Samuel Mudge v Light Application Pty Ltd

[2023] FWC 1356

[2023] FWC 1356

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Samuel Mudge
v

Light Application Pty Ltd

(U2023/3683)

DEPUTY PRESIDENT BEAUMONT PERTH, 9 JUNE 2023

Application for an unfair dismissal remedy

1. The issue and outcome

1. On 29 April 2023, Mr Samuel Mudge (the Applicant) applied for an unfair dismissal remedy having been purportedly dismissed by Light Application Pty Ltd (the Respondent) on 7 April 2023 – the day when he resigned. The Applicant lodged his unfair dismissal application with the Commission outside of the statutory time limit period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act).  The Respondent objected to the application on the basis that it had been filed outside of time and the Applicant had not been dismissed.  This decision deals with the out of time objection. 

1. Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect and the other, whether the Applicant was protected from unfair dismissal.

1. Unquestionably, the parties are in dispute over whether the Applicant was dismissed.  The Applicant clearly considers he was, notwithstanding he resigned from his position, and the Respondent disagrees.  However, the first issue requiring attention is whether the application has been validly made. 

1. The Act requires the application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) are taken into account.

1. In Herc v Hays Specialist Recruitment (Australia) Pty Ltd, the Full Bench of this Commission observed that the question of whether an application for an unfair dismissal remedy is made outside the statutory timeframe is not strictly a jurisdictional objection.[1] It is accepted that an unfair dismissal application made outside the time required in s 394(2) is not validly made unless and until a further period has been granted.[2]  The proper approach is to first consider whether an application is made within the required statutory period and if not, whether a further period should be granted, before contending with an argument that there has been no dismissal.[3]  This of course requires an assumption that an applicant is an employee for this purpose.[4] 

1. For the reasons that follow, I have found that the Applicant’s employment ended on 7 April 2023. It follows that the Applicant’s application was made one day outside of the statutory period. Having considered the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and I do not consider it fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 394(2). Accordingly, the application is dismissed. An Order[5] to this effect will be issued with this decision. 

1. Background

1. The broader context and events leading to the conclusion of the employment and the making of the unfair dismissal application are as follows.

1. The Applicant commenced working for the Respondent in or around January 2007.  When his employment came to an end, he held the position of Projects Estimation & Design Manager. 

1. According to the Respondent, the Applicant provided notification of his resignation on 22 March 2023 by emailing a letter of resignation (resignation letter) to Mr David Sparrow, Managing Director of the Respondent.[6]  This date accords with that set out in the Applicant’s resignation letter.  The Applicant’s resignation letter commenced and concluded with the following paragraphs:

It is with much disappointment that I am left with no choice but to resign from the position of Projects Estimation & Design Manager with Light Application. The significant discrimination, ongoing systematic bullying, and veiled threats of dismissal have taken a psychological and physical toll on my wellbeing…

With respect and appreciation of my close colleagues, and in the hope that this transition can be smoother for them, I am including a bit over 2 weeks of notice from today…[7]

1. The resignation letter had been preceded by email correspondence from Mr Sparrow to the Applicant on 9 March 2023.  That email correspondence expressed dismay at the situation, presumedly between the Applicant and the Respondent, noting that Mr Sparrow had considered he had always been happy to discuss the Applicant’s issues, but the Applicant had not asked for a meeting in the last two years.[8]  The correspondence further noted that given the Applicant’s correspondence to Mr Sparrow, the meeting at 2:00 PM on that day was presumedly cancelled and that since the end of last year, when the Applicant became upset and agitated, Mr Sparrow had intentionally been putting any and all interactions with the Applicant on this subject in writing.[9]

1. In the Applicant’s email notifying of his resignation, he wrote:

Hi David

As you know, I believe the majority of what you have written below is incorrect, be it your statement of events, quotes, or times; and have given you [and sometimes Matt] explanations of this and my circumstances many times in the past.
So I won’t double the size of this email stream with my responses and clarifications, instead please find attached my Letter of Resignation as my response for now.

PS. Following our “Meeting” that you called at the last hour of the last day before we broke up for Christmas, where you let slip that it would be ‘good’ if I resigned.  And when we next met up and I explained to you that the statement that you made [and to realise that you’d been doing all of this because you wanted me to resign] had ruined my entire Christmas break…and you just shrugged your shoulders – was the icing on the cake…[10]

1. Mr James-Wallace, Director of the Respondent, gave evidence that on 23 March 2023, after the receipt of the resignation letter, Mr Sparrow emailed the Applicant with an invitation to attend a meeting to resolve the Applicant’s concerns and find a way forward.[11]  Mr James-Wallace said that the Applicant replied on 27 March 2023 that he had contacted a HR/workplace team.[12]  On 28 March 2023, Mr Sparrow emailed the Applicant asking whether he was prepared to continue his employment and not resign.[13]  The Applicant did not respond to the email.[14]  On 4 April 2023, Mr Sparrow emailed the Applicant asking for a response.[15]  On 5 April 2023, the Applicant emailed Mr Sparrow and Mr James-Wallace stating, ‘I stand by my resignation’.[16]

