Respondent in which the Applicant was informed that his employment would terminate immediately. The unfair dismissal application was lodged on 28 July 2021.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 19 July 2021. The application was therefore filed nine days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 1 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.2

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

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

Reasons for the delay

[8] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period. 3 However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.4

[9] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 5

[10] The reason given by the Applicant for the delay in lodging his unfair dismissal application is that he did not contest the dismissal when he understood it was on the basis of the redundancy of his position, as asserted in the termination letter dated 28 June 2021, but when the Respondent changed its position and stated that the reason for dismissal was misconduct, the Applicant wished to challenge the fairness of his dismissal on that basis. The Applicant contends that he filed his unfair dismissal application within 21 days of being informed by the Respondent that the reason for his dismissal was misconduct.

[11] The documents filed by the Applicant include his email communications with the Respondent in the period following his dismissal. The Applicant communicated with the Respondent by email on 30 June 2021, asking for a separation certificate, together with payment for his notice period (3 weeks), outstanding annual leave, and payment for his last two days of work since his last pay. The Applicant also raised a question about the payment of a bonus. On 1 July 2021, the Respondent replied to the Applicant’s email, informing him that advice was being obtained and a response would be provided to the Applicant’s questions. By email dated 5 July 2021, the Applicant chased up a response from the Respondent. On 6 July 2021, the Respondent made a without prejudice offer to the Applicant. In that communication, the Respondent also asserted, for the first time, that misconduct on the Applicant’s part was part of the reason for the termination of his employment. Later on 6 July 2021, the Applicant challenged the Respondent’s assertions in its without prejudice communication. By email dated 9 July 2021, the Applicant again requested payment of his entitlements. By email dated 14 July 2021, the Respondent provided the Applicant with a separation certificate stating that “misconduct” was the reason for separation. The Respondent’s email of 14 July 2021 also asserted that no further amounts were due to the Applicant because he had engaged in serious misconduct and had used his leave entitlements. Later on 14 July 2021, the Applicant requested the Respondent to provide a “corrected” separation certificate and re-asserted his claim to his unpaid entitlements. The Respondent again rejected the Applicant’s claims in its email response of 16 July 2021. On 20 July 2021, the Applicant made a “final request” for his unpaid entitlements and a “corrected” separation certificate within 48 hours, failing which the Applicant would “go to Fair Work”. The Respondent did not comply with the Applicant’s demands. The Applicant lodged his unfair dismissal application in the Commission on 28 July 2021.

[12] I accept that the Applicant filed his unfair dismissal application within 21 days of being provided, on 14 July 2021, with a separation certificate stating that the reason for his separation was “misconduct”. However, the Act requires that an unfair dismissal application be lodged within 21 days of the dismissal taking effect, not 21 days of a reason, or different reason, being provided for dismissal. Further, the Applicant had sufficient time between 14 July 2021 and the expiry of the 21 day period at midnight on 19 July 2021 to prepare and lodge his application. In addition, the provision of the separation certificate on 14 July 2021 was not the first time that the Respondent informed the Applicant that his alleged misconduct had formed part of the reason for his dismissal. That information was communicated by the Respondent to the Applicant by email on 6 July 2021.

[13] In all the circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing his unfair dismissal application. The absence of an acceptable or reasonable explanation for the delay in lodging the application weighs against a conclusion that there are exceptional circumstances.

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

[14] The Applicant was aware of his dismissal on the day it took effect. The Applicant therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.

Action taken to dispute the dismissal

[15] The Applicant engaged in extensive email communication with the Respondent following his dismissal. In that correspondence he disputed the dismissal on the grounds of misconduct and the entitlements he says were owing to him on termination. The Applicant’s communications with the Respondent in the period following his dismissal constitutes action to dispute the dismissal. This circumstance weighs in favour of a conclusion that there are exceptional circumstances.

Prejudice to the employer

[16] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[17] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[18] The letter of termination explains that the Respondent is in a difficult financial position and COVID-19 has meant that the Respondent does not have a suitable amount of work available for the Applicant. The letter also explains that there are no alternative roles into which the Applicant may be redeployed. Without expressing saying so, the letter of termination makes clear that the reason for termination is the redundancy of the Applicant’s position.

[19] Save for entitlements to unpaid notice, annual leave and unpaid wages, the Applicant did not have any objection to being dismissed on the grounds of redundancy. However, when the Applicant raised concerns with the Respondent about his unpaid entitlements, the Respondent contended, for the first time, that the Applicant had engaged in serious misconduct and that was the primary reason for his dismissal.

[20] On the basis of the limited material before the Commission, I am of the view that the Applicant has at least an arguable case that he was unfairly dismissed in circumstances where the reason for termination stated in the termination letter is in stark contrast to the reason for termination relied on by the Respondent after the Applicant raised issues concerning his alleged entitlements to notice of termination, annual leave and unpaid wages. In all the circumstances, I consider the merits of the Applicant’s claim to weigh in favour of his application for an extension of time.

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

[21] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[22] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[23] Having regard to the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. In particular, the Applicant does not have an acceptable or reasonable explanation for the delay in lodging his application and although the Applicant has an arguable case that his dismissal was unfair, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

[24] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

[25] As I explained to the Applicant during the extension of time hearing, the Commission does not have jurisdiction in unfair dismissal proceedings to determine claims for unpaid notice of termination, annual leave or unpaid wages. The Applicant can pursue those claims in a court of competent jurisdiction, such as the Federal Circuit Court. The dismissal of the Applicant’s unfair dismissal claim does not have any bearing on the Applicant’s ability to pursue his claim for his unpaid entitlements.

DEPUTY PRESIDENT

Appearances:

Mr Wilkinson on his own behalf
Mr Blaivas on behalf of the Respondent

Hearing details:

2021.
Newcastle (by telephone):
August 26.

Printed by authority of the Commonwealth Government Printer

<PR733249>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Long v Keolis Downer[2018] FWCFB 4109 at [40]

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

 5   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]