Phillip Hawkins v Central Tyres Pty Ltd

[2021] FWC 2682

[2021] FWC 2682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Phillip Hawkins
v
Central Tyres Pty Ltd
(U2021/3075)

DEPUTY PRESIDENT BEAUMONT PERTH, 21 MAY 2021

Application for an unfair dismissal remedy – jurisdictional objection – application lodged out of time – no exceptional circumstance.

1 Introduction

[1] Mr Hawkins (the Applicant) has applied for an unfair dismissal remedy having been dismissed from Central Tyres Pty Ltd (the Respondent) on 15 February 2021. The Respondent has objected to the application on two grounds.

[2] The first is that the application was filed on 12 April 2021 and is therefore outside the 21-day period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). The second, which appears to have materialised late in the day, is that the Applicant has not served the minimum employment period and is therefore not protected from unfair dismissal.

[3] Regarding the first ground, the Applicant concedes that his application was filed 35 days after the statutory deadline but nevertheless seeks an extension of time in which to make his application. He attributes the delay in making his application on having had insufficient evidence at the time of his dismissal to support his contention that the redundancy of his position was not a genuine redundancy.

[4] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if it is satisfied that there are exceptional circumstances taking into account the factors in paragraphs (a) to (f) of that section:

(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. 1

[5] The Respondent contends that the circumstances are not exceptional such that an extension of time to make the application is warranted.

[6] In short, the test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all of the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension of time being granted. Having regard to the reasons for the delay in culmination with the other factors one considers under s 394(3), which are predominately neutral, it remains the case that it is not fair and equitable to grant an extension of time. It follows that the Applicant’s application for an unfair dismissal remedy is dismissed. An Order 2 will be issued with this decision.

[7] However, for the sake of completeness, observations are traversed towards the latter part of this decision concerning the second ground, which concerns the minimum employment period.

2 Background

[8] The Applicant commenced work with the Respondent as a salesperson on 7 April 2019. He worked in that position until 17 February 2020, at which time he ceased work having taken up the opportunity to study flying in Bunbury, Western Australia. On 4 May 2020, he recommenced working for the Respondent in a full-time capacity.

[9] It was the Respondent’s view that the cessation of work on 17 February 2020 terminated the Applicant’s employment. The evidence led by the Mr Newton, the Director and owner of the Respondent, was that he understood that the Applicant was going to go to flight school, then to work in aviation, and did not intend to come back to work at the Respondent business. When the Applicant was asked at hearing whether this was his intent when departing the Respondent on 17 February 2021, he noted – yes. It was uncontentious that the Applicant was not paid out his accrued annual leave at that time. Mr Newton said that this was his mistake and it had been overlooked.

[10] Come 31 January 2021, the Applicant said that he received a message from Mr Newton via Facebook messenger that because there was to be a five day lockdown for Covid-19, employees were to take a day off without pay on the Monday. On Monday, 1 February 2021, the Applicant messaged Mr Newton to inform him that he would be back at work on the Tuesday. The Applicant said that Mr Newton informed him that he was not required, and to take the week off.

[11] On returning to work on 8 February 2021, the Applicant said that he ‘[D]id over $10,000 in turnover in 6 hours on deposits for rims and back orders’. 3 During the week of 8 February 2021, the Applicant enquired why he had not been paid for the week prior. He said he was informed by Mr Newton to the effect, that things had got tight last week, and he was not going to be paid. On 10 February 2021, the Applicant was informed by Mr Newton not to come in for the rest of the week,4 and on Sunday, 14 February 2021, the Applicant was informed to present to work the next day at 7.30am for a chat. The Applicant said he responded to the instruction for a ‘chat’ by asking for clarification if it was to do with his employment. The Applicant purports that Mr Newton advised him ‘yes’.

[12] The Applicant gave evidence that on Monday, 15 February 2021, he was informed that he was being made redundant due to the Covid-19 five day lockdown. The Applicant said that he asked to be redeployed in the business. Mr Newton informed him that there was no other work to be done as he could not afford to pay the two workshop employees, the Applicant and himself.

