Mr Donovan Stephens v Origin Energy People Services Pty Ltd
[2024] FWC 3393
•5 DECEMBER 2024
| [2024] FWC 3393 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Donovan Stephens
v
Origin Energy People Services Pty Ltd
(U2024/12794)
| COMMISSIONER THORNTON | ADELAIDE, 5 DECEMBER 2024 |
Application for an unfair dismissal remedy- extension of time – no exceptional circumstances – application dismissed
Mr Stephens (or the Applicant) was notified on 29 August 2024 that his role was no longer required by Origin Energy People Services Pty Ltd (Origin or the Respondent) and he was going to be made redundant. Mr Stephens worked during his notice period and the termination of his employment took effect on 3 October 2024.
Mr Stephens filed his claim for unfair dismissal on 25 October 2024, one day after the statutory time frame expired. In his Form F2, Mr Stephens indicated his claim had been filed within time. He later explained that he held the view that the public holiday in South Australia on 7 October 2024 extended the 21-day statutory time period to 25 October 2024.
A hearing of the matter took place on 29 November 2024. Mr Stephens gave evidence and represented himself. Mr Cramond of the People and Culture Team represented the Respondent.
Mr Stephens seeks an extension of time to file his application. After considering the matters I am required to consider in section 394(3) of the Fair Work Act 2009 (Cth) (the Act), I find that no exceptional circumstances exist in this matter. Consequently, the Commission’s discretion to allow a further period for the application to be made cannot be exercised. My reasons are set out below.
Background
Mr Stephens was engaged as the IAM [Identity and Access Management] Operations Manager at the Respondent from 27 June 2016. On 29 August 2024, Mr Stephens was advised that his role would be made redundant and if he was not re-deployed during his notice period his employment would come to an end on 3 October 2024.
Mr Stephens concluded his employment on 3 October 2024. He was paid his redundancy entitlements, notice, outstanding wages and accrued entitlements on 5 October 2024.
Mr Stephens set out that after his employment concluded he was awaiting confirmation at the company’s Annual General Meeting (AGM) that company shares that formed part of his remuneration package would be transferred to him. The share transfer occurred on 16 October 2024.
Mr Stephens also gave evidence that he had novated lease arrangements for three cars with a third party. After the redundancy took effect, Mr Stephens was awaiting reimbursements from the novated lease arrangements that were paid to him via his employer. The reimbursements were paid to him on 24 October 2024.
Mr Stephens’ evidence was that once his shares were transferred and his reimbursements paid, he filed his unfair dismissal claim the following day, consistent with his belief that 25 October 2024 was the last day of the statutory time period.
Considerations for grant of an extension of time – Exceptional circumstances
Section 394(3) of the Act requires that when considering whether to grant an extension of time the Commission must take into account the following:
(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.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether exceptional circumstances exist in the context of this matter.
It is well established that the matters relied as 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.”[1]
Reasons for the delay
Mr Stephens gave evidence that he first became aware that any claim for unfair dismissal must be made within 21 days of any dismissal taking effect was when he started to investigate legal causes of action he may have against his employer on approximately 20 October 2024, which was before the 21-day time period lapsed on 24 October 2024[2].
In written and oral evidence, Mr Stephens advanced the following reasons for his delay in filing his unfair dismissal claim:
(a)He was waiting for the novated lease reimbursements and transfer of shares before he commenced any action against the Respondent; and
(b)He understood the South Australian public holiday on 7 October 2024 “extended my lodgement timeline allowance by 1 day.”[3]
Mr Stephens said that he was motivated to wait for the payment of the reimbursements and share transfers because he had heard rumours at the workplace that the Respondent had previously withheld monies owing to employees who had left the business. Mr Stephens did not want to the Respondent to ‘retaliate’ against him or ‘take adverse action’ against him if he pursued any legal cause of action against it[4].
Mr Stephens did not establish a strong basis in evidence for his concerns that the Respondent would take retaliatory action against him by refusing to pass on the reimbursements if he disputed his redundancy. Mr Stephens could only point to vague interactions he had with the People and Culture Team and rumours he had heard at the workplace about circumstances in which other employees had not received their entitlements in full.
Mr Stephens confirmed that the transfer of his company shares occurred on 16 October 2024. He accepted in his oral evidence that waiting for the share transfer could not have ultimately been a reason for a delay in filing the application because it occurred some days before his application was filed.[5]
The reimbursement of expenses paid in advance from the novated leases were not paid to Mr Stephens until 24 October 2024. His evidence was that he did not take steps to enquire about when the payments would be made or investigate any delay with the third party who managed the novated lease arrangement.
When asked about why he did not take steps file his unfair dismissal application on 24 October 2024 after he had received the reimbursements, Mr Stephens said “I don’t recall … my activities of that day”[6] which I understood to mean he could not explain what he did on that day and why he was unable to file his application on 24 October 2024.
