Tomas Watson v Crestkey Pty. Limited
[2024] FWC 2087
•6 AUGUST 2024
| [2024] FWC 2087 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Tomas Watson
v
Crestkey Pty. Limited
(C2024/3354)
| COMMISSIONER YILMAZ | MELBOURNE, 6 AUGUST 2024 |
Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days – whether there are exceptional circumstances - extension of time denied.
On 22 May 2024, Mr Tomas Watson (the Applicant) lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Crestkey Pty. Limited (the Respondent). Mr Watson commenced employment on 22 January 2024 and his dismissal took effect 28 April 2024.
Mr Watson was employed subject to a probationary period of employment by the Respondent in the position of Territory Manager.
The Applicant identified his employer as Joe’s Supps Pty Ltd, the Respondent corrected its legal identity, and a search of the ABN with ASIC identified the Respondent as Crestkey Pty. Limited.
This application was made after the 21-day statutory time limit. Mr Watson filed an unfair dismissal application on 17 May 2024, which was within the 21-day limit, but on 22 May 2024 when he was contacted about not meeting the minimum employment period, he filed this application and discontinued the unfair dismissal application.
Mr Watson filed submissions for an extension of time, and the Respondent represented by its Head of Retail Operations - Mr Thomas Doig, attended the hearing but filed simply the Form F8A with 2 payslips attached. This decision is made taking into account the application, , outline of submissions from the Applicant and brief statements from the parties at the hearing.
Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. The application was lodged 5 days after the 21-day statutory time limit.
Applicant’s submissions
Mr Watson submits that his dismissal is a contravention of his workplace rights in terms of s.340 Protection of Workplace Rights.
Mr Watson contends that on 16 and 17 April 2024 he complained to his manager regarding what he considered an inappropriate response from the CEO to his post to the Company’s intranet. Mr Watson was absent on time off in lieu of overtime from 19 April until 28 April 2024. The probation period was due to conclude on 29 April 2024 with Mr Watson’s return to work. He submits that at 3.23pm on 28 April 2024 while on leave he received an email terminating his employment and discovered that he was removed from the Company group chats. Mr Watson raised subsequent complaints about his pay, including payment of notice and time off in lieu.
Respondent’s submissions
The Respondent relies on its Form F8A which states that Mr Watson failed his probationary period as outlined in his contract of employment. It attached two payslips to the form and offered “Given he failed his probation there was no notice period and his employment finished effective immediately.”[1]
The Respondent challenged the application on the basis that it was out of time.
Consideration
General protections applications involving dismissal must be made within 21 days.
However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
(a) The reason for the delay; and
(b) Steps taken to dispute the termination; and
(c) Prejudice to the employer; and
(d) Merits of the application; and
(e) Fairness between the person and other persons in a like position
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)[2] where it was held that:
“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”[3]
I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.366(2).
The reason for the delay
The general protections involving dismissal application was lodged with the Commission on 22 May 2024, 5 days late. Mr Watson was aware that his dismissal took effect on 28 April 2024.
Mr Watson submits that he was not fully aware of his rights under the Fair Work Act 2009, for what he believed was an “unlawful and retaliatory dismissal.” He attributes his absence of awareness on the complexity of the law and his poor experience. He submits that he was initially inactive following his dismissal but soon discovered that he could make a claim. He submits that he sought advice from friends and eventually the Commission. He submits that he realised the application required “meticulous preparation to ensure all aspects of the case were properly documented and presented.”[4] Mr Watson’s statement of evidence[5] reasons the delay due to shock and distress and following legal counsel that the dismissal more reflected an unlawful dismissal that effort was taken to rectify the application. This is again different to the earlier submissions as provided in the Form F8 and outline of submissions. I can only assume Mr Watson intended legal counsel to mean contact from the Commission. In any event had legal counsel been obtained, nothing further can be adduced from the materials in this matter in support of an extension of time in relation to this point.
The Form F8 explains the delay in filing as having filed the wrong form and promptly correcting the application on being advised from the Commission. I do observe that our records support Mr Watson’s submission and further evidence that the application was made online.
Both applications being lodged online necessitated access of the Commission’s website requiring navigation through the information on job loss or dismissal or immediately the unfair dismissal or general protections tab. Either way the information on the website describes in plain English the difference between an unfair dismissal and general protections involving dismissal that includes information on who the law protects. Mr Watson was contacted by the Commission on 22 May 2024, because his application for unfair dismissal did not meet the minimum employment period. I observe that Mr Watson’s general protections application is brief with his letter of termination attached.
There must be a credible reason for the delay.[6] The unfair dismissal application was made on time, but this application was not. I do observe that this application was made immediately on being advised that he was ineligible to make an unfair dismissal claim. Mr Watson promptly and without delay filed this application and discontinued the other. However, filing the “wrong” application because of the reason of a lack of awareness or ignorance is not exceptional, uncommon, out of the ordinary or unusual. I am not satisfied that Mr Watson has demonstrated credible reasons regarding this consideration, and I consider the reasons given for the delay do not weigh in his favour. This factor weighs against the granting of an extension of time.
While 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.[7]
Steps taken to dispute the termination
Mr Watson submits that he sent a text questioning what was “going on” after receipt of the letter of termination. It is evident that Mr Watson queried his final pay noting that his time off in lieu of overtime and notice was not paid. However, this communication falls short of placing the Respondent on notice that the dismissal would be challenged with an application. For this reason, I do not consider this to weigh in Mr Watson’s favour.
