Opeyemi Adebayo v Indigo Junction Inc
[2022] FWC 1007
| [2022] FWC 1007 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Opeyemi Adebayo
v
Indigo Junction Inc
(U2022/1862)
| DEPUTY PRESIDENT BINET | PERTH, 9 MAY 2022 |
Application for an unfair dismissal remedy
On 13 February 2022, Mr Opeyemi Adebayo (Mr Adebayo) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed from his employment with Inigo Junction Inc (Indigo Junction) on 30 December 2021.[1]
An unfair dismissal application must be lodged with the FWC within 21 days after the dismissal takes effect. The FWC may only allow a further period for lodgement in exceptional circumstances.
Mr Adebayo has made an application for an extension of time to file his application. Indigo Junction oppose the application.
Directions for the filing of materials were issued to the parties on 10 March 2022 (Directions). The Directions also required the parties to file a Statement of Agreement Facts. These documents were compiled in a Digital Court Book (DCB).
The materials filed by the parties did not disclose any factual dispute. In these circumstances, at the request of the Parties, I have determined whether to grant Mr Adebayo an extension of time to file the Application solely on the materials filed by the parties without a hearing.
Background
Mr Adebayo was employed by Indigo Junction on a casual basis in the role of Youth Accommodation Worker at Youth House located in Midland, Western Australia pursuant to a contract of employment dated 25 May 2021 (Contract). He performed his first shift on 1 June 2021.[2]
The Contract provides that:[3]
“HOURS OF WORK
7.1 The business’ normal span of hours of operation are outlined at Item 7 of the Schedule.
7.2 You are employed as a casual employee and are required to perform the hours of work allocated by the Employer from time to time.
7.3 The Employer will give you reasonable notice of when you are required to work
in accordance with any requirements under the modern award. The Employer does not
guarantee to provide you with a minimum or maximum amount of work.7.4 Your maximum ordinary hours per week as a casual employee will be in accordance with the applicable modern award. You may also be required to work reasonable additional hours.”
Mr Adebayo says that during his employment he received his roster a month in advance and that he worked a minimum of 32 hours per fortnight.[4] Indigo Junction say that prior to 29 December 2021 Mr Adebayo worked an average of 15 hours per week plus three sleep periods. It acknowledges that some additional shifts were allocated to Mr Adebayo whilst another employee was on paternity leave however this employee returned to work on 26 November 2021. Indigo Junction assert there has been no consistent or agreed pattern of work since Mr Adebayo commenced employment.[5]
Leading up to 29 December 2022, two incidents were logged involving heightened interactions between the Mr Adebayo and residents of the Youth House.[6]
On 29 December 2022 a large volume of beef mince was poured over Mr Adebayo’s vehicle which was parked beside the Youth House. A verbal confrontation ensued between Mr Adebayo and residents of the Youth House.[7]
On 30 December 2021 the Youth Services Manager at Indigo Junction Ms Sharon Hough (Ms Hough) advised Mr Adebayo by telephone that Mr Adebayo would not be allocated shifts for the month of January 2022 to reduce tension between him and the residents of the Youth House.[8]
The same day a series of emails were exchanged between Mr Adebayo and Indigo Junction. Firstly Mr Adebayo sent an email to Ms Hough querying whether he would be paid for the shifts he would have been rostered to work during this period.[9] Ms Hough replied that as Mr Adebayo was employed casually, there would be no payment.[10] Mr Adebayo then queried whether this was fair.[11] The Operations Manager responded to this email explaining that:[12]
“Bayo, Indigo Junction has an obligation to keep staff and the clients safe at all times. I have undertaken a safety review and given that there has been two shifts this week where more than one young person has been involved or engaged in aggressive and threating behaviour towards you; with the last incident resulting in property damage I have made the decision that at this time the tension is too high in the house between you and the young people who live here. It would be a neglectful of our duty of care to put you and the young people back into a situation on a public holiday in particular - New Year’s Day when there is limited to no staff back up.”
No further communication occurred between Mr Adebayo and Indigo Junction.[13]
Notwithstanding his evidence that he normally received his roster a month in advance Mr Adebayo did not contact Indigo Junction querying why he did not receive a roster for work in February.
Indigo Junction say that it has not contacted Mr Adebayo because since December 2021 it has rostered only permanent part time employees to perform shifts at Youth House. It concedes that it has advertised for more casual employees but says that it has done so that it can maintain a pool of available employees to perform casual shifts in the event a permanent employee is unavailable. According to Indigo Junction of the three other casual employees currently employed by Indigo Junction the last time one worked was August 2021.[14]
On 13 February 2022, Mr Adebayo filed the Application asserting that he had been dismissed.
