Reilly Johnson v Insight FTS Pty. Ltd
[2025] FWC 682
•10 MARCH 2025
| [2025] FWC 682 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Reilly Johnson
v
Insight FTS Pty. Ltd.
(U2025/1067)
| DEPUTY PRESIDENT CROSS | SYDNEY, 10 MARCH 2025 |
Application for an unfair dismissal remedy
On 31 January 2025, Mr Reilly Johnson (the Applicant) lodged an application (the Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant commenced employment with Insight FTS Pty. Ltd. (the Respondent) on 25 August 2020. His dismissal took effect on 9 January 2025, although there is an issue as to whether he was notified of his dismissal on that date or alternatively on 13 January 2025.
Unfair Dismissal applications must be made within twenty-one (21) days after a dismissal took effect or in such further time as the Fair Work Commission (the Commission) may allow. Taking as the point of calculation the date when the dismissal took effect being 9 January 2025, an application for a remedy should have been lodged by 30 January 2025. The Application would therefore have been lodged outside of the time prescribed, and one (1) day after the last day on which such an application could have been made.
On 16 July 2024, I issued the following Directions:
[1] This matter is listed for Hearing before Deputy President Cross at 10AM on 7 March 2025 to hear and determine the questions of the effective date of dismissal and whether to extend the time for filing (the Jurisdictional Issue).
[2] By no later than 4:00PM on 18 February 2025 (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:
·The reason(s) for the delay;
· Whether the Applicant first became aware of the dismissal after it had taken effect;
· Any action taken to dispute the dismissal;
· If there is any prejudice to the employer (including prejudice caused by the delay);
· The merits of the application; and
· Fairness as between the Applicant and any other persons in a similar position.
[3] By no later than 4:00PM on 25 February 2025 the Respondent) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on.
[4] By no later than 4:00PM on 4 March 2025 the Applicant is directed to prepare a signed witness statement reply to the material filed by the Respondent with respect to the Jurisdictional Issue, which includes everything they seek to rely on.
Important note: Failure to comply with these Directions or to attend the Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.
The parties complied with the Directions for the filing of evidence. In particular:
(a) On 17 February 2025, the Applicant filed a Statement; and
(b) On 25 February 2025, the Respondent filed Statements from Ms Erina Gatsos (Roster Supervisor) and Mr Ben Taber (Chief Operating Officer); and
(c) On 4 March 2025, the Applicant filed a Statement in reply.
The Hearing took place 10:00am on Friday, 7 March 2025.
Background
The Applicant was employed by the Respondent as a telesales fundraising agent from 25 August 2020 until 24 December 2024. Initially, he worked four days a week, but this was later reduced by agreement to one day a week due to his study commitments. The Applicant’s last shift was on 11 December 2024, after which he took leave for a surgical operation scheduled on 13 December 2024.
Upon contacting his roster manager, Ms. Erina Gatsos, in early January 2025, the Applicant was informed that the Respondent’s reopening had been delayed to 13 January 2025 due to a move to new premises. The text message exchange was as follows:
1 January 2025
The Applicant: Hey Erina! I hope your New Year was great! Two questions. Is Insight open tomorrow and two, would I be able to work a shift?
Gatsos: Happy new year Reilly!!! Unfortunately, insight is not open until next Monday. I can roster you on for some extra shifts, just say the word.
6 January 2025
The Applicant: Hey Erina! I hope the first day back went well. If I could work tomorrow that would be great :)
Sorry I tried sending this earlier today. I forgot to press send.
Gatsos: Hey Reilly! Haha story of my life. Sometimes I compose the message in my head and don’t even bother typing it out.
There was an email sent out yesterday basically saying the new premises isn’t ready, internet is not set up etc so the official start back to work is going to be next week.
I’m still on leave for 1 more week so I’m not entirely privy to what’s going on, however please feel free to email any questions to: [omitted]
The team are monitoring this inbox and will reply accordingly
Im sorry about of all this
The Applicant: All good. But whats happening? Are we moving building?
Gatsos: Oh shit Reilly. I just realised you wouldn’t have been provided an update because of your surgery! Insight has officially moved from Cooper st to commonwealth st in surry hills (closer to the station).
Lease wasn’t finalised until JUST before
They were supposed to use the Xmas break to finish moving all the stuff and setting up but evidently they ran out of time
The Applicant: Okay. End of an era!
