Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application made outside 21-day timeframe - circumstances not exceptional.

• [1] Mr Corey Robertson made an application for an unfair dismissal remedy under s 394(1) of the Fair Work Act 2009 (Cth) (Act) on 24 August 2022. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s 394(3). The respondent, Bega Dairy & Drinks, submits that the application was made outside the statutory timeframe and opposes the grant of an extension of time. It says that Mr Robertson has not demonstrated exceptional circumstances in support of his application.

• [2] For the reasons that follow, I am not satisfied that there are exceptional circumstances. The respondent's jurisdictional objection is upheld and Mr Robertson's application for an unfair dismissal remedy is dismissed.

• [3] Mr Robertson was employed on 1 October 2017 by Lion Dairy & Drinks Services Pty Ltd, which was subsequently acquired by the respondent. Mr Robertson's employment was transferred to the respondent in 2021 as part of the acquisition. Mr Robertson was employed as a Packaging Technologist.[1]

• [4] The respondent held concerns with respect to Mr Robertson's performance and contends that it implemented performance management processes with Mr Robertson from May 2021. Mr Robertson was placed on a performance improvement plan in February 2022.[2]

• [5] On 7 June 2022, the respondent's research and development packaging manager Mr Stanley D'Souza, who was Mr Robertson's line manager, sent Mr Robertson correspondence titled "Formal Final Written Warning."[3] The letter sets out the respondent's specific concerns with respect to Mr Robertson's performance and notes that these matters were discussed at meetings between the parties on 2 February and 5 May 2022. The issues concerned Mr Robertson's priority and time management, and commitment and accountability. The letter set out Mr Robertson's response to these matters and noted that his response was taken into account. The letter set out an action plan and stated relevantly as follows:[4]

"Cory, as I indicated in our meeting, it is important that you understand that should your achievement level remain unsatisfactory, the Company may need to consider whether it is appropriate for your employment with the Company to continue."

• [6] Following a meeting on 12 July 2022, Mr D'Souza sent a show cause letter to Mr Robertson on 25 July 2022.[5] The show cause letter notes that Mr Robertson's achievement levels were not meeting the required standard and identifies further issues with respect to Mr Robertson's priority and time management, and commitment and accountability. The show cause letter set out Mr Robertson's response and stated:[6]

"Notwithstanding these matters, on the basis that you have not been meeting the required standard in the Performance improvement program over a period of 5 months, on top of the regular improvement feedback provided to you over the past 12months we are considering the termination of your employment.

We invite you to show cause as to why your employment should not be terminated in respect of these matters. You are invited [sic] provide these reasons in writing by end of day 26 Jul and attend a meeting on 27 Jul to further discuss these reasons. You may bring a support person with you to this meeting."

• [7] Mr Robertson was terminated with immediate effect by way of a letter dated 27 July 2022.[7] The termination letter identifies the following steps, in summary, taken in relation to Mr Robertson's performance:

(a) an initial "kick-off" meeting on 2 February 2022;

(b) a subsequent meeting held on 5 May 2022;

(c) the final written warning letter dated 7 June 2022;

(d) a series of formal review meetings on 28 June and 7 July 2022; and

(e) a show cause letter dated 25 July 2022.

• [8] The termination letter states that Mr Robertson's achievement levels against the areas of concern (priority and time management, and commitment and accountability) remained unsatisfactory. The letter then provides as follows:

"Through feedback from different stakeholders and my personal observations, we have finally concluded that your level of achievement remains unsatisfactory and is not in line with the level of what is expected of you. This is over and above the guidance, coaching and similar feedback provided to you from Jun'21 until Feb'22.

Considering all the above, we will be terminating your employment effective close of business 27 Jul 2022 on the grounds of unsatisfactory performance. You will receive payment in lieu for one month's notice and any outstanding leave entitlements will be included in your final payment."

• [9] Mr Robertson's employment with the respondent ended on 27 July 2022. It follows that the 21-day statutory timeframe for filing an application for an unfair dismissal remedy expired on 17 August 2022. Mr Robertson's application was received by the Commission on 24 August 2022 and was therefore made on the seventh day after the 21-day statutory timeframe had lapsed.

• [10] The Commission has the power pursuant to s 394(3) of the Act 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 the Full Bench in Nulty v Blue Star Group Pty Ltd.[8] 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.

• [11] Under s 394(3) of the Act, the matters the Commission must take into account in order to determine whether exceptional circumstances exist are as follows:

(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.

• [12] These matters are considered in the analysis which follows.

