Mr Brentt Scott v Lloyd Austerberry & Co

[2020] FWC 6710

[2020] FWC 6710

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Brentt Scott
v
Lloyd Austerberry & Co
(U2020/14991)

COMMISSIONER CIRKOVIC MELBOURNE, 16 DECEMBER 2020

Application for an unfair dismissal remedy – application filed outside statutory time frame – no exceptional circumstances – application dismissed.

[1] This is an edited version of a decision delivered ex tempore and recorded in transcript on 11 December 2020.

Introduction

[2] Mr Brentt Scott (Applicant) commenced employment with Lloyd Austerberry & Co (Respondent), in or around 2014 or 2015. He was employed in the position of Farm Hand.

[3] The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). There is no dispute that the application was lodged on 18 November 2020.

[4] The Applicant contends that he was unfairly dismissed and the Respondent disputes that contention.

Background

[5] It is of assistance, at this juncture, to briefly set out the history of this matter.

[6] There is some dispute between the parties around whether the Applicant commenced his employment with the Respondent in 2014 or 2015. On the material before me, I am unable to make a finding in relation to this but note that the Applicant’s commencement date has no relevance to the determination of this matter.

[7] For the duration of his employment, the Applicant contends he was a “permanent casual” whose hours were “variable” but “also consistently based on Mon-Fri 8:30 to 5:30”.

[8] On 20 March 2020, Mr Graeme Austerberry of the Respondent informed the Applicant that, due to the effects of COVID-19, it was unclear when the Applicant would again be able to work. Mr Austerberry was not able to provide a time frame for when further work would be available.

[9] On 27 March 2020, Mr Austerberry sent a text message to the Applicant stating:

“Hello Brentt, due to Coronavirus and stage 3 imminent there will be no work next week. We have cancelled our crutching”

[10] On 31 March 2020, Mr Austerberry sent a text message to the Applicant stating:

“Hi Brentt, due to how serious Coronavirus has become and being at stage 3. We are only working with family members at the moment. We suggest you explore other options of employment.”

[11] On 19 October 2020, the Applicant sent a text message to Mr Austerberry stating “Hi Graeme just wondering when you gonna (sic) send me a separation certificate”. The Applicant contends he did this as “it’s a requirement for when I was preparing an unemployment claim to be ready after my last shearing shed contract finished”. 1

[12] On 21 October 2020, Mr Austerberry sent a text message to the Applicant stating “Hello Brentt,I have lodged your separation certificate with Centrelink today”.

[13] On 16 November 2020, the Applicant telephoned Centrelink who provided the details of what was on the separation certificate. The Applicant contends that it was at this time that he became aware that his employment with the Respondent had ended.

Date of dismissal

[14] On the material before me there is a contest as to the effective date of termination of the Applicant. In order to determine whether to grant an extension of time, I must first confirm that the application has been filed outside the statutory time frame.

[15] It is uncontroversial to state that to terminate an employment relationship, the termination must be clear and unequivocal such that there must be no doubt in the mind of the party whose employment is being terminated that the employment relationship has come to an end. 2

[16] The Respondent contends that the Applicant’s employment came to an end on 20 March 2020. On the material before me, I do not accept that the Applicant’s employment was terminated on 20 March 2020. In my view, the accounts of the conversation between the Applicant and Mr Austerberry on this day outlined in the witness statements do not support a conclusion that the Applicant was terminated that day. Further, in my view, the text messages of 27 March 2020 and 31 March 2020 are equivocal, in particular it is worth noting that in the 27 March 2020 text message the Applicant is advised that “there will be no work next week” and in the 31 March 2020 text message the Applicant is advised that the Respondent is “only working with family members at the moment” (emphasis added). Notwithstanding the words “we suggest you explore other options for employment”, I am not satisfied that any of these communications are “clear and unequivocal” such that the Applicant could be certain that the employment relationship had come to an end on those days.

[17] The Applicant contends, in essence, that the effective date of termination was 16 November 2020, which is when he was advised by Centrelink of the contents of his separation certificate. In my view, the evidence does not support this submission. The Applicant does not dispute sending a text message to the Respondent seeking a copy of his separation certificate for the purposes of preparing his application to seek unemployment benefits. During the hearing, the Applicant accepted that as of 19 October 2020, he was aware that his employment had ended with the Respondent. Further, by 21 October 2020 the Applicant was advised, via text message from Mr Austerberry, that the separation certificate had been lodged with Centrelink.

[18] In my view, it is apparent on the evidence that the Applicant had no doubt that his employment with the Respondent had ended from 19 October 2020 at the latest.

[19] In the event that I am wrong, and the Applicant’s employment did not end on 19 October 2020, I would conclude that his date of termination was 21 October 2020 by virtue of the text message confirming that his separation certificate had been filed. For the reasons I have outlined below, I would reach the same conclusion with respect to the extension of time if his employment terminated on 21 October 2020.

