Stephen Maxwell v Realestate.com.au Pty Ltd

[2020] FWC 807

[2020] FWC 807

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Stephen Maxwell
v
Realestate.com.au Pty Ltd
(C2019/7279)

DEPUTY PRESIDENT CROSS SYDNEY, 14 FEBRUARY 2020

Application to deal with contraventions involving dismissal - jurisdictional objection - consideration of extension of time - application dismissed.

[1] On 27 November 2019 Mr Stephen Maxwell (the Applicant) lodged a Form F8 general protections application (the Application) involving dismissal pursuant to s.365 of the Fair Work Act 2009 Cth (the Act) with the Fair Work Commission (the Commission). The Application alleges the Applicant’s employment with Realestate.com.au Pty Ltd (the Respondent) was terminated on 16 September 2019, and that the termination took effect on 31 October 2019.

[2] General protections applications involving dismissal must be made within 21 days after a dismissal takes effect or in such further time that the Commission allows. As the alleged dismissal took effect on 31 October 2019, the Application should have been lodged by no later than 21 November 2019. The Application was therefore six days late.

[3] Section 366 of the Act determines the permissible time limit for a general protections application, and provides:

“366 Time for application

(1) An application under section 365 must be made:

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

(b) within such further period as the FWC allows under subsection (2).”

[4] As the Application was lodged outside the 21 day timeframe prescribed by s.366(a), I must satisfy myself that a “further period” should be allowed. Section 366(2) of the Act determines under what circumstances the Commission may allow a further period. Section 366(2) provides:

“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[5] On 19 December 2019, I convened a directions hearing by telephone to outline how the Commission would determine whether the Applicant would be granted a further period to make the Application. The parties agreed to a timetable for filing their Outlines of Submission, any witness statements and other documentary material on which they intended to rely. The parties also agreed the Application would be determined upon the materials filed.

[6] On 19 December 2019 I issued written Directions as follows:

“1. The Applicant (Stephen Maxwell) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions addressing his out of time application, together with any witness statements and other documentary material the Applicant intends to rely on in support of his application in this matter by no later than 4.00pm on 16 January 2020.

2. The Respondent (Realestate.com.au Pty Ltd) are directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, together with any witness statements and other documentary material the Respondent intend to rely on in opposition to the application in this matter by no later than 4.00pm on 6 February 2020.

3. The Applicant (Stephen Maxwell) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions in reply, together with any witness statements and other documentary material in reply to the Respondent’s materials by no later than 4.00pm on 13 February 2020.

4. The Application will thereafter be determined on the materials filed by the parties, unless the Application is made and granted for the hearing of evidence.”

[7] In the directions hearing, I guided both the Applicant and the Respondent to the five factors that must be taken into account pursuant to paragraphs (a) to (e) of subsection 366(2) of the Act as outlined in [4] above.

The Applicant’s submissions

[8] On 12 January 2020, the Applicant filed his Submission (the Applicant’s Submission). The totality of the Applicant’s Submission was as follows:

“Failure to pay outstanding commissions

1. On 13 November 2019, the Applicant sent an email to Respondent requesting his final pay and commission to be paid following more than 7 days since final day of employment

2. On 15 November 2019, the Respondent advised that the Applicant wouldn’t be paid any commission for failure to meet eligibility requirements more specifically completing more than 120 appointments pro rata (see attachment A)

3. The Applicant requested the Commissions Document on 19 November from the Respondent as previously, he had never sighted nor agreed to any specific KPI regarding appointments. The response raised concern for the Applicant that given the action already taken by the Respondent, he would be further financially disadvantaged due to their actions.

4. The Respondent didn’t provide a response to the Applicant until 27 November 2019 (see Attachment B and Attachment C). The context of the response highlighted to the Applicant that the Respondent had no intention of paying the outstanding commissions amount.

a. The Applicant also notes that at no time had he been provided with a copy of Attachment C from the respondent prior to his dismissal

b. The Applicant also notes that he was provided with an email from the Respondent stating that he had to achieve KPIs in order to be eligible for commission payments however, it was not specified what those KPIs were for the quarter

5. The Applicant was concerned that lodging an application with the Fair Work prior to this time would impact his ability to obtain any of the outstanding monies owed given the actions already undertaken by the Respondent that ultimately led to his dismissal.

