Kevin White v Rizz & Co Pty Ltd
[2022] FWC 1597
•29 JUNE 2022
| [2022] FWC 1597 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kevin White
v
Rizz & Co Pty Ltd
(U2022/5455)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 29 JUNE 2022 |
Application for an unfair dismissal remedy – date dismissal took effect – extension of time – discretionary considerations – no exceptional circumstances – application dismissed
On 17 May 2022 Kevin White (Mr White or the applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 (the FW Act) in relation to the termination of his employment by Rizz & Co Pty Ltd (Rizz & Co, the employer or the respondent).
The application was filed beyond the 21-day statutory time period for making unfair dismissal claims.
There is a dispute over the date the dismissal took effect. On Mr White’s case, it is 28 days out of time. On the employer’s case, it is 38 days out of time.
For the application to proceed it requires an extension of time, which Rizz & Co opposes.
This decision deals with whether an extension should be granted.
I issued directions on 7 June 2022.
The Commission received materials from both Mr White and Rizz & Co in advance of the hearing.
I conducted a hearing on the extension of time issue on 21 June 2022.
Mr White was self-represented.
I granted permission, on the ground of efficiency and without objection, for Rizz & Co to be represented by a legal practitioner.
I heard evidence from two persons:
Kevin White (applicant); and
Alicia Shaefer (Café Manager, The Waterfront Café).
Following the hearing I reserved my decision.
Facts
A number of facts are in dispute. Unless necessary to do so, those that relate to merit I do not make findings on as I have not conducted a full merits hearing. In dispute and relevant to the extension of time issue is the date dismissal took effect. I make a finding on that issue in the body of this decision.
I make the following findings based upon the oral and written evidence before me.
Rizz & Co operate The Waterfront Café at Merimbula in regional New South Wales. The proprietor is Mr Greg Ryzy.
Mr White was employed in 2021[1] by Rizz & Co as a head chef.
On 19 March 2022 a verbal workplace altercation arose between Mr White and Café Manager, Ms Shaefer.
Within thirty minutes of the altercation, a telephone discussion occurred between the proprietor Mr Ryzy and Mr White.
At the conclusion of that discussion, Mr White handed his keys to Ms Shaefer. There is a dispute as to whether Mr White had been dismissed by Mr Ryzy and what he said to Ms Shaefer when handing his keys to her. I deal with that issue in the body of this decision.
Mr White did not work following this date. Mr White says that he was absent on an agreed week of annual leave. This is in dispute.
On 25 March 2022 Mr White sent Mr Ryzy the following text message:[2]
“Hey mate, whats the go. Did you want to talk? I saw on my payslip you’ve paid out all my annual leave. Have I been sacked?”
Mr White received no reply.
On 27 March 2022 Mr White sent Mr Ryzy a further text message:[3]
“Hey mate, you free to catch up tomorrow? What’s going on?”
Mr White received no reply.
The following day, on 28 March 2022 Mr White sent Mr Ryzy another text message:[4]
“Im really dissappointed the way you’ve chose to handle this mate. You knew what I was going through. I never asked for any sympathy, just needed a week off to re gather my shit.Its unfair that I have lost my job over this. I worked more than hard enough for you and your café. If you had complaints about me you should of called me and addressed them. All good mate I’ll pop in for a coffee when your down”.
Mr White received no reply.
According to Mr White, until mid-April 2022 he sent further text messages to Mr Ryzy and left similar voice messages on his phone and received no reply.
On 31 March 2022 Mr White went rock fishing. He was washed off rocks and sustained cuts, bruises and a sore back.
By mid-April, not having received a reply from Mr Ryzy, Mr White contacted a solicitor to obtain information about his rights. Mr White was informed that he had a right to claim unfair dismissal. According to Mr White’s evidence he was not informed that there was a time limit for doing so.
During the course of his employment and at the time of dismissal, personal conflict had arisen between Mr White and his partner. According to Mr White, that conflict continued into April 2022 resulting in a separation in mid-April 2022.
During the course of his employment, Mr White’s partner fell pregnant to him. A baby daughter was born on 2 May 2022.