On 13 January 2025, at 12.28pm, a further text exchange commenced, as follows:
The Applicant: Hey Erina! Can I work tomorrow?
Gatsos: Heya Reilly
Its my first day back today and I’m just getting up to speed with everything.
There have been a lot of changes. Please check your emails and get back to me
The Applicant: Oh shit. I’ve been let go? Why is that? Are things still happening?
During the above text messaging on 13 January 2025, the Applicant had become aware that on 9 January 2025, the Respondent had sent to the Applicant’s nominated email account an email (the Termination Email) that stated:
Insight FTS Update
9 January 2025
Reilly Johnson
As mentioned in my previous email, the landscape of Insight FTS has changed, and we are reassessing our approach in a competitive environment.
This email is to let you know that after careful consideration, I have made the decision to discontinue conducting business in the company of Insight FTS. As a result, there will be no further work for you at Insight FTS, and any outstanding entitlements will be paid in full by 31 Jan 2025.
Please understand that this decision is not a reflection of your performance or the quality of the work you have done.
This was not a decision I made lightly. The fundraising sector is evolving, and the way we previously conducted work is no longer viable. I would be happy to provide a reference and support you in seeking future employment opportunities elsewhere. I wish you all the best in your future endeavours and career.
Your sincerely,
Simon Quinn
Director
[Emphasis added]
The Applicant accepted that he had a nominated email account and that the Termination Email was sent to that address on 9 January 2025. The Applicant stated that the Termination Email went to his junk mail folder. The Applicant stated:
Whilst I understand that it is not the fault of Mr Quinn (the Director) or any of his current
staff that the termination email ended up in my junk mail folder, I believe that sending the termination via email with no other communication was irresponsible considering that I never receive emails from Mr Quinn and my email provider did not recognise his email address.
The Applicant accepted that between 13 and 30 January 2025, he did nothing to advance his claim for unfair dismissal.
On 30 January 2025, the Applicant received a further email from Mr Quinn that advised as follows:
Hi Reilly,
I refer to your previous communication about Insight FTS and your work for that company.Insight FTS has ceased trading.
Your work at Insight FTS started on 25th August 2020 and that work ended on 24th December 2024 which is 4.33 years. That period of service, less than 5 years, does not qualify you for long service leave. That concludes our communication with you about Insight FTS.
Please advise me if you would like a separation certificate.
I would like to take this time to personally thank you for your contributions to Insight FTS over the years.
If you need a reference in support of other employment, please contact me
The Applicant described the above email as the “…wake up call I needed”. He filed the Application the following day.
Consideration
Section 394 of the Act determines the permissible time limit for an unfair dismissal application. Section 394(2) of the Act provides:
“(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).”
If the Application was lodged outside of the 21-day timeframe prescribed by s.394(3), I must satisfy myself that a ‘further period’ should be allowed. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period. Section 394(3) provides:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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.”
It is clear from the structure of s.394(3) of the Act that each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. However, the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that, taking into account s.394(3) of the Act, there are exceptional circumstances.
When did the dismissal take effect?
It is well established that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[1] The traditional position regarding notice is that in order for a dismissal to be effective, a notice of termination must be received by the recipient. As Keely J observed in Transport Workers Union v National Dairies Limited;[2]
“In my opinion the mere posting of a letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee.”
The Applicant apparently had one email address. The Applicant also conceded at Hearing that the nominated email address is the one he had always used. In circumstances where an employee is informed of their dismissal by email, the Full Bench in Ayub v NSW Trains (Ayub) held:[3]
[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.
Section 14A of the Electronic Transactions Act 1999 (ETA) provides as follows:
Time of receipt
(1) For the purposes of a law of the Commonwealth, unless otherwise agreed between the originator and the addressee of an electronic communication:
(a) the time of receipt of the electronic communication is the time when the electronic communication becomes capable of being retrieved by the addressee at an electronic address designated by the addressee; or
(b) the time of receipt of the electronic communication at another electronic address of the addressee is the time when both:
(i) the electronic communication has become capable of being retrieved by the addressee at that address; and
(ii) the addressee has become aware that the electronic communication has been sent to that address.
(2) For the purposes of subsection (1), unless otherwise agreed between the originator and the addressee of the electronic communication, it is to be assumed that the electronic communication is capable of being retrieved by the addressee when it reaches the addressee’s electronic address.
(3) Subsection (1) applies even though the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is taken to have been received under section 14B.
