Rodney Garside v Mettle & Tweak Pty Ltd T/A Signarama Geelong West
[2020] FWC 3845
•22 JULY 2020
| [2020] FWC 3845 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rodney Garside
v
Mettle & Tweak Pty Ltd T/A Signarama Geelong West
(U2020/7046)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 22 JULY 2020 |
Application for an unfair dismissal remedy.
[1] On 21 May 2020, Mr Rodney Garside filed an unfair dismissal application (the Application) with the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to the Application is Mettle & Tweak Pty Ltd T/A Signarama Geelong West.
[2] The effective date of Mr Garside’s dismissal is disputed. Mr Garside submits that he was notified of his dismissal on 30 April 2020 and that it took effect on the same day. The Respondent submits that Mr Garside’s dismissal was notified and effected on 24 March 2020.
[3] The Respondent also objects to Mr Garside’s unfair dismissal application on the following bases:
• That Mr Garside’s dismissal was a case of genuine redundancy;
• That Mr Garside, having commenced a part-time position on 18 February 2020 and effectively dismissed as at 24 March 2020, has not served the minimum employment period of 12 months; and
• That the Respondent is a small business employer and complied with the Small Business Fair Dismissal Code.
Procedural History
[4] This matter was allocated to me for determination on 29 June 2020 and I issued Directions for the filing of material on 1 July 2020 requiring the parties to address the effective date of Mr Garside’s dismissal, whether or not the minimum employment period had been served and whether or not Mr Garside’s unfair dismissal application was made within 21 days as required by s.394 of the Act. Both parties filed and served material in response.
[5] I conducted a Determinative Conference via Microsoft Teams on 21 July 2020. This Decision will only concern the following issues in contention:
• On what date was Mr Garside’s employment terminated?
• If the Application is found to have been lodged outside the 21-day statutory timeframe, are there exceptional circumstances such that an extension of time should be granted?
Chronology of Events
Employment History
[6] Mr Garside commenced employment with the Respondent on 28 January 2019 as a casual employee. Pay slips provided by Mr Garside indicate he worked and was paid on a weekly basis. There is a period of three weeks over the 2019/2020 Christmas period for which Mr Garside was not paid, as the Respondent’s business was shut down for Christmas holidays, but the pay slips indicate he resumed paid work in the new year.
[7] On 13 January 2020, the Respondent provided Mr Garside a permanent part-time position with a minimum 30-hour working week plus reasonable additional hours. Clause 4 of the Letter of Appointment, signed by Mr Garside on 18 February 2020, indicated that the probation period would be three months.
[8] On 22 March 2020, Mrs Narelle Knott, who amongst other things administers the Respondent’s payroll, sent a text message to all employees stating:
“Hi Team,
You have all probably heard the news by now ! Due to the health risk and posing lock down we feel it’s in everyone’s best interest to not come to work tomorrow. We will update you as soon as we hear more about work and are here to support you all through this time .
Please be patient and we will endeavour to notify you all of our current position . as soon as this has passed we will move forward as per normal .
Tomorrow we will call you individually to discuss.
Look after yourselves and chat tomorrow.
Tim and Narelle” 1
[9] Mrs Knott sent Mr Garside the following text message on 23 March 2020,:
“Hi Rod
We are still waiting on some advise [sic] which way to move !! Grr
Will keep you posted .
Stay calm and we will keep you posted
Tim and Narelle” 2
Purported Redundancy
[10] Mr Tim Knott, Director of the Respondent, says that on 24 March 2020 he sent Mr Garside a text message requesting that he ring him 3 and that at 10:40AM on 24 March 2020,4 Mr Garside telephoned as requested. Mr Knott relies on telephone records to assert that the telephone conversation lasted 3 minutes and 58 seconds and he says he informed Mr Garside that the Respondent had had no new work for a week, production was low and that his employment was terminated because his position had been made redundant.
[11] Mr Knott says straight after the phone conversation with Mr Garside, he informed Mr Lindsay Gillis, the Respondent’s Production Manager, that Mr Garside had been made redundant and would not be returning to work. 5
[12] Mr Garside recollects that Mr Knott told him the Respondent had no work for him at that point in time and that he “would need to see Centrelink”. Mr Garside denies that he was told by Mr Knott that he was redundant.