According to Mr White, he experienced stress and depression as a result of the personal troubles and the imminent birth of his child.
On the morning of 17 May 2022 Mr White felt as though his circumstances were sufficiently stable to enable him to focus on making an unfair dismissal claim.
Until the morning of 17 May 2022 Mr White had not accessed the Commission web site or any other resource (other than the mid-April 2022 discussion with a solicitor) to explore his unfair dismissal rights.
That morning, Mr White logged on to the Commission web site and located the unfair dismissal form (F2). He downloaded the form. He populated the form by hand. He signed and dated the form. According to Mr White, the first time he became aware of a 21-day time limit for the filing of claims was when he read the form that day.
I note that Mr White’s F2 application is dated 7 May 2022. The evidence did not traverse why that date is recorded. Mr White’s uncontroverted evidence was that he did not download or complete the form until 17 May 2022. That is the finding I make.
Mr White lodged his application by email at 12.41pm on 17 May 2022.
Consideration
Section 394 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.”
Time for late lodgement can only be extended if Mr White establishes that “exceptional circumstances” exist within the meaning of s 394(3).
An applicant for an extension of time has an onus to adduce evidence in support of matters which that applicant asserts constitute exceptional circumstances.[5]
The test of “exceptional circumstances” establishes a “high hurdle”.[6] A decision whether to extend time under s 394(3) involves the exercise of a discretion.[7]
I apply s 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.”[8]
The principles of Nulty have been cited with approval by subsequent full benches of the Commission.[9]
How many days is Mr White’s application out of time?
On Mr White’s case, his application is 28 days out of time. On the employer’s case, it is 38 days out of time.
This discrepancy arises because of different views about when his dismissal took effect. According to Mr White, it took effect on 29 March 2022 when he sent a third text message to Mr Ryzy and received no response. According to Rizz & Co, it was on 19 March 2022 when Mr White handed his keys to Ms Shaefer and left the business.
The length of time an application is filed late is a relevant consideration, and for that reason I make a finding on this question.
A person is dismissed if their employment with the employer has been terminated on the employer’s initiative.[10] There is no dispute between the parties that Mr White was dismissed on the employer’s initiative.
An employment relationship ends when an employee becomes aware of the employer’s decision to end it or has a reasonable opportunity to become aware of that fact.[11]
For the following reasons, I make a finding, on the balance of probabilities, that the relationship ended and Mr White’s dismissal took effect on 19 March 2022.
I do so with two caveats.
Firstly, this is a provisional finding only. Should the matter proceed to a merits hearing it may be that further evidence is adduced which warrants a different finding. For example, I have no evidence before me as to whether the employer treated Mr White’s absences following 19 March 2022 as annual leave and I have no evidence from Mr Ryzy concerning his telephone discussion with Mr White on 19 March 2022.
Secondly, were I to have found that Mr White’s dismissal took effect on the day he claims (29 March 2022) my decision in this matter would not differ. In other words, the factors that have led me to conclude that exceptional circumstances do not exist would continue to apply and be accorded similar (though not identical) weight irrespective of whether the delay period is twenty-eight days or thirty-eight days.
The reasons I make this finding are as follows:
1. Whilst denying that on 19 March 2022 Mr Ryzy told him that he was dismissed, Mr White accepted in cross examination that Mr Ryzy told him to “give his keys to [Ms Schaefer]”[12];
2. Mr White gave his keys to Ms Shaefer immediately following his discussion with Mr Ryzy, in circumstances where Ms Shaefer had her own set of keys to the business and did not need Mr White’s keys to open or operate the café;
3. Whilst disputing the precise words Ms Shaefer says Mr White said to her when handing her his keys (“you can fucking have them, it’s your issue now, I’d rather be on Centrelink and go on the dole”), Mr White said that he stated to his sous chef that “I would rather be on Centrelink than be treated the way I was”[13]. Mr White’s reference to rather being on Centrelink is consistent with a finding that he had been dismissed;
4. Mr White did not work at the café after 19 March 2022; and
5. During the week following 19 March 2022 the employer made a final payment to Mr White. Mr White’s text to Mr Ryzy of 25 March 2022 stated “I saw on my payslip you’ve paid out all my annual leave. Have I been sacked?” A pay-out of annual leave is objective evidence supporting a finding that the employment relationship had ended.
