Luke Jones v PACC Victoria Pty Ltd
[2022] FWC 195
•31 JANUARY 2022
| [2022] FWC 195 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Luke Jones
v
PACC Victoria Pty Ltd
(U2021/10158)
| COMMISSIONER YILMAZ | NEWCASTLE, 31 JANUARY 2022 |
Application for an unfair dismissal remedy - extension of time
This decision concerns an application by Mr Luke Jones (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act).
The Applicant was employed as a graduate engineer with PACC Victoria Pty Ltd (the Respondent), a family-owned plant hire and civil construction company, serving many industries across Victoria. Mr Jones was informed of his dismissal while on annual leave in Queensland on 28 July 2021. The required minimum period of notice was in dispute, nevertheless Mr Jones returned from leave to work the notice period and his last day of employment was 10 August 2021. The unfair dismissal application was lodged on 11 November 2021. The application is 72 days late.
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 date the dismissal took effect was on 10 August 2021, which was also the last day of employment. The period of 21 days ended at midnight on 31 August 2021. The application was therefore filed 72 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 was represented by a recently hired Administrator, four weeks into her employment. The Administrator involved at the time of the dismissal had left the employ of the Respondent and no evidence was submitted from either the former Administrator or the Director. The Respondent opposes the extension of time application. It also raises a jurisdictional objection on the grounds that it was a small employer at the time of the dismissal with 13 employees and that Mr Jones had not met the minimum employment period of 12 months. I note the Respondent submits that the reason for the dismissal was a shortage of work, yet the Respondent did not make any submissions that the dismissal was a genuine redundancy. I make no findings on this point and I note that neither party tendered any evidence in support of compliance with the redundancy provisions of the Professional Employees Award 2020 (the Award) which covered the work of Mr Jones.
The Respondent made submissions that it was a small business employer and that Mr Jones had not completed the required 12 months employment to be eligible to make an unfair dismissal application. The Respondent’s outline of submissions lists 13 employees, and does not include the two Directors which appear to be working directors of the business. Further during the hearing, the Respondent’s Administrator admitted that the two Directors also managed a related entity PACC Hire Pty Ltd which employed 7 employees but at the time of the hearing employed 5. The Respondent also submitted that PACC Victoria now employed 7 employees. While the Administrator submitted that the two businesses operated separately, Mr Jones submitted that employees worked across the two businesses.
Mr Jones contested that the Respondent employed fewer than 15 employees, he raised four additional names that were not on the list of employees in the Respondent’s outline of submissions.
The submissions raise reasonable doubt whether the Respondent was a small employer and no evidence was tendered to support the submission that it was a small employer. On this basis I cannot find in favour of the Respondent to dismiss the application on the ground of the objection that Mr Jones had not met the minimum qualifying period. I now turn to the extension of time application.
Section 394 – Exceptional Circumstances
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]
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. I now consider these matters in the context of the Application.
Reason for the delay
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.[3]
Mr Jones submits the reason for the delay is because he was suffering anxiety and depression and therefore unable to make the application within the required timeframe. Following the dismissal, Mr Jones submits that he had obtained medical and psychiatric help to manage his medical condition. A medical condition which he asserts relates to the manner in which he was dismissed. He also refers to Ovenden v Fortezza[4] and states the case is consistent with his own personal circumstances, therefore this case sets a precedent for his extension of time.
Mr Jones gave evidence that on Tuesday 27 July 2021, he was contacted by James Magna, the Director, by telephone and he was dismissed because he was “not enthusiastic enough” to make the business money and further that it could not afford to keep him or the foreman. Mr Jones submits that he understood from the conversation that he would continue for a few weeks until he could find employment elsewhere. However, on the following day he received by email a letter of termination of employment with one week’s notice from the business Administrator.
Mr Jones stated the ensuing communications after the dismissal contributed to his mental health condition:
· Being told by the Director to at least do him the decency of completing the Keysborough project, after he was dismissed and still in Queensland on annual leave, followed by inconsistent communication regarding the period of notice to which he was entitled.