Reason for the delay: s 394(3)(a)

• [13] The Act does not specify what reason for delay might tell in favour of granting an extension. 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 the applicant's favour, however all of the circumstances must be considered.[9]

• [14] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application, being the seven days on and from 18 August 2022 to 24 August 2022.[10] However, the circumstances from the time of the dismissal must be considered in order to determine the reason for the delay beyond the 21-day period.[11]

• [15] Mr Robertson submits that the delay is attributable to "very significant stress at work and at home." His son was diagnosed with complex post-traumatic stress disorder in early February 2022. This situation has had a significant impact on Mr Robertson and his family. Mr Robertson submits that he has had difficulty sleeping and dealing with the stress occasioned by this incident. Mr Robertson has been prescribed antidepressants,[12] and gave evidence that he continues to take them.

• [16] Mr Robertson says that the issues concerning his employment exacerbated his stress and anxiety.[13] Mr Robertson could not concentrate and was forgetful, and said that these symptoms intensified after the dismissal. He suffered from sleep deprivation and an anxiety-induced mental impairment. This is said to have affected Mr Robertson's ability to deal with complex information as he had difficulty organising his thoughts.[14]

• [17] In support of his position, Mr Robertson relies upon a certificate from his general practitioner. The certificate contains the following:[15]

"This is to certify that Corey Robertson has been struggling with a lot of stress for a long time. He was over worked & burnt out in his old job . He has been forgetful due to immense pressure."

• [18] Shortly prior to the hearing, Mr Robertson filed four additional documents.[16] The documents are in summary as follows:

(a) A letter from a psychologist dated 3 March 2022 which describes the health of Mr Robertson's son.

(b) A letter from a psychologist dated 8 March 2022. The letter is addressed to another doctor. The letter provides a status update concerning the health of Mr Robertson's son.

(c) A letter from a psychologist dated 19 March 2022. The letter describes the symptoms being experienced by Mr Robertson's son.

(d) A letter from a psychologist dated 29 September 2022. The letter confirms that Mr Robertson and his family have attended group counselling. It details some of Mr Robertson's son's symptoms.

• [19] It is noted that the psychologist referred to in (a), (b) and (d) above is the same.

• [20] At the hearing, Mr Robertson submitted that he was unaware of the 21-day statutory timeframe for lodging an unfair dismissal application, and was also of the view that the 21-day timeframe was calculated by reference to business days such that he did not consider his application to be out of time.[17]

• [21] The respondent contends that it was unaware of Mr Robertson's personal and health issues, as these matters has not been raised during the employment.[18] The respondent submits that the medical certificate from Mr Robertson's general practitioner is "unsubstantiated" and that even if substantial evidence was provided, the matters described do not amount to exceptional circumstances.[19]

• [22] I accept on the evidence that the condition of Mr Robertson's son is as described by Mr Robertson for the purposes of this application. I do not consider it necessary to set out the nature of this condition. However, for the reasons that follow, I am not satisfied that Mr Robertson has provided a credible reason for any part of the delay.

• [23] To establish a credible reason for the delay on the basis of medical incapacity, cogent medical evidence will often be required. No medical evidence, or "generalised" medical evidence, is typically insufficient to establish a contention that the delay is occasioned by medical incapacity. Medical evidence produced for the purposes of establishing that a medical incapacity explains the delay should provide some insight into the extent to which an applicant is incapacitated during the delay period, or the relevant part of the delay period attributable to the incapacity. Further, the medical evidence is relevant in the consideration of an applicant's capacity to lodge an unfair dismissal application, and the assessment of other evidence which may undermine a contention that a person's capacity provides a credible reason for the delay.[20]

• [24] The medical certificate from Mr Robertson's general practitioner certifies that he has been struggling with "a lot of stress over a long time," has been over worked and burnt out and has been forgetful due to immense pressure. The medical certificate does not contain a diagnosis, or a specific explanation of the effects of any medical condition on Mr Robertson. The additional medical evidence concerns Mr Robertson's son. To the extent that this evidence refers personally to Mr Robertson, it is limited to confirming that Mr Robertson attended group counselling and that his son is experiencing health concerns.

• [25] While I accept that the medical evidence establishes the truth of the matters it concerns, the evidence does not establish a credible reason for the delay. The high watermark of the medical evidence as it relates to Mr Robertson is that Mr Robertson is stressed and is more forgetful than usual. The medical evidence does not establish that Mr Robertson was medically incapable of lodging his unfair dismissal application within the 21-day timeframe.

