Yan Franck Flageul v WeDrive Pty Ltd T/A WeDrive

[2018] FWC 2772

[2018] FWC 2772

The attached document replaces the document previously issued on 17 May 2018.

Footnote 2 on page 9 has been corrected to Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901.

Associate to Commissioner Platt

Dated 17 May 2018

[2018] FWC 2772

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Yan Franck Flageul
v
WeDrive Pty Ltd T/A WeDrive
(C2018/780)

COMMISSIONER PLATT ADELAIDE, 17 MAY 2018

Application to deal with contraventions involving dismissal – extension of time – application granted.

Summary

[1] Mr Yan Franck Flageul has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that his employment was terminated by WeDrive Pty Ltd T/A WeDrive (WeDrive) on 22 January 2018 in contravention of the general protections provisions of the Act.

[2] This application was lodged on 15 February 2018.

[3] Mr Flageul’s application identified that it was made beyond the 21 days from the date of dismissal and a summary of his relevant explanation contained in the Form F8 is as follows:

“1. I was still mentally and emotionally affected by the meeting with Mr Steven Mace and Mr Gregg Taylor in Sydney on 20 December 2017. When I received the phone call from Mr Mace on 22 December 2017, followed minutes later by two emails (termination of employment and Heads of Agreement to sell the shares of WeDrive to MSS Group), I was left in shock by the whole ordeal and the realization that everything I worked for and had sacrificed over the past 7 years was ending with the total loss of my company and job. I was in disbelief that something like this could really happen.

2. However, I started to look for a lawyer after the extended public holidays running from Saturday 23 December to Wednesday 27 December 2017 and get legal advice.

3. On 3 January 2018, I consulted with a team of lawyers at AJH Legal Group. They advised me on my options and told me that the Heads of Agreement I was coerced to sign, in their eyes, was unconscionable and the process of termination was unlawful. Their views were for me to gauge what was at stake and whether I should take the threats to the letter, prepare a claim against WeDrive or just let it go and move on.

4. Given the circumstances, I stayed in hope of a resolution until the day of my termination. Unfortunately, on 22 January 2018 it became very clear that Mr Mace, Mr Taylor and MSS Group were carrying out their actions.

5. On 22 January 2018 I called Matthew Barker, the newly appointed Director of WeDrive. Mr Barker was announced to me as my new Line Manager in the email attaching the letter of termination which was sent to me on 22 December 2017 by Mr Mace. I told Mr Barker I was not accepting the terms of the contract that was offered to me, in which I was to work as a consultant for WeDrive by MSS Group.

As a consequence, I had to go and see my GP because my dealings with MSS Group, and Mr Mace in particular, were seriously affecting my mental health. It was also affecting my ability to focus on tasks, find information efficiently and to make decisions effectively on how to deal with this situation as I felt threatened and intimidated and needed to consider all the possible implications of taking action against Mr Mace and/or the MSS Group.

7. I started to gather evidence and prepare my legal action against Mr Mace, WeDrive and MSS Group.

9. I formally declined the MSS Group’s offer to be an independent consultant on 29 January 2018 by email to Mr Barker because of the nature of the very distressing phone call and the threats made by Mr Mace. Witnesses to the phone call were extremely concerned and equally mentally affected by its content and tone.

10. On 30 January 2018, Mr Mace and MSS Group Directors sent me a number of emails with two attached letters asking me to resign as a Director and to transfer my shares to MSS Group.

I also had to seek further advice from my lawyers and sent an email to them on 30 January 2018.

My lawyers offered me to meet with them on 6 February 2018 in order for me to know what to do in response to these documents.

11. After 1 February, I did not have access to my email account ([email protected]) anymore and had to resort to going through prints, which slowed down the process further.”

[4] WeDrive filed a form F8A Employer Response on 5 April 2018 which indicated that the dismissal took effect on 22 January 2018 and raised a jurisdictional objection on the basis that the application was lodged out of time.

[5] A conciliation conference was held on 9 April 2018 but did not resolve the matter.

[6] On 30 April 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 14 May 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. Mr Flageul and WeDrive were directed to provide an outline of argument by 7 May 2018, this was later extended to 9 May 2018.

Submissions

[7] On 9 May 2018, Mr Flageul provided written submissions and a number of statements which are relevantly summarised as follows:

•  He was the CEO, Director and Shareholder of WeDrive.

•  In or around September 2017 Mr Flageul made a complaint about payments made by WeDrive to a number of persons.

•  On 20 December 2017 Mr Flageul was advised of his dismissal. Mr Flageul questioned the dismissal at that time.

•  The dismissal was to be effective 22 January 2018.

•  Mr Flageul suffered from depression and anxiety and contended that his symptoms (which included an inability to make decisions, sleeplessness and fatigue, forgetfulness and lack of concentration, procrastination, not leaving the house or participating in events) were exacerbated after 20 December 2017.

•  Mr Flageul submitted a letter from Dr Myint Maung dated 1 May 2018 which advised Mr Flageul had been suffering from depression and anxiety for three years and his depression had become severe since late December 2017. Dr Maung stated that “his severe depression had an impact on his decision making on time to prepare his application to submit it” and that the level of antidepressant medication was increased after 28 January 2018.

•  Mr Flageul submitted a letter from Mr Don Burnard, Psychologist, who advised that Mr Flageul suffered from severe depression and anxiety, which left him at times feeling “helpless and disorganised”. His symptoms were reported as chronic sleeplessness, reduced concentration, and much greater difficulty in making decisions.

•  Mr Flageul advised that WeDrive arranged to meet with him concerning his future employment on 22 January 2018, and that on 23 January 2018 he received an offer to be engaged as an independent contractor to perform the same, or substantially the same services.