Indigo Junction say that Mr Adebayo has not been dismissed and remains in their payroll system as a casual employee.[15]
Consideration
Subsection 394(2) of the FW Act provides 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 FWC allows pursuant to subsection 394(3) of the FW Act.
Mr Adebayo submits that his dismissal took effect when Ms Hough called him on 30 December 2021. Indigo Junction say that Mr Adebayo has not been dismissed and remains a casual employee of the business.
The term ‘dismissed’ is defined in section 386 as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
Section 386(2) of the FW Act contains some exceptions which are not applicable to this Application.
Neither party assert that Mr Adebayo has resigned from his employment.
Mr Adebayo submits that his dismissal took effect when Ms Hough called him on 30 December 2021.
The parties agree that during that conversation Mr Adebayo was informed by Ms Hough that he would not be allocated shifts for a period of one month. There is nothing in the correspondence between the parties to suggest that either party understood the employment relationship to have come to an end. To the contrary in his emails Mr Adebayo asserts that Indigo Junction must pay him for the period of ‘suspension’ because he was not dismissed or no longer required.
Notwithstanding his evidence that he normally received his roster a month in advance Mr Adebayo did not contact Indigo Junction querying why he did not receive a roster for work in February. He has provided no explanation for his failure to do so. Rather than contacting Indigo Junction to confirm his employment status he simply filed the Application.
Indigo Junction say that it has not contacted Mr Adebayo because it has rostered only permanent part time employees to perform shifts at Youth House since 30 December 2021.
Indigo Junction say that Mr Adebayo remains on their ‘books’.
Mr Adebayo concedes that he has not received any letter of termination or otherwise been informed in writing or orally by Indigo Junction that he is dismissed. He has simply presumed this to be the case.
In the circumstances I am not satisfied that Mr Adebayo was ‘dismissed’ for the purposes of the section 386 of the FW Act. However, for completeness I have considered whether it would be appropriate to grant Mr Adebayo an extension to file the Application if he was in fact dismissed on 30 December 2021.
Subsection 394(2) of the FW Act provides 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 FWC allows pursuant to subsection 394(3) of the FW Act.
The 21 day period does not include the day on which the dismissal took effect.”[16]
If the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[17]
The date 21 days after 30 December 2021 is Thursday 20 January 2022. The Application was lodged by email on Sunday 13 February 2022. Where an application is lodged by email, the application is made at the time it was received electronically by the Commission, provided that the Commission has sent an acknowledgment of the lodgement by email.[18]
The Application was therefore filed twenty four days out of time.
The FW Act allows the FWC to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.[19] 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.[20]
Section 394(3) of the FW Act requires that, in considering whether to grant an extension of time, the FWC must take into account the following:
- the reason for the delay;
- whether the person first became aware of the dismissal after it had taken effect;
- any action taken by the person to dispute the dismissal;
- prejudice to the employer (including prejudice caused by the delay);
- the merits of the Application; and
- 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.[21]
The test of exceptional circumstances establishes a high hurdle for an applicant to overcome for an extension to be granted.[22]
Having taken into account the factors set out in sub-section 394(3) of the FW Act, ultimately, the power to grant an extension for the filing of an application which has been lodged out of time is a discretionary one.[23]
The requirement that there be exceptional circumstances before the time for the lodgement of an application can be extended under section 394(3) of the FW Act contrasts with the broad discretion conferred on the FWC under section 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.
Were there reasons for the delay?
The onus is on Mr Adebayo to provide a credible reason for the delay.
While the delay to be considered is the period subsequent to the expiration of the 21 day period, the circumstances from the time of the dismissal may be relevant in determining whether the reason for the delay constitutes exceptional circumstances.[24]
In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,[25] the Full Bench explained the correct approach by reference to the following example:
“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”
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.[26]
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.[27]
The FW Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the FWC have referred to an acceptable or reasonable explanation.
Mr Adebayo provided the following reason for the delay:[28]
“The reason why I lodged my application late is I was told to stay away via compulsory leave from the workplace for a month starting from 30th December 2021.
So, I have to give my employer the benefit of doubt of staying away for a month as I have been mandated, hoping that I will be recalled by 1st of February 2022.
When I waited for two weeks after completing the mandatory leave up till 13th of February 2022 hoping that I would be recalled and I didn't hear anything from them, that is when I decided to lodge the application.
