Fair Work Act 2009

s.365 - General protections

Application to deal with a dismissal dispute - application made out of time - circumstances not exceptional - application dismissed

• [1] This decision concerns an application by Mr Andrew Roos (Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).

• [2] In the Application, the Applicant states that his employment with K'Gari Marine Services Pty Ltd (Respondent) was terminated with effect from Saturday, 4 May 2024. The Application was made on Monday 27 May 2024.

• [3] In its Form F8A Response, the Respondent objected to the Application on the ground that the Application was made out of time. The Respondent contends that the Applicant's dismissal took effect from Wednesday, 1 May 2024.

• [4] Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s.366(2). If the Respondent's contention is correct, the period of 21 days ended at midnight on 22 May 2024.

• [5] The matter was allocated to my Chambers to determine the date of dismissal, whether an extension of time is required, and if so, whether a further period will be allowed under s.366(2).

• [6] The matter was heard before me on 12 July 2024. The Applicant was self-represented. The Respondent was represented by Mr James Muh, a director of the Respondent.

• [7] For the reasons that follow, I have determined that the Application has been made out of time and have dismissed the Application as there is no basis to allow an extension of time under s.366(2).

• [8] The following materials were admitted into evidence:

• Witness Statement of Applicant, undated, (Hearing Book at p.60-76) (Exhibit A1);

• Applicant's Transcript of Exhibit A5 (Hearing Book at p.80-82) (Exhibit A2);

• Applicant's Bundle of Documents (Hearing Book at p.14-59) (Exhibit A3);

• Witness Statement of Applicant dated 27 June 2024 (Hearing Book at p.113-118) (Exhibit A4);

• Extract of Audio Recording of meeting on 1 May 2024 (Exhibit A5); and

• Respondent's Bundle of Documents (Hearing Book at p.83-110) (Exhibit R1).

• [9] The Applicant also gave evidence at the hearing.

• [10] The parties are in dispute as to the date of dismissal. The Applicant contends that he was dismissed with effect from Saturday, 4 May 2024 and therefore, the Application was made within 21 days (per s.36(2) of the Acts Interpretation Act 1901). The Respondent contends that the Applicant was dismissed with effect from 1 May 2024.

• [11] There is no dispute that Ms Karin Leidler-Muh, the wife of Mr James Muh and an owner of the Respondent's business, summarily dismissed the Applicant during a meeting on 1 May 2024.

• [12] However, the Applicant gave unchallenged evidence, supported by the audio recording, that later in the meeting Ms Leidler-Muh agreed to change the nature of the dismissal from a summary dismissal (with no notice or payment in lieu of notice) to a dismissal effective from that day with two weeks' payment in lieu of notice.

• [13] Consistent with the Applicant's dismissal effective from 1 May 2024, the Applicant and Ms Leidler-Muh engaged in the following relevant conduct:[1]

(a) During the meeting on 1 May 2024, the Applicant made arrangements for his personal files to be deleted from his work computer and for the Respondent's external IT consultant to remove the Applicant's IT access; and

(b) Over the period of 2-4 May 2024, the Applicant and Ms Leidler-Muh arranged for the Applicant to return keys to the Respondent's premises, to collect his personal belongings, and the Applicant provided several updates related to the status of outstanding work and customer information.

• [14] Notwithstanding the Applicant was advised, and understood, that he was dismissed with effect from 1 May 2024 and that he would receive payment of two weeks' in lieu of notice, the Applicant contends that the effective date of dismissal was changed to 4 May 2024 as a consequence of correspondence sent to him by Ms Leidler-Muh at 9:44am on that day (4 May Email).

As I have had to dismiss you on 1st May 2024 for Serious Misconduct in threating James Muh the Director of the company with violence via your phone call on evening of 30th April at 5.43pm. You have also been abusive and confrontational towards me since our discussions started. On the 1st of May 2024 you were very aggressive and intimidating which is not acceptable. I have always been always polite and courteous in my dealings with you. Your non legal agreement is not valid and therefore the company will not agree to your terms.