[20] Given my finding, the Applicant’s application was lodged outside of the statutory time frame. I turn now to consider whether it is appropriate to grant an extension of time.

Application was filed outside the statutory timeframe

[21] Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.

[22] For the reasons I have outlined earlier, the effective date of termination was 19 October 2020 and the application for unfair dismissal was received by the Commission on 18 November 2020. Based on a termination date taking effect on 19 October 2020, the application should have been lodged by no later than 9 November 2020.

[23] The application was therefore lodged outside of the time prescribed. The application was made in effect, 9 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[24] Before dealing with the evidentiary matters, let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 394 of the Act, the statute permits me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

[25] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:

•  the reason for the delay;

•  whether the Applicant first became aware of the dismissal after the date it took effect;

•  any action taken by the Applicant to dispute the dismissal;

•  prejudice to the Respondent including prejudice caused by the delay;

•  the merits of the application; and

•  fairness as between the Applicant and other persons in a similar position.

[26] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. 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 individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.

[27] 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 or unprecedented, nor do they need to be very rare. I must be satisfied, taking into account section 394(3), that there are exceptional circumstances.

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

Reason for the delay

[29] 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.

[30] In essence, the Applicant says that he only became aware he had been terminated on 16 November 2020 after contacting Centrelink regarding his separation certificate. The Respondent makes no submissions on this issue.

[31] For the reasons I have discussed earlier, I do not accept the Applicant’s evidence that he was not aware his employment was terminated until 16 November 2020. When I raised with the Applicant that, by his own admission, he was aware that his employment had ended from 19 October 2020 and sought an explanation for the delay, the Applicant raised the following matters:

•  that he was working as a shearer at the time;

•  that Centrelink’s systems were overwhelmed as a result of COVID at the time; and

•  he had difficulty contacting Job Watch and having them respond to allow him to seek legal advice.

[32] These submissions were not fully developed but even if I were to accept these matters as put by the Applicant I do not consider that they, individually or collectively, constitute a credible and acceptable explanation for the all or part of the delay.

[33] While I am sympathetic to the Applicant’s position and accept he was faced with some confusion from March regarding the status of his employment, his own evidence clearly illustrates that he was certain that his employment had ended from at least 19 October 2020. On the basis of this, it is difficult to reach any conclusion other than that his termination was clear and unequivocal in his mind at this time.

[34] As such, I do not regard that the Applicant has advanced any credible reason for the entirety of the delay which would constitute an acceptable explanation. This is a matter that weighs against the Applicant in this case.

[35] For completeness, I note that my findings should not be considered an endorsement of the Respondent’s approach to ending the Applicant’s employment. The Respondent’s contention that the Applicant’s employment ended on 20 March 2020 strains credibility and is not supported by subsequent communications between the parties. Had the Respondent intended to terminate the Applicant on that day they should have adopted a more direct approach that offered certainty to the Applicant. While I appreciate that the Respondent was dealing with the challenges of COVID-19 and appears to be a small business, these matters do not excuse the failure to adopt a more direct approach when dealing with the Applicant.

Whether Applicant first became aware of the dismissal after the date it took effect

[36] The circumstances surrounding the Applicant’s date of dismissal, and the Applicant’s notification of this date, are detailed earlier in my decision. Given my findings earlier, I am satisfied that the Applicant was aware of his dismissal from 19 October 2020. In this matter, I consider the criteria of when the Applicant first became aware of the dismissal after the date it took effect to be a neutral factor.

Action taken by the Applicant to dispute their dismissal

[37] Turning next to the question of the action taken by the Applicant to dispute his dismissal, the Applicant made no submissions as to any steps taken to dispute his dismissal. However, given my findings earlier in the decision, in the circumstances of this case, I consider this to be a neutral factor.

Prejudice

[38] Neither party made submissions on this issue and I cannot identify any prejudice that would accrue to the business 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

[39] 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 Application are set out in the materials that have been filed and I do not repeat them here. Having examined these materials, 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 the matter were to proceed. I also note that, on the face of the material, it appears that there may be jurisdictional matters that will need to be dealt with prior to examining the merits. As such, it is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[40] As to this criteria, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like 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. 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 factor.

Conclusion

[41] Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

[42] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting an exercise of my discretion.

[43] As I have indicated, there is no acceptable or reasonable explanation for the delay in filing the application. None of the factors in s.394(3) weigh in favour of granting an extension. Regrettably, as much as I may sympathise with the Applicant’s position, I am bound by the Act to only consider those matters prescribed in section 394(3) in coming to my decision on whether there are exceptional circumstances. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[44] Accordingly, the application is dismissed.

COMMISSIONER

Appearances:

Mr B. Scott for himself

Mr G. Austerberry for the Respondent

Hearing details:

11 December 2020 (via telephone).

Printed by authority of the Commonwealth Government Printer

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 1   Applicant’s Statement of Evidence.

 2   See for example Ilves v Lawson Worldwide Forwarding Pty Ltd[2017] FWC 2993 at [37] – [40].