Wolfgang Hein v Be Pay Australia Limited
[2024] FWC 875
•4 APRIL 2024
| [2024] FWC 875 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Wolfgang Hein
v
Be Pay Australia Limited
(U2024/334)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 4 APRIL 2024 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
Mr Wolfgang Hein (Applicant) 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 had been unfairly dismissed from his employment with Be Pay Australia Limited (Respondent).
The information provided in the application and in the employer response form lodged by the Respondent indicates that the application may have been made out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
When must an application for an order granting a remedy be made?
Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
The conference
On 16 February 2024, the Applicant and another individual with an unfair dismissal matter before the Commission against the same Respondent wrote to my chambers to request the concurrent hearing of their matters before me. Initially, my Chambers replied to the parties and confirmed that the matters would be heard together, however it became apparent that the matters dealt with different issues. During the conference, the parties were informed that the matters would be dealt with separately. The matter was unable to be resolved and directions were issued for the filing of material and the hearing of the matter.
The views of the parties were sought, and it was decided that the matter would proceed as a determinative conference. At the determinative conference on Friday 15 March 2024, the Applicant attended and represented himself and the Respondent was represented by Mr Douglas Callendar.
Witnesses
The Applicant gave evidence on his own behalf.
Mr Callendar gave evidence on behalf of the Respondent.
Submissions
The Applicant filed submissions in the Commission on 27 February 2024.
The Respondent filed their Form F3 and accompanying annexures on 1 February 2024 and filed no further material.
When did the dismissal take effect?
It is not in dispute, and I so find, that the dismissal took effect on 11 December 2023.
When was the application made?
It is not in dispute, and I so find, that the application was made on 9 January 2024.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench further stated, “[i]f the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
As I found above, the dismissal took effect on 11 December 2023. The final day of the 21 day period was therefore 2 January 2024 and ended at midnight on that day. As I found above, the application was made on 9 January 2024. The Application is therefore 7 days late.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Was the application made within such further period as the Commission allows?
Under section 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 the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 2 January 2024. The delay is the period commencing immediately after that time until 9 January 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
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.[5]
An applicant 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 the applicant has not provided any reason for any part of the delay.[6]
Submissions
The Applicant submitted that the delay was for the following reasons:
·Mr Kritas of the Respondent “led him on” that certain monies would be paid to him and this culminated in an offer made on 27 December 2023 that required the Applicant to sign a release and waiver before receiving those monies. The Applicant contends that he was given until 31 December 2023. The Applicant then decided that these terms were unfavourable him, and he subsequently decided it was more advantageous to pursue an unfair dismissal application.
·That Mr Kritas had led him to believe that a resumption of a working relationship was possible.
·Storms and power outages occurred at the Applicant’s residence during the period of 25 December 2023 to 1 January 2024 which impacted his ability to use his computer to make the application. He found it preferable to lodge the application on his computer than using his mobile phone, particularly given documents he considered relevant to the Application were saved on his computer, which he could not access.
In relation to the reason for the delay, the Respondent submitted that the Applicant’s claimed ‘special relationship’ with Mr Kritas and his discussions with Mr Kritas following the termination of the agreement could not be characterised as the actions taken to dispute the dismissal. The Respondent submitted that on the Applicant’s own evidence, those discussions were more correctly characterised as a negotiation regarding money the Applicant alleged was still outstanding.
The Respondent also submitted the Applicant had failed to file evidence as to his claim that storms had impacted his ability to submit the unfair dismissal application within the 21-day period.
Evidence
The Applicant’s provided a typed-out document alleged to be a record of his conversations with Mr Kritas regarding monies the Applicant believed he was owed and a comment from Mr Kritas that indicated that there was a possibility of continuing to do business with each other. It is unclear whether these conversations occurred as alleged and if they did, whether they occurred by SMS text, email or some other messenger program as they were presented to the commission in a typed document format. I note that the messages were dated 20 December 2023, 22 December 2023 and 27 December 2023.
The Applicant’s evidence in relation to the impact of storms was first raised in his submissions, where he stated he was “without electricity from the 25th December 2023 to the 1st January 2024 due to the storms and power outages here on the Gold Coast.”
At hearing, it was the Applicant’s evidence that the storms had left him without power for six days, and fridges full of food that had spoiled. He stated there was significant damage and this required significant clean-up and purchasing of new food. The Applicant provided no evidence to support these assertions.
Under cross examination the Applicant admitted that his mobile phone was working and that he could have submitted his application by phone or by email from his smart phone. In respect of the Applicant’s submission that he wanted to access documents on his computer to make his claim, I note that the application presently before the Commission was made online/electronically through the Commissions online application system and that it was not accompanied by any documents.
Further, under cross-examination when the Applicant was asked why the other person described at paragraph 5 of this decision who was terminated on the same day as the Applicant was able to file his application in time, the Applicant pointed to the special relationship he thought he had with Mr Kritas and the hope that he would resolve the matter directly with Mr Kritas.
Evidence in relation to the Applicant’s efforts to dispute the dismissal
The Respondent’s evidence was a formal letter to the Applicant on 17 November 2023 of an investigation into allegations raised by the Applicant’s sub-agent.
The Respondent provided the termination letter which terminated its relationship with the Applicant on 11 December 2023. In the termination letter, the Respondent proposed an informal meeting on 13 December 2023 between the Applicant, Mr Kritas, and the Respondent’s Directors to discuss the matter amicably. The Respondent stated the previous fortnight’s payment would continue to be held in a suspense account until the meeting or would be held indefinitely for a no-show.
Evidence in relation to the Applicant’s concerns regarding outstanding payment
The Applicant’s evidence was that the Respondent’s director had misrepresented his intentions to pay outstanding “salary” on many occasions and to continue their working relationship in some form in the new year.