Failure to Respond to Letter

1. On 14 November 2019, the Applicant sent a without prejudice letter to the Respondent in an attempt to settle the matter without needing to lodge an application with Fair Work given the additional communications taking place in regard to outstanding commissions.

a. The Applicant provided the Respondent until 21 November to acknowledge or respond to the letter.

b. The Respondent did not provide a response of any form to the Applicant

Out of time Application

1. The Applicant made several attempts from the date of dismissal to resolve a number of the concerns that were a result of the actions of the Respondent

2. The Applicant was concerned lodging an application with Fair Work prior to resolving his grievances (particularly the outstanding commission) would further disadvantage him financially and cause him to be subject to adverse action for exercising a workplace right

3. The Applicant notes, this is one of the breaches alleged in the dismissal and is consistent with the conduct of the Respondent and a key factor in the delayed application

4. Given the diminished prospects of obtaining the outstanding commissions owing and the Respondent failing to acknowledge or respond to the without prejudice letter sent on 14 November 2019, the Applicant felt that he had no other option but to lodge the application with the Fair Work out of the required 21 days.

5. The Applicant has provided significant supporting evidence of the actions taken by the Respondent that led to his dismissal and believe the application holds merit to highlight the breach of the Fair Work Act as outlined in the original application

6. The Applicant’s representative was travelling interstate from 20 November to 24 November 2019 and impacted the delayed application.”

The Respondent’s submissions

[8] On 6 February 2020, the Respondent filed its submission (the Respondent’s Submission). The totality of the Respondent’s Submission was as follows:

“Background

1. On 16 September 2019, the Applicant tendered his resignation in writing and confirmed verbally in a call with the Applicant’s manager, Grant Turner, in the afternoon of the same day that his decision to resign was final.

2. At the request of the Applicant, the Applicant served a 6-week notice period (beyond the Applicant’s contractual 4-week notice period). This 6-week notice period, and accordingly the Applicant’s employment with the Respondent, ended on 31 October 2019.

3. To comply with the timelines in the Fair Work Act, any application should have been made by 21 November 2019.

4. On 27 November 2019, the Applicant lodged a claim with the Commission.

5. The Applicant did not provide any justification for the delay in his initiating application Form F8.

Applicant’s letter demanding payment

6. On 14 November 2019, the Applicant sent a letter to the Respondent demanding payment from the Respondent by 21 November 2019 (14 November Letter). A copy of this letter is attached as Attachment 1.

7. The Applicant stated in the 14 November Letter that should the Respondent fail to comply with his demands by 21 November 2019 (which coincides with the date by which the Applicant was required to make an application), he intended to file an application with the Commission.

8. The Respondent did not pay the amount demanded under the 14 November Letter.

9. The Applicant did not lodge his application on 21 November 2019 and within the 21-day timeframe.

10. The 14 November Letter and the Applicant’s Form F8 are in substance the same, and the Applicant could have made his application on time.

11. Nothing in the 14 November Letter nor the Respondent’s lack of response to the 14 November Letter prevented the Applicant from lodging his application with the Commission within the 21-day timeframe.

Commission payments

12. The payment or otherwise of Commission payments is relevant neither to the Applicant’s failure to lodge his Form F8 on time, nor to whether he was unlawfully terminated.

13. The Respondent did not expressly or impliedly suggest to the Applicant that the outcome of the commission payments discussion would differ depending on whether the Applicant lodged a claim with the Commission.

14. The Respondent denies the Applicant’s contention that the lodgement of the claim with the Commission would have jeopardised the Applicant’s ability to recover any commission payments.

15. The case of Smith v Signature Security Group[2010] FWA 7803 indicates that having a separate pending claim, is not deemed an exceptional circumstance when lodging a claim to the FWC.