I find, consistent with Mr White’s evidence, that at no time did the employer provide Mr White anything in writing advising of his dismissal or the reason for it. This however is not a basis on which to find that Mr White’s dismissal took effect only when he says it did. A finding as to when a dismissal took effect is a finding of fact, to be based on an objective consideration of the available evidence. It is not necessary for a dismissal to be notified in writing for a dismissal to have taken effect.
Accordingly, I proceed on the basis that Mr White’s dismissal took effect on 19 March 2022 and that his application is 38 days out of time (noting the aforementioned caveats).
An extension of time is required if the application is to proceed.
Should time be extended?
I now consider each of the factors in s 394(3).
Reason for the delay (s 394(3)(a))
The reason for the delay in lodging an application is a factor that must be considered. The FW Act does not specify what reason or reasons for delay might fall in favour of granting an extension, although decisions of the Commission have referred to an acceptable or reasonable explanation.[14]
The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment. 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.[15]
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.[16]
The period of the delay requiring 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 an explanation for the delay is acceptable or credible.[17]
In this matter, the final day for filing within time was 9 April 2022 (that being a Saturday, Mr White would have been able to lawfully file the following business day, 11 April 2022). The delay period of 38 days arose between 10 April 2022 and 17 May 2022 (inclusive).
Mr White’s explanation for the delay is five-fold.
Personal circumstances
The personal circumstances relied upon relate to conflict between Mr White and his partner resulting in a separation prior to the birth of their child, and the priority he gave to his newly born child.
Mr White says that the conflict with his partner caused stress and depression. He says that the birth of his child and gaining access to her was a higher priority.
The conflict between Mr White and his partner was, at the time of dismissal, an ongoing matter. Mr White had brought these troubles to the attention of his employer. It appears the conflict escalated into a separation in mid-April 2022.
There is no doubt that domestic and personal conflict leading to separation, particularly in advance of the birth of a child, is likely to be highly stressful.
Regrettably, conflict and separation between domestic partners is not uncommon.
Whilst accepting that Mr White felt stressed as a result, there is no evidence that his stress was medically treated or of such a nature that he could not reasonably assert his rights. Mr White’s evidence in answer to a question from me was that he was in a “depressive state”, however he did not provide any evidence of being diagnosed with depression as a medical condition.
Mr White did not lead evidence that would lead me to conclude that the nature of the conflict or its surrounding circumstances had unique characteristics that could reasonably explain filing a claim thirty-eight (or, on his case, twenty-eight) days late.
It is well established that stress and anxiety from being dismissed or from personal circumstances is not, without more, an acceptable reason for delay.[18]
I accept that the birth of Mr White’s child, in whatever circumstances, rightly led to some rearrangement of focus and priorities. Mr White’s child was born on 2 May 2022. By this date Mr White was already three weeks out of time. More than two weeks passed after the birth before the claim was filed.
The personal circumstances, whilst troublesome and of priority to Mr White, do not reasonably explain the delay.
Awaiting responses from Mr Ryzy
Mr White submits that he sent text messages and left voice messages for Mr Ryzy in the days and weeks following their phone call on 19 March 2022 and was awaiting responses but received no replies.
Mr White submitted into evidence three text messages – of 25 March, 27 March and 28 March 2022. All were sent inside the statutory 21-day period for filing a claim. I accept Mr White’s evidence that he received no responses from Mr Ryzy.
Mr White’s evidence was that more messages were left than these three. No others were produced at the hearing.
Not having been given any written notice or confirmation of dismissal, it was reasonable for Mr White to seek to speak to Mr Ryzy. However, Mr White’s text message to Mr Ryzy of 27 March 2022 stated that “its unfair I have lost my job over this”. Whilst Mr White did not believe he had been sacked two days earlier when he texted Mr Ryzy “Have I been sacked?”, he had formed that view by 28 March 2022.