• [26] I am not satisfied that the delay was occasioned by Mr Robertson's personal or health circumstances. At the hearing, Mr Robertson was asked to explain what he did during the delay of seven days. Mr Robertson gave evidence that his "primary goal" was to secure alternative employment and as such he had applied for new jobs. Mr Robertson said that his employment applications had not been successful to date. Mr Robertson explained that he had made a "very late" decision to make an unfair dismissal application to provide his family with some "financial leeway" as he searched for a new job. Mr Robertson said that he was hesitant to make the application lest it prejudiced his future employment opportunities.

• [27] It is apparent from this evidence that Mr Robertson's health and personal circumstances did not preclude him from applying for new jobs during the period of the delay. In circumstances where Mr Robertson was capable of undertaking this task, I do not accept Mr Robertson's contention that he was unable to lodge his unfair dismissal application within time on account of his personal or health circumstances.

• [28] To explain the delay, Mr Robertson also relies on (a) his ignorance of the statutory timeframe, and (b) his view that the timeframe is calculated by reference to 21 business days. While these matters give rise to some inconsistency, I have considered each of these contentions to the extent available on the evidence before the Commission.

• [29] It is well established that ignorance or miscalculation of the timeframe does not of itself establish a credible reason for the delay.[21] It is apparent from Mr Robertson's evidence that he did not consider making an unfair dismissal application until "very late" and seemingly, after the 21-day statutory timeframe had already lapsed. In these circumstances I reject any contention, to the extent it is made, that Mr Robertson's increased forgetfulness had any bearing upon his ignorance of the statutory timeframe.

• [30] To the extent that Mr Robertson subsequently miscalculated the 21-day timeframe, I do not accept that this establishes a credible reason for the delay. Mr Robertson's method of calculating the timeframe by reference to business days is at odds with the guidance material provided on the Commission's website which Mr Robertson said that he accessed, seemingly after the statutory timeframe had already passed.

• [31] Having concluded that Mr Robertson has failed to establish a credible explanation for the any part of the seven-day delay, I consider that this factor weighs against a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect: s 394(3)(b)

• [32] Mr Robertson became aware of the dismissal the day it took effect on 27 July 2022.[22] It follows that Mr Robertson had the benefit of the full period of 21 days to lodge an unfair dismissal application in the Commission. This weighs against a finding of exceptional circumstances.

Action taken by the person to dispute the dismissal: s 394(3)(c)

• [33] Where an applicant takes action to dispute an alleged dismissal, it will put the employer on notice that the termination of employment is actively contested and may, depending on all the circumstances, favour the grant of an extension of time.[23]

• [34] Mr Robertson submits that he provided a detailed response addressing the respondent's performance concerns. Further, Mr Robertson says that he told the respondent that he "strongly disagreed" with its evaluation of his performance. Mr Robertson considered that it seemed unfair given that his alleged performance issues had not given rise to any major negative impact to the respondent's business.[24]

• [35] I do not consider that these matters amount to steps taken to dispute the dismissal. Rather, they constitute Mr Robertson's response to the concerns in the period prior to the dismissal. It follows that Mr Robertson's statements could not have put the respondent on notice of an impending formal challenge to the dismissal.

• [36] Aside from lodging his application for an unfair dismissal remedy, Mr Robertson did not otherwise take steps to dispute the dismissal. I consider that this weighs against a finding of exceptional circumstances.

• [37] It is not contended, and nor do I consider that any prejudice to the respondent would arise if an extension of time were to be granted. However, the mere absence of prejudice is not a factor that would tell in favour of the grant of an extension of time.[25]

• [38] I consider this to be a neutral consideration.

• [39] For the consideration in s 394(3)(e) to weigh in favour of a finding of exceptional circumstances, it must be shown that there is some merit in the substantive application.[26] However, this proceeding is essentially interlocutory in nature and does not enable a fulsome examination of these matters. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[27]

• [40] Mr Robertson contends that the dismissal was unfair for reasons including the following:[28]

(a) There was no legitimate reason for the dismissal. Mr Robertson was a longstanding employee with a "more than satisfactory" record. He and other senior staff have been dismissed since the respondent acquired the business. Mr Robertson was told he was on a list of employees to be terminated.

(b) The matters set out in the termination letter are not objective matters or identified with sufficient specificity.

(c) The respondent did not observe a fair process.

(d) The termination was harsh because of the consequences to Mr Robertson and his family.

(e) Mr Robertson had notified the business in July 2020 that his workload was too high and he was doing approximately 50 packing projects per year together with quality, design and innovation related activities. When Mr Robertson was moved out of that position, three different people assumed work on those projects.

(f) On 22 June 2022, Mr Robertson received a number of awards for innovation. Mr Robertson considers that he had the support of the respondent's senior management, however that management group changed.

