Robert Smith v North Fresh Pty. Ltd

[2023] FWC 1975

[2023] FWC 1975

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Robert Smith
v

North Fresh Pty. Ltd.

(U2023/5830)

DEPUTY PRESIDENT ROBERTS SYDNEY, 8 AUGUST 2023

Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed

1. Mr. Robert Smith (the Applicant) has filed an application with the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) alleging that he had been unfairly dismissed from his employment with North Fresh Pty Ltd (the Respondent).

1. Section 394(2) 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.

1. The Respondent objected to the application on the ground that the application is out of time (the jurisdictional objection).

1. Before considering the merits of the application for an unfair dismissal remedy, the Commission must be satisfied that the application was not made out of time or alternatively, extend the 21-day time limit provided for in section 394(2)(a).

When did the dismissal take effect?

1. The originating application filed by the Applicant with the Commission provided that the dismissal took effect on 8 June 2023.[1] On that date, the Applicant attended a meeting involving himself, and representatives of the Respondent (the 8 June meeting). At the 8 June meeting, he was provided with a letter from the Respondent bearing the same date.[2] The letter was titled “Redundancy Situation”. The letter indicated that the Respondent had undertaken a review of its operations and a consequence of which was that the Applicant’s position of General Farm Worker was to be made redundant. The letter indicated in clear terms that the Applicant’s employment was to be terminated with immediate effect and the Applicant would be paid an amount in lieu of notice.

1. Neither the Applicant nor the Respondent contended that the dismissal took effect on some date other than the 8 June 2023. Whether a dismissal takes effect immediately when payment is made in lieu of notice is a question of fact.[3] Where the employer’s communication is clear and there is no evidence of a contrary intention, termination by payment in lieu of notice will result in immediate termination of the contract of employment when the dismissal is communicated to the employee.[4] In this matter, the terms of the letter dated 8 June 2023 were clear. The termination was to take immediate effect and payment was to be made in lieu of any notice period. There is no evidence of any contrary intention. I am satisfied that the dismissal took effect on 8 June 2023.

When was the application made?

1. The application was lodged online on 30 June 2023. Where an application is lodged online, the application is made when it is received electronically by the Commission, provided that the Commission has sent an acknowledgment of the lodgement by email.[5]

1. The 21-day period prescribed by s.394(2) does not include the day on which the dismissal took effect.[6] Since the dismissal took effect on 8 June 2023, the final day of the 21-day period was therefore 29 June 2023 and ended at midnight on that day.

1. As the application was not made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

Was the application made within such further period as the Commission allows?

1. Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal 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) whether the Applicant first became aware of the dismissal after it had taken effect; and

(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.

1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[7] I set out my consideration of each matter below.

Reason for the delay

1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 29 June 2023. The delay is the period commencing immediately after that time until 30 June 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[8]

1. 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.[9]

1. An applicant need not necessarily 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.[10]

1. The Applicant submitted that the delay was attributable to a number of factors. First, he said that he had been transported by ambulance and admitted to hospital on 22 June 2023 for an appendectomy. He was discharged on 24 June. He said that following that procedure he was in a lot of pain and was unable to move. He also said that he had been homeless for an unspecified period but indicated that his housing situation was resolved on 26 June 2023. He said at the hearing that his relationship had broken down and he was doing what he could to manage his responsibilities as a parent to his children.

1. The Applicant also provided a medical certificate[11] dated 11 July 2023, which described the medical conditions that the Applicant was experiencing. The certificate provided that the Applicant suffered from ‘adjustment reaction with anxious mood’, the onset of which commenced on 24 May 2023. The certificate also referred to his post-appendicectomy as a secondary condition as from 24 June. The certificate described the functional impact of these conditions as ‘lack of concentration abdominal discomfort catastrophising episodes of low self-esteem.’ The certificate provided that the Applicant was unable to do any work, study or participate in activities of 8 hours or more per week in the period 8 June 2023 to 15 August 2023. The Applicant also gave evidence that his anxiety medication had made him ill and referred to the medical certificate in this respect.

1. There was some evidence given by the Applicant as to his state of mind about the deadline for filing the application at the time it was filed. The accounts about his knowledge were difficult to reconcile. The Applicant accepted that he knew there was a deadline for the filing of an application because he had been told this was the case when he made contact with Commission staff. He also eventually accepted that by the time he filed the application, he was aware there was a deadline and he thought that he needed to get the application in because it may have been out of time, but he was not sure.

1. The Respondent submitted that the Applicant had not provided adequate evidence that the events that were relied on had occurred or that the matters referred to had incapacitated the Applicant to such a degree that he was incapable of filing his application within the statutory timeframe.[12] The Respondent submitted that in truth the Applicant had merely sought to retrospectively construct an explanation for the delay when the real reason was the Applicant’s ignorance of the deadline which is not an acceptable reason for the delay.

1. I am satisfied that the Applicant was confronted with difficult personal circumstances in the period immediately after the termination of his employment, including the medical conditions which he attested to. I also believe that the termination of his employment on 8 June would have added to these difficulties. These factors in turn may have contributed in some measure to the delay in filing the application. However, I am not satisfied that they provide a complete or satisfactory explanation for the delay.

