Rodney Flagg v Solar Depot Pty Ltd
[2021] FWC 2723
•13 MAY 2021
| [2021] FWC 2723 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rodney Flagg
v
Solar Depot Pty Ltd
(U2021/2890)
DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 13 MAY 2021 |
Unfair dismissal application filed out of time – circumstances not exceptional - application dismissed.
Introduction
[1] This decision concerns an application by Mr Rodney Flagg (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).
[2] The termination of the Applicant’s employment with Solar Depot Pty Ltd (Respondent) took effect on 5 March 2021. The unfair dismissal application was lodged on 7 April 2021.
[3] Section 394(2) of 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 26 March 2021. The application was therefore filed 12 days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).
[4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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. 1 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.2
[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.
Reasons for the delay
[8] The delay required to be considered in s 394(3)(a) 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. 3 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.4
[9] 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. 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
[10] The relevant sequence of events may be summarised as follows:
• On 5 March 2021 the Applicant was told that his position was redundant and his employment with the Respondent was coming to an end on that day.
• On the evening of 5 March 2021 the Applicant started applying for alternative jobs. He attended two interviews in the two week period following 5 March 2021, but was not offered either job.
• In the period between 5 March 2021 and 30 March 2021 the Applicant applied for 36 jobs.
• On 7 March 2021 the Applicant saw a Facebook advertisement for franchise opportunities with a solar company known as Solar Run. In the period between about 10 to 12 March 2021 the Applicant submitted an inquiry with Solar Run for information about its franchises. In the week commencing 15 March 2021 the Applicant received information from the Solar Run franchisor. In the week commencing 22 March 2021 the Applicant sat down with his accountant and went through the Solar Run franchise information and contract. The Applicant did not engage a lawyer to provide advice in relation to the Solar Run franchise contract, but obtained advice from his accountant and signed the Solar Run franchise contract on 30 March 2021. On 5 April 2021 the Applicant commenced a one week course to prepare him to commence his Solar Run franchise on the mid north coast of New South Wales.
• On about 9 or 10 March 2021 the Applicant went to see his doctor because his wife was worried about him. The doctor wanted the Applicant monitored for a week before making any decision about his medication. On about 19 March 2021 the Applicant saw his doctor again and the doctor increased the Applicant’s anti-depressant medication. The Applicant next saw his doctor on 27 April 2021, at which time he obtained a medical certificate in which his doctor stated that “since losing his job on the 5th of March 2021, there has been worsening depression which has affected his overall health”. The Applicant gave evidence that most of his day to day activities became a chore when his depression worsened in the period following his dismissal.
• In the period between about 19 March 2021 and 24 March 2021 the Applicant was impacted by flooding on the mid north coast of New South Wales. In particular, the Applicant’s house and at least one of his vehicles were damaged by the floods. It took the Applicant some time to deal with the impact of those floods.
• On 29 March 2021 Mr Alexander Hender, Chief Executive Officer of the Respondent, spoke to a sales employee of the Respondent, Mr Jonathan Walters, who informed Mr Hender that he was resigning from his employment with the Respondent to work with the Applicant in his Solar Run franchise business. Mr Walters’ employment with the Respondent came to an end on 29 March 2021.
• On 29 March 2021 the Respondent placed a job advertisement on seek.com.au for the role of Business Development Manager – Commercial and Industrial Solar, Coffs Harbour and North Coast.
• In the period between about 30 March 2021 and 5 April 2021 the Applicant believes he first spoke to Mr Walters about Mr Walters working with the Applicant in his new Solar Run franchise business. Mr Walters subsequently became a half owner of the Solar Run franchise with the Applicant.
• On 6 April 2021 the Applicant saw what he thought was an advertisement for his previous job with the Respondent. The advertisement was the one placed by the Respondent on 29 March 2021 for the role of Business Development Manager – Commercial and Industrial Solar, Coffs Harbour and North Coast.
• On 6 April 2021 the Applicant went online to look at making an unfair dismissal application. On 7 April 2021 the Applicant completed and lodged his unfair dismissal application.
[11] In summary, the Applicant relies on the following reasons for the delay in filing his unfair dismissal application:
• The Applicant says that he mistakenly understood that he had 21 business days (not including public holidays) to lodge his unfair dismissal application.
• The Applicant was busy dealing with the impact of floods, applying for jobs, and setting up his new Solar Run franchise business in the period between his dismissal on 5 March 2021 the lodgment of his unfair dismissal application on 7 April 2021.
• The Applicant was suffering the effects of worsening depression in the period after his dismissal.
• The Applicant came to believe that his position with the Respondent had not been made redundant, particularly after he saw the Respondent’s advertisement on 6 April 2021 for the role of Business Development Manager – Commercial and Industrial Solar.
