Stephen John Henry v Ive Employment (Australia) Pty Ltd

[2024] FWC 2412

[2024] FWC 2412

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Stephen John Henry
v

Ive Employment (Australia) Pty Ltd

(U2024/8582)

COMMISSIONER CRAWFORD SYDNEY, 5 SEPTEMBER 2024

Unfair dismissal application filed out of time – no exceptional circumstances – application dismissed.

Background

1. Stephen Henry (Mr Henry) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he has been unfairly dismissed by Ive Employment (Australia) Pty Ltd (Ive Employment).

1. Ive Employment is part of a commercial printing, media, and related distribution business. Mr Henry commenced employment as an Account Manager in Ive Employment’s Integrated Marketing team on 26 March 2013. Mr Henry’s employment was terminated by Ive Employment on 26 June 2024 on the basis that his position was redundant.     

1. Mr Henry filed a Form F2 unfair dismissal application on 23 July 2024. Mr Henry’s application seeks a remedy of compensation for being grossly underpaid during his employment.

1. On 31 July 2024, Ive Employment filed a Form F3 employer response to the unfair dismissal application. The Form F3 raised a jurisdictional objection on the basis that Mr Henry’s application was not filed within 21 days of the dismissal taking effect on 26 June 2024 and argued that an extension of time should not be granted. Ive Employment also raised a jurisdictional objection on the basis that Mr Henry’s dismissal was a case of genuine redundancy.

1. I issued directions for the filing of material and listed a determinative conference/hearing regarding whether an extension of time should be granted for 28 August 2024 via video.

1. Mr Henry represented himself with support from his wife, Laurel Henry, at the determinative conference/hearing on 28 August 2024. Sandy Hyslop (General Manager – People Development) and Shay Jones (Senior HR Business Partner) represented Ive Employment. 

1. At the start of the proceeding, I indicated my provisional view was that the proceeding should be conducted as a determinative conference rather than a hearing given neither party was represented. The parties agreed to this course of action. I decided to conduct a determinative conference.

Material filed

Mr Henry

1. In addition to his Form F2 unfair dismissal application, Mr Henry relied on a submission filed 16 August 2024 which contains evidence about Mr Henry’s dismissal and why he missed the 21-day filing deadline. The submission had the following documents attached:

·   A timeline of events leading up to Mr Henry’s dismissal, which commences on 28 May 2024 with Mr Henry requesting a pay rise in an email. The timeline details actions Mr Henry took after being dismissed on 26 June 2024. The actions included contacting the Fair Work Ombudsman (FWO) and the Commission to discuss whether he had been underpaid and taking steps to find other work.

·   A copy of an email sent by Mr Henry to Cindy Salem on 29 May 2024 where Mr Henry requests a review of his remuneration and explains why he is making the request with reference to market rates and cost of living pressures.

·   A response email from Ms Salem to Mr Henry dated 29 May 2024. Ms Salem indicates she will review Mr Henry’s request and then provide a response.

·   A letter from Michael Bettridge to Mr Henry dated 24 June 2024. The letter states a review of resourcing requirements has been undertaken by Ive Employment due to volume decline and cost structure challenges. The letter states the review has concluded Mr Henry’s position as Account Manager will no longer be required. The letter states redeployment opportunities are being explored and requests feedback from Mr Henry by 3pm on 25 June 2024. The letter states a final decision is likely to be made on 26 June 2024.

·   An email from Mr Henry to Mr Bettridge dated 24 June 2024. Mr Henry states in the email that “after careful consideration I have come to the decision to accept the redundancy.” Mr Henry indicates he will take up the offer of outplacement services, indicates he will attend the office the next day to pick up his belongings, and acknowledges his time with Ive Employment.

·   A screenshot of text messages between Mr Henry and Ms Salem on 24 and 25 June 2024 regarding a meeting to discuss financial plans for the retail hub for the 2024/25 financial year and then later, Mr Henry’s exit from the business. Mr Henry argues that on 24 June 2024 he was called into the office on a work-from-home day and that the reason provided to him for this direction was misleading.

·   A screenshot showing Mr Henry and Ms Salem had a phone call for nine minutes at 8:42am on 25 June 2024.

·   An email from Shay Jones (Senior HR Business Partner) to Mr Henry dated 25 June 2024. Ms Jones’ email responds to Mr Henry’s email indicating he will accept the redundancy. Ms Jones acknowledges the news may have been a shock for Mr Henry and identifies the process that will be followed in relation to redeployment and potentially finalising the redundancy.