[13] Mr Newton explained that turnover was greatly reduced when the business resumed after the lockdown,. 5 Mr Newton said prior to the lockdown on 31 January 2021, the business had an approximate turnover of $5000.00 to $7500.00 per day.6 In the two weeks after the lockdown, turnover was reduced to approximately $1000.00 per day.7 He continued that the turnover did not return to pre-lockdown levels until early March 2021.8

[14] Faced with a reduction in turnover, Mr Newton said that he reviewed the roles in the business and formed the view he could reduce costs by performing Mr Hawkins’ role himself. He noted that this role was office based in comparison to the other two roles which were in the workshop (presumedly, Mr Newton was absent the skill set to perform these roles).

[15] After his dismissal on 15 February 2021, the Applicant said that he spoke to family and lawyers to see whether he had a case and was informed that he would not have a case unless he was replaced in an unreasonable time. 9

[16] The Applicant stated that on 7 April 2021, he became aware, through information his partner Ms Trees had provided, that a young man he had trained for a week in January 2021 to help in the office, was working at the Respondent business. Ms Trees, who gave evidence at the hearing, detailed that she had seen Facebook reviews and google reviews for the Respondent, which mentioned the young man. The Applicant said he reached out to the young man and was informed by him that he was struggling for money and was only working for the Respondent for a few weeks.

[17] According to the Applicant, a previous customer of the Respondent contacted him on 10 April 2021 and asked him who was the man in the office doing his old job.

[18] In respect of the young man that provided assistance to the Respondent business after Mr Hawkins’ departure, Mr Newton confirmed that the young man was initially engaged in the business for the period of 18 January 2021 until 29 January 2021. The young man was said to be ‘learning the ropes’ and taking calls which freed up Mr Hawkins to edit the Respondent’s Facebook page. After Mr Hawkins left the business, Mr Newton said that he had to go out a couple of times during the period of 22 March 2021 to 26 March 2021, so he engaged the young man to help for a total period of 10 days from 22 March 2021.

3 Extension of time

[19] Under s 394 of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd. 10 In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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, can be considered exceptional.

[20] As observed, under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if satisfied there are exceptional circumstances taking into account the factors in paragraphs (a) to (f) of that section. Those factors are now considered in detail.

3.1 Reason for the delay

[21] 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. 11 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.12

[22] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application. 13 However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.14

[23] The parties were informed of the factors the Commission takes into account when determining whether to grant an extension of time.

[24] The Applicant contended that his application was filed outside the statutory period because at the time of his dismissal, he was unaware that his redundancy was not a genuine redundancy. He said that he only came alive to this point after Ms Trees informed him of social media postings about the young man working for the Respondent post the Applicant’s dismissal.

[25] When the Applicant refers to his redundancy as having not been ‘genuine’, it is apparent from the evidence that he considers that the redundancy of his position was a ‘sham’.

[26] From the time of his dismissal, the Applicant took issue with his position having been made redundant after ‘only one week of slow business’. 15 Mr Newton gave evidence that during the course of the meeting on 15 February 2021, the Applicant questioned the reason for his dismissal, extensively questioned whether the Respondent business had experienced a downturn, protested that sales had not declined, asserted that Mr Newton had prevented him from carrying out work that could have generated revenue, and questioned the role of the young man who was to remain at the business whilst the Applicant’s role was made redundant. Mr Newton’s account at hearing was unchallenged.

[27] The Applicant, clearly harboured consternation about his dismissal, describing how on 16 February 2021, he had spoken to family and lawyers he knew, to see if he had a case. He purported that most said that unless he got replaced within an unreasonable time, he wouldn’t have a case as it would be hard to prove that his job was not actually redundant.

[28] It was open at all times to the Applicant to make his application once dismissed. While he awaited the discovery of evidence to prove that the young man had replaced him and therefore his role was not redundant, he clearly was unconvinced by the reason given for his dismissal at the relevant time. As such, the Applicant was obliged to take prompt action given the statutory timeframe. Even if I accepted the Applicant’s explanation that he was awaiting evidence to show his redundancy was in effect a sham, I do not consider that it was reasonable for him to have done so in light of all of the circumstances.

[29] In short, an argument that the Applicant was operating under a misapprehension regarding the requirement to have proof that someone else had filled his role, such that he was misinformed of his legal rights, is insufficient in and of itself to constitute an ‘exceptional circumstance’ within the meaning of the Act. 16

[30] I have considered the delay as the period beyond the 21-day period. I am not satisfied that the Applicant has provided an acceptable or reasonable explanation for the whole period (or even part thereof) of the delay in lodging his unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

3.2 Whether the person first became aware of the dismissal after it had taken effect

[31] I am of the view that the Applicant became aware of his dismissal on 15 February 2021. I therefore consider this to be a neutral consideration.

