Luke Alexander Oakes v Fernance Enterprises Pty Ltd
[2022] FWC 3138
•25 NOVEMBER 2022
| [2022] FWC 3138 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Luke Alexander Oakes
v
Fernance Enterprises Pty Ltd
(U2022/8453)
| COMMISSIONER P RYAN | SYDNEY, 25 NOVEMBER 2022 |
Application for an unfair dismissal remedy
Introduction
An application by Mr Luke Oakes (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) was lodged on 17 August 2022 (Application).
In the Application, the Applicant states that his employment with Fernance Enterprises Pty Ltd (Respondent) was terminated with effect from 1 August 2022.
In its Form F3 response, the Respondent objected to the Application on the basis that the Applicant resigned from his employment on 25 July 2022. In addition to its jurisdictional objection that there was no termination at the initiative of the employer, the Respondent contended that the Application was filed outside the 21 day time limit.
The matter was initially allocated for conciliation but did not resolve.
On 17 October 2022, the chambers of Vice President Catanzariti sent correspondence to the Applicant advising that the Application appeared to be out of time and inviting the Applicant to provide any preliminary submissions. The Applicant filed a response later that day disputing the Application was out of time, submitting that his employment ended on 1 August 2022, or at the very earliest, 28 July 2022.
Section 394(2) of the FW 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). If the Respondent’s jurisdictional objection is upheld, the period of 21 days ended at midnight on 15 August 2022.
The matter was allocated to my Chambers to determine whether an extension of time is required, and if so, whether an extension should be granted under s.394(3).
In accordance with directions issued by my Chambers, both parties were given an opportunity to file materials in support of, or in opposition to, the matters to be determined.
The matter was heard on 14 November 2022. The Applicant represented himself. The Respondent was represented by Ms D. Sinha, paid agent, with permission, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act.
For the reasons that follow, I decline to grant an extension of time under s.394(3).
Background
The Respondent trades as Autobarn Lismore, an auto parts and spare car parts store and retailer.
On 16 April 2018, the Applicant commenced employment with the Respondent as an automotive air-conditioning mechanic. The Applicant was employed on a full-time basis.
From 31 December 2021 until 9 May 2022, the Applicant was certified unfit for duty in relation to a work-related injury pursuant to a workers compensation matter.
In February 2022, the Respondent’s workshop and premises were damaged by flood.
On 22 April 2022, the Respondent wrote to the Applicant requesting that he remove his tools and any other personal belongings from the Respondent’s premises as it was to commence building works to repair flood damage.
On 9 May 2022, the Applicant was certified fit for pre-injury duties. However, the Respondent was not made aware of this and the Applicant did not return to work.
In early-mid July 2022, the Respondent made enquiries as to the status of the Applicant’s workers compensation matter and was advised that the file was closed on 9 May 2022 as the Applicant was certified fit for pre-injury duties.
Over the period of 11-14 July 2022, the Respondent attempted to contact the Applicant by email and telephone regarding his return to work.
On 25 July 2022, the Applicant sent a response to the Respondent in which he took issue with various matters, including unresolved allegations that he was subjected to workplace bullying. The Applicant concluded that correspondence stating:
“In light of these facts, the ability for me to return to my employment at Autobarn Lismore has been taken away by the management and therefore, with my own safety in mind, I have chosen not to return.”[1]
(emphasis added).
On 26 and 28 July 2022, the Respondent sent correspondence by email to the Applicant confirming receipt of his correspondence and requesting that he reconsider his position.
The Applicant did not respond to either of these emails as they were automatically redirected to his ‘junk’ email folder and he only discovered them after 1 August 2022.
On 1 August 2022 and not having received a response to its emails of 26 and 28 July, the Respondent wrote to the Applicant accepting his correspondence of 25 July 2022 as a resignation effective immediately.[2] The Respondent processed and made payment for the Applicant’s accrued annual leave.[3]
On the morning of 9 August 2022, the Applicant sent correspondence to the Commission which attached a file.
At approximately 9.47am on 9 August 2022, the Commission sent correspondence to the Applicant informing him that the Commission could not open the file due to the format and/or security settings. Of note, the correspondence from the Commission stated:
·That the files cannot be accessed and the email cannot be actioned;
·If the Applicant has tried to lodge an application, the Commission has not received the files;
·There are strict time limits for some application types. Some applications are dismissed if they aren’t lodged within the time limits; and
·The Applicant can seek help by return email or by telephone and provided the relevant telephone number.[4]
On 17 August 2022, the Applicant filed the Application by email in PDF Format.
When did the dismissal take effect?
The parties are in dispute about when the Applicant’s employment was terminated and whether it was terminated at the initiative of the employer.
Applicant’s Submissions
The Applicant submitted that his correspondence dated 25 July 2022 was not a resignation, but rather an explanation of why he had not returned to work and advising the Respondent that if it did not make changes to management, he will not be able to return to work.
The Applicant submitted that the Respondent’s acceptance of his resignation “effective immediately” on 1 August 2022 is the date that it confirmed his employment ended.
Alternatively, the Applicant submitted that his employment could not have ended earlier than 28 July 2022 when the Respondent last wrote to him asking him to reconsider his position.