Regarding the Bond, we will refund the bond back to you upon site inspection once you have vacated the property. As advised you will need to vacate the property by 15th May 2024, we have advised the landlords agency regarding the returning the property.

You will need to come and collect your person item from the business by 4pm today being 4th May 2024. If it is not collected, we will leave it outside for you to collect.

• [16] The Applicant contends that the 4 May Email changed the effective date of dismissal to 4 May 2024 in two ways:

(i) It was when he received written notice of the day of dismissal which cannot be before the day the notice is given (s.117(1) of the FW Act); and

(ii) The reference to serious misconduct changed the 1 May 2024 dismissal from a dismissal with payment to be made in lieu of notice to a summary dismissal effective from 4 May 2024.

• [17] I do not accept either of these contentions.

• [18] During the proceedings, the Applicant frankly (and repeatedly) acknowledged that he was dismissed during the meeting on 1 May 2024 and would be paid two weeks' in lieu of notice. That the Respondent did not comply with s.117(1) and may not have complied with s.117(2), does not invalidate or render void the termination of the employment relationship. In Metropolitan Fire and Emergency Services Board v Garth Duggan,[2] a Full Bench of the Commission considered the interrelationship between s.117 and s.383(a)(i) of the FW Act in the context of whether 'notice of the dismissal' in s.383(i)(a) must comply with the requirements of s.117. After referring to relevant authorities, the Full Bench stated:

[32] ...it is clear in our view that if an employer terminates the employment of an employee without giving notice, or payment in lieu thereof, in accordance with an obligation owed by the employer under a contract, award, enterprise agreement or s.117 of the Act, the result is that the employer has acted unlawfully and/or wrongfully and the employee will have one or more causes of action available to him or her under the contract, award, enterprise agreement and/or the Act to remedy the deficiency in notice. However, an unlawful or wrongful dismissal does not invalidate or render void the termination of the employment relationship. Whether the employment relationship has been terminated is a question of fact.[3]

• [19] In relation to the second contention, the 4 May Email is clear that the Applicant was dismissed on 1 May 2024. There is nothing in the 4 May Email which could be interpreted as changing the effective date of dismissal, and in any event, it is well established that a contract of employment cannot be terminated twice.[4]

• [20] Accordingly, I am satisfied and so find that the date the dismissal took effect was 1 May 2024. This means the Application was made 5 days outside of the 21 day period and an extension of time is required.

• [21] The FW Act allows the Commission to extend the period within which an application for the Commission to deal with a dismissal dispute must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[5] 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.[6]

• [22] The requirement that there be exceptional circumstances before time can be extended under s.366(2) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [23] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

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

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

• [24] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.

• [25] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an application for the Commission to deal with a dismissal dispute.[7]

• [26] I now consider these matters in the context of the Application.

• [27] The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, however all of the circumstances must be considered.[8]

• [28] 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.[9]

• [29] Furthermore, the 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.[10]

• [30] The Applicant relies on two reasons for the delay: confusion caused by the 4 May Email; and waiting for the Respondent to provide copies of payslips.

• [31] The Applicant submitted that the Respondent's decision to summarily dismiss him on 1 May 2024, before changing that to a dismissal with payment in lieu of notice, and then purportedly changing that on 4 May 2024 to a summary dismissal resulted in everything being "all up in the air" which caused confusion resulting in delay in making the Application.

• [32] The Applicant also stated that although he was aware of the 21 day limit, he contacted the Fair Work Ombudsman Helpline and was advised to make the Application and that he "very carefully calculated, rightly or wrongly, the last possible date" that the Application could be made.

• [33] I do not accept that there could be any confusion as to the date of dismissal based on the 4 May Email. As stated above, the 4 May Email is clear that the Applicant's dismissal took effect from 1 May 2024.

