Ronald Bruce v Central Ventures Pty Ltd T/A Cupcake Central

[2020] FWC 4236

[2020] FWC 4236

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ronald Bruce
v
Central Ventures Pty Ltd T/A Cupcake Central
(U2020/9955)

COMMISSIONER BISSETT MELBOURNE, 13 AUGUST 2020

Application for an unfair dismissal remedy – extension of time – extension not granted – application dismissed.

[1] This decision concerns an application by Mr Ronald Bruce (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The Applicant made his application for relief from unfair dismissal on 21 July 2020. In making his application the Applicant did not indicate a date of termination of employment.

[3] The Applicant was employed by Central Ventures Pty Ltd T/A Cupcake Central (Respondent). In responding to the application the Respondent said that it had not dismissed the Applicant but that he had resigned.

[4] In his submissions to the Fair Work Commission the Applicant indicated that he considered his employment had been terminated on 29 May 2020. He also suggested it could have been on 10 June 2020. For the reasons given below I consider that, if there was a dismissal, the date of that dismissal was 1 June 2020. It was on that date the Applicant clearly stated to the Respondent that he believed his employment had been terminated and that he would be making an application for unfair dismissal. If this was the date of the dismissal the Applicant had until 22 June 2020 to make his application within the 21 day time limit provided by the FW Act. If the Applicant was dismissed on 1 June 2020 his application is made 29 days outside the time limit prescribed by the FW Act.

[5] Alternatively the Applicant suggests his dismissal date was 10 June 2020 when he had his last correspondence with the Respondent. If this is the date of dismissal his application should have been made by 1 July 2020 and was made 20 days late.

[6] I have decided to determine if the application has been made within the time period specified by the FW Act. If I decide to exercise my discretion to allow a further period within which the application may be made I will then need to consider if the Applicant has been dismissed.

[7] A determination of whether an extension of time should be granted is based on a dismissal date of 1 June 2020.

[8] The FW 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

[9] Section 394(3) of the FW Act 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.

[10] 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.

Background

[11] The Applicant’s employment with the Respondent ended in the midst of the first shut down of businesses in Melbourne arising from the COVID-19 pandemic.

[12] On his last shift on 23 March 2020 when the shutdown commenced the Applicant said that he advised the Respondent he might have to go onto “welfare” (JobSeeker). The Respondent understood that to apply for JobSeeker the Applicant would need a separation certificate so it provided one to him. The Applicant apparently also requested that his annual leave be paid and that his superannuation be paid up until that date (as opposed to the normally quarterly payments required to be made by the Respondent). The Respondent took this to mean that the Applicant had resigned his employment as otherwise he would not have required his superannuation, in particular, to be paid up to 23 March 2020.

[13] On 7 April 2020 the Applicant exchanged Whatsapp messages with Ms Meja Zeng of the Respondent with respect to his annual leave. By the end of May 2020 that appears to have been resolved however on 28 May 2020 the Applicant queried why he had not been paid any redundancy pay. Mr Thin Neu of the Respondent replied that the Applicant had not been made redundant and hence was not entitled to redundancy pay. On 29 May 2020 the Applicant replied to Mr Neu that if he had not been made redundant he must have been dismissed.

[14] On 1 June 2020 the Respondent sent an email to the Applicant which said, in part:

As you know, we unfortunately had to make the hard decision to close all our stores and stand down all employees due to COVID‐19...

To date, we have not made any employees redundant nor have we terminated anyone. We have worked really hard.as a team to adapt, to ensure that everyone has a job on the other side of this crisis...

However, I understand that when we had the conversation at the early stages of COVID-19, it was in the pre-existence of Job Keeper and this is where the misunderstanding occurred.

Due to you informing us that you want to claim Job Seeker – as well as requesting an “Employee Separation Form” and for all your benefits to be paid out. We believed that you had resigned from the company. This is the reason why, when we received approval for Job Keeper scheme 6 weeks after our conversation we did not approach you about Job Keeper.

[15] The Applicant replied on 1 June 2020 that it was “illegal to assume [he] quit” that he did not want his “benefits to be paid out” but wanted to be paid annual leave. The Applicant said that he “found out that everyone else had already been put on job keeper, even people that didn't even reach out to you, that's when I figured you had made me redundant or that something was going on, considering we have not had any discussion about me quitting. You deciding I quit because of a seperation [sic] certificate request I demanded is not evidence in the slightest considering all the facts.” The Applicant then indicated that he would be making an application for unfair dismissal.

[16] In a further email that day that Applicant said that it was “you guys who ending our working relationship initially (without telling me or without any paperwork). I have been unfairly dismissed and I am no longer cupcake centrals employee as evidence by the fact that you guys have not paid me a cent since our store closed based on an assumption I quit…” [sic]

[17] On 3 June 2020 Ms Zeng replied to the Applicant. She firstly apologised for any misunderstanding and offered the Applicant two options:

1. Nominations for the Job keeper scheme is still open. You can choose to proceed with a nomination form and be placed on Job keeper with Cupcake Central and resume work.