Prejudice to the employer
Mr Watson in support of his extension of time application submits that his error in filing an unfair dismissal application and correcting it due to the fact that his dismissal followed an exercise of the right to complain “underscores the complexity of employment law”. In addition, he submits that his application is a pursuit of justice and dismissing his application on the technicality of completing the wrong form “would not serve the interests of justice or equity.” Mr Watson does not elaborate how this application if dismissed would not serve the interest of justice or equity, nor its relevance to the consideration of prejudice. From these submissions I understand that Mr Watson contends that to dismiss his application would be unfair leaving him with no recourse to remedy. However, s.366(2)(c) requires an assessment of prejudice (including prejudice caused by the delay) to the employer.
The Respondent made no submissions in response to any of the submissions, but simply reiterated that Mr Watson was dismissed during probation and consistent with the terms of his contract. I suppose that the delay of 5 days is unlikely to cause prejudice. In any event, the Respondent did not assert prejudice.
Despite the Applicant’s submissions not addressing the matter of prejudice or disadvantage to the Respondent, an absence of prejudice does not weigh in favour of an extension of time. For this reason, there is insufficient basis to favour an extension of time and therefore this consideration is neutral.
Merits of the application
Mr Watson submits that when he pushed for an elaboration for the reason of the dismissal, he was informed that it was a financial reason. Despite further attempts for detail, Mr Watson submits that none were forthcoming.
The Respondent maintains dismissal during probation and consistent with the obligations in the contract of employment. The letter of termination dated 28 April 2024 states:
“Your probation period with us at Elite Supplements is due to end on 29/04/2024.
We confirm that we have decided not to continue your employment beyond your probationary period. As a result, your employment will end on 28/04/2024.
We wish you well in your future endeavors (sic).”
From the letter of termination, it cannot be deduced what the reason for dismissal was. The cover email from Mr Thomas Doig apologetically advises Mr Watson that on the Sunday, without notice and as he has no choice, that Elite Supplements “decided not to continue your employment… beyond your probationary period.” Mr Watson also tendered in evidence an undated letter of commendation[8] from Mr Doig positively praising Mr Watson for his skills, professionalism, commitment and the many contributions made to the business. This document does not shed light on the reason for the dismissal. Assuming the reference was provided post termination, together with the text messages between Mr Watson and Mr Doig, it does not appear that there were any issues to result a dismissal. Only the text messages show that they both shared concern over statements made by “Dom.”[9] One can adduce Dom is the CEO and signatory to the contract of employment.
The Applicant tendered in evidence his contract of employment. This document identifies a commencement date of 29 January 2024, a probation period of 90 days[10] and the requirement of notice by either party of 4 weeks. I observe that Mr Watson was not given nor paid his 4 weeks of notice.[11] Mr Watson submits that he commenced on 22 January 2024. This was not contested by Mr Doig prior to or at the hearing. If 22 January 2024 is correct then Mr Watson was dismissed on day 97, 7 days after the completion of the probationary period of employment. However, if the start date was 29 January, Mr Watson was dismissed on day 91. It is evident that Mr Watson was not dismissed during the period of probation as provided in the contract of employment.
Payslips were tendered into evidence. The first of the final pay is captured in the payslip identifying payment date of 9 May 2024. This payslip provides for payment of ordinary hours, public holiday, annual leave taken and accrued annual leave. The payslip identifying payment date of 23 May 2024 simply provides for payment of time off in lieu of overtime. Neither payslip provides for notice consistent with the terms of the National Employment Standards nor Mr Watson’s contract of employment. It is advisable that employers comply with legislative employment standards and where a contract of employment provides for more generous conditions, they prevail. It is open to Mr Watson to seek advice from the Fair Work Ombudsman to enforce the payment of any outstanding entitlements. However, the Fair Work Commission is not the body to enforce the payment of entitlements.
Mr Watson contends a causal relationship between his complaint to his Manager Mr Doig about the CEO’s response to a comment he posted on the intranet, and the failure to pay him while on approved time off in lieu of overtime and his dismissal. From the limited material tendered in evidence (including an extract of text messages between the Applicant and his Manager), no reasonable assessment can be made regarding merit of the application. Mr Watson did not disclose particulars of his posted comment, the CEO response nor particulars concerning his “complaint”. In the present circumstances, the absence of any detail does not weigh in favour of an extension. However, Mr Watson was not dismissed during a period of probation, there was no evidence of concerns with conduct or performance as can be observed from the glowing letter of commendation, therefore at best there may be at best a neutral finding that a causal relationship may be found with the “complaint” or inquiry raised by Mr Watson about the CEO to Mr Doig. I consider this consideration to be a neutral consideration in the extension of time application.
Fairness between the person and other persons in a like position
Neither party addressed this consideration, consequently, I find this consideration neutral.
Conclusion
In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.
It is on the balance of the considerations that I have decided not to grant an extension of time. I did not weigh the reason for delay and steps taken in favour, and the balance I have found to be neutral.
Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2).
Accordingly, the matter is dismissed.
COMMISSIONER
Appearances:
T Watson, Applicant
T Doig for the Respondent
Hearing details:
2024.
Melbourne (via Microsoft Teams):
July 19.
[1] Form F8A, [3.1].
[2] [2011] FWAFB 975.
[3] Ibid, [13].
[4] Applicant’s outline of argument, [1d].
[5] Exhibit A1, statement of Tomas Watson.
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, [299]-[300].
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[8] However, Mr Watson asserts it was signed 29 April 2024.
[9] Text messages of 15 and 16 April 2024.
[10] Clause 4(a).
[11] Clause 13(b).
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