1. The Applicant’s hospital admission occurred seven days before the deadline had expired and lasted for a period of two days. I accept that the Applicant’s appendicitis and hospitalisation would have rendered him incapable of lodging an application for a period after his termination and before the 29 June. However, that condition does not account for the entire period from 8 June until lodgment on 30 June. The Applicant’s medical certificate provided that he was unable to work, study or participate in activities of 8 hours or more per week in the period from 8 June to 15 August. It indicates that the ‘primary condition’ suffered by the Applicant, namely ‘adjustment reaction with anxious mood’ commenced on 24 May. The Applicant was nonetheless working with the Respondent up until his termination on 8 June. The Applicant was also able to send an email to a representative of the Respondent on 9 June saying that he intended to ‘get in contact with fair work to conduct a unlawful claim as the decision that has been made nothing to do with my job being available (sic).[13]’ He also confirmed in his evidence that he had made contact with Fair Work Commission staff after his termination and attempted to have the filing fee for an application waived. Ultimately those attempts were unsuccessful. This evidence supports a view that although the Applicant was dealing with a number of serious issues in the in the period from 8 June until his hospitalisation, he was not incapacitated to the point where he was unable to take some steps to challenge his termination. Ultimately, he managed to complete the form which he filed on 30 June and his circumstances did not appear to have materially changed at that point from the days immediately preceding the 29 June deadline.

Did the Applicant first become aware of the dismissal after it had taken effect?

1. On the basis of the evidence relating to the 8 June meeting, I 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?

1. The Applicant agreed that he did not dispute his dismissal on the day that it occurred. However, he confirmed in his evidence that he sent an email to a Respondent representative shortly after his termination. This email disputed his dismissal and indicated the Applicant’s intention to take the matter to the Commission. No other contact was made with the Respondent until the application was lodged.

1. The Applicant also made some efforts to contact registry staff to assist him with the lodgment of an application by email or phone.

1. I am satisfied that the Applicant took at least some action to dispute the dismissal. The Respondent was on notice that the termination was actively challenged by the Applicant and that the matter might ultimately end up in the Commission. In my view, the steps that were taken are factors that weigh in the Applicant’s favour.

What is the prejudice to the employer (including prejudice caused by the delay)?

1. The Respondent conceded that in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice to the Respondent is not a sufficient basis to grant an extension of time.[14] This is a neutral consideration here.

What are the merits of the application?

1. The competing contentions of the parties in relation to the merits of the application were set out in the filed materials.

1. The Applicant submitted that the termination of his employment was unfair in the circumstances because he had made a complaint to a whistleblower hotline about a serious workplace safety issue in the months prior to his termination and that the Respondent’s attitude to him changed after that had happened. He said his role was downgraded, his supervisor stopped talking to him and he was in constant fear that he was going to lose his job. In these circumstances he submitted that the Respondent’s decision to terminate his employment was motivated by the complaint and was unfair.

1. The Respondent submitted that the termination was solely a result of genuine operational requirements. The Respondent made reference in its Response to a review of its operations that had commenced in late 2021 and the effects of flood and hail damage to the trees on the farm where the Applicant worked. This damage reduced the number of employees required and the Applicant was thereafter assessed as being the employee who had scored lowest in a skills assessment carried out across the workforce. On that basis the Applicant’s position was considered to be redundant and the Respondent had no suitable alternative employment that it could offer him.

1. The present task is not to finally dispose of the proceeding based on the merits of the matter, but rather to weigh the merits of the application in assessing whether the Commission can be satisfied of the existence of exceptional circumstances that would support an extension of the time limit for the filing of an application. The merits assessment here is an essential step in a broader inquiry. In this matter there were fundamentally divergent accounts of the background to and reasons behind the Applicant’s termination. Making even a provisional assessment of the merits would require further evidence about factual matters that were heavily contested. I am unable to form a view as to the merits of the application on the material presently before me and I therefore regard the merits as a neutral consideration in the overall assessment.

Fairness as between the Applicant and other persons in a similar position

1. The Applicant did not expressly argue that he had been treated unfairly compared to another person in a similar position although he clearly disputed that his dismissal was a case of redundancy. The Respondent simply pointed out that the Applicant was the only person dismissed at the relevant time. I find that there is nothing for me to weigh under this heading in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. 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.[15] 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.[16]

1. Having regard to all of the circumstances of this case and the matters in s.394(3), and my conclusions in relation to those matters set out above, I am not satisfied that there are exceptional circumstances to warrant an extension of time.

Conclusion

1. The Applicant’s application for an unfair dismissal remedy is dismissed. An order to that effect will be issued separately.

DEPUTY PRESIDENT

Appearances:

Mr Robert Smith for the Applicant
Mr Rod Collinson, Solicitor for the Respondent

Hearing details:

In-person on Thursday, 27 July 2023. Applicant appeared via Telephone.

[1] F2 Application, page 2.

[2] Exhibit A1.

[3] Siagian v Sanel Pty Ltd (1994) 54 IR 185.

[4] Ibid.

[5] Fair Work Commission Rules 2013 (Cth) r 15(2).

[6] 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.

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] (‘Stogiannidis’).

[8] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[9] Stogiannidis (n 6).

[10] Stogiannidis (n 6) [40].

[11] Exhibit A7.

[12] Respondent’s Outline of Submissions, paragraphs 3, 20, 21 and 22.

[13] Respondent’s Outline of Submissions, Annexure A.

[14] Brodie-Hanns v. MTV Publishing Ltd (1995) IR 298 at 300.

[15] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13] (‘Nulty’).

[16] Nulty (n 14). See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.

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