The extracts show that on 20 December 2023, the Applicant contacted the Respondent’s director to enquire as to the outstanding payment, to which the Respondent replied he would aim to release the funds on the Friday before the holidays.
On 22 December 2023, the Applicant sent another message to check with the Respondent’s director as to whether the payment would still be possible. The Respondent’s director replied, stating he would “take time out for the paperwork and payment to be done on Tuesday 26 December 2023.
On 27 December 2023, the Applicant sent another message to enquire as to the payments. The Respondent’s director replied, inter alia, that his intention was to organize an ‘Authority Transfer’ document for signature that would give the Applicant’s company the right to recover payment from the Respondent. He said he had gotten caught up with family matters but would do his best to find time before Friday (29 December 2023) to get the work done and would inform him when the document was online for the Applicant’s signature.
On 27 December 2023, the Applicant received a Payment Recovery Rights Agreement. In his written submission, he drew attention to the following clause:
3. Release and Waiver:
3.1 Upon receipt of the Goodwill Payment, the Sales Agent hereby releases and discharges BARTEOS AUSTRALIA, its officers, directors, agents, employees, and representatives, from any and all claims, liabilities, demands, actions, causes of action, costs, expenses, and damages, whether known or unknown, arising out of or related to the Withheld Payments.
3.2 The Sales Agent acknowledges that the Goodwill Payment represents a full and final settlement of any and all claims related to the Withheld Payments.
The Applicant did not sign the agreement and it expired on 31 December 2023.
The Applicant’s evidence at hearing was that his understanding was that signing the agreement would declare was not entitled to any further monies, and that it was ‘basically the end’ of the relationship, and so he then decided to pursue his unfair dismissal application.
Findings
Having regard to the above, I find that the reasons for the delay were:
· that the Applicant had attempted to resolve his dispute with the Respondent directly and when a resolution was unable to be reached, he looked at other options and decided to lodge an unfair dismissal application; and
· The Applicant experienced a power outage and storm during the 21-day period (albeit unclear for how long this situation had lasted).
Whilst there is no evidence before the Commission to support the Applicant’s contentions of an extended power outage, the Applicant had access to a phone and to the internet. I also note that whilst it is unclear how long the period was that this occurred, given the lack of any evidence to support the Applicants assertions, that on the Applicant’s own evidence, his power was restored in the day before the application was required to be filed. I do not accept that he was unable to lodge the claim. His ultimate application was made electronically using the Commission’s online lodgement service and it was unaccompanied by any documents.
Did the Applicant first become aware of the dismissal after it had taken effect?
It was not in dispute, and I so find, that the Applicant was notified of the termination of the relationship via email on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
What action was taken by the Applicant to dispute the dismissal?
The Applicant alleges that he took action to dispute the dismissal.
The Applicant submitted a typed-out document purporting to be of various emails showing that the Applicant had asked the Respondent for information in respect of allegations about the Applicant’s conduct that the Respondent said had caused the Respondent to terminate its relationship with the Applicant. It is unclear whether these conversations occurred as alleged and if they did, whether they occurred by SMS text, email or some other messenger program as they were presented to the Commission in a typed document format. I note that the messages were dated 13 November 2023, 20 November 2023, 22 November 2023, 1 December 2023, 8 December 2023 and 11 December 2023 prior to the termination of the relationship between the Applicant and the Respondent.
During the hearing, under cross examination of the Applicant, the Respondent put to the Applicant that there was no suggestion during the conversations following the termination of the relationship that it would be reinstated. The Applicant did not provide any observation or evidence that would contest the Respondent’s proposition.
Findings
Having regard to the matters I have referred to above, I find that the Applicant engaged in communication with the Respondent about the allegations that were made by the Respondent that caused the relationship to come to an end, during the month prior to the actual termination. Therefore, they could not be actions taken to dispute the termination.
In all the circumstances, I do not find that the Applicant took any action to dispute the dismissal.
I find this to be a neutral consideration.
What is the prejudice to the employer (including prejudice caused by the delay)?
Neither party raised the issue of whether there would be prejudice to the employer. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. 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)”[7] and the same applies to s.394(3)(e).
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
I note that there is a further jurisdictional hurdle to be dealt with should the extension of time be granted. That is to determine whether the Applicant was an employee. I also note that in the parallel case mentioned in paragraph [5] of this decision, that the difference mentioned in paragraph [5] is that this matter was filed out of time. In the parallel case I note that the jurisdictional hurdle in respect to whether the Applicant was an employee has been determined[8] with the jurisdictional objection being upheld and that application dismissed.
Having regard to the matters referred to above, I find that the merits of the application are weak while appreciating that the merits of the application will necessarily turn on the evidence.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration however I am aware that Mr Santoro,[9] whose matter is mentioned at paragraph [5] of this decision is a person who was in a similar position to the Applicant. Mr Santoro was terminated by the Respondent at the same time as the Applicant and also lives in the Gold Coast area.[10] It is noted that Mr Santoro filed his application on time.[11]
In relation to this factor, I therefore find that this weighs as a negative consideration, albeit slightly.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons for the delay;
(b) the Applicant being aware of the dismissal at the time that it took effect;
(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;
(d) the absence of any prejudice to the employer;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
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]
Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed.
I order accordingly.
DEPUTY PRESIDENT
Appearances:
Mr Hein, Applicant.
Mr Callendar for the Respondent.
Hearing details:
Video
Brisbane
15 March 2024
[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] 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; Stedman v Transdev NSW Pty Ltd [2015] FWCFB 1877.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[8] Robert Santoro v Be Pay Australia Limited[2024] FWC 848.
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[13] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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