Patrick Madden v Peter Rowland Group
[2024] FWC 1127
•1 MAY 2024
| [2024] FWC 1127 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Patrick Madden
v
Peter Rowland Group
(U2024/2753)
| DEPUTY PRESIDENT O’NEILL | MELBOURNE, 1 MAY 2024 |
Application for an unfair dismissal remedy – extension of time application – exceptional circumstances not found - application dismissed.
Introduction
On 8 March 2024, Mr Patrick Madden made an application to the Commission for an unfair dismissal remedy. He contends that he was unfairly dismissed by the Respondent, although there is some uncertainty as to whether the dismissal occurred on 14 or 15 February 2024. The Applicant contends that the “effective date of the Applicant’s dismissal is 15 February 2024”.[1] However, as I outline below, I find that the Applicant was dismissed on 14 February 2024.
Section 394(2) of the Fair Work Act 2009 (Cth) (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 period of 21 days ended at midnight on 6 March 2024. The application was therefore filed two days outside the 21-day period.
For the application to proceed, Mr Madden requires the Commission grant a further period of time within which to bring his application.
The question of whether to grant additional time was dealt with at a hearing on 24 April 2024, at which the Applicant gave evidence in support of his application and was granted permission to be legally represented.
Extension of time
Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[2]
The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[3]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
· 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.
In assessing whether there are exceptional circumstances I am required to consider and give appropriate weight to each of these considerations.
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.[4]
Relevant factors
Reason for delay
The Act does not specify what reason for delay might justify 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.[5]
The delay required to be considered is the period after the prescribed 21-day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21-day period.[6] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21-day period.[7]
The Applicant had been employed by the Respondent since 1 May 2023 and at the time of his dismissal, was the Culinary and Production General Manager on an annual salary of $160,000. On 14 February 2024, he was informed by Mr Hurst, the Chief Operating Officer, that his employment was terminated effective immediately. The Applicant’s evidence was that whilst he believed that his employment had been terminated that day, he was somewhat confused. However, any doubts were removed the next day, 15 February 2024, when he received a letter dated 14 February 2024 that included “effective immediately, your employment with Peter Rowland Group has been terminated …”
I find that the dismissal occurred on 14 February 2024. The Applicant’s evidence is that he was told on that date that his employment was terminated effective immediately, and that he believed that he had been. However, if I am wrong about that and the dismissal took effect on 15 February 2024, the application would still have been made one day outside the 21-day time period.
The Applicant’s evidence is that:
· On 19 February he had a text message exchange with Mr Hurst regarding the return and collection of property.
· Mr Hurst asked him how he was doing, to which he replied he was “extremely upset by the situation”.
· The Applicant asked if he could invoice the business the money owed so he could pay it and his wages released, which Mr Hurst agreed to.
· On 26 February 2024, the Applicant emailed Mr Hurst asking what had happened to his final pay, to which he received no response.
· On 29 February 2024, the Applicant telephoned Mr Hurst and said he had “yet to have closure on this”, and Mr Hurst said he had concluded a thorough investigation and would send through a further email.
· On 4 March 2024, the Applicant again emailed Mr Hurst “concerning his [my] wages”, to which Mr Hurst said he had sent through his Response, and in the Response, initiated negotiations aimed at “settling his [my] claim”.
· Around 4 March 2024, the Applicant contacted the Fair Work Ombudsman seeking advice, spoke to an officer on 6 March 2024, and was advised that “due to my wage being high and the FWO only being able to pursue for the minimum wage that my best option would be to pursue my former employer via my lawyer”.[8]
· That at this stage [6 March 2024], the Applicant was unaware of the process and grounds for making an unfair dismissal claim.
· On 6 March 2024, the Applicant consulted with a legal representative, and during a discussion in the late afternoon on 7 March 2024, he was advised that he may have a basis to make an unfair dismissal application. This was when the Applicant decided to make an unfair dismissal application.
· The Application was made on 8 March 2024 after the Applicant’s instructions were finalised.
The Applicant’s evidence was that his outstanding entitlements were one month’s unpaid wages and accrued annual leave, totalling about $16,000.
The Applicant submits that that the reason for the delay in making the application is the series of events from the point of taking advice from the Fair Work Ombudsman.[9] The Applicant submits that he was far from idle following his summary dismissal, and that the biggest issue confronting him at the time was the refusal by the employer to pay his outstanding wages and annual leave, and that this left him in fairly dire financial circumstances. It can be readily accepted that being summarily dismissed and not being paid outstanding wages and accrued annual leave would cause varying levels of financial difficulty for many people. More broadly, losing your income as a result of being dismissed, would visit financial stress on most people, and is far from uncommon. However, despite giving fairly detailed evidence and being legally represented, the Applicant gave no evidence of any such matters, nor that the outstanding amounts said to be due to him left him in difficult financial circumstances. This matter was simply put as a submission by his representative.