1. On 6 April 2023, Mr Sparrow emailed the Applicant, copying in Mr James-Wallace, thanking him for his confirmation that he did not want to meet with the gentlemen and acknowledging that the Applicant wanted his employment to end as of Friday, 7 April 2023.[17]

1. The Respondent notes that it was the Applicant’s request for his notice period to end on 7 April 2023.  The Applicant’s final day at work was Thursday, 6 April 2023, as 7 April 2023 was Good Friday.[18]  The Applicant was not required to work on the Good Friday but was paid for the day.[19]

1. The Applicant filed his unfair dismissal application on Saturday, 29 April 2023, 22 days after the dismissal took effect. 

1. The Applicant provided two medical certificates for the periods 10 April 2023 to 26 May 2023 (dated 28 April 2023) (First Medical Certificate) and 23 May 2023 to 20 June 2023.  The First Medical Certificate cited that the Applicant was unfit for Work/School/University for the period of the abovementioned dates.  It further stated that due to the Applicant’s medical condition it ‘has been very difficult for him to lodge an application with Fair Work and to process the volume of information.  Please allow him further time to do this.’

1. Mr James-Wallace said that between 14 and 17 April 2023, he communicated with the Applicant by text message regarding the Applicant collecting the remainder of his personal electronic files.[20]  Mr James-Wallace said he further corresponded with the Applicant by text message on 27 April 2023 about work drinks the next day.[21]

1. That next day, Friday, 28 April 2023, Mr James-Wallace arrived at The Lookout Bar in Scarborough for the Applicant’s farewell drinks.[22]  Mr James-Wallace stated that he saw the Applicant arrive at approximately 5:00 PM and went up to greet him.[23]  When Mr James-Wallace went to depart the venue at 7:00 PM, the Applicant was, according to Mr James-Wallace, still there. 

1. Extension of time

1. For the Applicant’s unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a)   the reason for the delay; and

(b)   whether the person first became aware of the dismissal after it had taken effect; and

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

1. Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[24]  It is accepted that 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, can be considered exceptional.[25]

1. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd clarification was provided by the Full Bench regarding the assessment of exceptional circumstances:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[26]

3.1      Reason for the delay

1. The Applicant’s last day of employment was 7 April 2023 and his unfair dismissal application was made on 29 April 2023, one day late. 

1. In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[27]  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.[28]

1. The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[29]  However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[30]

1. In respect of the delay, the Applicant explained that he thought he had submitted his application on time but correspondence from the Commission alerted him to it having been one day late.  The Applicant further explained that he had misunderstood how the statutory period was calculated.  However, in Nulty, the Full Bench considered the statutory time limit in the context of the discretion to extend time for making such applications on the existence of ‘exceptional circumstances’.  The Full Bench said that:

In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.[31]

1. While the Applicant may have misunderstood the reckoning of the 21 day period, it is accepted that such misunderstanding does not, in the absence of other circumstances, establish that there are circumstances which would lead to a finding of exceptional circumstances.[32]  

1. The Applicant’s submissions referred to medical conditions he was afflicted with and that he was seeking medical assistance to navigate through such health issues. 

1. First, it is observed that the majority of the Full Bench in Shaw v Australia and New Zealand Banking Group Ltd[33] expressed that stress, shock and confusion, in and of themselves, are not exceptional.  It is said that the loss of employment is a serious event in a person’s life, and such effects are unfortunately not unusual.[34] 

1. However, as noted, the Applicant provided a First Medical Certificate which covered the period 10 April until 26 May 2023.  The First Medical Certificate was dated 28 April 2023, the same date that the Applicant’s application was due to be filed – if it were to be filed within time.  The First Medical Certificate was pre-dated to 10 April 2023, therefore effectively covering the statutory period in which the Applicant’s unfair dismissal application fell due.  The First Medical Certificate adjures that the Applicant be provided further time in which to lodge his application as his medical condition had made it very difficult for him to lodge an application.  However, it is apparent, given the date of the medical certificate, that the general practitioner who made this assessment premised it upon the Applicant’s reporting.  The First Medical Certificate does not provide a contemporaneous assessment of the Applicant’s health from 10 April 2023 until 27 April 2023. 

1. Second, it is observed that in the absence of clear medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[35]

1. The evidence before me shows that while the Applicant was afflicted with a medical condition that precluded him from filing his unfair dismissal application in accordance with the statutory timeframe, he retained competency to liaise with his former employer to coordinate the retrieval of electronic files, and on the day prior to his unfair dismissal application falling due for filing, he communicated with Mr James-Wallace about meeting at The Lookout Bar.  Mr James-Wallace’s evidence was that the Applicant attended the farewell drinks that had been arranged for him.[36] 

1. Whilst accepting that the Applicant has provided the First Medical Certificate and it certifies him as unfit for ‘Work/School/University’ and that it has been difficult for him to lodge an application with the Commission, I am not persuaded that the Applicant’s medical condition contributed to the delay, for the abovementioned reasons.  The other reason relied upon by the Applicant is unconvincing and in my view the reasons when considered together are insufficient to explain part of, or the entirety of, the one-day delay.  These findings in culmination weigh against a finding of exceptional circumstances.  In arriving at my finding, I have considered the delay as the period beyond the 21-day period.