2. As you have stated in your email dated 1^st June 2020 – you no longer wish to work for the company. This is a resignation. In this case, your end date will be the 22^nd June 2020. Please let me know if you would like to come in and work the remaining of the 3 weeks’ notice owed to the company as per your contract.

[18] Further emails were exchanged between the Applicant and Respondent, primarily the Applicant repeating that he had not “quit” his job. On 4 June 2020 Ms Zeng advised the Applicant that if he wished to nominate for JobKeeper for June 2020 and the upcoming months he could do so but nominations for the earlier months had closed. The Applicant replied with a query as to whether, if he nominated for JobKeeper, the Respondent would back pay him for all the weeks he was owed.

[19] From the exchanges between the Applicant and the Respondent, particularly on 1 June 2020, I am satisfied that the Applicant considered that on 1 June 2020 his employment had been terminated. He made this explicitly clear to the Respondent in an email of that date.

Reason for the delay

[20] The FW Act does not specify what reason for delay might tell in favour of granting an extension of time 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. 3

[21] The Applicant cited several matters as reasons for the delay in lodging the application. He says that he was attempting to negotiate his superannuation, he wanted to hear what the Respondent had to say (presumably on his superannuation and his claim for payment of wages he considered was owed to him) and that he was not aware of the Fair Work Commission processes or timelines.

[22] I do not consider that the explanations given by the Applicantindividually or together, to be an acceptable or reasonable explanation for the delay. The Applicant told the Respondent on 1 June 2020 that he intended to make an application for unfair dismissal. He then took no steps to determine how this should be done for no reason other than he was waiting to hear what the Respondent had to say. Even so, the Applicant engaged in no further correspondence with the Respondent beyond a short email of 10 June 2020. It is not clear how long he intended to wait.

[23] Further, it is well known that ignorance of the time limits imposed by the FW Act for making an application for unfair dismissal will not, of itself, present an exceptional circumstance such that an extension of time should be granted.

[24] The absence of an acceptable explanation for the delay in making the application weighs against a conclusion of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[25] The Applicant considered that his dismissal occurred on 1 June 2020 (or at least by that date) when he communicated this to the Respondent. I do note however that the Respondent maintains that it did not dismiss the Applicant.

[26] I consider that this matter is neutral in my consideration of exceptional circumstances.

Action taken to dispute the dismissal

[27] The Applicant had engaged in discussions with the Respondent in order to resolve what he saw to be critical matters – payment of his superannuation, payment of annual leave and whether he would be paid for the period between the offer of JobKeeper and the original date of stand down.

[28] I am satisfied that the Applicant had attempted to resolve the matters with the Respondent and, while this would generally count in his favour in considering if there were exceptional circumstances, that all occurred prior to the date the Applicant considered he had been unfairly dismissed and he had conveyed this to the Respondent. At best these discussions continued until 10 June – well within the 21 day time period for making an application.

[29] For this reason I consider this a neutral matter in my considerations.

Prejudice to the employer

[30] I cannot identify any prejudice that would accrue to the Respondent if an extension of time was to be granted. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. 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

[31] The FW Act requires me to take into account the merits of the application in considering whether to extend time. In this case there remains an outstanding issue as to whether the Applicant was, in fact, dismissed.

[32] The competing contentions of the parties in relation to the merits of the Application have not been substantially canvassed. I would note however that, if the Applicant had been dismissed, the Respondent was prepared for the Applicant to return to work and to put the Applicant onto JobKeeper payments from June 2020. The Applicant was not prepared to accept this unless he was back paid JobKeeper payments for the earlier months of April and May.

[33] I note that an outstanding issue of whether the Applicant had been dismissed is yet to be determined and this will inevitably weigh heavily on the merits.

[34] It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

[35] 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

[36] The test of exceptional circumstances in s.394(3) of the FW Act is a stringent one.

[37] Having considered each of the statutory criteria I am not satisfied that there are exceptional circumstances that support an extension of time. 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 FW Act.

[38] This is an unfortunate end to the matter. The Applicant was a valued employee of the Respondent. The Respondent acted on what it understood, rightly or wrongly, the Applicant’s intentions (to resign). When the misunderstanding was resolved the Respondent sought to find a resolution that would allow the Applicant to return to work when restrictions were lifted. It is unfortunate that this was not to be the case.

[39] Having found that exceptional circumstances do not exist an extension of time is not granted. The application for an unfair dismissal remedy is therefore dismissed. An order 4 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

R. Bruce on his own behalf.

M. Zeng for the Respondent.

Hearing details:

2020.
Melbourne by telephone:
August 4 2020.

Printed by authority of the Commonwealth Government Printer

<PR721765>

 1   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 2   Ibid.

 3   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901 at [39].

 4   PR721766.