• [34] Furthermore, the Applicant was aware of the 21 day time limit and it was open to the Applicant to make the Application earlier rather than waiting until what he calculated was the very last day. To the extent that the Applicant miscalculated the last day for making an application, it is well established that a lack of knowledge, ignorance or miscalculation of the applicable time limits for the filing of general protections or unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[11]

Waiting for the Respondent to provide copies of payslips

• [35] The Applicant also submitted that the Application was delayed because he was waiting for the Respondent to provide copies of his payslips. The Applicant made the request for the Respondent to provide payslips on 17 May 2024. At that time, Mr Muh and Mrs Leidler-Muh were overseas. Following their return to Hervey Bay, copies of the Applicant's payslips were provided to him on 28 May 2024.

• [36] The Applicant stated that he needed the payslips as there may have been information contained within them that was necessary for the making of the Application. However, the Applicant was unable to identify any information that might be contained within his payslips that was necessary for the making of the Application, or otherwise satisfactorily explain why it was necessary to delay the making of the Application pending the provision of the payslips.

• [37] There was no reason why the Applicant could not have filed the Application on or before 22 May 2024 while simultaneously pursuing the provision of payslips from the Respondent.

• [38] To the extent that there may be an alleged underpayment of wages or entitlements, it is well established that delaying the filing of an unfair dismissal application or general protections application whilst pursuing an alleged underpayment of wages or entitlements is not an acceptable or reasonable explanation for the delay.[12]

• [39] For the reasons set out above, I do not consider either of the matters raised by the Applicant, whether considered individually or together, to be an acceptable or reasonable explanation for the delay. The absence of a reasonable or acceptable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

s.366(2)(b) - Action taken to dispute the dismissal

• [40] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[13]

• [41] However, a distinction is to be made between the case of a person who has put the employer on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[14]

• [42] Although the Applicant sent correspondence to the Respondent requesting payslips, a separation certificate, a statement of employment, and repayment of a bond for residential premises, it is not in dispute that the Applicant did not take any action to dispute the dismissal prior to making of the Application.

• [43] This factor weighs against a conclusion that there are exceptional circumstances.

• [44] Neither party submitted that the Respondent would be prejudiced, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.

• [45] However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

• [46] The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials.

• [47] It is clear to me that the merits of the Application turn on contested points of fact and law which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.

s.366(2)(e) - Fairness as between the person and other persons in a similar position

• [48] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [49] The test of 'exceptional circumstances' establishes a 'high hurdle'. Having regard to the matters I am required to take into account under s.366(2), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances.

• [50] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.366(2).

• [51] Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.

[1] See Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 at [40].

[2] [2017] FWCFB 4878.

[3] Ibid at [32]; See also Southern Migrant and Refugee Centre Inc v Shum (No 3) [2022] FCA 481 at [206]; Rhidian Lloyd Cody v Stratacache Australia Pty Ltd [2022] FWCFB 116 at [29].

[4] Melbourne Stadiums Ltd v Sautner [2015] FCFCA 20 at [112] (per Tracey, Gilmour, Jagot and Beach JJ).

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) at [13].

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

[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[11] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]; Sandra Mueller v Coles Supermarkets Australia Pty Ltd [2022] FWC 1852 at [13]; Ciaran Ryan v Finney Pty Limited T/A Cutprice Car Rentals [2020] FWC 1273 at [25]- [31]; Michael Harvey v Compass-Group (Australia) Pty Ltd [2021] FWC 1375 at [57].

[12] Coles Supermarkets Australia Pty Ltd v Alexander Tapier [2021] FWCFB 2559 at [25]; Matthew Dakin v Farmgate MSU Pty Ltd [2022] FWC 1707 at [3]- [4]; Sxa Fang Chong v SSM International Pty Ltd [2022] FWC 2591 at [18].

[13] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[14] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176 at [19].

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