·   An email from Ms Jones to Mr Henry dated 26 June 2024. The email attaches Mr Henry’s termination letter and provides information about outplacement services.

·   A copy of Mr Henry’s termination letter dated 26 June 2024.

·   An email from Mr Henry to Kim Jones dated 30 June 2024. Mr Henry requests information about which award covered his employment with Ive Employment. Kim Jones replies on 1 July 2024 that Mr Henry was employed under a salaried contract and not under a specific award.

·   A copy of Ive Group job vacancy advertisements on Seek as of 14 August 2024.

1. I marked Mr Henry’s submission and the attached documents Exhibit A1. Mr Henry was not cross-examined during the determinative conference on 28 August 2024.

1. Mr Henry and Ms Henry made oral closing submissions at the end of the determinative conference.

Ive Employment

1. In addition to its Form F3 response, Ive Employment relied on an outline of submissions filed 23 August 2024 which explained its grounds of opposition to an extension of time being granted to Mr Henry.

1. Ive Employment attached several documents to its outline of submissions, most of which were also filed by Mr Henry and marked as evidence. The additional documents filed by Ive Employment are:

·   Mr Henry’s contract of employment dated 8 April 2013. I marked the contract Exhibit R1.

·   A redacted spreadsheet which shows that 14 employees within the Ive Group were made redundant between 19 and 28 June 2024. I marked the spreadsheet Exhibit R2.

1. Mr Hyslop also made oral submissions at the end of the determinative conference.

Extension of time

1. Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

(a)   within 21 days after the dismissal took effect; or

(b)   within such further period as the Commission allows.

Was the Application made within 21 days after the dismissal took effect?

1. As the Full Bench has stated in relation to a general protections application, but which is equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

1. Given the dismissal date of 26 June 2023, the 21-day filing period ended on 17 July 2024. Mr Henry’s application was filed 6 days late on 23 July 2024. As a result, Mr Henry needs to rely on the Commission allowing a further period for the filing of the application pursuant to s.394(2)(b) of the FW Act.

Was the application made within such further period as the Commission allows?

1. Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a)   the reason for the delay; and

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

(c)   any action taken by Mr Henry 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 Mr Henry and other persons in a similar position.

1. Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

Consideration

Reason for the delay

1. For the application to have been made within 21 days after the dismissal took effect, it needed to have been filed with the Commission by midnight on 17 July 2024. The delay is the period commencing immediately after that time until 23 July 2024, although circumstances arising prior to the delay may be relevant when considering the reason for the delay.[3]

1. The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]

1. Mr Henry does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Henry has not provided any reason for any part of the delay.[5]

1. The reasons identified by Mr Henry for the delay in filing were the following:

1.Distress suffered following his unexpected dismissal.

2.Focusing on seeking assistance from an outplacement provider and applying for jobs after his dismissal.

3.A health scare for his wife which required radiology tests on 16 July 2024 and then a consultation with a specialist on 22 July 2024.

4.Not being aware of the 21-day deadline. 

1. In relation to the first reason identified by Mr Henry, the stress or distress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[6] I have not been provided with any medical evidence regarding Mr Henry’s condition. I do not consider the distress Mr Henry suffered after being made redundant is a satisfactory explanation for the delay.

1. In relation to the second reason identified by Mr Henry, I accept that Mr Henry was placed in a difficult situation after being made redundant. However, I do not consider I can find Mr Henry having to urgently look for work after being dismissed is an exceptional circumstance. That is an unfortunate reality that most people who are dismissed will have to deal with. I also note Mr Henry was made redundant and received redundancy payments to assist him while he was finding other employment.

1. In relation to the third reason identified by Mr Henry, I accept the serious health scare for Mr Henry’s wife would have been extremely concerning for him and his family, particularly given Ms Henry’s mother had passed away from the same suspected condition in recent years. I agree with Mr Henry’s submission that this circumstance is out of the ordinary. However, it is established that evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[7] I accept the serious health scare for Ms Henry would have created significant stress and worry for Mr Henry. However, I do not accept that those emotions would have prevented or seriously impeded Mr Henry from being able to file an unfair dismissal application.

1. In relation to the fourth reason, it is well established that ignorance is not a satisfactory explanation for filing an application late.[8] Mr Henry accepted this point during the determinative conference. 