Even accepting that Mr White was, in the last week of March, reasonably waiting for contact from Mr Ryzy, Mr White’s evidence was that by mid-April he had accepted the reality that Mr Ryzy was not going to respond and that he was no longer employed in the business. Mr White then waited six weeks from mid-April before filing his application.
Waiting for responses from Mr Ryzy does not reasonably explain the delay.
Taking advice from a solicitor
Mr White’s evidence was that in mid-April 2022, once he resigned himself to the fact that he would not receive a response from Mr Ryzy, he spoke to a solicitor about his rights. He says he was told about the right to make an unfair dismissal claim but not told that there was a 21-day limitation to file claims after being dismissed.
There is no evidence before me of who the solicitor was and, aside from Mr White’s evidence, whether Mr White was not given advice about time limits.
I apply some caution to Mr White’s evidence in this regard given its self-serving nature and lack of independent corroboration. However, even were I to accept what Mr White says, for almost the entire delay period he was aware of the right to make an unfair dismissal claim but did not take any steps to instruct the solicitor to do so or take steps himself to do so until 17 May 2022. Even if Mr White was not informed by the solicitor of the time limit, he would have been so informed if he had taken immediate steps after meeting the solicitor to access the Commission web site or its unfair dismissal form. This he did not do.
That Mr White consulted a solicitor in mid-April does not reasonably explain the delay.
Injuries from rock fishing
Mr White’s evidence was that on 31 March 2022 he went rock fishing and was washed off rocks and sustained cuts, bruises and a sore back.
This does not explain the delay. His evidence was that his injuries resolved within two weeks. There is no evidence that his injuries required treatment from a doctor or hospital, or were of such a nature that he could not assert his rights. To the contrary, on Mr White’s evidence, he was continuing to try to contact Mr Ryzy during this period.
Injuries from rock fishing do not reasonably explain the delay.
Job search
Mr White submits that he was searching for an alternative job, and this contributed to the delay.
There is no reasonable basis on which to make this finding. Mr White’s evidence was that he looked on-line for local jobs from time-to-time, applied for one job, participated in a phone interview in the second half of April 2022 for that job, and successfully secured it.
It is not unusual that a dismissed employee will undertake a search for new employment. Further, Mr White delayed a further three weeks after securing alternative work before filing his claim.
Job search does not reasonably explain the delay.
Considered overall, the explanations for delay considered individually or collectively do not weigh in favour of a finding of exceptional circumstances.
Awareness of the dismissal taking effect (s 394(3)(b))
I have found that the evidence supports a finding that Mr White was aware that he had been dismissed by Mr Ryzy on 19 March 2022 when he handed his keys to Ms Shaefer immediately after speaking to Mr Ryzy.
In any event, it is clear from Mr White’s text message to Mr Ryzy on 28 March 2022 that at least on that day he not only believed he had been dismissed but that his dismissal was, in his view, unfair.
The evidence is less clear as to whether Mr White was aware of the reason for dismissal.
That Mr White was aware, at the very least by 28 March 2022, that he had been dismissed weighs somewhat against an extension of time but the fact that there was no written confirmation means that he was aware of the dismissal but not necessarily the reason.
In these circumstances, I consider this a neutral factor.
Action taken to dispute dismissal (s 394(3)(c))
Mr White had a view that he had been unfairly dismissed on 28 March 2022. Aside from speaking to a solicitor in mid-April he took no action to advance his interests until the day of filing some five weeks later.
He had, however, put Mr Ryzy on notice on 25 and 27 March 2022 that he was wanting to speak to him about his employment. From 28 March 2022 Mr Ryzy was on notice that Mr White considered the employer’s actions to have been unfair.
However, Mr White failed to follow through with his concern about unfairness until seven weeks later.
That Mr White put the employer on notice but failed to follow through for a lengthy period are counterbalancing considerations.
In the circumstances, this is a neutral factor.
Prejudice to the employer (s 394(3)(d))
As a general principle, an employer is entitled to arrange its affairs and organise its resources on the basis that claims can no longer be made beyond the lodgement period, except in exceptional circumstances.[19]
If an extension of time is granted, the claim would need to be further responded to by Rizz & Co, involving time and cost. That prejudice, whilst real, is not unique.