[13] Mrs Knott says she became aware that Mr Garside had been terminated on 24 March 2020 because she administers the Respondent’s payroll. The payslips for Mr Garside for the pay periods of 16-22 March 2020 and 23-29 March 2020 confirm Mr Garside’s evidence that the last day he performed work for the Respondent was on Friday 20 March 2020 and that for the second of these two pay periods, he was paid 20 hours of accrued annual leave and 10 hours of personal leave only. 6
JobKeeper Queries
[14] At 09:59AM on 31 March 2020, Mr Garside sent Mrs Knott a text message which stated:
“Good morning Narelle. How’s your health? Will I be getting the job keeper allowance? Cheers Rod” 7
[15] At 10:05AM, Mrs Knott responded as follows:
“Hi Rod
At the moment we don’t have enough work to justify paying a wage . If the work picks up and we can justify paying everyone then yes for sure . my suggestion for now is go on job search or whatever they call it and then let’s reassess down the track . You can always change . hope that makes sense . It’s okay to do job… keeper if we have the work but at the moment we don’t have enough . We would still have to pay a wage until we get reimbursed by the government which isn’t till May !!
I am speaking to our accountant soon so if he advises any different I will let you know . Stay safe” 8
[16] At 10:07AM, Mr Garside said, “It’s a government payment to businesses that register” 9 and at 10:08AM he said, “Yes. That’s how it works”.10
[17] Mrs Knott responded at 10:08AM:
“Understand it’s a payment to us but if we don’t have work we can’t justify a wage ? Does that make sense”
[18] Upon Mr Garside responding “No”, Mrs Knott continued at 10:09AM:
“At the moment we don’t have the money to pay you a wage as we have little work coming in and the government will not be starting to reimburse till May . So once that starts in May we can re asses [sic]!
Does that make sense”
[19] Mr Garside responded at 10:24AM stating:
“The payments start May 1 to be backdated for employees made redundant after March 1. It’s for businesses at 30% less turnover than previously doing… You get $1500 per fortnight per employee to pay us”
[20] Mrs Knott responded that she would speak to Mr Knott and get back to Mr Garside.
Picking up Equipment
[21] On 24 March 2020, Mr Garside says he attended the Respondent’s premises for the purposes of picking up his painting equipment previously lent to the Respondent. 11 He says he also returned on 1 April 2020 to retrieve his mobile rack.
[22] On 9 April 2020, Mr Garside sent a message to Mr Knott requesting he pick up his straight edge. In response, he was advised he could pick it up from the Indian supermarket. 12
[23] On 14 April 2020, Mr Garside sent a further text message to Mr Knott in relation to his straight edge and was advised it could be dropped off to him. 13 Upon dropping off the straight edge to Mr Garside, he says he sought from Mr Knott an update on the JobKeeper subsidy or any other developments. Mr Knott says he told Mr Garside that the Respondent was making application for JobKeeper (which was subsequently approved on 12 May 2020) but did not yet know whether it could put Mr Garside back on. Mr Garside says that Mr Knott told him that the Respondent did not have any money or any work and would not know about JobKeeper until 1 May 2020.
[24] On 16 April 2020, Mr Garside sent a further text message to Mr Knott querying what was happening with the JobKeeper subsidy. 14
Mr Garside’s Instagram Post
[25] Although details were not provided, it would seem Mr Garside posted something on Instagram on or about 21 April 2020, which prompted the following response from Mr Knott in a text message:
“If you wanted to keep your job… you’re going the wrong way about it. Slander on instagram is against your contract.” 15
Mr Garside’s Alleged Awareness of Redundancy – 26 April 2020
[26] At 01:48PM on 26 April 2020, Mr Garside sent a further text message to Mr Knott:
“Have you registered me for jobkeeper yet? Registrations have been open since last Monday and I haven’t heard anything. I have a contract, you either have to give me work or job keeper”
[27] Mr Knott responded at 01:58PM as follows:
“We made you redundant 5 weeks ago and paid you out all your leave and entitlements including person leave which we didnt have to do…
You need to get jobseeker.
As discussed, we dont have the capacity to keep everyone. And will be restructuring the business over the next few months so your position will not exist.”
[28] Mr Garside responded at 01:59PM:
“So as of today you have informed me I no longer have a contract?”
[29] Mr Knott said at 02:01PM, “I informed you 5 weeks ago… I made you redundant” to which Mr Garside replied, stating that Mr Knott had lied to him and referring to his contract of employment. Mr Knott responded with a further text message stating he was only required to give Mr Garside one week’s notice, which he said he had done.
