Mr Edward Lehmann v Yenckens Hardware Pty Ltd T/A Delatite Steel & Industrial Hardware
[2023] FWC 1164
•17 MAY 2023
| [2023] FWC 1164 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Edward Lehmann
v
Yenckens Hardware Pty Ltd T/A Delatite Steel & Industrial Hardware
(U2023/3248)
| DEPUTY PRESIDENT MASSON | MELBOURNE, 17 MAY 2023 |
Application for an unfair dismissal remedy – application made outside of 21-day time limit.
This decision concerns an application made by Edward Lehmann (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant who was employed by Yenckens Hardware Pty Ltd t/a Delatite Steel & Industrial Hardware (the Respondent) was notified of his dismissal on the same day it took effect on 10 March 2023. The unfair dismissal application was lodged by the Applicant on 13 April 2023.
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 Fair Work Commission (the Commission) allows pursuant to s 394(2). As the dismissal took effect on 10 March 2023 the period of 21 days ended at midnight on 31 March 2023. The application was therefore filed 13 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) of the Act.
The application for an extension of time to file the unfair dismissal application was set down for determinative conference/hearing on 17 May 2023 in advance of which both parties filed material in accordance with directions issued. At the conference, the Applicant appeared and gave evidence while the Respondent’s General Manager Jenny Litherland appeared and gave evidence on behalf of the Respondent.
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 turn to consider these matters in the context of the Application.
Background and evidence
The Applicant commenced employment with the Respondent on 30 May 2022 at its Mansfield industrial hardware store in a retail sales role. He was engaged on a casual basis, was covered in his employment by the General Retail Industry Award 2020[3] (the Award) and was in receipt of a rate of pay of $29.23 per hour.
On 3 March 2023, a meeting was held by the Respondent’s Steel Manager, Graham Mansbridge with the Applicant and co-worker, Aaron Seeber. Mr Mansbridge spoke with the Applicant and Mr Seeber about wearing protective personal equipment (PPE) properly and material wastage. Mr Mansbridge also raised with the Applicant his alleged dangerous driving of a company vehicle that had been reported to the Respondent. In the week following, the Applicant failed to attend work on Saturday 4 March 2023, arrived late on Thursday 9 March 2023 and failed to attend work on Friday 10 March 2023. Mr Mansbridge was also unable to contact the Applicant on 10 March 2023 despite several attempted calls made to him.
Following the Applicant’s failure to attend work on Friday 10 March 2023, Mr Mansbridge left a message on the Applicant’s phone that he was no longer required. The General Manager Ms Litherland was subsequently alerted by Mr Mansbridge of his decision to dismiss the Applicant, which concerned her as she had not authorised the Applicant’s dismissal[4]. Despite her initial misgivings regarding the dismissal decision, she subsequently reviewed all the circumstances and in particular the impact of the Applicant’s conduct on Mr Mansbridge and subsequently confirmed the dismissal decision in a letter sent to the Applicant on the afternoon of 10 March 2023[5]. The letter of termination relevantly stated as follows;
“…………
Dear Ed
Termination of your employment
After consideration, I have determined that your employment is terminated without notice.
We have two very serious breaches of our policy's.Firstly, Aggression
It has been noted over the past week that you have shown aggression towards staff.
This will not be tolerated. This is a Health and Safety issue and we are committed to provide a safe work place for our staff.Secondly is your abandonment of your employment
We note that you did not attend work two days this week, this was without authorization or explanation. By failing to attend work you are indicating that you no longer wish to continue with your employment.We take this opportunity to remind you of the obligations and undertakings on your part regarding confidentiality and the return of Yenckens Property.
…………….”[6]
On the afternoon of 10 March 2023, Mr Mansbridge reached out to the Applicant by text message[7] regarding the dismissal, encouraged the Applicant to take 3-6 months to get himself “right” and then come and see him (Mr Mansbridge). The Applicant sent a message to Mr Mansbridge at 6.09pm on 12 March 2023 with a long and at times intemperate response, at one point stating to Mr Mansbridge that Ms Litherland can “shove that up her fat ass”. The Applicant also complained in his response to Mr Mansbridge about lazy co-workers and that he had not received any written warnings regarding his conduct prior to his dismissal[8]. On 14 March 2023, Mr Mansbridge replied to the Applicant in a text message advising that he was looking for a welding job for the Applicant and requesting that the Applicant call him[9].
At 7.46pm on 14 March 2023, Ms Litherland sent an email to the Applicant in which she sought to explain the reasons for the Applicant’s dismissal, expressed disappointment at the Applicant’s offensive language directed at her in the earlier text exchange between the Applicant and Mr Mansbridge and praised him for his work ethic and contribution to the Respondent’s business during his employment. She concluded the email by offering the Applicant an opportunity to return to his job or in the alternative consider a job at a different location[10]. The Applicant replied later that evening and in doing so apologised for his earlier harsh words, referred to his anger and frustration both at work and at home and undertook to consider her offer of a return to work[11].
