Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - whether application was out of time - no exceptional circumstances - application dismissed.

• [1] On 15 July 2022, Mr David Taylor ('the Applicant') lodged an application for general protections involving dismissal against Ventia Pty Ltd ('the Respondent') with the Fair Work Commission ('the Commission') pursuant to s.365 of the Fair Work Act 2009 ('the Act').

• [2] Section 366 of the Act requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2).

• [3] On 12 August 2022, the Respondent wrote to the Commission requesting the matter be referred for a jurisdictional hearing, submitting that the application was made 22 days after the Applicant's dismissal and one day outside the 21-day statutory timeframe for filing.

• [4] My Chambers issued directions for the parties to file materials for a hearing of the extension of time matter, which was listed for hearing on 12 September 2022.

• [5] It is not in dispute that the Applicant's last day of work with the Respondent was on 30 January 2020. After this date, the Applicant took five days leave, and has been on unpaid sick leave thereafter.

• [6] On 17 November 2021, Mr Scott Bereth, Contract Manager for the Respondent, wrote to the Applicant seeking an update on the Applicant's ongoing employment with the company. Mr Bereth invited the Applicant to provide submissions about his employment before the Respondent made a determination as to whether the Applicant was likely to return to work on or after 1 December 2021.

• [7] On 30 November 2021, the Applicant provided written submissions to the Respondent by way of an email. In short, the Applicant stated he could not return to work as he had been threatened with physical violence by a co-worker on two separate occasions.

• [8] The Applicant submits that between April 2022 and June 2022, he tried to contact Mr Bereth via email and telephone to follow up about the status of his employment, without success.

• [9] The Applicant was sent a notice of termination on 23 June 2022, which he claims he did not see until 24 June 2022. The Applicant contends that he only saw the email on 24 June 2022 because he randomly checked to see if Mr Bereth had replied to his previous correspondence.

• [10] The Applicant alleges he was dismissed after exercising a workplace right to report his co-worker for threatening physical violence against him. The Applicant also alleges he was treated less favourably to other workers in his position because he is an Indigenous Australian.

Applicant's submissions regarding jurisdictional objection

• [11] The Applicant submits that his application for general protections involving dismissal was not made outside of the 21-day statutory timeframe, as he did not see the email terminating his employment until 24 June 2022. The Applicant contends that the first day of his 21-day statutory time limit should have commenced on 25 June 2022, the day after he first became aware of his termination. In support of his submissions, the Applicant referred to the Full Bench decision of Mohammed Ayub v NSW Trains ('Ayub').[1]

• [12] The Applicant submits that he did not become aware of the email until 24 June 2022 because he does not have a computer and has limited computer literacy. He relies on his phone to check his emails and does not have a notification system in place which would alert him when he had received an email. The Applicant asserts that he usually only checks his emails if he is expecting an email.

• [13] The Applicant submits that on 14 July 2022, he used the computer facilities at the North Pilbara ('South Hedland') Jobs and Skills Centre ('the Jobs and Skills Centre') to lodge his application. The Applicant submitted that he had received a response at 11.54 am from a mail delivery system stating that his email had been accepted for delivery to the recipient's inbox. The Applicant states that at the time, he genuinely believed that his application and been submitted, and he left the TAFE campus soon after that. Later that afternoon, the Applicant checked his emails and found that his application had not 'gone through'. The Applicant submits that it was too late in the day to do anything about it.

• [14] The Applicant re-submitted his application on 15 July 2022 with assistance from staff at the Jobs and Skills Centre.

Respondent's submissions regarding jurisdictional objection

• [15] The Respondent contends that the Applicant's submissions do not advance any 'unusual or extraordinary' circumstances to explain his delay in making his application, other than to say that he failed to open and read his emails until 24 June 2022.

• [16] The Respondent submits that the Applicant's contention that a notice of termination is not received until the recipient has read the email is misconstrued. In support of this submission, the Respondent referred to the Full Bench decision of Burns v Aboriginal Legal Service of Western Australia (Inc).[2] The Respondent submits that the Applicant received an email terminating his employment on 23 June 2022. The Applicant made an application for general protections involving dismissal on 15 July 2022, which was 22 days after his dismissal took effect.

• [17] In response to the Applicant's submission regarding his calculation of statutory time limits, the Respondent submits that the Applicant's ignorance, unawareness, or mistaken understanding of the time frame imposed in relation to making an application is not considered an 'exceptional circumstance' according to was then the Full Bench of Fair Work Australia in Nulty v Blue Star Group Pty Ltd ('Nulty').[3]

• [18] In response to the Applicant's submission that he has limited computer literacy, the Respondent submits that the Applicant was technologically capable, as he was able to configure his mobile telephone to receive personal and work-related emails.

• [19] The Respondent notes that upon reading his letter of termination, the Applicant waited until 14 July 2022 to take any steps to make the application. Between receiving the correspondence and making the application, the Applicant did not make any attempt to address the matters by way of direct communication with the Respondent. The Respondent submits that the Applicant did not signal any intent to challenge or to contest the reasons for his dismissal with the Respondent until the making of his application.

• [20] The Respondent further submits that there is no merit to the Applicant's claim for general protections involving dismissal. The Respondent rejected the Applicant's contention that he was dismissed from his employment because he exercised, or intended to exercise, a workplace right. Rather, the Applicant was dismissed following his continued and long-term absence from work, commencing in or around January 2020, and refusal to return to work. The Respondent denies the Applicant's allegation that the Respondent took adverse action against him by reason of his race.