•  On 24 January 2018 Mr Flageul contends he was advised by WeDrive that he was an independent contractor. Mr Flageul contended he mistakenly believed his dismissal had been revoked and he was still an employee of WeDrive.

•  On 29 January 2018 Mr Flageul advised WeDrive that he would no longer be involved with WeDrive in any capacity, Mr Flageul believed that the 21 day period commenced from this date.

[8] On 9 May 2018, the Respondent provided written submissions and filed statements by Mr Mace and Mr Barker. WeDrive’s position is relevantly summarised as follows:

•  On 22 December 2017 Mr Flageul was dismissed with one month’s notice.

•  The dismissal letter signed by Mr Mace dated 22 December 2017 advised the dismissal would take effect at 5:00pm on 22 January 2018 or another date as agreed between the parties.

•  On 22 January 2018 Mr Barker proposed to meet with Mr Flageul to discuss his future employment at WeDrive. Mr Barker submitted that the reference to ‘employment’ meant ‘employment to date’.

•  On 22 January 2018 Mr Barker met with Mr Flageul and offered him the opportunity to be engaged on a consultancy basis. Mr Flageul said he would consider the offer, however, on 29 January 2018 Mr Flageul declined the offer.

•  The application was filed 3 days late.

•  Mr Flageul has not provided any evidence to support the allegation that he was mentally and emotionally affected.

•  The delay is not exceptional.

•  Mr Flageul took no other action to dispute the dismissal.

•  WeDrive submitted that it has and will suffer prejudice, including economic hardship as a result of having to defend this claim.

•  The application is without merit as Mr Flageul was dismissed for misleading and deceptive conduct.

•  It is submitted that Mr Flageul had 53 days to lodge his application and that he would have an unfair advantage over others in a similar position.

•  Mr Flageul has not demonstrated that exceptional circumstances exist.

[9] A hearing was conducted by way of telephone conference on 14 May 2018. A sound file record of the telephone conference was kept. Mr Sandbach from Owen Dixon Chambers represented Mr Flageul and Ms Pescud from Employsure represented WeDrive. Permission was granted pursuant to s.596(2) of the Act.

[10] The parties reiterated their positions and substantially relied on the material filed. It became apparent during the Hearing that Ms Pescud was not aware of Mr Flageul’s witness statement and the medical evidence submitted on 9 and 11 May 2018; Ms Pescud was given time to review that material.

Applicable Law

[11] Section 366 of the Act relevantly states:

“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).

(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.”

[12] I have considered the provisions of s.366(2) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd¹ which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky every day and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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 singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. 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 singular occurrence, even though it can be a one 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.”

Consideration

[13] This general protections application by Mr Flageul was made 3 days outside of the 21 day time limit and therefore can only be pursued if this time limit is extended.

[14] Section 366 of the Act requires the Commission to take into account the matters set out in s.366(2)(a)-(e). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

[15] If there is a credible explanation for the entirety of the delay then this weighs more heavily in favour of a finding that there are exceptional circumstances. 2

[16] It is common for employees to suffer shock and trauma as a result of dismissal from employment. 3

The reason for the delay

[17] This relationship between Mr Flageul and WeDrive was more than a simple employer – employee relationship. Mr Flageul was the founder of WeDrive and the circumstances of his departure and loss of shareholding appears to have impacted upon him significantly. The evidence, namely the medical reports of Dr Maung and Mr Burnard, submitted by Mr Flageul suggests that his depression and anxiety were exacerbated by the circumstances of his dismissal. There is no reason for me to doubt the information contained in the two medical reports, particularly Mr Flageul’s inability to make decisions, such as filing his unfair dismissal application.

[18] I believe that the impact of the dismissal on Mr Flageul was more than the common shock and trauma described in Rose v BMD Constructions Pty Ltd.

[19] It appears from the information provided in the email received at 10:57am on 22 January 2018, a copy of which was annexed to Mr Barker’s statement, that Mr Flageul could have reasonably believed that it was possible that his future employment was to be discussed on that day. As it turned out, that email was poorly worded as was the offer put to Mr Flageul, that he was to be engaged on a consultancy basis. It is not disputed that Mr Flageul was allowed time to consider this position. It is possible that his medical condition contributed to his misunderstanding that his dismissal may have been withdrawn.

[20] In my view, Mr Flageul has explained the entirety of the day.

Any action taken by the person to dispute the dismissal

[21] Other than the meeting which occurred on 22 January 2018 no action was taken to dispute the dismissal other than this application.

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

[22] The delay in this matter is small. WeDrive submits it has been prejudiced based on the need to now defend against the application. Whilst I accept the application presents some prejudice to WeDrive, it is not determinative in this matter.

The merits of the application

[23] In terms of the merits of the application, there is insufficient evidence before me to make an assessment, and accordingly I have regarded the merits as a neutral factor.

Fairness as between the person and other persons in a similar position

[24] WeDrive submits that Mr Flageul had 53 days to lodge his claim and it appears this period commenced from the time notice was given of the dismissal. Mr Flageul was unable to contest the dismissal before it took effect, and on that basis, he had 24 days to lodge his claim.

[25] I find that of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[26] When considering all of the factors detailed above, I am satisfied that Mr Flageul’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is granted. It appears that conciliation has already been conducted without success and accordingly I will issue a certificate under section 368 of the Act. An Order⁴ reflecting this decision will be issued.

COMMISSIONER

Appearances:

Mr A Sandbach on behalf of the Applicant.

Ms J Pescud on behalf of the Respondent.

Hearing details:

2018.

Adelaide:

14 May.

Printed by authority of the Commonwealth Government Printer

<PR607167>

1 [2011] FWAFB 975.

 2   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.

 3   [2011] FWA 673 (‘Rose v BMD Constructions Pty Ltd’).

4 PR607168.