Merits of the claim

16. The Applicant has not provided sufficient evidence to establish that his resignation was in fact a constructive dismissal. The Applicant’s claim should not be considered by the Commission because an ending of employment by way of voluntary resignation cannot form the grounds for an unfair dismissal claim.

17. Previous cases such as Ashton v Consumer Action Law Centre[2010] FWA 9356 supports the principle that constructive dismissal can only be made out where the ex-employee has proved that he or she had no other choice but to resign.

18. In the case of the Applicant, the Applicant had plenty of other opportunities to continue his employment with the Respondent including by way of example either completing the performance management plan, or terminating his secondment and returning to his original position. By returning to his original position, a position the Applicant was previously succeeding in, the Respondent would not have had any grounds to terminate the Applicant.

19. In the Applicant’s prior annual performance reviews in his original position, the Applicant received scores of ‘Went the Extra Mile’ and ‘Nailed it’ for FY 18 and FY19 respectively.

20. There were no exceptional circumstances which prevented the Applicant from lodging his application on time.”

Applicant’s reply submissions

[9] On 13 February 2020 the Applicant filed his reply to address the Respondent’s Submissions (the Applicant’s Reply). The totality of the Applicant’s Reply is set out below:

“Applicant’s response to the Respondent

Commission Payments

1. The Applicant rejects the assertions made from the Respondent regarding the impact lodging a Fair Work Application would have had on his ability to recover commissions owing due to:

a. The Respondent failing to pay outstanding commission owed as of 13 February 2020

b. The Respondent unable to justify reasons for failing to pay commissions

c. We also note the Respondent was not required to express or imply that the outcome of the commission payment would impact the lodgement of a Fair Work claim given this is a contractual arrangement between the Respondent and Applicant

Merits of the Claim

2. The Applicant rejects the assertions made by the Respondent that there is insufficient evidence to show a constructive dismissal. The Applicant has provided sufficient evidence and documentation that highlight the Respondent’s conduct and failure to act that gave the Applicant no other choice but to resign

3. The Applicant rejects the examples provided by the Respondent on ways to continue his employment given that:

a. The Respondent failed to remedy concerns raised regarding the process and fairness of the performance management plan despite numerous correspondence to his Leader and HR

b. The conduct and steps put in place during the performance management plan process by the Respondent ultimately led to the Applicant being dismissed

c. The Applicant was never provided an option to resign only from his secondment role and return to his original position. An option, which if applicable at the time, should have been raised with the Applicant

d. We note that the Respondent asserts that returning to his original position would have not have given grounds to terminate the Applicant. We note, at the time of termination on 31 October 2019, the Respondent had no grounds to terminate employment and this further raises concerns that a pre- determined outcome for the Applicant’s performance management plan was made

4. The Respondent makes note of the Applicants consistent performance in FY18 and FY19 respectively. However, when concerned raised about the performance management process were raised the Respondent failed to acknowledge or resolve these with the Applicant. The Respondent’s statement further reinforces their actions were not conducive to a procedurally fair process that ultimately led to his dismissal.”

Consideration

[10] I will now turn to the matters I must consider.

(a) Reasons for the delay

[11] The length of the delay has little to do with the determination of exceptional circumstances. Regarding this, Deputy President Gostencnik in C Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 stated at [30]:

“Whilst I accept that the application lodged by the Applicant was late by only one day, that is not to the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.”

[12] A Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 (Stogiannidis) noted at [39]:

“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”

[13] Necessarily, the period of the delay with which the explanation is concerned is in the period commencing immediately after the time for lodging an application had expired and ending on the day on which the application was ultimately lodged. However, the circumstances from the date the dismissal took effect must be considered in assessing whether the explanation proffered for the delay is an acceptable or credible explanation.

[14] It is apparent from the Applicant’s Submission that the Applicant had some appreciation of the 21 day limitation period, and it would appear that such appreciation was the reason he chose 21 November 2019, as the date upon which he required the Respondent to respond to his letter of demand dated 14 November 2019 (the Letter of Demand).