(g) On 8 July 2022, Mr Robertson was told that he was doing "much better" by his line manager which led Mr Robertson to believe his performance was satisfactory.

(h) Mr Robertson did not have a full eight hours to respond to the show cause letter as he was preoccupied with other business activities that would have caused the respondent financial loss if not completed.

(i) Mr Robertson's name and position were left off the respondent's organisational chart at least six weeks prior to his dismissal.

(j) There was an advertisement posted for Mr Robertson's position six to eight weeks prior to the dismissal.

(k) There was a newly hired employee on the day of Mr Robertson's dismissal.

(l) Mr Robertson's workload was extremely high and new projects had increased by 30%. Despite this, three employees in his team were made redundant.

(m) Mr Robertson believes that his name was on a list of people to be made redundant one year prior to being placed on a performance plan.

(n) The entire packaging team were struggling with the workload.

• [41] The respondent addressed the key arguments made by Mr Robertson. The respondent's position can be relevantly summarised as follows:[29]

(a) Mr Robertson was never told that he was on a list to be terminated.

(b) Mr Robertson was informed of all of the concerns the respondent had in relation to his employment.

(c) The respondent observed a thorough and fair process in performance managing Mr Robertson.

(d) The dismissal was not harsh.

(e) Mr Robertson's claim to have been working on approximately 50 projects is exaggerated.

(f) Mr Robertson was unable to demonstrate improved performance.

(g) The show cause letter provided Mr Robertson with over 24 hours to respond, and he did not seek additional time.

(h) The respondent denies having an organisational chart which omitted Mr Robertson's name.

(i) Mr Robertson's position was not made redundant, and the respondent is advertising to fill his role.

(j) The senior packaging technologist role advertised prior to Mr Robertson's dismissal was Sydney-based.

(k) The claim that Mr Robertson's name was on a list of employees to be made redundant a year ago is absurd.

(l) Every performance improvement plan is individually considered.

• [42] Many of the above matters are in genuine contest and are not capable of resolution at this stage.[30] I consider that much would turn on the parties' evidence in support of their respective positions. A key component of Mr Robertson's argument is that he was required to do too much work. The extent to which this contention can be established, and any impact it may have on the veracity of the performance issues relied upon by the respondent would necessitate thorough consideration to form a reliable view on the merits of the substantive application.

• [43] Accordingly, I do not consider it is possible to assess the relative strength of either party's merits case. It follows that the merits of the application is a neutral consideration in my assessment of exceptional circumstances.

Fairness as between Mr Robertson and other persons in a similar position: s 394(3)(f)

• [44] Mr Robertson contends that he was misled by the respondent in relation to its intention and was not given sufficient time to find an alternative job. Mr Robertson considered that his performance had significantly improved and the termination of his employment was a disproportionate response. Further, Mr Robertson contends other employees made more significant mistakes than him with significantly less repercussion.[31]

• [45] The respondent rejects each of these contentions.[32]

• [46] Section 394(3)(f) is concerned with the consistent application of principles in cases of this kind. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.

• [47] The applicant's contentions, and by extension the respondent's defence to them, do not agitate any notion of fairness in the relevant sense. I therefore consider this to be a neutral factor in my consideration.

• [48] The test of exceptional circumstances in s 394(3) of the Act is a stringent one, establishing a high hurdle for an applicant for an extension.[33] Having regard to my consideration of the statutory criteria, and the conclusions reached, none of the s 394(3) factors weigh in favour of the finding of exceptional circumstances. I am not satisfied that the matters raised amount to exceptional circumstances either when the various circumstances are considered individually or together.

• [49] As I am not satisfied that there are exceptional circumstances in this case, there is no basis for me to extend time.

• [50] Mr Robertson's application for an unfair dismissal remedy is therefore dismissed.

[1] Exhibit 1 - Court Book (CB) 40 at [12]-[13]

[8] [2011] FWAFB 975; (2011) 203 IR 1

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

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

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

[20] Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285 at [21]- [22]; Woolworths Ltd v Lin [2018] FWCFB 1643; (2018) 273 IR 380 at [65]- [67]; Becke v Edenvale Manor Aged Care [2014] FWCFB 6809 at [9]

[21] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14]

[23] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

[25] C Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [38]

[26] Long v Keolis Downer (t/as Yarra Trams) [2018] FWCFB 4109 at [71]

[27] Kyvelos v Champion Socks Pty Ltd [2000] AIRC 540, Print T2421 at [14]

[30] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [36]

[33] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; (2018) 273 IR 156 at [14] citing Lombardo v Commonwealth [2014] FWCFB 2288 at [21]

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