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

1. On 22 March 2023, the Applicant became aware that his employment would come to an end on 7 April 2023.  This was the date on which the Applicant informed the Respondent he was resigning.  It was therefore not the case that the Applicant was taken by surprise by the end of his employment.  As such, he had time in which to consider his options with respect to the recourse he could pursue, given he had already expressed in his resignation letter that his circumstances were such that he had no choice but to resign.  However, on balance, I consider this to be a neutral factor in respect of a finding of exceptional circumstances. 

3.3      Action taken by the person to dispute the dismissal

1. Whilst the Applicant speaks of the steps he took to dispute the ‘dismissal’ prior to making his unfair dismissal application, the circumstances he refers to are his questioning of ‘prejudicial restrictions’ and a particular discussion with Mr Sparrow in early 2023 about Mr Sparrow engaging in conduct because he wanted the Applicant to resign.  Such events occurred approximately four months prior to the Applicant’s resignation.  On balance, the evidence does not favour a finding that the Applicant took action to dispute his dismissal. 

3.4      Prejudice to the employer

1. It is not apparent that the Respondent has asserted any prejudice.  It is noted that a ‘lack of prejudice is a positive factor but not a major factor’ in considering exceptional circumstances.[37]  I consider that the factor of ‘prejudice’ is a neutral consideration in all the circumstances of this case. 

3.5      Merits of the application

1. In Telstra-Network Technology Group v Kornicki,[38] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[39]

1. Evidence on the merits is rarely called at an extension of time hearing.  As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[40]  The merits of the application more generally would need to be scrutinised.  This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. 

1. The Respondent submitted that the application lacked merit based on the documents filed by the Applicant, noting that those same documents evinced the Applicant appeared to have resigned and that the Applicant had several clear choices available to him other than to resign. 

1. However, whilst the Applicant has not explained with particularity how his resignation was either a result of the conduct of the Respondent or that he was placed in a position where he had no option but to resign, it is not expected at this stage that the merits of the application or a jurisdictional objection to the same would be fully explored.  As such, the merits in this case are a neutral factor.

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

1. The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[41]

1. Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party, and as such, I consider it a neutral consideration. 

1. Conclusion

1. The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

1. The Applicant has not provided a satisfactory explanation for the delay in making his application.  The remaining matters I need to consider are otherwise neutral in this respect.  In these circumstances, having considered all submissions and evidence, I am not convinced there are exceptional circumstances such that an extension of time should be granted.  Further, having considered each of the statutory criteria and all the circumstances of the matter, I am not satisfied that it is fair and equitable to grant the extension. 

1. The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. As noted, the application for unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Matter determined on the papers.

[1] [2022] FWCFB 234, [15].

[2] Ibid.

[3] Ibid [17].

[4] Ibid.

[5] PR762932. 

[6] Witness Statement of Matthew James-Wallace, [4], annexure MJ-1 (James-Wallace Statement).

[7] Ibid [4], annexure MJ-2. 

[8] Ibid annexure MJ-1. 

[9] Ibid.

[10] Ibid.

[11] Ibid [5], annexure MJ-3. 

[12] Ibid. 

[13] Ibid. 

[14] Ibid. 

[15] Ibid. 

[16] Ibid. 

[17] Ibid annexure MJ-3. 

[18] Respondent’s Submissions Extension of Time, [2]. 

[19] Ibid. 

[20] James-Wallace Statement (n 6) [8], annexure MJ-4. 

[21] Ibid [9], annexure MJ-5. 

[22] Ibid [10].

[23] Ibid.

[24] (2011) 203 IR 1, 5 [13] (Nulty).

[25] Ibid 6 [13].

[26] (2018) 273 IR 156, 165 [38] (emphasis in original).

[27] Ibid 165 [39].

[28] Ibid.

[29] Long v Keolis Downer (2018) 279 IR 361, 371 [40].

[30] Shaw v Australia and New Zealand Banking Group Ltd (2015) 246 IR 362, 366 [12] (Shaw).

[31] Nulty (n 24) 6 [14].

[32] Rose v BMD Constructions Pty Ltd[2011] FWA 673, [11].

[33] Shaw (n 30).

[34] Ibid 366 [15].

[35] See Ballarat Truck Centre Pty Ltd v Kerr (2011) 212 IR 277.

[36] James-Wallace Statement (n 6) [10].

[37] Caire v Imscan Technologies[2013] FWC 3154, [16].

[38] (1997) 140 IR 1.

[39] Ibid 11.

[40] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].

[41] [2015] FWC 8885, [29].

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