s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed out of time - extension of time for filing sought - extension refused

• [1] Eddie Carter was employed by ART People Services Pty Ltd as Manager, IT Services Management of the Australian Retirement Trust. On 3 December 2024, ART informed him that it was considering implementing a restructure which would see his role consolidated with another one in the business, to create a new role. He was told that if ART implemented the restructure, ART was of the preliminary view that his role would become redundant as of 6 January 2025.

• [2] Mr Carter was provided with a position description for the new role and invited to provide feedback as part of a consultation process. He did so.

• [3] On 9 December 2024, ART advised Mr Carter that it had decided to proceed with the restructure. It also told him that the newly-created role had been offered to another person.

• [4] In a letter of that date, ART stated that Mr Carter's position would become redundant on 6 January 2025; that an eight week redeployment period would commence immediately, during which ART would investigate redeployment opportunities for Mr Carter across the organisation; the redeployment period would end on 3 February 2025; and if Mr Carter had not been redeployed by that date, his employment would be terminated with notice, or payment in lieu of notice.

• [5] Also on 9 December 2024, ART sent an email to Mr Carter confirming that the redeployment period would run from 10 December 2024 to 3 February 2025; that (presumably if applicable) the notice period would run from 4 February 2025 to 11 March 2025; and that his last day of employment would be 12 March 2025.

• [6] On 13 December 2024, Mr Carter requested that ART make a payment to him in lieu of notice. ART agreed to that request. Mr Carter's employment came to an end on 3 February 2025.

• [7] Mr Carter filed an unfair dismissal application with the Fair Work Commission on 26 February 2025.[1]

• [8] An unfair dismissal application must be made within 21 days of the dismissal, unless the Commission allows a further period.[2] The 21-day period expired on 24 February 2025. It follows that Mr Carter requires the Commission to allow him an extension of time to file his application. He has applied for such an extension.

• [9] ART opposes the extension application.

• [10] I am required to determine the extension application before considering the merits of Mr Carter's unfair dismissal application.[3] ART proposed that I deal with the extension application "on the papers". Mr Carter consented to that course of action. I do not consider that the extension application involves "facts the existence of which is in dispute" that would require me to conduct a conference or hold a hearing.[4] On that basis, I have determined the extension application "on the papers".

• [11] The Commission may only allow Mr Carter an extension of time if it is satisfied that there are "exceptional circumstances", taking into account:[5]

• a. the reason for the delay. The "delay" is the period between the end of the 21-day period and the filing of the application.[6] In this case, two days;

1. whether Mr Carter first became aware of his dismissal after it had taken effect. This factor allows the Commission to have regard to whether there was a delay in Mr Carter being informed of his dismissal, which may account for the delay in filing the application;

• c. any action taken by Mr Carter to dispute his dismissal. It will be relevant if an employee has taken action to dispute their dismissal, other than by making an unfair dismissal application. It will show, and put the employer on notice, that the employee actively challenges their dismissal. This may support an extension of time;[7]

1. prejudice to ART (including prejudice caused by the delay);

1. the merits of the unfair dismissal application. That is, the prospects of Mr Carter succeeding on his claim; and

1. fairness as between Mr Carter and other persons in a like position.

• [12] Circumstances will be "exceptional" if they are out of the ordinary course, or are unusual, or special, or uncommon. They do not need to be unique, or unprecedented, or very rare.[8] Exceptional circumstances may include:

• c. a combination of ordinary factors which, when taken together, are seen as exceptional.[9]

• [13] The test of exceptional circumstances establishes a "high hurdle" for a person seeking an extension.[10] The onus is on Mr Carter to demonstrate that exceptional circumstances exist.[11]

• [14] But a finding that exceptional circumstances exist is not the end of the matter. The Commission still has a discretion whether to allow an extension of time.[12]

1. Do exceptional circumstances exist in this matter?

1. If so, should I exercise my discretion to allow the Applicants an extension of time?

• [16] The answer to the first question is no. It is not necessary to consider the second.

