Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] Mr Byron Stephen Gill (the Applicant) applied for an unfair dismissal remedy after his employment with IFM Services Pty Ltd (the Respondent) came to an end. His application was filed with the Fair Work Commission on 11 August 2021. Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) sets a 21-day timeframe in which an unfair dismissal application must be filed. The Applicant submits that while he was notified of his dismissal on 20 July 2021 and it took effect on that same day, in his view he was not officially notified until 22 July 2021 when he received the letter of termination. His argument is therefore premised on his application having been made within time. The Respondent disagrees, purporting that the Applicant's dismissal took effect on 20 July 2021 and therefore the application was filed one day late.

• [2] If the application is to now proceed, it is necessary for the Applicant to show that his application was made within time, or if it was not made within time, to show that there are exceptional circumstances that warrant an extension of time in which to make the application. Further, the Commission will consider whether it is fair and equitable for the extension to be granted.

• [3] In short, I have determined that the application was not made within the requisite time and that in all of the circumstances, granting an extension of time in which to make the application is unwarranted. The circumstances presented were not exceptional. The application is therefore dismissed. My reasons follow.

• [4] As noted, the threshold issue to first be determined is the date that the Applicant's employment ceased. To determine that date, it is necessary to reflect on the background of the matter, which is derived from the following evidence of the parties.

• [5] The evidence of both the Applicant and the Respondent was that a meeting was held at the Balcatta offices of the Respondent on 20 July 2021. In attendance at the meeting was Ms Alicia Norgrove of the Respondent, a Mr Sean George, OSS Area Manager, who was purported to be the Applicant's Line Manager, and the Applicant.

• [6] During the course of the meeting on 20 July 2021, the Applicant was informed, after the Respondent had heard the Applicant's response as to why his employment should not be terminated, that his employment would be terminated effective that day.[1] He was further informed that he would not be required to work out his notice, instead it would be paid out along with any outstanding leave entitlements.[2]

• [7] When the Applicant made his unfair dismissal application, he named the Respondent as Sodexo. However, it was uncontentious that the employing entity was IFM Services Pty Ltd and therefore an amendment was made pursuant to s 586 of the Act.

• [8] Section 386(1)(a) of the Act defines the term 'dismissed' as a situation where a person's employment has been terminated at the initiative of the employer or where a person is forced to resign as a result of some act of the employer. A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[3] What will constitute 'communicated' for the purpose of providing notice, will vary on a case-by-case basis and must be considered and applied taking in account the particular circumstances of a case.

• [9] At common law, it is accepted that an employer may unilaterally terminate the contract of employment with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated.[4] Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective.[5]

• [10] Returning to the threshold issue for determination in this case, the Applicant gave evidence that he did not consider that he was officially notified of his dismissal until 22 July 2021.

• [11] The Applicant questioned the validity of the notification of dismissal on both 20 July 2021 and in the letter of termination of 22 July 2021, on the basis that he considered Mr George lacked authority to make the decision to terminate his employment or to sign the letter of termination. His concern arose in part from Ms Norgrove and Mr George taking a break in the meeting of 20 July 2021 to revert to the 'business', prior to informing Mr Gill thereafter he was dismissed.

• [12] It was the Applicant's evidence that Ms Norgrove explained to him that neither her nor Mr George had authority to make the final decision to dismiss him and that this had to be recommended by a senior manager. He was further informed by Ms Norgrove that the senior manager was Mr Shane McDonald. Mr Gill said that having worked with Mr McDonald in the past he called him subsequent to the meeting on 20 July 2021 and Mr McDonald informed him that he had no knowledge of the termination of employment.[6]

• [13] Based on the evidence before me, the Applicant's consternation appears to be ill-founded. While Mr Gill gives evidence of a conversation with Mr McDonald, such account is unable to be verified. Mr George gave evidence that he had authority to inform the Applicant of his dismissal and to sign the letter of termination provided on 22 July 2021. The evidence does not support a finding that Mr George lacked authority to notify the Applicant of his dismissal or to otherwise make that decision, given his position in the Respondent.

• [14] In his Form F2, the Applicant identified he was notified of his dismissal on 20 July 2021 and that it took effect on that same day.

• [15] I am of the view that it was unequivocally communicated to the Applicant on the 20 July 2021, that the end date of his employment was 20 July 2021. On any objective level, it is open to find that the Applicant's dismissal took effect on 20 July 2021, and therefore his application has been made outside of the requisite statutory period.

• [16] Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.[7] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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, can be considered exceptional.

• [17] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if it is satisfied that there are exceptional circumstances taking into account:

(b) whether the person first became aware of the dismissal after it had taken effect; and

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

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

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

• [18] Each of these factors are considered below.

• [19] The 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.[8] 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 the applicant's favour, however all of the circumstances must be considered.[9]

• [20] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[10] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.[11]

• [21] The parties were informed of the factors the Commission takes into account when determining whether to grant an extension of time. Notwithstanding the Applicant advanced his case primarily on the basis that his application had been filed in time.

• [22] However, the Applicant did attribute the delay to not being able to obtain documents sought from the Respondent, trying to ascertain if the Respondent had an appeal process or would be willing to engage in an arbitral process, mental health issues and dealing with the issues arising from the dismissal by himself.

• [23] As observed, the Applicant gave evidence of experiencing mental health issues in the period between the dismissal and the lodging of his unfair dismissal application. Inevitably, losing a job may cause distress, and while I appreciate that the Applicant speaks of circumstances that were difficult, they were not however exceptional. Furthermore, in the absence of direct or corroborative evidence to substantiate such difficulties, it is simply not open to find that these circumstances were exceptional. It should also be noted that the Applicant appeared quite able to undertake research concerning a potential unfair dismissal claim, notwithstanding his mental health issues.

