Shean Vanderwert v Advantage Feeders (Australia) Pty Ltd

[2022] FWC 3360

[2022] FWC 3360

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shean Vanderwert
v

Advantage Feeders (Australia) Pty Ltd

(U2022/11432)

DEPUTY PRESIDENT COLMAN MELBOURNE, 22 DECEMBER 2022

Unfair dismissal application – extension of time – representative error – exceptional circumstances

1. Mr Shean Vanderwert has made an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act). From April 2021 until September 2022 Mr Vanderwert was employed by Advantage Feeders (Australia) Pty Ltd (respondent) as a sales manager. On 30 September 2022, Mr Vanderwert told his manager that he resigned. Mr Vanderwert contends that he was forced to resign, and that his constructive dismissal was unfair. The respondent contends that Mr Vanderwert resigned of his own free will and that there was no dismissal at all.

1. Section 394(2) of the Act provides that an unfair dismissal application 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). If there was a dismissal in the present matter, it occurred on 30 September 2022. The period of 21 days ended on 21 October 2022. Mr Vanderwert’s application was lodged on 1 December 2022, some six weeks out of time. In order for Mr Vanderwert’s application to proceed, he requires the Commission to grant a further period of time within which to bring his application.

1. The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are ‘exceptional circumstances.’ I adopt the approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer, including prejudice caused by the delay; the merits of the application; and fairness as between the person and other persons in a similar position. I will consider each of these matters as they pertain to the present application.

1. Mr Vanderwert submitted that the reason for the delay in lodging his application (s 394(3)(a)) was error on the part of his representative, Unfair Dismissals Australia Pty Ltd (UDA). He said that on 30 September 2022, he telephoned Mr Chris Peiris of UDA about the possibility of retaining UDA’s services to represent him in an unfair dismissal application. UDA then sent him some materials. On 19 October 2022, Mr Vanderwert sent an email to UDA stating that he wished to proceed and attaching proof of payment of the fee. On 20 October 2022, Mr Peiris called Mr Vanderwert and obtained information to complete an unfair dismissal application. Mr Peiris said that he would lodge the application that day. On 1 December 2022, Mr Vanderwert contacted UDA inquiring about the status of his application and was told that there had been an error. The application was lodged later the same day. UDA filed a written submission confirming Mr Vanderwert’s account of his dealings with UDA, and stating that Mr Vanderwert was completely blameless for the delay in the lodgement of his application. UDA did not offer any explanation of its error. It acknowledged that Mr Vanderwert provided UDA with clear instructions to lodge the application and that it failed to do so.

1. I consider that Mr Vanderwert has an acceptable reason for the delay in the lodgement of his unfair dismissal claim. He instructed a paid agent, UDA, to represent him. He was told that UDA would lodge his application. He reasonably relied on UDA to do so. UDA has not provided an acceptable explanation for its failure to carry out Mr Vanderwert’s instructions, however this is not relevant to the question of whether Mr Vanderwert had a reasonable explanation for the delay. It was UDA’s failing that caused the delay, not the conduct of Mr Vanderwert. This was representative error. The reason for the delay weighs in favour of an extension of time.

1. Mr Vanderwert does not contend that he became aware of the alleged dismissal after it had taken effect (s 394(3)(b)). Other than filing his unfair dismissal application, there is no indication that he took any action to dispute the alleged dismissal (s 394(3)(c)). To the extent that there is any prejudice to the employer in this case (s 394(3)(d)), it is minimal. As to the consideration in s 394(3)(f), I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Vanderwert and other persons in a similar position. These four matters are neutral considerations.

1. In considering whether there are exceptional circumstances, the Commission must take into account the merits of the application (s 394(3)(e)). Mr Vanderwert stated in his F2 application that he was forced to resign from his employment with the respondent because he had been subjected to various forms of mistreatment. He said that he was counselled about his performance in respect of insignificant issues, as well as an oversight that was really the fault of his manager. He said that he had been underpaid and was not being adequately remunerated for the large amount of work he performed. He also stated that he had been harassed, intimidated and not treated with respect, but no details of these matters were provided. Mr Vanderwert stated that on 30 September 2022 he called a meeting with his manager to seek clarification on underpayments as well as ‘issues with the manager’, but the company provided no answers to his concerns, which made him feel stressed. Mr Vanderwert then told his manager that he resigned. Mr Vanderwert said at the hearing that his main concern was the fact that he was being paid significantly less than another employee who was doing essentially the same job.

1. The respondent contended that Mr Vanderwert resigned of his own accord. Ms Sarah Finnigan, the respondent’s business and operations manager, said that on 30 September 2022 Mr Vanderwert told her that he wanted the company to make various changes and that he was considering resigning if his frustrations were not addressed. Ms Finnigan then consulted with the general manager, who declined to make the changes sought by Mr Vanderwert. A further meeting with Mr Vanderwert was held later that day at which he was told of the general manager’s decision. Mr Vanderwert then said that he resigned, and gave two weeks’ notice. Shortly afterwards Mr Vanderwert handed Ms Finnigan a letter which stated: ‘As of the 30/09/2022 I hereby resign my position and give two weeks’ notice. Thank you for the opportunity. I wish all in business well.’ The respondent submitted that Mr Vanderwert had not been forced to resign and was therefore not dismissed, and that his claim had no merit.

1. An application to extend time is in the nature of an interlocutory application (see s 396). The merits of this application will depend on factual findings, including whether Mr Vanderwert was forced to resign. However, it appears to me that the merits of Mr Vanderwert’s case are weak. Disagreements about pay and performance are not ordinarily circumstances of compulsion that would require an employee to resign. Mr Vanderwert has not pointed to any reason why he could not have contested these matters while remaining employed. He has provided no details of the alleged harassment and intimidation. The resignation letter did not state that Mr Vanderwert felt compelled to resign. As it stands, it is difficult to see how the Commission could conclude that Mr Vanderwert was forced to resign by the conduct of the company. Nevertheless, it is possible that Mr Vanderwert may be able to develop his case. If he does not, his prospects of success would appear to be slim.

Conclusion

1. There was a reasonable explanation for the delay in lodgment of Mr Vanderwert’s application. UDA failed to file his application on time. This was representative error, and an exceptional circumstance. The discretion to extend time under s 394(3) is enlivened, and I consider that it is appropriate to exercise it. Although the merits of the application appear to be weak, Mr Vanderwert should not be deprived of the opportunity to argue his case because of UDA’s error. The application will shortly be programmed for hearing.

DEPUTY PRESIDENT

Appearances:

S. Vanderwert for himself
S. Finnigan for the respondent

Hearing details:

2022
Melbourne
22 December 2022

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