The Applicant submitted that the Application was filed within 21 days of 28 July 2022 or 1 August 2022.
Respondent’s Submissions
The Respondent submitted that the Applicant’s correspondence dated 25 July 2022 stating that he will not be returning to work constituted a resignation.
The Respondent submitted that the resignation was unqualified in that it did not state that the Applicant was willing return if the Respondent implemented changes to management.
Consideration – when did the dismissal take effect
The Applicant’s submission that his correspondence dated 25 July 2022 was not a resignation, but rather an explanation for his non-attendance since 9 May 2022, cannot be accepted. The correspondence is unambiguously clear in its terms that the Applicant has “chosen not to return”.
The effect of the Applicant’s correspondence was that it gave notice to the Respondent that he was ending the employment immediately on 25 July 2022. The notice was not conditional upon the Respondent making changes to its management structure, nor was it given in the heat of the moment, noting the Applicant was responding to correspondence sent some 10 days earlier.
While the Respondent sent subsequent correspondence to the Applicant in an attempt to have him reconsider his decision to “[choose] not to return”, before confirming that it accepted his resignation on 1 August 2022, that does not alter the legal effect of the Applicant’s correspondence.
In Riordan v War Office[5], Diplock J stated:
“The giving of a notice terminating a contractual employment, whether by employee or employer, is the exercise of the right under the contract of employment to bring the contract to an end, either immediately or in the future. It is a unilateral act, requiring no acceptance by the other party, and, like a notice to quit a tenancy, once given it cannot in my view be withdrawn save by mutual consent.”
(emphasis added)
Accordingly, I find that date of dismissal relevant to the Application is 25 July 2022.
The consequence of my finding is that the Application was filed 23 days after the date the alleged dismissal took effect, and 2 days outside the 21 day period. Therefore, the Applicant will require an extension of time.
Exceptional Circumstances
The FW 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.[6] 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.[7]
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.
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.
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.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application.[8]
I now consider these matters in the context of the application.
Reason for the delay
The FW 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 an applicant’s favour, however all of the circumstances must be considered.[9]
The Applicant submitted that he had lodged an application on 9 August 2022 which was within the 21 day time limit, but was not in the correct format.
The Applicant submitted that following receipt of the correspondence from the Commission on 9 August 2022, he was moving house and did not have access to the internet and did not know how to change the format of the file.[10]
In relation to the Applicant’s submission that he lodged an application on 9 August 2022, the Applicant did not seek to tender into evidence the email correspondence or the attached file.
In relation to the Applicant’s submission that he moved house and did not have access to the internet, I do not accept this is an acceptable explanation for the delay for two reasons. First, where a party is aware of internet connectivity or access issues, I agree with the observation of Bissett C, that steps should have been taken to plan for that eventuality.[11] Second, during the proceedings the Applicant explained that when completing the ‘first application’ he accessed the internet on his laptop by ‘hot spotting’ his mobile telephone. There was no explanation by the Applicant as to why this method could not be utilised during the period following 9 August 2022.
In relation to the Applicant’s explanation that he did not know how to change the file format, I do not accept this is an acceptable explanation for the delay. To the extent that the Applicant needed assistance, the correspondence from the Commission invited the Applicant to contact the Commission for help. The Applicant did not take up that invitation for assistance, nor did the Applicant pursue an alternative method of filing the Application such as by telephone.
Furthermore, during the proceedings the Applicant stated that in the period of 9 August 2022 to 17 August 2022, he was ‘busy’ working towards the acquisition of a friend’s business. It is clear to me that the Applicant prioritised this over the filing of the Application.
Conclusion – Reason for delay
I do not consider these matters, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
For the reasons set out at paragraphs [26]-[38] above, I find the Applicant was aware that his employment ended on 25 July 2022 and therefore had the full period of 21 days to lodge the unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
It is not in dispute, and I so find, that the Applicant did not take any action to dispute the cessation of his employment prior to making the application on 17 August 2022. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I therefore consider this to be a neutral consideration.
Merits of the application
The FW Act requires me to take into account the merits of the application in considering whether to extend time. While I have found that the Applicant resigned from his employment, there is a dispute as to whether the Applicant was forced to do so because of conduct engaged in by the Respondent.
Accordingly, it is not possible to make any firm or detailed assessment of the merits, as the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
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
Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.
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 must be dismissed. An order to that effect will be issued with this decision.
COMMISSIONER
Appearances:
Mr L Oakes, Applicant.
Ms D Sinha, for the Respondent.
Hearing details:
2022.
Sydney (via Microsoft Teams video-link):
14 November.
[1] Exhibit R1 at [7], Annexure RC-02.
[2] Exhibit R3.
[3] Exhibits R2 and R4.
[4] Exhibit R1, Annexure RC05.
[5] (1959) 1 WLR 1046 at 1054, cited with approval in Birrell v Australian National Airlines Commission (1984) 5 FCR 447 at 458 per Gray J.
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[7] Ibid.
[8] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[10] Exhibit A1.
[11] Malhotra v People Living with HIV AIDS Victoria Inc T/A Living Positive Victoria [2021] FWC 1982 at [24].
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