The actions taken by the Applicant between the date of his dismissal and 7 March 2024, when he was advised he may have a basis to make an unfair dismissal application, were directed at obtaining payment for entitlements that are said to be outstanding. They were not directed at challenging his dismissal. Whilst disputed by the Respondent, it appears that the Respondent unlawfully withheld at least accrued annual leave and likely unpaid wages on termination. To this extent, it is unusual for an employee not to be paid their lawful entitlements immediately upon termination.
However, it does not necessarily follow that this provides an acceptable reason for the delay in making the unfair dismissal application. I am not satisfied that there is a sufficient evidentiary basis to conclude that the Applicant’s focus on securing his entitlements explains his delay in making enquiries or seeking advice about the ability to make an unfair dismissal application.
The Applicant’s evidence is that until late on 7 March 2024, he was unaware that he was able to make an unfair dismissal application. Upon learning this, he promptly instructed his legal representatives to make an application on his behalf, which they did. I find that the principal reason for the delay in making the application was the Applicant’s ignorance of the option to do so. Ignorance of an applicant’s rights to make an unfair dismissal application is not an acceptable reason for delay, especially in circumstances where such information is readily obtainable from multiple sources, including the Commission’s website. Whilst the Applicant submitted that his opportunity to consider, research and understand what his other rights might be was significantly prejudiced by having to pursue payment of his lawful entitlements, I am not satisfied that this is a reasonable explanation as to why the Applicant was unable to make enquiries, seek information or advice at a much earlier date.
In those circumstances, I am not persuaded that the Applicant has provided an acceptable, credible, or satisfactory explanation for the two-day delay. My conclusion in this respect would be the same if the delay had been one day because the dismissal actually occurred on 15 February. This weighs against a finding that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
The Applicant agrees that the dismissal was communicated to him when it occurred on 14 February 2024 (although he contends the dismissal occurred one day later). The consequence of this is that he had the benefit of the full 21-day period within which to lodge the application. It is not as though he discovered that his employment had ended after it took effect. The fact that he had the full period available to him to lodge his application is a factor that also weighs against a conclusion that there are exceptional circumstances.
Whether the applicant took action to dispute the dismissal
If an applicant disputes a dismissal with his or her employer before lodging the application and after the dismissal takes effect, the effect of that dispute is to at least put the employer on notice that there is a controversy about the dismissal. In such circumstances the fact that there was notice of such a dispute, is a matter which would weigh in the applicant’s favour, even though the application was lodged out of time.
Whilst Mr Madden did not take any steps, beyond lodging the application, to dispute his dismissal, he was very active in pursuing his entitlements. I treat this as a factor that weighs in favour of a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
There is no evidence of any prejudice to the employer, and it would be surprising given the short period of the delay. However, the absence of prejudice is not in and of itself an exceptional circumstance, nor does the short period of delay justify such a conclusion.
I consider that this matter weighs slightly in favour of a finding of exceptional circumstances.
Merits of the application
The merits of the application are a relevant consideration in determining whether there are exceptional circumstances and whether it is appropriate to exercise the discretion to extend the timeframe. For example, a highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient.
The Respondent submits that the Applicant was summarily dismissed for several material breaches of his contract of employment relating to allegations of theft, fraud and gross misconduct. The Respondent submits that the Applicant conceded having done the wrong thing and just wanted to walk away and start again.[10]
The Applicant contends that he was not provided with procedural fairness prior to the dismissal and that no proper investigation was conducted in relation to the allegations he was dismissed for. He was called into a meeting with Mr Hurst, not informed of evidence of the allegations nor given any real opportunity to respond, and that there was no valid reason for the dismissal.
The Respondent has led no evidence at this stage, and it is not possible or appropriate to make any firm or detailed assessment of the merits at this stage. There are sound reasons why the Commission should not receive evidence and make factual findings on contested issues at this stage of the proceedings: most notably because parties should not have to present their evidentiary case twice. It appears that the Applicant has some basis for the claim and the Respondent has some basis for a defence to the claim.
In the circumstances, I treat the merits as a neutral consideration.
Fairness as between the person and other persons in a similar position
No cases were drawn to my attention that invoke this consideration, and I have treated this to be a neutral consideration in this case.
Conclusion
In summary, whilst the action taken by the Applicant following his dismissal and the absence of prejudice to the Respondent weighs in favour of a finding of exceptional circumstances, the absence of an acceptable reason for the delay and that the Applicant had the entire 21-day period in which to make an application, weigh against such a finding. My overall assessment, considering the factors individually and together, is that no exceptional circumstances exist.
As there are no exceptional circumstances, no additional time can be allowed for Mr Madden to make his application. This means that Mr Madden is not entitled to apply for an unfair dismissal remedy.
The application is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
Mr A. Maher, with permission on behalf of the Applicant.
Mr M. Hurst, on behalf of the Respondent.
Hearing details:
2024
April 24
[1] Digital Hearing Book (“DHB”), pg.15.
[2] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[3] Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
[4] Ibid.
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[6] Long v Keolis Downer[2018] FWCFB 4109 at [40].
[7] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [29]-[31].
[8] DHB, pg.29.
[9] Applicant’s Outline of Argument at [38], DHB p. 17.
[10] Form F3, DHB p. 43.
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