This notwithstanding, the absence of prejudice would not itself be a reason to grant an extension.[20]
This is a neutral consideration.
Merits of the application (s 394(3)(e))
A hearing on merit would concern whether Mr White’s dismissal was for a valid reason and, aside from that question, whether Mr White was denied procedural fairness or the dismissal otherwise unfair.
The employer claims in its F3 response that Mr White was dismissed for aggression and rudeness that constituted serious misconduct.
Mr White denies the allegations and says that he was not provided reasons.
There is no evidence before me that the employer provided written notification or confirmation of dismissal.
Issues of both valid reason and procedural fairness are in issue.
Not having conducted a merits hearing, it is not possible to express even a provisional view on whether the dismissal was unfair.
In these circumstances, this is a neutral factor.
Fairness between persons in similar position (s 394(f))
No issues were raised as to fairness between persons in a similar position.
This is not a relevant factor.
Conclusion
The period of delay being 38 days, in the context of a statutory twenty-one day time period, is significant.
The explanations for delay do not collectively or individually weigh in favour of a finding of exceptional circumstances.
Other relevant factors are neutral.
Considered overall, the circumstances are not exceptional. Mr White delayed filing his unfair dismissal application for five weeks after taking advice from a solicitor and in circumstances where, notwithstanding some difficulties and challenges in his personal life, he could have readily done so. He put the issue on the back-burner until he felt events around him were sufficiently settled to litigate an unfair dismissal claim over a dismissal that had occurred nearly two months prior.
Whilst every dismissed employee’s post-dismissal circumstances differ and Mr White faced his specific challenges, the circumstances are not exceptional.
Whilst a lesser period of delay would be relevant in weighing relevant factors, my conclusion would not differ even were I to accept that the period of delay was only 28 days, as claimed by Mr White. The circumstances would still not be exceptional.
There being no exceptional circumstances, the time for lodging the application cannot be extended.
As Mr White’s application is out of time and as the time for lodgement has not been extended, it is unable to proceed. The application is dismissed. An order[21] to that effect is issued in conjunction with the publication of this decision.
DEPUTY PRESIDENT
Appearances:
K White, on his own behalf
R Richardson, with permission, with M Sharman and A Shaefer, on behalf of Rizz & Co Pty Ltd
Hearing details:
2022
Adelaide (by video)
21 June
[1] The applicant says 12 April 2021; the respondent says 18 May 2021. For the purposes of this decision, I need not resolve that factual dispute
[2] A2
[3] A2
[4] A2
[5] Smith v Canning Division of General Practice[2009] AIRC 959
[6] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]
[7] Halls v AR & MA McCardle & Sons Pty Ltd and Ors [2014] FCCA 316
[8] [2011] FWAFB 975 “Nulty” at [13]. See also Cheval Properties Pty Ltd t/as Penrith Hotel Motel v Smithers[2010] FWAFB 7251 at [5]
[9] For example, John Mamur v Coles Group Supply Chain Pty Ltd[2020] FWCFB 4954 at [7], [19]; Dennis Obel v Central Desert Regional Council[2021] FWCFB 167 at [6]
[10] S 386(1)(a) FW Act
[11] Mihajlovic v Lifeline Macarthur[2013] FWC 9804; Ayub v NSW Trains[2016] FWCFB 5500; Foyster v Bunnings Group Limited [2017] FWCFB 3923
[12] Recording of hearing at 0:47:10
[13] Recording of hearing at 0:47:50
[14] Manoj Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988 at [30] and [36]
[15] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901 at [35]-[45]
[16] Stogiannidis (Ibid); Elliott v LEAP Legal Software Pty Ltd t/a LEAP Legal Software[2018] FWCFB 3288
[17] 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
[18] Casey v Guardian Community Early Learning Centres[2014] FWC 4002 at [16]
[19] Brisbane South Regional Health Authority v Taylor [1996] HCA 25
[20] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
[21] PR742963
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