• [24] As of 23 July 2021, the Applicant had placed the Respondent on notice that he was requesting a copy of his personnel file and all relevant information used in his dismissal because his preliminary investigation had indicated that he had a case to instigate an unfair dismissal application with the Commission. In the Applicant's letter of 23 July 2021 that was emailed to the Respondent, the Applicant referred to the Fair Work Commission website and had included an extract purportedly from the same website.[12] Further, in his correspondence to the Respondent by email dated 24 July 2021, the Applicant wrote, 'I am not so naïve to think you will review your decision. Fair Work Commission will adjudicate the information I can supply and make a judgment on whether to investigate or not... I am seeking the records that substantiates my dismissal'.[13]

• [25] An argument that the Applicant was operating under a misapprehension regarding when the dismissal took effect such that he was unaware of his legal rights, is insufficient in and of itself to constitute an 'exceptional circumstance' within the meaning of the Act.[14] It was evident that the Applicant had undertaken research on the Fair Work Commission website and was aware of the viability of an unfair dismissal application. While the Applicant purported experiencing difficulties in accessing documents or ascertaining whether the Respondent was open to an arbitral or appeal process, these matters did not preclude the making of his unfair dismissal application within time.

• [26] The Form F2 Unfair Dismissal Application has been developed with the self-represented applicant in mind. It is not a complex document; it is not in the nature of a formal pleading; it is designed so that it may be completed by a layperson and may be lodged by a number of methods including online lodgement. Further, it does not require an applicant to attach certain documents.

• [27] I have considered the delay as the period beyond the 21-day period, and while the application was made one day late, I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the period (or part thereof) of the delay in lodging his unfair dismissal application. This weighs against a finding that there are exceptional circumstances.

• 3.2 Whether the person first became aware of the dismissal after it had taken effect

• [28] For the reasons detailed at paragraphs [9]-[14] of this decision, I am of the view that the Applicant became aware of his dismissal on 20 July 2021. I, therefore, consider this to be a neutral consideration.

• 3.3 Action taken by the person to dispute the dismissal

• [29] By his letter of 23 July 2021, the Applicant had placed the Respondent on notice that he considered he had a case to instigate an unfair dismissal claim with the Commission. In his email correspondence to Mr Wans on 24 July 2021, he again raised making such a claim.

• [30] It follows that there is evidence before the Commission that the Applicant took action to dispute his dismissal once it had taken effect on 20 July 2021. In all of the circumstances, I am satisfied that this favours there being exceptional circumstances.

• [31] The Respondent has not contended that it is disadvantaged by the Applicant's late unfair dismissal application. I therefore consider this factor to be a neutral consideration.

• [32] In Kornicki v Telstra-Network Technology Group,[15] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said, in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[16]

• [33] Concerning the substantive application, the merits have not been fully tested. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[17] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. It is for these reasons that I have concluded this factor to be one that is neutral.

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

• [34] The criterion of 'fairness as between the person and other persons in a similar position', was considered by the Deputy President in Morphett v Pearcedale Egg Farm,[18] where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[19]

• [35] I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party based on the submissions filed by both parties.

• [36] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all of the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension of time.

• [37] While appreciative that the delay in making the application was one day, having regard to the reasons for the delay in culmination with the other factors one considers under s 394(3), which are predominately neutral with the exception that the Applicant took steps to dispute his dismissal, it remains the case that it is not fair and equitable to grant an extension of time.

• [38] In short, the Applicant demonstrated competence in his research regarding the making of an unfair dismissal application. He was not naïve to the process and appeared unaffected by a lack of clarity in his thought processes such as may arise from mental health issues. There was no direct evidence to support the impact upon him of other purported personal circumstances such as contending with the dismissal and subsequent issues, by himself.

• [39] While the Applicant may have operated under the misapprehension regarding when his dismissal took effect such that he considered the 22 July 2021 to be the critical date as sign posting the time when the 21-day statutory period commenced, he was clearly cognisant of an application for unfair dismissal. Therefore, it was always open to him to research the point or seek advice on the same given he had researched other aspects of the Commission website. The Applicant's unfamiliarity of the law does not assist him in this respect. As noted, the other factors considered under s 394(3) are predominately neutral except for the Applicant taking steps to dispute the dismissal.

• [40] It follows that the Applicant's application for an unfair dismissal remedy is dismissed. An Order[20] will be issued with this decision.

[1] Applicant's Bundle of Documents Minutes of Meeting 20 July 2021.

[3] Burns v Aboriginal Legal Service of Western Australia (Inc) (AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 [24].

[4] Mohammed Ayub v NSW Trains [2016] FWCFB 5500 [17].

[5] G J McCarry, 'Termination of Employment Contracts by Notice' (1986) 60 Australian Law Journal 78 [79].

[6] Applicant's Bundle of Documents Applicant's letter to Chambers 2 September 2021.

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; [2011] 203 IR 1 ('Nulty').

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

[10] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 [40].

[11] Mr Ke Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [12].

[12] Applicant's Bundle of Documents Letter to Ms Gore of the Respondent of 23 July 2021.

[13] Applicant's Bundle of Documents Email from Ian Gill email address to Andree Wans dated 24 July 2021.

[15] Kornicki v Telstra-Network Technology Group Print P3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).

[17] Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899.

[18] [2015] FWC 8885.

[20] PR734277.

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