3.3 Action taken by the person to dispute the dismissal

[32] The Applicant gave evidence that he sought advice from family and lawyers he knew, regarding whether he had a case against the Respondent about his redundancy. However, he took no further action in this respect. The other steps pursued by the Applicant after his dismissal were not actions to dispute his dismissal but were discussions with the Respondent’s accountant to secure the payment of the Applicant’s accrued annual leave.

[33] It follows that there is no evidence before the Commission that the Applicant took any action to dispute his dismissal once it had taken effect on 15 February 2021, other than by lodging his application for an unfair dismissal remedy. In all of the circumstances, I am satisfied that this weighs against the grant of an extension.

3.4 Prejudice to the employer

[34] The Respondent contended that the lateness of the application caused unfairness because it was over two months since the dismissal of the Applicant, the Applicant had informed the Respondent on 19 February 2021 that he was able to secure another job, and as a small business employer, the Respondent was not obliged to make a redundancy payment but did so out of good will. However, the Applicant sought compensation for salary missed since his dismissal but asserted he had obtained a new job immediately after his dismissal.

[35] While appreciative of the Respondent’s disquiet, I am not persuaded, based on the submissions made, that any prejudice to the Respondent would arise if an extension of time were granted. However, the mere absence of prejudice is not, in my view, a factor that would tell in favour of the grant of an extension of time.

3.5 Merits of the application

[36] In Kornicki v Telstra-Network Technology Group, 17 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said, in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit. 18

[37] Concerning the substantive application, the merits have not been fully tested. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application. 19 The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. It is for these reasons that I have concluded this factor to be one that is neutral. However, it should be noted that the evidence adduced by the Applicant at this stage of the proceedings did little to persuade that his redundancy was a sham.

3.6 Fairness as between the person and other persons in a similar position

[38] The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, 20 where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission. 21

[39] I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party based on the submissions filed by both.

3.7 Conclusion

[40] Having considered each of the statutory criteria and all of the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension of time being granted.

4 Minimum employment period

[41] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application, one of which is whether the applicant is protected from unfair dismissal having satisfied the minimum employment period. For a small business employer, such as the Respondent business, the minimum employment period is one year.

[42] It was apparent from the evidence that when the Applicant left the employment of the Respondent on 17 February 2020 to take up the opportunity to study flying in Bunbury, he had no intent of returning to employment with the Respondent. While he now asserts that the period was a period of unpaid leave, there is no evidence before me to support such assertion. It is not apparent that there was a request made for unpaid leave and authorisation given for the same.

[43] While the Applicant refers to his annual leave having not been paid out on his departure in February 2020, and that this indicates that the employment relationship was not ended at that time, I am persuaded by Mr Newton’s evidence that he had made a mistake concerning the annual leave and as such this was an oversight. Given the size of the Respondent business (less than five employees) and the lack of human resources expertise, I accept Mr Newton’s explanation. The Applicant’s period of employment with the Respondent at the time of his dismissal was less than one year. It follows he was not protected from unfair dismissal.

DEPUTY PRESIDENT

Appearances:

Mr Philip Hawkins, the Applicant;
Mr Michael Kar, Motor Trade Association, for the Respondent;
Mr Ryan Newton, for the Respondent.

Hearing details:

Perth (by telephone);
May 18;
2021.

Printed by authority of the Commonwealth Government Printer

<PR729751>

 1   Fair Work Act 2009 (Cth) s 394(3).

 2   PR730092.

 3   Witness Statement of Phillip Hawkins (Hawkins Statement) Exhibit A2 pg. 13.

 4   Ibid.

 5   Witness Statement of Ryan Newton (Newton Statement) [6].

 6   Ibid.

 7   Ibid.

 8   Ibid.

 9   Hawkins Statement Exhibit A2 pg. 14.

 10   Nulty v Blue Star Group Pty Ltd [2011] 203 IR 1 (‘Nulty’).

 11   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 [39].

 12   Ibid.

 13   Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 [40].

 14   Mr KeMitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [12].

 15   Applicant’s Outline of Argument pg. 6.

 16   Nulty [14].

 17   Kornicki v Telstra-Network Technology Group Print P3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).

 18   Ibid.

 19   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.

 20   [2015] FWC 8885.

 21 Ibid [29].