The Applicant gave evidence that following his dismissal he was initially hesitant to make an application for unfair dismissal out of concern of the impact of such an application on his prospects of obtaining employment in a small regional community such as Mansfield. He says he did however google options for making an unfair dismissal application and having done so, made what he believed to be an unfair dismissal application a few days before the 21-day time period passed. He subsequently realised that he had not made an application to the Commission but rather had filed an application with a law firm specialising in representing dismissed employees in unfair dismissal applications when the law firm corresponded with him after the expiry of the 21-day time period. Alerted to his error, the Applicant then prepared and filed his unfair dismissal application on 13 April 2023. The Applicant also gave evidence that during the period following his dismissal he was experiencing unstable accommodation, mental health issues and that he had a lot of things going on at the time. These matters were not elaborated upon in the Applicant’s evidence.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 31 March 2023. The delay is the period commencing immediately after that time until 13 April 2023, although circumstances arising prior to that day may be relevant to the reason for the delay.[12]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[13] An applicant does not need to provide a reason for the entire period of the delay although 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. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay[14].
As set out above, the Applicant attributes the delay in the filing of his unfair dismissal application to an error made by him in sending an application to a law firm that came up in an internet search he was doing on ‘unfair dismissal’. He was not alerted to that error until after the 21-day time period had passed. He also referred to unstable accommodation, mental health challenges and other issues going on in his life at the time.
It is evident from the Applicant’s evidence that in the period following his dismissal he undertook an internet search to establish how he should make an unfair dismissal application. Following this, he corresponded by mistake with a law firm that came up in his search rather than the Commission. He was unaware of his error until after the 21-day time period passed at which point he then filed a correct unfair dismissal application with the Commission.
The above indicates that the Applicant had access to the internet and was capable of filing an unfair dismissal application at an earlier time then he did. That he made an error in corresponding with a law firm rather than the Commission is obviously regrettable but does not constitute an event that is either unusual or out of the ordinary. It is also the case that he took no apparent steps to follow up on the status of the incorrect application he made and was only alerted to it when the law firm corresponded with him after the 21-day time period passed.
As to the other matters raised by the Applicant in explaining the delay, there was insufficient evidence to persuade me that those matters either individually or collectively prevented the Applicant from filing his unfair dismissal application at an earlier date then he did. The fact that the Applicant researched and then corresponded with a law firm prior to the 21-day period passed, tells against his contention that the matters of his mental health and unstable accommodation prevented him from making an application at an earlier date.
Having regard to the foregoing, I am unable to accept the explanation provided by the Applicant as to having been unable to lodge the application on time or at a time earlier than the date on which this application was lodged. Noting the significant delay in filing the unfair dismissal application, the absence of an acceptable explanation for the filing delay weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It was not in dispute, and I find that the Applicant was notified of his dismissal on the same day his employment ceased on 10 March 2023. In these circumstances I am satisfied that he had the benefit of the full period of 21 days within which to lodge his unfair dismissal application. This weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
It is not apparent that the Applicant took any action to contest his dismissal after it took effect on 10 March 2023, other than lodging his unfair dismissal application. I do note however the Applicant mistakenly communicated with a law firm regarding an unfair dismissal application prior to filing his application with the Commission. These circumstances do not however weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
The application was filed 13 days outside of the 21-day period. The Respondent contends that the delay in the filing of the application does cause prejudice to it because of the stress caused to other employees of the Respondent in having to deal with the application and also that the business has moved on and accommodated the loss of the Applicant. While I accept that an employer being required to confront an unfair dismissal application may create stress for involved employees, I do not accept that such an impact arises from the delay in the filing of the application but rather seems to me to be the normal experience of employers and their employees when confronting such an application. As to the business having ‘moved on’ it was unclear to me in what sense the business had ‘moved on’ and how the delay was relevant. In the circumstances I am not persuaded that the matters raised by the Respondent demonstrate that it would suffer any significant prejudice because of the delay. I therefore regard this factor as a neutral consideration.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The Respondent contends that there was a valid reason for the Applicant’s dismissal related to his conduct and attendance in the period from 3-10 March 2023. Specifically, the Respondent claims the Applicant was aggressive in his interactions with staff and failed to attend work and notify the Respondent of absences in the period from 3-10 March 2023. While not conceding the conduct complained of by the Respondent, the Applicant states that in any case he was not warned or given an opportunity to respond to the reasons relied on by the Respondent in dismissing him before the dismissal decision was taken. The latter point was conceded by Ms Litherland, it seems in a mistaken belief that the Respondent was able to summarily dismiss the Applicant without giving him an opportunity to respond because he was a casual employee.
It is evident to me that the merits of the Application are likely to 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. The Applicant has an arguable case, to which the Respondent raises a prima facie defence in relation to the reason for dismissal although concedes that the dismissal was procedurally flawed in the sense that the Applicant was not given an opportunity to respond prior to his dismissal. Having regard to the conceded procedural failures of the Respondent, I consider the merits of the present case tell in favour of an extension of time.
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.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion
While the merits of the case may favour an extension of time, other factors either weigh against such an extension of time or are neutral considerations. Of note, the application was made 13 days outside the statutory time period and the Applicant was aware of his dismissal on the day it took effect. 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 and outlined above, I am not satisfied that there are exceptional circumstances in this case, 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) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
E Lehmann, Applicant.
J Litherland for the Respondent.
Hearing details:
2023.
Melbourne (via Microsoft Teams):
May 17.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] MA000004
[4] Exhibit R9, Witness Statement of Jenny Litherland, at [2]
[5] Ibid
[6] Exhibit R4, Letter of termination, dated 10 March 2023
[7] Exhibit R5, Text message exchange between Graham Mansbridge and Applicant
[8] Ibid
[9] Ibid
[10] Exhibit R6, Email from Jenny Litherland to Applicant, dated 14 March 2023
[11] Exhibit R7, Applicant response to Jenny Litherland, dated 14 March 2023
[12] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[14] Ibid at [40].
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