[30] What followed was the following exchange by text message, starting at 02:04PM and ending at 02:38PM:
Mr Garside: Well, we will let the fair work Commission sort it out.
Mr Knott: Paid you out on 30/4.
Mr Garside: Sounds good to me.
Mr Knott: I meant. I paid you out on 30/3.
Mr Garside: When did you officially put it in writing?
Mr Knott: You’ve had verbal and texts…Spoken to you 3 times about this and Narelle has texted you heaps.
Mr Garside: Last week you said I was in breach of my contract.
Mr Knott: Yep…you cant bad mouth the company after being dismissed.
Mr Garside: No, but I can tell the truth.
Mr Knott: Never lied to you.
Mr Garside: Like I said Tim. We’ll let the Fair Work Commission decide. End of conversation.
When did Mr Garside’s dismissal take effect?
[31] The term “dismissed” for the purposes of the unfair dismissal jurisdiction is defined in s.386(1) of the Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[32] In the Applicant’s Outline of argument: objections, the following questions were answered in the following ways:
• 1a. When were you notified of the dismissal?
“26th of April 2020”
• 1c. What date did your dismissal take effect?
“??? Pick a date. 30/4/2020, 30/03/2020, 29/03/20 or 27/03/2020”
• 1g. Do you agree that the lateness of your application has caused you employer disadvantage or unfairness?
“No. The lateness of my clients application was a direct result of the respondent not making it clear that my client had been made redundant until the 26th of April 2020. The evidence of this is the furnishing of four different dates by the respondent and I will prove this later.”
[33] At the Determinative Conference, Mr Garside submitted the date of his dismissal was 30 April 2020, relying on the text message from Mr Knott referred to above in [30] and he further submits that as a result, the Application has not been made out of time. I do not accept this submission. When read in context, the reference made by Mr Knott to 30 April 2020 is clearly a misstatement which was immediately corrected in a subsequent text message, with an accurate statement reflecting the payment to Mr Garside of his accrued but untaken annual leave and personal leave on 30 March 2020. 16
[34] The Respondent submits Mr Garside was notified of his dismissal on 24 March 2020. It relies on the evidence of Mr Knott, Mrs Knott and the payment made to Mr Garside on 30 March 2020. Mr Garside denies he was told he was redundant on 24 March 2020.
[35] Even if I was to accept Mr Garside’s version of events that he was not aware he had been terminated on 24 March 2020 because this had not been unambiguously communicated to him and that his subsequent communications with the Respondent did not clarify matters, I cannot accept that Mr Garside would not have become aware on 26 April 2020 that he had been dismissed due to redundancy.
[36] To accept that the effective date of dismissal was Sunday 26 April 2020 is to put Mr Garside’s position at its highest and results in the Application lodged on 21 May 2020 having been made three days outside the 21-day statutory timeframe.
[37] Mr Garside has not persuaded me that the date of his dismissal could be any date after 26 April 2020 and on this basis, the Application has been made out of time.
Extension of Time
[38] 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).
[39] In order for the Application to proceed, Mr Garside requires the Commission to allow, pursuant to s.394(3) of the Act, a further period for the application to be made until 21 May 2020. The Respondent opposes this.
[40] 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. 17 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.18
[41] 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.
[42] 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 now consider these matters in the context of the application.
Reason for the delay – s.394(3)(a)
[43] 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.
[44] 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. 19
[45] As referred to above, it was outlined in the Applicant’s Outline of argument: objections that the lateness of the Application “was a direct result of the respondent not making it clear that my client had been made redundant until the 26th of April 2020.” 20 However, at the Determinative Conference, Mr Garside contended the date of dismissal was 30 April 2020 and he spent the days that followed up until 21 May 2020 gathering evidence. Mr Garside said that he accessed the Commission’s website and ascertained that he had 21 days within which to lodge the Application. He stated, “I knew I had until 21 May 2020”.
[46] As I have already outlined, I cannot accept that Mr Garside would not have become aware on 26 April 2020 that he had been dismissed.
[47] 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. 21 If the final day of the 21-day period falls on a weekend or a public holiday, as it did so in this case, the prescribed time will be extended until the next business day.22
[48] Mr Garside’s application was made three days late but having regard to the material before me, I am not satisfied he has provided an acceptable explanation for the delay.