To the extent that awaiting confirmation or payment of monies or entitlements owing is relied on by Mr Stephens as a reason for the delay in filing his application, it is not a circumstance that is out of the ordinary course, unusual, special or uncommon.[7]
It became clear during the evidence of Mr Stephens that the definitive reason for his failure to file his application with a sense of urgency on 24 October 2024 was that he mistakenly believed that the 21-day period was extended by a public holiday falling within the statutory time period after his dismissal.
Mr Stephens made clear in his evidence he thought a public holiday falling within the 21-day period following his dismissal extended the period by a day[8]. When asked about why he thought it would be any different to a day on a weekend that is counted towards the 21-day period Mr Stephens said “I just made the business day assumption that public holidays that always gives you an extra day.”[9]
Mr Stephens is incorrect in his understanding that a public holiday that falls during a 21-day period extends the statutory time period by a day.
In the matter of Smith v KJM Contractors Pty Ltd[10], Fair Work Australia considered whether the Christmas period and the associated public holidays, with a greater difficulty in accessing legal advice in that period, was an exceptional circumstance. In considering this matter the Commission held:
“[17] Despite the fact that difficulties may arise in relation to the Christmas period, the Christmas public holidays are a known event on the calendar. They do not represent an unforeseen or an unexpected event, in so far as they posed an unanticipated obstacle to the lodgement of an application. They are predictable and known events on the calendar, much as any other holiday period, in fact if not more notorious than that.
[18] The Fair Work Act 2009 makes no provision for offsetting the 14 day period within which an application must be made for weekends or public holidays. That is, the Fair Work Act requires an application to be made within 14 calendar days, and the calendar days are counted regardless of the day of the week on which they fall, be it a Saturday, a Sunday, a public holiday, at Easter, on an Anzac Day, at Christmas and so on.
[19] The Fair Work Act does not discriminate in relation to any of those days in so far as it requires 14 days within which to make an application. Applicants face a requirement therefore to make an application within 14 days regardless of where public holidays and weekends [might] fall, and this includes the Easter period as well.
[20] It appears to me that the Fair Work Act 2009 places an obligation on employees to make an application aware of, or being cognisant of, the 14 day calendar period, irrespective of intervening public holidays or weekends, which may of course affect access to professional advice, as well as generating other circumstances.”[11]
Similarly in this matter, the public holiday on 7 October 2024 was a known event on the calendar. It is not an unforeseen or unexpected event. The calendar days in the 21-day period are counted regardless of the day of the week on which they fall including, as in this case, on a public holiday. In Mr Stephens’ case, the public holiday did not fall within the “more notorious” Christmas period and therefore arguably caused less difficulty for the filing of an application.
This is to be contrasted with a situation in which the last day of the 21-day period falls on a public holiday. If that situation arises, the applicant is able to file the application on the following business day and the application will have been filed on time. Section 36(2) of the Acts Interpretation Act 1901 (Cth) says:
“If:
(a) an Act requires or allows a thing to be done; and
(b) the last day for doing the thing is a Saturday, a Sunday or a holiday;then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.”[12]
In this matter, the date of the public holiday was not the last day for filing of Mr Stephens’ application of 24 October 2024. The public holiday fell within the period on 7 October 2024. Therefore, the 21-day time period was not extended on account of the public holiday in South Australia.
The reason provided by Mr Stephens for the delay does not weigh in favour of a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
Mr Stephens was informed of his redundancy on 29 August 2024 and he worked the remainder of the period of his notice which concluded with the termination of his employment on 3 October 2024.
Given Mr Stephens was on notice about his termination for some time before it took effect, he had a significant opportunity to investigate his options and determine if he would take any action to dispute the dismissal. This is in addition to the balance of the 21-day statutory period.
This consideration weighs against a finding of exceptional circumstances.
Any action taken to dispute the dismissal
In evidence, Mr Stephens agreed that he had not taken any steps to dispute his dismissal. He noted that in the consultation process he had raised a question about the re-structure of the work done by his team and the difference between the roles performed by his team and the newly created roles that led to the redundancy of his role within the Respondent’s business.[13]
Mr Stephens said that because he formed the view that “Origin just wanted to remove the team including myself”[14] he did not take any further action to dispute his dismissal.
Mr Stephens did not put Origin on notice that he intended to dispute this dismissal until he filed this claim.
This consideration does not weigh in favour of a finding of exceptional circumstances.
Prejudice to the employer
The Respondent did not identify any prejudice to them in the late filing of the application.
This consideration does not add weight for or against a finding of an extension of time, and is neutral in my decision.
Merits of the application
The merits of the application are relevant, however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[15] Further, the primary consideration is whether the Applicant has an arguable case.[16]
The Respondent has raised a further jurisdictional objection. It set out that in addition to the late filing of the application, Mr Stephens’ remuneration is also above the high income threshold, and he is not covered by a modern Award, such that he is not a person protected from unfair dismissal.
Section 382 of the Act says:
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
The method of calculating the high income threshold is set out in Fair Work Regulations 2009 (Cth) reg 2.13. The high income threshold from 1 July 2024 is $175,000.00. According to section 332(1) of the Act, earnings include:
(a) the employee’s wages; and
(b) amounts applied or dealt with in any way on the employee’s behalf or as the employee directs; and
(c) the agreed money value of non‑monetary benefits; and
(d) amounts or benefits prescribed by the regulations.