No disrespect to your specified time frame, things just took an unusual chain of events from what I understood of the contract of offer appointment termination.”
In the absence of exceptional circumstances whether an application is filed hours, days, months or years late is irrelevant. As Deputy President Gostencnik noted Ozsoy v Monstamac Industries Pty Ltd:[29]
“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”
Ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance.[30]
Notwithstanding his evidence that he normally received his roster a month in advance Mr Adebayo did not contact Indigo Junction querying why he did not receive a roster for work in February. Mr Adebayo says that he expected to be ‘recalled’ on 1 February 2022. When he was not recalled on this date he did not contact Indigo Junction to confirm his return to work date nor did he file an application. Rather he chose to wait a further two weeks before taking any action.
I consider the evidence before me provides a reason explanation for some but not all of the delay. The absence of an acceptable explanation for all of the delay weighs against a conclusion that there are exceptional circumstances.
Did Mr Adebayo first become aware of the dismissal after it had taken effect?
The Parties dispute whether Mr Adebayo was dismissed.[31]
Mr Adebayo says that he first became aware that he was dismissed on 30 December 2021 when he was not rostered for work on 1 February 2022. However, he waited a further thirteen days before lodging the Application.
This factor weighs against Mr Adebayo being granted an extension.[32]
Did Mr Adebayo take action to dispute the dismissal?
Action taken by an applicant to contest the termination, other than by virtue of making the application will be relevant and may weight in favour of granting the extension of time.[33]
Mr Adebayo did not take any steps to contest what he believed was a dismissal other than to file the Application.
This factor weighs against Mr Adebayo being granted an extension of time.
Prejudice to the employer
Prejudice to the employer will go against the granting of an extension of time. The mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.[34]
The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.
A long delay gives rise “to a general presumption of prejudice”.[35]
Indigo Junction have not identified any prejudice to it. I cannot identify any prejudice that would accrue to Indigo Junction if an extension of time were to be granted. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in consideration of whether there are exceptional circumstances. The mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.
Merits of the Application
If a claim has merits, this will weight in favour of the grant of an extension of time.[36]
In considering the merits of an application for an extension of time, the FWC is not normally in a position to make findings of fact on contested issues because to do so would require the parties in effect to present their evidentiary cases twice.[37]
Given the limited materials before me, it is not possible to make any firm or detailed assessment of the merits at this stage if in fact Mr Adebayo was dismissed. As I am unable to determine whether the merits of the present case tell for or against an extension of time. I therefore consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. This consideration is concerned with the importance of the application of consistent principles in cases of the same kind; however, cases of the same kind often turn on their own facts.[38]
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 consideration.
Conclusion
Having regard to the matters I am required to take into account under section 394 of the FW Act, and all of the matters raised by Mr Adebayo, I am not satisfied that there are 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 therefore decline to grant an extension of time under section 394(3) of the FW Act.
Accordingly, Mr Adebayo’s Application for an unfair dismissal remedy must be dismissed. An Order[39] to this effect will be issued with this Decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
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[1] Digital Court Book (‘DCB’) 10.
[2] Ibid 68.
[3] Ibid 43.
[4] Ibid 34.
[5] Ibid 69.
[6] Ibid 62, 68.
[7] Ibid 68
[8] Ibid 68.
[9] Ibid 65.
[10] Ibid 65.
[11] Ibid 64.
[12] Ibid 66.
[13] Ibid 67,68.
[14] Ibid 58.
[15] Ibid 17.
[16] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[17] Ibid; Stedman v Transdev NSW Pty Ltd [2015] FWCFB 1877.
[18] Fair Work Commission Rules 2013 (Cth) r 14(4).
[19] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[20] Ibid.
[21] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[22] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [16].
[23] Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [8].
[24] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [31].
[25] [2016] FWCFB 349.
[26] Stogiannidis v Victorian Frozen Foods Distributors PtyLtd[2018] FWCFB 901, [39].
[27] Ibid.
[28] Ibid 33.
[29] [2014] FWC 479.
[30] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14].
[31] DCB 68.
[32] Meek v Baycorp Pty Ltd t/a Baycorp Pty Ltd[2016] FWC 1291 at [15].
[33] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300.
[34] Ibid.
[35] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556.
[36] Haining v Deputy President Drake (1998) 87 FCR 248, 250.
[37] Kyvelos v Champion Socks Pty Ltd (AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [14].
[38] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
[39] PR741170.
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