[49] The absence of an acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
[50] Putting Mr Garside’s position at its highest in terms of when he first became aware of the dismissal and thereby accepting that the effective date of dismissal was 26 April 2020 would result in the conclusion that Mr Garside had the full 21-day period to lodge the Application. This is a neutral consideration.
Action taken to dispute the dismissal – s.394(3)(c)
[51] It is agreed between the parties that there was no contact between them after 26 April 2020. Mr Garside said he sought guidance from a friend. In my view, seeking guidance about the dismissal does not amount to disputing it. Even if this did constitute “action to dispute the dismissal”, I would attribute it minimal weight.
Prejudice to the employer – s.394(3)(d)
[52] In the Respondent’s Outline of argument: objections, the Respondent submits that the delay has caused it “disadvantage or unfairness” because Mr Garside had “plenty of time to lodge a complaint” given that it had advised him of his termination in March 2020. Moreover, the Respondent submits that it is taking time out from running an already struggling business to try to settle an “invalid claim”. Mr Garside submitted there is no prejudice to the Respondent.
[53] I am satisfied that there would be no greater prejudice to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not a factor that would point in favour of granting an extension of time. However, if I was 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 – s.394(3)(e)
[54] Section 396 requires the Commission to consider whether an application was made within the 21-day period before considering the merits of the application. Nevertheless, s.394(3) requires the Commission to take into account the merits of the application in deciding whether it is satisfied that there are exceptional circumstances.
[55] Mr Garside contends that the purported redundancy was unfair as it was done without consultation or notice, it was not done clearly and nor was it communicated in writing. He said the redundancy occurred in circumstances where he had been a conscientious and loyal worker since January 2019. However, Mr Garside accepts his position “probably” was redundant due to COVID-19.
[56] The Respondent submits that the dismissal was fair due to the significant downturn of business it has suffered as a result of COVID-19. It says it is a small, family owned business that had no foreseeable work. Mr Knott stated that at the time of Mr Garside’s dismissal, the Respondent had a weekly wages bill of $6,000 and a bank account balance that had reduced to $4,000 and it was submitted the Respondent could only afford to retain essential staff to run the business in order to keep it afloat.
[57] The weight to be given to the merits consideration is dependent on the extent to which there is merit in the substantive application. 23 On the basis of the material before me, it may be accepted that there was a valid reason for Mr Garside’s dismissal but the existence of a valid reason is only one of the factors the Commission must take into account in considering whether a dismissal was harsh, unjust or unreasonable. In this case, the manner in which Mr Garside’s termination was effected may weigh in favour of a finding that the dismissal was harsh. While I would not categorise Mr Garside’s substantive case as strong, I am nonetheless satisfied that it is of sufficient merit to weigh in favour of a finding of exceptional circumstances.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
[58] 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.
[59] Mr Garside mentioned a colleague who was also dismissed and has made application to the Commission in response but neither party raised matters in relation to this consideration, nor 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
[60] 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.
[61] Having regard to the matters I am required to take into account under s.394(3)(a) to (f), and the matters raised by Mr Garside, I am not satisfied that there are exceptional circumstances such as to allow a further period for the substantive application to be made. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together.
[62] 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) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
Mr R Garside for himself.
Mr T Knott and Mrs N Knott for Mettle & Tweak Pty Ltd T/A Signarama Geelong West.
Hearing details:
2020.
Melbourne (by telephone):
July 21.
Printed by authority of the Commonwealth Government Printer
<PR721191>
1 DCB at p196.
2 DCB at p198.
3 DCB at p112.
4 DCB at p225.
5 DCB at p222.
6 DCB at pp 99-100.
7 DCB at p198.
8 DCB at pp199-200.
9 DCB at p200.
10 DCB at p200.
11 DCB at p113.
12 DCB at p11 and 115.
13 DCB at p12.
14 DCB at p204.
15 DCB at p119.
16 DCB at p100.
17 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
18 Ibid.
19 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
20 DCB at p22.
21 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
22 See s.36 Acts Interpretations Act 1901 (Cth), as in force on 25 June 2009; see s.40A of the Act; Kristia Cahill v Bstore Pty Ltd t/as Bstore for Berkenstock[2015] FWCFB 103; Stedman v Transdev v NSW Pty Ltd t/as Transdev Buses[2015] FWCFB 1877.
23 Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [71].
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