· On 30 July 2021, Mr Jones was informed via email that he had terminated his own employment as of Monday 2 August 2021, because he chose not to work out his notice period.
· Mr Jones informed the Respondent that he was entitled to four weeks’ notice pursuant to the Award instead of the one week in the letter of termination of employment.
· On 2 August 2021 when he went to work, the Administrator informed him that the Director would not pay the Award notice period and that she had confirmed with the Fair Work Ombudsman that the notice period was four weeks. She advised Mr Jones to take the balance of his annual leave (28 hours) and for the remaining period of leave (9.5 hours) was to be recorded as unpaid leave.
· The Director did not meet with Mr Jones on 2 August 2021, but had sent a text “I’m happy for you to work through your leave but I won’t be paying you if you don’t work. Happy to talk over the phone like adults.”
Mr Jones gave evidence “I went from the office to the GP as I was experiencing anxiety attacks and was given a medical certificate stating I was unable to return to work.”[5] However, Mr Jones did not go from the office to his general practitioner. Mr Jones saw his general practitioner on 3 August 2021, the following day, and a medical certificate was issued on the same day. The medical certificate covered an absence from work from 3 August until 10 August 2021. This medical certificate was tendered in evidence.
Mr Jones gave evidence that:
“At the time of the termination of employment, I was suffering from anxiety and depression and was unable to make the application as I was experiencing anxiety attacks due to the stressful situation and have since been seeking medical and psychiatric help to manage the condition.
This stress was also heightened by my employer claiming I had abandoned my employment by not working through my notice period and texting and calling to try to justify his behaviour.”[6]
Mr Jones tendered in evidence a referral from his general practitioner to Dr Asadi dated 27 October, other than referring to the recent job loss, multiple job switches, and his struggle to focus for long periods since high school the referral makes no reference to Mr Jones’ capacity to make a claim for unfair dismissal. The referral provides no valid evidence to support an extension of time. In addition, Mr Jones provides no explanation for the delay of the application for all of September and most of October 2021.
I do not consider the reasons for the delay are sufficient to warrant an extension of time. There is a requirement that there is an acceptable or reasonable explanation for the period of the delay. Other than Mr Jones’ submissions and statement as a witness, there is no corroborating evidence. If Mr Jones had suffered anxiety, depression and the anxiety attacks hindered his capacity to file an unfair dismissal application, as he sought medical attention, one would reasonably expect that the evidence would be forthcoming. The only evidence tendered was the medical certificate for the duration of his absence from work, and a referral that does not justify an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
Mr Jones was aware of the dismissal, however the issue that created further confusion between the parties was the period of notice that applied and how it affected the dismissal date. There is no contest that Mr Jones was contacted on 27 July 2021 by the Director and dismissed during a telephone conversation.
Action taken to dispute the dismissal
Mr Jones gave evidence that he questioned the reasons for the dismissal at the time of the telephone call with the Director on 27 July 2021. However, no further challenges regarding the dismissal occurred, other than his querying of the notice period and his request for a separation certificate. I also observe that Mr Jones gave evidence that he reached agreement over the period of notice to allow him the time to find alternative employment. The evidence suggests that Mr Jones accepted the dismissal, even though he did not agree with the reasons. This action is not enough to put the Respondent on notice that the dismissal is in contest.
Prejudice to the employer
Mr Jones contends that an extension of time will not disadvantage the employer. The Respondent does not contend that the lateness caused prejudice, but it does contend that the application resulted in disadvantage to it for having to complete paperwork rather than focus on business requirements. The effort to respond to the application is not sufficient to justify prejudice or disadvantage, however, the mere absence of prejudice is insufficient to grant an extension of time.[7]
Merits of the application
Mr Jones gave evidence that he worked for the Respondent for more than 9 months. While on a holiday in Queensland from 14 to 22 July 2021, he contacted the Director on 19 July to discuss extending his period of annual leave for a week. He gave evidence that the extension to the leave was approved, and he rebooked flights to return to Melbourne for 29 July 2021. The Respondent submits there was no agreement to an extension of the annual leave and that Mr Jones proceeded to take unauthorised leave.[8]
I observe that had there been no extension to the period of annual leave, Mr Jones should have been back at work on 23 July 2021.