(Emphasis added)
The electronic address designated by the Applicant for the purposes of his employment was his personal email address. That is the electronic address to which the Respondent forwarded the Applicant’s payslips and communicated with for the duration of his employment.
Accordingly, I find the date the dismissal took effect was 9 January 2025 when the Applicant received the email of termination to his personal email address.
(a) Reason for the delay
When making a determination regarding reason for delay, the length of the delay has little to do with the determination of exceptional circumstances. Regarding this Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479 stated at [30]:
“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.”
A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 noted at [39]:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”
Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.
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.
The Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.
The Applicant submitted the following with respect to the reason for the delay:
8. Receiving the news was a huge shock to me. Such a shock that I took 3 days to reply to Ms Gatsos. I considered these actions and the handling of events to be extremely unprofessional and I knew that it would be important for me to take action, however my life had become burdened with events by this point.
9. Having arrived back in Sydney on 1 January 2025 after spending two weeks completely out of action, recovering from my surgery, settling back into life was very difficult as I suffer from ADHD. On top of this I had a close friend, who was experiencing homelessness, staying with me and my house was full of her furniture and personal belonging. The cluttered space exacerbated my condition.
10. I have been seeing a therapist since 2024 as I have been experiencing mental health problems. These problems were drastically elevated by this situation, leaving me in an emotional slump of self-neglect.
11. On 30 January I received a follow up email from Mr Quinn (read 31 January) informing me that my employment began 25 August 2020 and concluded 24 December 2024, totaling 4.33 years, meaning I am not entitled to any long service payouts. Upon reading this, I saw it as the wake up call I needed.
He explained that he did not receive the termination email due to it landing in his junk mail folder.
The reason for the delay is of significant importance because, notwithstanding that he may not have received the Termination Email until 13 January 2025, the Applicant did nothing in the intervening period, until he “received a wake-up call” on 30 January 2025 that he file his Application on 31 January 2025. This is a matter where the Applicant’s relative inaction between dismissal and expiry of the 21-day period is relevant.
The Applicant also cited his recovery from surgery in late 2024, and mental health issues exacerbated by personal circumstances, as additional reasons for the delay in lodging his application.
The Applicant did not provide evidence in relation to the effect on his mental health. It could not possibly justify and account for a delay in filing his unfair dismissal Application. There was no relevant evidence of her alleged medical issues. In any event, I refer to the decision of the Full Bench in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, where at para [15], the majority (Watson VP and Smith DP) observed:
‘[15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.’
[Emphasis added]
I do not consider that the Applicant has established any acceptable explanation for the delay. Accordingly, this factor weighs in the Respondent’s favour.
(b) When the person first became aware of the dismissal after it had taken effect
Assuming the dismissal email was in fact sent to the Applicants junk folder, whatever weight that can be given to that delay is counter-balanced by the Applicants inaction for the 17-day period between when he says he became aware of the dismissal and when the 21-day time frame expired.
Accordingly, I consider that this is a neutral factor.
(c) Action taken to dispute the dismissal
This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application.
In all the circumstances, I do not find that the Applicant took any action with the Respondent to dispute the dismissal after it occurred. I nonetheless consider this factor is a neutral consideration.
(d) Prejudice to the employer
A delay of one day would not be likely prejudice the employer. In the circumstances, I consider this consideration to be essentially neutral.
(e) Merits of application
This is an unfair dismissal claim. In order to maintain such a claim, the Applicant must show that a dismissal as defined by the Act occurred.
I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:
“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues.”
In the matter of Kornicki v Telstra-Network Technology Group[4] a predecessor of the 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 Commission said:
“The merits of the substantive 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.”[5]
I adopt this reasoning of the Full Bench of the former Commission in relation to the consideration of merits. I consider that this is a neutral factor.
(f) Fairness as between the person and other persons in a similar situation
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. 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. I therefore consider this to be a neutral consideration.
Conclusion
As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any significant weight was the absence of any acceptable reason for delay. That factor weighed in the Respondent’s favour.
I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr R Johnson, the Applicant.
Mr A Salmon (in-house Solicitor), on behalf of the Respondent.
Hearing details:
10AM.
7 March 2025.
In-person
[1] Burns v Aboriginal Legal Service of Western Australia (Inc) (Print T3496) at [24].
[2] (1994) 57 IR 183, at Pp. 184 to 185.
[3] [2016] FWCFB 5500 at [17].
[4] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[5] Ibid.
Printed by authority of the Commonwealth Government Printer
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