Luke Emerton v Australia Post Corporation T/A Australia Post

[2020] FWC 5309

[2020] FWC 5309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Luke Emerton
v
Australia Post Corporation T/A Australia Post
(U2020/12132)

COMMISSIONER BISSETT MELBOURNE, 6 OCTOBER 2020

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

[1] Mr Luke Emerton (Applicant) has made an application to the Commission seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009. Mr Emerton was employed by Australia Post (Respondent) until the termination of his employment.

[2] The Applicant says that his employment with the Respondent was terminated on 10 or 11 July 2020. The unfair dismissal application was lodged on 9 September 2020. For the purpose of this decision I have taken the date of dismissal to be 10 July 2020 although, ultimately, nothing turns on the single day difference.

[3] 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). The period of 21 days in this case ended at midnight on 31 July 2020. The application was therefore filed 40 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). The Respondent opposes this request.

[4] 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. 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] 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.

[6] 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 now consider these matters in the context of the Application.

Reason for the delay

[7] The FW Act does not specify what reason for delay might tell in favour of granting an extension of time, 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. 3

[8] The Applicant in this case said that he was not aware that he could make an application for unfair dismissal until advised that he could by his treating medical practitioner. He said that he rang “Fair Work” who told him he could make the application but would have to seek an extension to do so. He said that, once he became aware that he could make an application he did so within a couple of days. The Applicant said that he did not take any other steps to determine if there was action he could take in relation to the dismissal.

[9] That the Applicant was not aware of his statutory rights to make an application for unfair dismissal and that he took no steps to determine if there was anything he could do does not provide an acceptable or reasonable explanation for the delay. Ignorance of the law does not amount to exceptional circumstances and does not provide an acceptable explanation for the delay in making the application. 4 Time limits are imposed to enable an employer to provide some level of certainty to parties involved in the termination of employment. Whilst I might accept that the Applicant was not pleased with the correspondence he received from the Respondent in relation to his employment he took no active steps to determine if there was any action he could take to challenge the actions of the Respondent. Such lack of action or reason for inaction does not provide a reasonable explanation of the delay.

[10] The failure of the Applicant to take any action to challenge the termination of his employment weighs against the grant of an extension of time.

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

[11] The Applicant was notified of his dismissal by registered mail and email on 13 July 2020. That correspondence advised him that his employment ended on 10 July 2020. Whilst there was a three day delay in advice of the dismissal from its date of effect, given the length of that delay compared with the delay in making the application for unfair dismissal remedy, this is a neutral consideration.

[12] The Applicant suggested in his application for unfair dismissal that he was not notified of the dismissal until 12 August 2020. However, in giving evidence and in his written submission of 28 September 2020, he agreed that he was made aware of the “impending termination of my employment by Michelle Allen on 8 July 2020, to be final on July 11 2020.” In these circumstances I am satisfied that the Applicant was aware of his dismissal at least by 13 July 2020 and probably on 11 July 2020. I would note that, even if the Applicant did not become aware of his dismissal until 12 August 2020 (which I do not accept), his application would still have been late as it would have been filed 7 days beyond the 21 day period provided for in the FW Act.

Action taken to dispute the dismissal

[13] The Respondent says, and the Applicant does not dispute, that the Applicant contacted Ms Michelle Allen of the Respondent on 26 July 2020, almost 2 weeks after he became aware of his dismissal. In his email to Ms Allen the Applicant apparently said that he had been in contact with his manager (although the Applicant provided no evidence of the content of the email). The Respondent said, and the Applicant did not dispute, that this was his first contact with the Respondent in over 33 days despite numerous attempts by the Respondent to contact him by phone, text, email and 2 letters sent by certified mail before the final termination letter to which the Applicant then did respond.

[14] The Respondent submitted that, in his email to Ms Allen, the Applicant did not indicate any intention to return to work although the Applicant does say that he disputed the decision to dismiss him. Ms Allen responded to the Applicant’s email on 12 August 2020 when she returned from leave. Despite leaving an out of office message on her emails the Applicant did not access the alternative contacts in the out of office message. When Ms Allen responded to the Applicant she advised that his employment had ended and wished him all the best.

[15] The actions of the Applicant to dispute his dismissal were mediocre at best and do not add to his case for an extension of time. He did nothing to dispute the dismissal for 13 days after receiving notification of it, he failed to respond to correspondence prior to the dismissal – which he agreed he received – along with other attempts of the Respondent to contact him. When he did respond (or dispute) his dismissal in his email to Ms Allen the Applicant took no action on receiving notice that she was away from the office and would be for some weeks.

[16] The Applicant’s limited and delayed actions do not weigh in favour of the grant of an extension of time.

Prejudice to the employer

[17] The Respondent submits that it made numerous attempts to assist the Applicant and to engage with him after he left Victoria to go to Queensland for personal reasons and without prior approval with respect to leave from the Respondent. The Respondent granted the Applicant annual leave and then leave without pay until late June 2020. It attempted to find the Applicant alternative employment in Brisbane (which the Applicant did not take up) and attempted to contact him by phone, email and registered letter. Having not heard from the Applicant for some time despite numerous attempts to contact him, the Applicant having taken no action (in the Respondent’s view) to challenge the termination of employment and the of delay in making this application to 9 September 2020 led the Respondent to the view that it could reasonably conclude that the employment had “lawfully ended”. In these circumstances the Respondent submits that it would “suffer material prejudice” if the Applicant were allowed to proceed with the application.

[18] The Applicant made no submissions on this question.

[19] Whilst I appreciate that there will be some prejudice to the Respondent should the application proceed, I do not consider the delay to be of such significance that it should weigh against the grant of an extension of time. I have considered this a neutral factor.

Merits of the application

[20] On the basis of the material before me, and in the absence of any answer to the basis for the termination of employment by the Applicant, it would appear that the Applicant’s case on the merit of his claim to have been unfairly dismissed is weak. The Applicant was advised that, if he failed to contact the Respondent, he would be taken to have abandoned his employment. By not responding to the Respondent the Applicant appears to have indicated that he no longer intended to be bound by his employment contract.

[21] I do acknowledge that the Applicant has indicated in his submissions filed that he was dealing with a range of personal issues in Queensland including caring for his disabled brother whilst his father dealt with the death of the Applicant’s grandmother. The Applicant however provided nothing in his submissions to indicate how this may relate to the merit of his application.

[22] Whilst I have made no findings as to the merits of the application the albeit limited information before me does not weigh in favour of a grant of an extension of time.

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

[23] The Applicant put nothing to me on this matter. The Respondent put submissions on this question but I note they relate to the question of fairness broadly and not fairness between the Applicant and others in a similar position. I consider this to be a neutral consideration.

Conclusion

[24] The test of exceptional circumstances in s.394(3) of the Act is a stringent one. Having considered each of the statutory criteria, I am not satisfied that exceptional circumstances exist. Because I am not satisfied that there are exceptional circumstances, there is no basis on which I could allow an extension of time. I decline to grant an extension of time under s.394(3).

[25] The application for an unfair dismissal remedy is therefore dismissed. An order 5 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

L. Emerton on his own behalf.

J. Crook for Australia Post Corporation.

Hearing details:

2020.
Melbourne by telephone.
2 October.

Printed by authority of the Commonwealth Government Printer

<PR723300>

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

 2   Ibid.

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

 4   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [14].

 5   PR723301.