Rhys John Oldridge v Tom Stoddart Pty. Ltd
[2024] FWC 830
•2 APRIL 2024
| [2024] FWC 830 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Rhys John Oldridge
v
Tom Stoddart Pty. Ltd.
(C2024/535)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 2 APRIL 2024 |
General protections dismissal dispute - application filed out of time – circumstances not exceptional – application dismissed
Mr Rhys John Oldridge (the Applicant) made an application to the Commission under section 365 of the Fair Work Act for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Tom Stoddart Pty Ltd (the Respondent), in contravention of Part 3-1 of the Fair Work Act.
The Respondent has objected to the application on the ground that the application is out of time.
Before dealing with the dispute, I must be satisfied that the application was not made out of time.
Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether the Applicant was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether the Applicant was dismissed in contravention of the general protections provision.
Before dealing with the dispute, the Commission must be satisfied that the application was not made out of time.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
It is a matter of record that the application was made on 30 January 2024.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 13 December 2023.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]
As I found above, the dismissal took effect on 13 December 2023. The final day of the 21 day period was therefore 3 January 2024 and ended at midnight on that day. The application was made on 30 January 2024. The application was made 27 days late.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[4] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[5] the Full Bench of Fair Work Australia stated that:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
For the Applicant’s application to proceed, it is necessary for him to obtain an extension of time under s.366(1)(b) of the Act. I must therefore be satisfied that there are “exceptional circumstances” taking into account each of the maters in s. 366(2)) of the Act.
I set out my consideration of each matter below.
Reason for the delay
The delay is the period commencing immediately after that time (from 4 January 2024) until 30 January 2024 when it was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay.[6]
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.[7]
An 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.[8]
Submissions and evidence
The Applicant submitted that the delay was for the following reasons:
· The Applicant was suffering from Anxiety and Depression and unable to engage in legal proceedings until the date the Application was filed. He had stopped taking medication in the leadup to his termination and it took time for him to recover.
· His lack of understanding of legal processes
· The exacerbation of the symptoms of his diagnosis of ADHD resulting from the stressful situation experienced while employed with the Respondent.
· The Applicant states he contacted the Respondent at least 27 times seeking a reference which was ignored. The Applicant claims that he was fearful of retaliation from the Respondent, that they would not provide him a reference, upon learning that he had filed the Application.
· A period of preplanned leave over the Christmas Break (the specific dates for which were not provided).
In relation to the reason for the delay, the Respondent made the submissions that the actions taken by the Applicant following the dismissal in applying for 10-20 jobs was at odds with the medical evidence that he was unable to complete his application on time. The Respondent submitted that they had been aware of the Applicant’s diagnosis of Anxiety and Depression since July 2022 and that the Applicant had been capable of undertaking a complex engineering role whilst having a diagnosis of Anxiety and Depression.
The Respondent further submitted that the Applicant demonstrated capacity to file his application when he had repeatedly contacted the Respondent seeking a reference during the 21-day period.
The Applicant’s evidence was that he applied for between 10 and 20 jobs between the period of 13 December 2023 and 3 January 2024. The Applicant submitted that applications were somewhat easy, and he had the assistance of a friend to complete the applications for work.
The Applicant claimed that he had reviewed the Fair Work Commission’s website when looking into filing a claim and that he relied on a case[9] he saw on the Fair Work Commission website which he said that where discrimination was involved, he was permitted to take longer than 21 days. The Applicant also submitted that if he had medical evidence stemming from Anxiety and Depression, he could also have longer than 21 days.
The Applicant filed two letters both dated 9 January 2024. The first one, provided by Dr Louise Hale, simply said:
“This is to certify that I treat (the Applicant). He Suffers from anxiety and depression.”
This letter did not provide any relevant context to the situation specifically as to the capacity of the Applicant during the relevant time.