Why I have found that the circumstances are not exceptional

There was no acceptable explanation for the delay

• [17] The reason for the delay does not itself need to be exceptional. It is just one of the factors to be taken into account. However, a credible explanation for the entirety of the delay will usually assist an applicant. On the other hand, the absence of an explanation for the delay (or part of it) will generally count against them.[13]

• [18] Mr Carter's explanation for the delay may be summarised in this way: From the time he had been informed of the redundancy of his position, there had been a "consistent understanding" between himself and ART that his last day of employment would be 12 March 2025. He was not aware that his request for payment in lieu of notice would bring his termination date forward. It followed that he understood that the 21-day period to file his unfair dismissal application would run from 12 March 2025. Upon "later reviewing the Fair Work Commission guidelines and speaking with a representative", he came to understand that the date of his dismissal was 3 February 2025. He submitted his application as soon as he became aware of that.

• [19] The nub of the matter is Mr Carter's misunderstanding as to the effect of receiving a payment in lieu of notice. In support of his extension application, Mr Carter provided a number of emails between himself and ART. Some of that correspondence is consistent with Mr Carter being of the view that his last day of employment would remain as 12 March 2025, despite requesting a payment in lieu. Indeed, in his email to ART of 13 January 2025 in which he first requested a payment in lieu he stated:

"I am writing to formally request that on completion of my redeployment period on the 3rd of February 2025, if my notice period can be paid out in lieu from the 4th of February to the 11th of March 2025, maintaining my termination date as the 12th of March 2025." (My emphasis)

• [20] ART does not appear to have directly responded to this message to inform Mr Carter that a payment in lieu of notice would see the termination date become 3 February 2025.

• [21] To my mind, the correspondence provided by Mr Carter reveals that he equated a payment in lieu of notice with what is colloquially known as "gardening leave". That is, that he would remain in employment and continue to be paid, but not be required to work. Were that the end of the matter, and coupled with the apparent failure of ART to directly and proactively address the effect of a payment in lieu on Mr Carter's termination date, it might provide an explanation for the delay.

• [22] However, on 16 January 2025, ART sent Mr Carter an email with the subject "Employee Separation - Eddie Carter - 03/02/2024". It contained a table which included an entry "Last Day of Employment" being 3 February 2025. Attached to the email was a document titled "Draft - Termination Calculation". That document refers to a "Termination Date" of 3 February 2025. Given Mr Carter's understanding of his position, that should at least have put him on notice to make enquiries.

• [23] On 4 February 2025 ART sent an email to Mr Carter titled "Final Payslip". On 6 February 2025 Mr Carter sent an email in reply which stated in part:

"I am reaching out as I am a bit confused, I have received my final payment today.

Based on our conversations I was expecting to receive this payment on completion of the 5 week notice period not the end of the redeployment period which ceased on the 3rd of Feb.

I had the understanding that I would still be receiving my bi-weekly pay up throughout the 6 notice period and then receive my final payment on the 12th of March."

• [24] After the exchange of several further emails, on 10 February 2025 ART sent an email to Mr Carter which stated in part:

"As previously advised, as you requested for your notice period to be paid out, as appose [sic] to working it, the notice is paid out, and in order to process this, your end date is moved forward. As you are not working your notice, and getting paid it as ordinary earnings for the 5 weeks period, you are not accruing entitlement. If you were to work your notice period, then you would up until the 12 March 2025."

• [25] While Mr Carter may originally have been of the understanding that a payment in lieu of notice did not affect his termination date, I am of the view that by 10 February 2025 he had been made aware that ART was (correctly) of the view that his employment had come to an end on 3 February 2025. At the least, he was on notice to clarify the position. In this regard, it is not clear when Mr Carter reviewed the Commission's "guidelines" to which he referred or spoke to his "representative". The delay between 10 February 2025 and 26 February 2025 (when he filed his application) is not explained.

• [26] Overall, I am not satisfied that Mr Carter has provided an acceptable reason for the entire delay. This argues against a finding of exceptional circumstances.

Mr Carter did not become aware of his dismissal after it had taken effect

• [27] Mr Carter was made aware on 9 December 2024 that his position had been made redundant. He was told on the same day that if he could not be redeployed by 3 February 2025, his employment would come to an end on 12 March 2025. ART's email of 16 January 2025 to Mr Carter noted a termination date of 3 February 2025. The fact of the dismissal was known well in advance. I accept that Mr Carter was initially unaware of the effect of receiving a payment in lieu of notice. However, he did not "first become aware of his dismissal after it had taken effect'. This argues against a finding of exceptional circumstances.