1. In conclusion, I am not satisfied Mr Henry has provided sufficient evidence to link the various reasons identified above with an inability to arrange for the filing of an unfair dismissal application until 23 July 2024. Although these various factors undoubtedly would have caused significant personal difficulties for Mr Henry, there is not sufficient evidence to conclude that the reasons viewed individually or collectively prevented Mr Henry from being able to arrange for the filing of an unfair dismissal application until 23 July 2024.

1. I do not consider Mr Henry has a satisfactory explanation for the delay in filing his unfair dismissal application. I consider this factor weighs against granting an extension of time. 

Did Mr Henry first become aware of the dismissal after it had taken effect?

1. Mr Henry accepted he was aware that his employment had ended on 26 June 2024. I consider this to be a neutral factor.

What action was taken by Mr Henry to dispute the dismissal?

1. Mr Henry provided evidence that the contacted the FWO and the Commission after his dismissal. However, it appears Mr Henry took these actions in relation to underpayment complaints rather than his dismissal. I do not consider these were actions taken by Mr Henry to dispute his dismissal. I consider this to be a neutral factor.

What is the prejudice to the employer (including prejudice caused by the delay)?

1. Ive Employment submitted it will be prejudiced if it has to continue dealing with Mr Henry’s unfair dismissal application. I do not consider Ive Employment has established it will suffer any specific prejudice if an extension is granted. I consider prejudice to be a neutral factor.

What are the merits of the application?

1. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”, or in this case, s.394(3)(e).[9]

1. The evidence provided by Ive Employment indicates Mr Henry was one of several employees within the Ive Group that were made redundant in late June 2024 following a review of staffing requirements. Mr Henry also indicated to Ive Employment that he wished to accept the redundancy in an email on 24 June 2024. That email will make it difficult for Mr Henry to establish it would have been reasonable for him to be redeployed. These factors are likely to make it difficult for Mr Henry to establish his dismissal was not a case of genuine redundancy.

1. However, it is unusual that Mr Henry’s request for a pay increase on 29 May 2024 went unanswered by Ive Employment. The next significant news Mr Henry received was being presented with a letter on 24 June 2024 which indicated Mr Henry’s position was redundant and that it was likely his employment would end. I can understand why that factual scenario has upset Mr Henry and the situation clearly could have been handled better by Ive Employment. No explanation was provided for why Mr Henry did not receive any response to his request for a pay rise. That request also does not appear unreasonable given his role and length of service. 

1. Ultimately, whether Mr Henry’s dismissal was a case of genuine redundancy is likely to turn on whether Ive Employment can prove with evidence that Mr Henry’s position was no longer required due to a volume decline and challenges with cost structures. It is not possible to make an informed assessment on that issue at this stage.  

1. I consider the merits of Mr Henry’s application to be a neutral factor.

Fairness as between Mr Henry and other persons in a similar position

1. As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[10] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[11]

1. Neither party advanced a persuasive argument regarding this factor. I consider this to be a neutral factor.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

1. 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.[12] 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.[13] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant seeking an extension.[14]

1. Having regard to all the matters identified in s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

1. I have not found that any of the relevant factors weigh in favour of a finding of exceptional circumstances and the granting of an extension of time. I have found that Mr Henry does not have a satisfactory explanation for the delay in filing his application and that this weighs against a finding of exceptional circumstances and the granting of an extension of time. I do not consider it is appropriate to grant an extension of time given these findings.

1. Mr Henry presented as a genuine, honest, and articulate person during the determinative conference. I have sympathy for what has happened to him. However, the FW Act requires unfair dismissal applications to be filed within 21 days and it is a “high hurdle” for an extension to be granted. I am not satisfied that Mr Henry has cleared the high hurdle in this case.

Conclusion

1. I decline to grant an extension of time for the filing of the application.

1. The application is dismissed.

COMMISSIONER

Appearances

Mr Henry representing himself with support from Ms Henry.

Mr Hyslop and Ms Jones for Ive Employment. 

Determinative conference:

2024.

Sydney (by video via Microsoft Teams).

28 August.

[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[5] Ibid [40].

[6] Becke v Edenvale Manor Aged Care[2014] FWCFB 6809, [9].

[7] Ellikuttige v Moonee Valley Racing Club Inc[2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [22].

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14].

[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[10] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [41].

[11] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].

[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[13] See ibid.

[14] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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