[12] Although I have sympathy for the Applicant’s personal circumstances, I do not consider the matters relied on by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay in filing his unfair dismissal application. First, ignorance of the 21 calendar day timeframe for lodging an unfair dismissal claim is not an exceptional circumstance. 6 Secondly, although I accept that following his dismissal the Applicant’s mental health suffered and he faced a range of personal difficulties and challenges, they were not so debilitating as to prevent him from applying for 36 jobs, attending two interviews, considering buying a new business, obtaining advice from his accountant about buying a new business, and signing a contract to purchase the Solar Run mid north coast franchise. Thirdly, although the Applicant believed that he saw his former job with the Respondent advertised on seek.com.au on 6 April 2021, I accept Mr Hender’s evidence that he placed an advertisement on seek.com.au on the afternoon of 29 March 2021 after Mr Walters informed Mr Hender that he was resigning in order to work with the Applicant in his Solar Run franchise. I accept Mr Hender’s evidence that the job he advertised at that time was, in effect, Mr Walters’ job, not the Applicant’s job. I accept that evidence because it is broadly, but not precisely, consistent with the Applicant’s evidence about when he first spoke to Mr Walters about working with him in the Solar Run franchise. The Applicant says that discussion took place between about 30 March and 5 April 2021. Mr Hender says he was told by Mr Walters on 29 March 2021 that he was resigning and would be working with the Applicant in his Solar Run franchise. Further, I accept Mr Hender’s evidence that there were three employees in the Respondent’s New South Wales mid north coast sales team at the time the Applicant’s employment was terminated; the main duties and responsibilities of those sales roles were the same, but they had different titles because two of the three employees preferred particular job titles such as Renewable Energy Consultant and Senior Technical Consultant. I also accept Mr Hender’s evidence that he used an old advertisement from a previous job advertisement placed by the Respondent in South Australia to prepare the advertisement placed on seek.com.au on 29 March 2021. The job title for the advertised role was Business Development Manager – Commercial and Industrial Solar, Coffs Harbour and North Coast. The Applicant’s role was variously described in contractual documentation as Commercial Sales Consultant, Business Development Manager, and Commercial Business Development Manager. The use of those different titles to describe the same role is consistent with Mr Hender’s evidence that the Applicant’s role, like that of the other two sales employees in his region, was essentially one of a sales consultant.
[13] The absence of an acceptable or reasonable explanation for the delay in lodging the application on 7 April 2021 weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[14] The Applicant was aware of his dismissal on the day it took effect (5 March 2021), notwithstanding the fact that he did not receive his letter of termination until 23 April 2021. The Applicant therefore had the full period of 21 days to lodge his unfair dismissal application. This is a neutral consideration.
Action taken to dispute the dismissal
[15] There is no evidence to suggest that the Applicant took any action to dispute his dismissal, save for filing his unfair dismissal application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Prejudice to the employer
[16] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
[17] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s 396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s 394(2) (which includes deciding whether a further period should be allowed under s 394(3)), before considering the merits of the application. Nonetheless some assessment of the merits is required because the merits of the application is a material consideration in determining whether there are exceptional circumstances. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.
[18] The Applicant contends that his redundancy was not genuine because his position was advertised on 29 March 2021. He also says that he was not given any warning that the Respondent was not happy with his work, he had gained two tenders in the time leading up to his redundancy, and he was told that his redundancy was due to JobKeeper finishing.
[19] The Respondent denies these contentions and submits that the Applicant’s dismissal was a genuine redundancy as a result of market conditions at the time. Even though the Applicant was employed by the Respondent for less than one year before he was dismissed, the Respondent paid him a redundancy payment of $4,326.92 due to his “employment ending because of redundancy”. 7 The Respondent did not have a legal obligation to make this payment to the Applicant. This supports its contention that the redundancy was genuine, as does the finding I have made above about whose job was advertised on 29 March 2021. I have very limited information before me about the extent of any consultation in which the Respondent engaged with the Application in connection with its decision to make his role redundant.
[20] In all the circumstances, my preliminary assessment on the materials before me is that the merits of the Applicant’s unfair dismissal case are fairly weak. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.
Fairness as between the person and other persons in a similar position
[21] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
[22] 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
[23] Although I have sympathy for the Applicant’s personal circumstances, having regard to the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr R Flagg on behalf of himself
Mr A Hender on behalf of the Respondent
Hearing details:
2021.
Newcastle (by telephone):
May 4.
Printed by authority of the Commonwealth Government Printer
<PR729798>
1 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
2 Ibid
3 Long v Keolis Downer[2018] FWCFB 4109 at [40]
4 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]
5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
6 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14]
7 Ex 2
3
7
0