The Respondent submitted a letter to Mr Stephens on 19 August 2024 setting out his short-term incentive plan amount. This confirmed his fixed remuneration and short-term incentive targets for what appears to be the financial year ending 2025. This correspondence confirmed that Mr Stephens’ fixed remuneration effective 1 September 2024, was $202,900.00.
Mr Stephens confirmed in his oral evidence that his base earnings as at the date of his redundancy was the above amount. He did not assert he was covered by an Award.
It is not necessary to examine any other elements of Mr Stephens’ remuneration to see that his wages on 3 October 2024 exceed the high income threshold.
Mr Stephens gave evidence that he intended to reduce his remuneration in exchange for additional annual leave in the coming financial year such that his base salary may have been less than the threshold. However, Mr Stephens’ evidence was also that he had not taken steps to request the reduction because he had been notified of his redundancy and there was little point in making such future arrangements[17].
Mr Stephens’ future intentions to reduce his salary, but for the redundancy occurring, does not change his remuneration at the date of his dismissal on 3 October 2024.
I find it is unlikely that Mr Stephens’ claim would survive the next jurisdictional objection because his wages appear to exceed the high income threshold. The Applicant is not likely, therefore, a person protected from unfair dismissal under the Act.
In light of my comments that Mr Stephens’ remuneration likely exceeded the high income threshold, it is not necessary that I comment further on the merits of the unfair dismissal claim in which Mr Stephens’ asserts his redundancy was not genuine.
The merits of this case, taking into account the further jurisdictional issue, do not weigh in favour of a finding that exceptional circumstances exist in this matter.
Fairness between the applicant and others in a similar position
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[18] considered this criterion and said:
“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 Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”[19]
Mr Stephens made a mistake when calculating the day the 21-day statutory time period expired. Mistakes made by applicants that result in filing applications on a date outside of the statutory time limit have been considered by the Commission in other matters. It is an occurrence that is not out of the ordinary.
By way of example, in the recent decision of Brown v Busy Bees Australia Employer Pty Ltd[20], the Commission found that the applicant held an incorrect belief that he was obliged to follow the dispute procedure in the relevant award before he could lodge his application in the Commission[21]. The Commission held that the applicant’s mistake regarding the date his claim ought to have been filed as the reason for delay did not weigh in favour of a finding of exceptional circumstances. This finding was not overturned on appeal.[22]
It would not be fair to applicants who take steps to avoid mistakes and file their applications within the statutory time limit to find that exceptional circumstances exist in this matter. Likewise, it would create unfairness to applicants who have been refused an extension of time on the basis of their error.
Conclusion
I have weighed the relevant factors I am required to consider under the Act. The reason for delay, when Mr Stephens first became aware of his dismissal, the action taken to dispute the dismissal, the merits of the application and the fairness between Mr Stephens and other persons in a similar position are all factors that weigh against a finding of exceptional circumstances in this matter. Prejudice to the employer is a neutral factor.
Having undertaken the process of weighing the relevant factors, I find there are no exceptional circumstances in this matter. Therefore, the Commission’s discretion to extend the time for Mr Stephens to file his claim for unfair dismissal cannot be enlivened.
As the application was lodged beyond the 21-day statutory time limit provided by section 394(2)(a) of the Act and an extension of time has not been granted, there is no valid application before the Commission.
It is therefore appropriate to dismiss the application. An order to that effect will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
D Stephens, the Applicant on his own behalf.
A Cramond for Origin Energy People Services Pty Ltd, the Respondent.
Hearing details:
Adelaide and by Video via Microsoft Teams
2024
29 November.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Audio recording of hearing at 32:14-32:25.
[3] Submissions of Applicant.
[4] Audio recording of hearing at 24:05-24:33.
[5] Audio recording of hearing 34:11-34:36.
[6] Audio recording of hearing at 35:09-35:12.
[7] See also Grace v Bureau Veritas Minerals Pty Ltd[2024] FWC 1960 at [16].
[8] Audio recording of hearing 33:00-34:08.
[9] Audio recording of hearing at 33:34-33:41.
[10] [2010] FWA 5515.
[11] Ibid at [17] – [20]. The statutory time period to file an unfair dismissal claim at the time of the decision was 14 days pursuant to the Act.
[12] See section 40A of the Act: The Acts Interpretation Act 1901 (Cth), as in force at 25 June 2009, applies to the this Act.
[13] Applicant statement.
[14] Applicant statement.
[15] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at paragraph 14.
[16] Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[17] Audio recording of hearing at 55:11-55:50.
[18] [2016] FWCFB 6963 at [41].
[19] Ibid at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd[2023] FWC 750.
[20] [2024] FWC 972 at [46].
[21] The applicant filed an application to extend time in general protections claim involving dismissal, however, very similar statutory criteria are applied.
[22] [2024] FWCFB 278.
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