Mr Carter took no action to dispute his dismissal

• [28] There is no evidence that Mr Carter took any action to dispute his dismissal before commencing these proceedings. The only suggestion of Mr Carter being dissatisfied with the outcome was a request he made for clarity as to the process by which the criteria for the newly-created role were assessed. ART provided what it described as a "high level summary" in an email of 6 January 2025. There is nothing to suggest that Mr Carter raised further concerns until filing his application in this matter. That argues against a finding of exceptional circumstances.

• [29] ART accepted that it would suffer no prejudice as a result of the delay. But the absence of prejudice does not of itself support a finding that exceptional circumstances exist.[14]

What are the merits of the unfair dismissal application?

• [30] For present purposes, it is sufficient for Mr Carter to show that his unfair dismissal claim has some merit. The greater the merit, the more weight will be given to this factor.[15] However, the Commission should not embark on a detailed consideration of the substantive case in an extension of time application.[16]

• [31] The basis of Mr Carter's unfair dismissal claim can be distilled into several propositions. First, he was not provided with an opportunity to apply for the newly-created position. Rather, he was asked to provide feedback on the proposed restructure, after which ART undertook an internal assessment which resulted in the role being offered to somebody else. Second, there was no transparency about that assessment process. ART's subsequent failure to fully explain the process calls into question whether "due process and fairness" were afforded to him. Third, the failure of ART to manage his redundancy and communicate it effectively left him ostracised at work. This created a stressful and emotional environment, leaving him distressed. Fourth, ART did not inform him that in requesting a payment in lieu of notice, he would forgo the accrual of benefits between 3 February 2025 and 12 March 2025. Fifth, the manner in which ART handled the redundancy of his position has harmed his professional reputation.

• [32] ART contends that Mr Carter's dismissal was a case of genuine redundancy.[17] On that basis, it has raised a jurisdictional objection to the Commission hearing the matter.

• [33] To determine these issues, the Commission would be required to explore matters such as the reasons behind ART's decision to restructure the relevant part of its business, why it determined that Mr Carter ought not be appointed to the newly-created role and the process by which it did so, and the way in which ART managed and communicated the redundancy and redeployment process. There is insufficient material available to me to draw even tentative conclusions as to the findings that are likely to be made on these matters following a hearing.

• [34] I have determined that this factor argues neither for nor against a finding of exceptional circumstances.

Fairness as between Mr Carter and other persons in a similar position

• [35] This consideration is concerned with the importance of the Commission applying consistent principles in cases of this kind, to ensure fairness as between an applicant and other persons in a similar position. That consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[18]

• [36] Mr Carter did not demonstrate that his application is so sufficiently different to like matters in extension of time hearings which have come before the Commission that I should treat him differently. It would be unfair to other applicants whose applications for extensions of time have been refused by the Commission to treat Mr Carter in a different manner. This weighs against a finding of exceptional circumstances.

• [37] Having regard to the matters discussed above, I am not satisfied that exceptional circumstances exist. It follows that there is no basis on which I can grant Mr Carter the extension of time he seeks.

• [38] Mr Carter's request for an extension of time to file his unfair dismissal application is refused.

[1] The applications were made under Part 3-2 of the Fair Work Act 2009 ("Act"). All references in this decision to legislative provisions are references to provisions of the Act.

[5] Section 394(3). The requirement to take these matters into account means that each of them must be treated as significant to the decision-making process and given appropriate weight: see for example Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [19] and [39]

[6] Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 5109 at [40]

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300

[8] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]

[9] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]

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

[11] Romic v Blacktown City Council [2020] FWC 2533 at [8], citing Wemyss v Mission Australia Employment Services [2010] FWA 1798.

[12] Halls v McCardle and Ors [2017] FCCA 316, cited in Nikhil Challa v Australia and New Zealand Banking Group Limited t/as ANZ Bank [2017] FWCFB 436 at [16]

[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [39]

[14] Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [38], quoted with approval in Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21]

[15] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [71]

[16] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [72]

[18] Todd Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963 at [41]

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