The second letter, provided by Dr Angelo De Gioannis, also dated 9 January 2024, said:
“This letter is to certify that Mr Rhys Oldridge, aged 34 years, attends this clinic for the management of Treatment-Resistant Major Depression. He attends regular appointments and is compliant with the prescribed medication.”
The Applicant filed a letter from his Psychiatrist, Dr Ravindran, dated 12 March 2024, to support the contention that he had Anxiety and Depression and ADHD.[10] Dr Ravindran relevantly said in that letter:
“Rhys’s medication regimen underwent significant changes mid November 2023 to allow his body to take a break during holiday period; however due to unforeseen circumstances at the time this would have heightened symptoms of anxiety and depression that were otherwise longitudinally stable. This led to vulnerability and heightened symptoms that persisted until 30th January 2024.
Rhys’s ADHD has co-occurring generalized anxiety and major depression has typically been stable for several years. However due to stress exacerbated by his redundancy (and the traumatic incidents surrounding this) combined with changes in medication outlined earlier Rhys’s symptoms of generalized anxiety and major depression deteriorated along with his sleep and overall health.
Specifically, his metal (sic) state would have been impaired between the 13th of December 2023 and the 30th of January 2024; and furthermore his ability to complete his fair work application would have been significantly affected”
The Applicant gave evidence that the 12th of March was the first time he saw Dr Ravindran since his termination on 13 December 2023. I note that Dr Ravindran saw the Applicant some 3 months after the termination and some 4 months after he alleges that the Applicant underwent significant changes to his medication. The Applicant gave evidence that these changes involved the cessation of medication that helped him sleep and resulted in insomnia. I note that the two letters from the Applicant’s treating GPs, did not raise this issue and that Dr De Gioannis made mention that the Applicant was compliant with his prescribed medication but went no further than that. Self-evidently, there were a number of inconsistencies which arise from the medical evidence provided and the evidence given.
Under cross-examination, the Applicant was asked how it was that he had completed and filed the present application during the period that Dr Ravindran said he would be impaired to do so (his application was filed at 12:06am on the morning of 30 January 2024). The Applicant said it was not a case that he couldn’t do stuff but that his brain was just going at 100 miles an hour and his focus was on getting another job. The Applicant also gave evidence that he had made some 10-20 job applications in the first 21 days since his termination.
The Applicant filed in its material a number of video and audio recordings.[11] At the hearing, under cross examination the Applicant stated that whilst he did not specifically let the parties know he was recording the conversation at the time he did so, it was his view that they were aware that because of his ADHD he would often record meetings. I cautioned the Applicant in respect of self-incrimination. This is at odds with the statement of Mr Christian Hirschmann of the Respondent, who said he had no knowledge that the meeting of 8 December 2023 or any other meeting was recorded. In cross examination, the Applicant took Mr Hirschmann to the video footage that he had taken with his phone at that meeting.[12] The footage showed a ceiling and the Applicant suggested that was because the phone was facing upwards but was openly visible on a table. Mr Hirschmann gave evidence that he didn’t notice the phone and that he certainly did not know it was recording.
Further the Respondent gave evidence that it became aware of the Applicant’s anxiety and depression in July 2022 as a result of the Applicant having tested positive for benzodiazepine and amphetamine during random drug testing. The Respondent submitted that the Applicant “had the capacity to undertake a complex engineering role whilst having anxiety and depression.”[13]
Mr Christian Hirschmann of the Respondent gave evidence that the Applicant had contacted him on 27 December 2023 seeking a reference.[14] I note the Applicant provided evidence that he had also contacted Mr John Major by text message on two occasions on 15 December 2023 and again on 19 December 2023 requesting a reference.[15]
The Respondent also filed evidence in the form of a statement from the ICT Manager Mr Shane Slaughter,[16] that between 11 and 13 December 2023, the Applicant had downloaded some 5000 company owned files to a personal external drive (USB).[17] Mr Slaughter annexed the Information Technology (IT) report that listed in detail the dates, times, file names, file locations, profile of the person who accessed them and that they had been downloaded to an external USB.[18] The Applicant contested this evidence on the basis that it wasn’t relevant. I disagree, it goes to both the capacity of the Applicant to act at the relevant time and to his credit.