It is not contested that on 27 July 2021 the Director contacted Mr Jones by phone and advised of its decision to dismissal him. Mr Jones states that the reason for the dismissal conveyed to him was that the business could not afford his wage as he was not enthusiastic enough to make the business money. Mr Jones gave evidence that he was offered the opportunity to stay on for a few weeks while he found alternative employment, for which he was grateful.[9]
On 28 July 2021, Mr Jones states that he received a text from the Director offering a week or two of notice to allow for work to be completed. Mr Jones sent a text message stating that he would not return to work until Monday 2 August 2021. The Director replied, “so you’re not planning to work at all till Monday?”. Mr Jones stated that he did not reply to the text.
Following the unanswered text from the Director questioning whether Mr Jones would not work until 2 August 2021, Mr Jones received an email from the Administrator containing the letter of termination of employment and one week of notice. Following the email, the Director again texted Mr Jones, this time stating, “can you do me the decency of at least trying to wrap up Keysborough,” Mr Jones replied, “I’ll be back at the office Monday”.[10]
Had the annual leave extension been approved, Mr Jones was due to be back at work on 30 July 2021. There was no explanation why Mr Jones would not return to work until Monday 2 August 2021, and there was no evidence that the additional period of absence was approved.
On 30 July 2021, the Respondent sent an email stating as per the conversation with the Director, that Mr Jones chose to terminate his employment as of Monday 26 July by not working the one week of notice.[11] In response, Mr Jones emailed the Respondent advising that he was entitled to four weeks’ notice which meant the last day of employment would be 24 August 2021 unless the Respondent paidthe notice in lieu.[12] There was no explanation given for the Respondent’s email reference to an “agreement” on 26 July 2021, as the Director dismissed Mr Jones on 27 July 2021. It is likely that the date is a typographical error and one can reasonably conclude from the evidence that the Respondent was frustrated with Mr Jones’ absence from employment and perceived lack of willingness to work the notice period.
On 3 August 2021, the Respondent amended the notice period to conclude on 24 August 2021.[13] Mr Jones contends that an agreement was reached between the Director and himself to 2 weeks when he was dismissed on 27 July 2021. He contends that he had text messages, however this material was not tendered in proceedings. An email from the Respondent of 3 August disputes any agreement to 2 weeks’ notice and states that it was not up to Mr Jones to determine when he would work the 2 weeks’ notice. Correctly, the email states that the notice period commences from the date of dismissal. The email also refers to text messages which were not tendered in evidence by the Respondent either.
From the materials tendered, it does appear on balance that there was agreement to a 4 week notice period, but Mr Jones made it clear on 10 August 2021 that he had no intention of returning to work. In light of this evidence, it is not necessary to make a finding on whether there was an agreement or not to the 2 weeks’ notice as it was agreed that the notice period would conclude on 24 August 2021 and Mr Jones informed his employer on 10 August that he would not be returning to work.
No pay slips were tendered for the period 2 to 10 August 2021, therefore no observations can be made about whether Mr Jones was paid until that date or whether any notice was deducted from final pay for failure to work the balance of the notice period. However, the Employment Separation Certificate was tendered in evidence.
The pay slip for the week of 26 July 2021 to 1 August 2021 confirms payment of annual leave for the extended period of leave and unpaid leave for the balance of the approved leave including an absence from work on 30 July 2021.[14]
The Employment Separation Certificate signed on 17 August 2021 confirmed the last day of employment as 10 August 2021 and the reasons for the dismissal being “shortage of work”. The Certificate states that Mr Jones’ final pay was $440.00 of which $116 was annual leave and $324 “other”. The letter of termination of employment dated 28 July 2021 does not refer to any reason for the dismissal but does state that one week of notice applied from 28 June 2021. The reference to 28 June is a typographical error as both parties confirmed that Mr Jones was dismissed on 27 July 2021 and not June 2021. The letter also refers to payment of any outstanding pay including overtime not taken in lieu, therefore the sum of $324 most likely relates to an accrued overtime payment. The certificate stated that there was no entitlement to severance pay. I also observe there is no payment of notice in lieu, nor any evidence to suggest notice was deducted from the final pay.