• [21] It is an agreed fact that the Applicant was dismissed. However, the parties dispute the date the dismissal took effect.

• [22] Dismissal takes effect only when it is communicated to the employee.[4] However, there is no requirement that the email be read or acknowledged. In Ayub,[5] the Full Bench held that in the case of a dismissal without notice, the dismissal needs to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed. Relevant to the matter on hand, the Full Bench stated:[6]

"[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee's usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999(Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal."

• [23] In the recent Full Bench case of Australian Rail, Tram Bus Industry Union v Pacific National Services Pty Ltd T/A Pacific National ('RTBU v Pacific National')[7] the requirements for notice were considered. In that decision it was said:

"[14] However, in the Federal Court Full Court decision in Nguyen v Refugee Review Tribunal, Sundberg J said: '[a] requirement that a person be given notice of something does not demand that the thing be brought home to the person's understanding or knowledge... notice is not synonymous with knowledge."

• [24] Having regard to the decision in Ayub and RTBU v Pacific National, I am satisfied that the notice of termination email was received in the inbox of the Applicant's usual email address on 23 June 2022. The Applicant did not provide evidence as to why receipt of the email in his inbox on 23 June 2022 should not constitute a reasonable opportunity to become aware of the dismissal. The email address the Respondent used was the Applicant's current email address, and he received the email in his inbox. While the Applicant submitted that he had limited computer literacy, it was clear that the Applicant was able to send and receive emails on his mobile phone at the time the notice of termination was sent.

• [25] Accordingly, I have determined that the date of dismissal was 23 June 2022, and the application was therefore lodged one day outside of the statutory time frame.

Consideration of whether a further period should be granted

• [26] Pursuant to s.366 of the Act, an application for general protections involving dismissal under s.365 of the Act must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.3662(2) of the Act. Section 366(2) sets out the circumstances in which the Commission may allow a further period for an application to be made:

"(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

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

• [27] Satisfaction of 'exceptional circumstances' establishes a high bar for the Applicant.[8] The meaning of 'exceptional circumstances' was considered in Nulty, where it was noted that, 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[.] The Full Bench also stated that '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.'[10]

• [28] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[11] or a reasonable explanation.[12] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, a Full Bench of the Commission noted that the absence of an 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, and that all of the circumstances must be considered.[13] However, 'mere ignorance is not a reasonable or sufficient explanation for delay.'[14]

• [29] In my view, the Applicant did not provide an adequate reason for delay.

• [30] The Applicant stated that he had read the decision in Ayub¸ and interpreted the decision to mean that his termination did not take effect until he had read the email. This interpretation of the decision is incorrect, for reasons which I have explained above at paragraph 24. The Applicant's misunderstanding of the case law or miscalculation of the statutory timeframe is not a reasonable excuse for delay.[15]

• [31] The Applicant further states that he genuinely believed he had lodged his application on 14 July 2022 and received an email confirming the same, however, he has not provided any evidence of this. The Applicant also did not provide any submissions as to why he had not attempted to file an application before 14 July 2022.

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

• [32] The Applicant did not provide any evidence or submissions that he took action to dispute the dismissal with his employer. I accept the Respondent's submissions that Applicant did not contest his dismissal other than filing an application for general protections involving dismissal.

Section 366(2)(c) - Prejudice to the employer

• [33] The Respondent submits it is not prejudiced by the delay in the Applicant making the application. I accept this submission.

Section 366(2)(d) - Merits of the application

• [34] The Applicant provided the Commission with a detailed witness statement dated 19 December 2021, which provided a chronology of events and explained why he felt unsafe in his workplace. The Applicant used this witness statement in support of his allegation that he was terminated for exercising a workplace right. The Respondent denies the Applicant's allegations, submitting that he was in fact dismissed for his refusal to return to work following a continued and long-term absence.

• [35] Based on the limited material before me which has not been fully explored or tested, I cannot conclude the prospect of success of the general protection's application involving dismissal.

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

• [36] The Applicant stated in his Form F8:

"I feel because I am an Aboriginal person, my employer has treated me less favourably and differently to other workers that would have been in my position."

• [37] I acknowledge the Applicant's submissions but note that no further evidence or material was provided to the Commission to support this allegation.

• [38] The time limit that applies to the exercise of a person's right to bring an application under s.365 reflects the Parliament's intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

• [39] Having regard to all of the matters that I am required to take into account under s.366(2), I am not satisfied that the requisite exceptional circumstances exist. There is no acceptable or reasonable explanation for the delay in filing the application, none of the factors in s.366(2) weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

• [40] I decline to grant an extension of time under s.366(2). The Applicant's application under s.365 of the Act is dismissed.

[1] Mohammed Ayub v NSW Trains [2016] FWCFB 5500 at [48] ('Ayub').

[2] (Unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 [24])

[3] [2011] FWAFB 975.

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

[5] Mohammed Ayub v NSW Trains [2016] FWCFB 5500 at [48].

[6] Ibid [50]; see also s.14A of the Electronic Transactions Act 1999 (Cth).

[7] [2022] FWCFB 23.

[8] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 at [14].