In respect of his credit, the Applicant gave evidence in the hearing that Mr Slaughter’s statement was made to attack his integrity and were made with “spiteful intentions” because he brought this claim. The Applicant claimed that the downloads happened at times when he was travelling, in the middle of the night and 3 days before he was made redundant. He stated that he had spent 10 years developing his professional career in research and development and that if he were to do such a thing it would ruin his career. The Applicant had previously given evidence of his insomnia, so I don’t accept that the files that were alleged to be downloaded in the middle of the night could not have been downloaded by the Applicant. Further, the IT report shows that the files were downloaded over 3 days, the last of which were downloaded early on the morning of the Applicant’s termination.[19] The Applicant’s evidence was that he was offered a demotion on Friday 8 December 2023. The Applicant acknowledged during the hearing, that when the demotion was offered to the Applicant, his manager Mr Christian Hirschmann had let him know that the Respondent needed to make its business “more lean”,[20] therefore it is uncontested that the Applicant was on notice that his job was at risk at least from 8 December 2023. That evidence lends weight to the allegation that the Applicant had commenced downloading files on 11 December 2023.
The Respondent submitted that if the Applicant had the capacity to make between 10 and 20 job applications during the period in question and was able to follow up requests for a reference on his own evidence on some 27 occasions, he ought to have been able to file this claim on time. It was open to the Applicant in his evidence in reply, to provide evidence to support this contention at hearing that the job applications were very simple to apply for online, however he did not.
Findings
Having regard to the above, I find that the reasons for the delay were:
· the Applicant’s incorrect understanding of the law in relation to the filing of applications on time (being that he could have longer to file the claim if the case involved discrimination and that it was the case that an extension of time is automatically granted where an Applicant provides medical evidence of anxiety and depression);
· the Applicant’s fear that he would not obtain a reference from the Respondent if he filed this application; and
· the Applicant’s focus on getting a job first and on his family.
I do not accept that the Applicant was unable to make the application during the 48 day period between his termination and the filing of his application given the inconsistencies in the medical evidence as well as the Applicant’s ability to apply to a significant number of job vacancies and to follow up his request for a reference some 27 times during the same period. The making of an application online, which is the form of application made in this matter, is a relatively simple process.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
What action was taken by the Applicant to dispute the dismissal?
The Applicant alleges that he took action to dispute the dismissal by emailing the HR Manager to discuss mediation and negotiation of the dispute.
Submissions and evidence
The Applicant submitted that he had sent an email to Mr David Brice and that Mr Brice had refused to engage in any discussions to resolve the matter.
The Applicant’s evidence was an email dated 4 March 2023 however this was some weeks after this application was filed by the Applicant and therefore does not explain the period of delay.
Findings
In all the circumstances, I do not find that the Applicant took any action to dispute the dismissal.
What is the prejudice to the employer (including prejudice caused by the delay)?
It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
A number of issues arise from the material in respect of the merits of the application, I make a few brief observations:
(a)It was uncontroversial that the Respondent’s position is that the termination was the result of a genuine redundancy;
(b)Mr John Major of the Respondent provided evidence that senior management of the Respondent had met on 1 November 2023 to discuss a review of the business and that redundancies would be required. He provided a copy of the minutes of that meeting that support this contention and detail the reasons that the review was required. This evidence was uncontested.[21] The Applicant contested there was any case for a genuine redundancy as he submitted that company-wide pay increases had been given and bonuses paid which implied, as I understand it, that there was no need to reduce expenditure. The Applicant did not provide details such as dates or amounts and neither did he provide any other evidence in support of those assertions;
(c)The Applicant provided evidence and submitted that Mr Hirschmann had changed his job title on LinkedIn to reflect he had picked up the Product Development Management duties that the Applicant had performed.[22] It was the Applicant’s submission that this demonstrated his job was still required to be performed and therefore his redundancy could not be genuine. This is not correct. An employer is entitled to restructure its business and have duties absorbed by other employees in order to reduce its labour costs.[23]
(d)Mr Major of the Respondent gave uncontested evidence that there were 4 redundancies that occurred at the time the Applicant was retrenched.[24]
(e)The Applicant provided evidence that there were no issues with his performance and that supported his view that the redundancy was not genuine.[25] I do not accept that good performance exempts a role from being made redundant.