Based on the above evidence I have formed the view that the parties ultimately agreed to a notice period of 4 weeks, however, Mr Jones had on 10 August made it clear that he did not intend to return to complete the notice period up until 24 August 2021. Hence, the date of termination of employment is 10 August 2021 and notice in lieu is not due to be paid as Mr Jones advised that he did not intend to work the balance of the notice period.
Mr Jones contends that one aspect of the unfairness of the dismissal is largely due to the dispute over his alleged entitlement to the payment of the balance of the notice period. On this point I do not consider that Mr Jones has an arguable case.
Mr Jones also contends that there were no warnings nor any notice that an alleged shortage of work would affect his employment. Mr Jones contends there was ample work at the time, and it was not evident that the Respondent was affected by a shortage of work, nor that his job was at risk for any reason.
Mr Jones also gave witness evidence that the dismissal process, in his view, was badly managed and caused him stress and anxiety. He stated in evidence:
I was given vague reasons for the dismissal during the initial phone conversation such as “Not enthusiastic enough” “not making PACC enough money” and that myself and a previously dismissed foreman were being paid too much, which I think was not relevant.
I was given a separation certificate stating “Shortage of work” which I believe was unreasonable as I had been working long hours and jumping between multiple jobs in the months prior to the dismissal and had recently worked on PACC’s largest contract with Texco.
I also think the way PACC handled my dismissal was harsh as immediately after the initial notice of termination both Alana and James tried multiple times to manipulate me into agreeing to a 1 week notice period, which was not what I was entitled to as I was covered by the Professional Employees Award 2020.[15]
The Respondent did not lead any evidence that it complied with the consultation clause of the Professional Employees Award 2020. However, the Respondent submits that Mr Jones was informed on multiple occasions that his performance was of a low standard and this impacted the business. There was no evidence to support the submission that Mr Jones was spoken to about his performance or that there was any discussion regarding the potential of a dismissal due to a shortage of work.
On this basis, there may be a case to answer regarding whether there was a valid reason for the dismissal and whether Mr Jones was afforded procedural fairness. However, it appears that the facts will be strongly contested.
The Act requires me to take into account the merits of the application in considering whether to grant an extension of time. There are competing contentions between the parties in relation to the merits of the Application in relation to both valid reason and procedural fairness. It is evident to me that 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 if the matter were to proceed.
For the above reasons it is not possible to make any firm or detailed assessment of the merits in support or against an extension of time, therefore I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
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. In the present case, neither the Applicant nor Respondent addressed this consideration. I consider this to be a neutral consideration in the present matter.
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. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together.
As 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.
COMMISSIONER
Appearances:
L. Jones on his own behalf.
A. Lontos for PACC Victoria Pty Ltd
Hearing details:
2021
Melbourne (By Video using Microsoft Teams)
14 December
[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] Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group [2010] FWA 3863.
[5] Applicant’s statement of evidence.
[6] Applicant’s outline of submissions at Q4.
[7] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300.
[8] Respondent’s outline of submissions at Q2i.
[9] Chronology of events filed by Mr Jones.
[10] Applicant’s outline of submissions.
[11] Email of 30 July 2021 at 1:22pm by PACC Victoria to Mr Jones tendered in evidence by the Respondent.
[12] Email of 30 July 2021 at 3:06pm from Mr Jones to PACC Victoria tendered in evidence by the Respondent.
[13] Email of 3 August 2021 at 11:27am from PACC Victoria to Mr Jones tendered in evidence by the Respondent.
[14] Payslip tendered in evidence by Mr Jones.
[15] Applicant’s outline of argument at Q7.
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