[15] What is remarkable about the Letter of Demand is that it advised the Respondent that:

“This offer will remain open for acceptance until 5pm, Thursday 21 November 2019, failing which I intend to file an application alleging a breach of my general protections (Form F8) and the attached ‘Reasons for Constructive Dismissal’ with the Fair Work Commission”.

[16] Further, and as noted by the Respondent, the “Reasons for Constructive Dismissal” document attached to the Letter of Demand was almost identical to that attached, eventually, to the Application, and it comprehensively stated the case of the Applicant relating to general protections.

[17] The “Reasons for Constructive Dismissal” attached to the Letter of Demand makes it abundantly clear the Applicant was ready to proceed with the Application well within the 21 day limitation period, and as such the rhetorical enquiry is prompted of “Why did he not just file within time?”. The only reasons proffered are:

(a) the Applicant was concerned that lodging an application with the Commission prior to the response received from the Respondent on 27 November 2019 regarding commission claims would impact his ability to obtain any of the outstanding monies owed; and

(b) the Applicant’s representative was travelling interstate from 20 November to 24 November 2019, which impacted the delayed application.

[18] The Applicant noted that, on 15 November 2019, he received an email from the Respondent that he would not be paid commissions. That correspondence was unequivocal, and indicated the Respondent had no intention of paying the claimed commission. The Applicant was therefore aware six days prior to the expiry of the 21 day limitation period that claimed commissions would not be paid.

[19] As to the Applicant’s representative “travelling interstate” from 21 to 24 November 2019, being Thursday to Sunday, that explanation is unacceptable. As noted above, the “Reasons for Constructive Dismissal” document attached to the Letter of Demand was almost identical to that attached, eventually, to the Application. The Applicant was clearly ready to file a comprehensive application well before the expiry of the limitation period. The Application could have been promptly filed from anywhere on earth, let alone interstate, provided there was internet access.

[20] Further, there is no explanation as to why the Applicant’s representative (identified in the Application as Annelies Maxwell but not specifying her capacity) did not act on Monday 25 or Tuesday 26 November 2019. It is not that she was a new representative. The “Reasons for Constructive Dismissal” document notes Ms Maxwell was attending meetings between the Applicant and the Respondent during the employment as early as 30 August 2019.

[21] The Commission must consider the reasons for the delay. There are no acceptable explanations for the delay. That weighs significantly in the Respondent’s favour.

(b) Any action taken by the person to dispute the dismissal

[22] The Applicant did take action to dispute what he said was his dismissal, together with his alleged commission entitlements. I accept the Applicant took steps to dispute his dismissal before making the Application. That he did so, weighs in his favour.

(c) Prejudice to the employer (including prejudice caused by the delay)

[23] The period of delay is short. Further, the Respondent does not in its submission contend there is any prejudice. I consider this factor weighs slightly in favour of the Applicant.

(d) The merits of the application

[24] This is a general protections claim. In order to maintain such a claim, the Applicant must show that adverse action took place and also that this action took place because of a protected reason. There is a dispute that adverse action in the form of a dismissal occurred.

[25] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial relations Commission in Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) Print T2421 stated at [14]:

“It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues.”

[26] As these matters are contested, I am unable to make a finding that this case either lacks merit or has significant merit. In these circumstances, the question of the merits of the application is a neutral consideration.

(e) Fairness as between the person and other persons in a like position

[27] Neither party made any material submissions on this issue, nor did either party bring to my attention any relevant decision of the Commission which shares similar facts to this case. Consequently, no weight can be given to this consideration.

Conclusion

[28] The Applicant has not established that when viewed holistically the circumstances are out of the ordinary, unusual, special or uncommon. While it is clear the Applicant was active in outlining various claims in relation to his employment, including a comprehensive general protections claim, to the Respondent well within the 21day limitation period, and the relatively short period of the subsequent delay would not seem to result in prejudice to the Respondent, the complete absence of any acceptable reasons for the delay is particularly compelling.

[29] Balancing all factors and giving them appropriate weight, I do not consider the Applicant has elevated the circumstances of the matter to the status of exceptional. Therefore, I am not satisfied that the Commission has judication to hear the claim and order that the Application is dismissed.

DEPUTY PRESIDENT

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