(f)The Applicant gave evidence that he believed he had been offered a demotion (in his meeting with Mr Hirschmann on 8 December 2023) and that the offer was subsequently withdrawn when he was instead made redundant. The Applicant also gave evidence that he had not accepted the demotion when it was offered but rather had asked a number of questions about the offered demotion and that he wanted time to consider the demotion. It is my view that this evidence supports the proposition that the dismissal was a genuine redundancy.
Having examined the material, the evidence, submissions and these contentions, it is evident to me that the merits of the application will turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”.[26]
Whilst it is not possible to make any firm or detailed assessment of the merits, the observations I set out in paragraph 46 lead me to a view that the merits of the case could not be described as particularly strong.
Fairness as between the Applicant and other persons in a similar position
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.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
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.[27] 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.[28]
Having regard for the reasons for the delay, I note that the stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. I do not accept that fear of not obtaining a reference is an exceptional, out of the ordinary, reason not to file an application. Such risk occurs whenever a party instigates proceedings against another party.
Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[29]
Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist.[30]
As I have set out in this decision, there are a number of inconsistencies with respect to the Applicant’s evidence and submissions and the facts of this case in respect to the reasons for the delay. I accept that there was a period of time during the period of delay that could be explained by the medical evidence provided by the Applicant however I do not accept that these reasons explained all of the period of the delay.
In respect of the Applicant’s submissions about what he understood the Fair Work Commission website says in respect of out of time applications, I note that a mere ignorance of the statutory time limit is not an exceptional circumstance.[31]
In considering the reasons for delay, I find that in all the circumstances, my findings weigh slightly against a finding of exceptional circumstances.
In considering:
(a) the Applicant being aware of the dismissal at the time that it took effect;
(b) there were no other actions taken by the Applicant to dispute the dismissal before it was filed;
(c) the absence of any prejudice to the employer. A lack of prejudice to the employer does not necessarily weigh in favour of concluding that exceptional circumstances exist[32]
(d) the merits of the application being a neutral consideration; and
(e) no issue of fairness arising as between the Applicant and other persons in a similar position.
Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Rhys Oldridge on his own behalf
Mr Brice on behalf of the Respondent
Hearing details:
In Person
Brisbane
25 March 2024
[1] [2020] FCAFC 152.
[2] 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.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 at [14].
[5] [2019] FWC 25.
[6] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
7 John Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group [2010] FWA 3863.
[10] Digital Court Book (DCB) p.68.
[11] DCB pp.73-78
[12] DCB pp.73-83.
[13] DCB p.298.
[14] DCB p.368-371.
[15] DCB pp.207-211.
[16] DCB p.305.
[17] DCB p.103.
[18] DCB pp.306-367.
[19] DCB p.367.
[20] DCB
[21] DCB p.303-304.
[22] DCB p.283-286.
[23] Dibb v Commissioner of Taxation [2004] FCAFC 126 (13 May 2004) at paras 43–44, [(2004) 136 FCR 388].
[24] DCB p.302
[25] DCB pp.259-262.
[26] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[27] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[28] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[29] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].
[30] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Weir v Hydro-Chem Pty Ltd [2017] FWCFB 758, [37].
[31] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[32] Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890, [21].
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