Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objections - demotion - whether the applicant was dismissed - whether application made within the statutory timeframe.

• [1] Mr Graeme Taylor was demoted in his employment with the Department of Justice and Community Safety as an outcome of a misconduct investigation. He had been performing the role of Prison Supervisor at HM Prison Langi Kal Kal. As a result of the demotion, he now holds the role of Senior Prison Officer and has been transferred to Hopkins Correctional Centre.

• [2] The applicable enterprise agreement covering Mr Taylor's employment at the relevant time was the Victorian Public Service Enterprise Agreement 2020 (VPS Agreement).[1] The VPS Agreement provided for demotion as a disciplinary outcome. It is not in issue in this case that Mr Taylor's demotion was authorised in accordance with the VPS Agreement. However, the parties are in dispute about whether the Department acted in accordance with the terms of the VPS Agreement in effecting Mr Taylor's demotion and transfer. Mr Taylor contends that the Department has not, and it has therefore repudiated Mr Taylor's employment contract. Mr Taylor has applied to the Commission under s 394 of the Fair Work Act 2009 (Cth) (Act) alleging that he has been unfairly dismissed.

• [3] The Department contends that Mr Taylor's demotion does not amount to a dismissal. Alternatively, the Department says that if Mr Taylor has been dismissed, the application was not made within the 21-day statutory timeframe provided by s 394(2) of the Act.

• [4] The dispute between the parties as to whether Mr Taylor has been dismissed is an issue that is strongly in contest. However, this decision proceeds on the assumption - without deciding - that Mr Taylor was dismissed by the Department solely for the purposes of considering whether to grant a further period having regard to the matters in s 394(3) of the Act.

• [5] For the reasons that follow, I find that Mr Taylor's dismissal took effect when it was communicated to him on 26 April 2024. The application for an unfair dismissal remedy was lodged on 3 October 2024, well outside the 21-day statutory timeframe for lodgement. I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is not enlivened.

• [6] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. While this decision proceeds on the assumption, without deciding, that Mr Taylor was dismissed by the Department, the determination of the Department's out of time objection requires me to ascertain the date that such dismissal took effect.

• [7] The Department commenced a misconduct investigation against Mr Taylor in relation to comments Mr Taylor made about transgender prisoners. It is not necessary for the purposes of this decision to set out in detail the allegations. The allegations were partially substantiated by the Department, taking into account Mr Taylor's response. The Department provided Mr Taylor with a letter setting out its proposed disciplinary outcome. The Community and Public Sector Union (CPSU) responded to the Department on Mr Taylor's behalf stating that the proposed outcome was disproportionate, harsh and unreasonable.[2]

• [8] The Department provided Mr Taylor with a letter dated 18 April 2024 (received by him on 26 April 2024) which is described as a "final disciplinary outcome letter." The letter advised that Mr Taylor's proven conduct amounted to misconduct under the VPS Agreement and that the Assistant Commissioner, Custodial Operations had reached a "final decision regarding an appropriate disciplinary outcome" as follows:

In order to avoid a more severe discipline outcome such as termination of your employment, I have decided on the outcome of assignment to a Senior Prison Officer role at a COG2B and a transfer to Hopkins Correctional Centre (HCC) in accordance with clause 25.12(c) of the Agreement.

• [9] It is not in dispute that the role of Senior Prison Officer is the immediate classification below Prison Supervisor in the VPS Agreement.

• [10] On 1 May 2024, with the assistance of the CPSU, Mr Taylor initiated a dispute pursuant to clause 13 of the VPS Agreement. The Department did not reduce Mr Taylor's remuneration pending resolution of the dispute. A meeting to discuss the matter was arranged but did not proceed upon Mr Taylor engaging legal representation and the CPSU ceasing to act.[3]

• [11] On 30 May 2024, Mr Taylor's legal representatives sought a meeting with the Department although it does not appear that a meeting was convened.[4]

• [12] In a letter dated 20 June 2024, Mr Taylor's legal representatives informed the Department of Mr Taylor's proposed options to settle the issues between them.[5] The Department declined these options by letter dated 21 August 2024.[6]

• [13] Mr Taylor ceased work on 2 July 2024 and on 3 July 2024 lodged a WorkCover claim.[7]

• [14] No further correspondence appears to have passed between the parties until 17 September 2024. On this date, the Department wrote to Mr Taylor's legal representatives. The email stated that despite Mr Taylor's advice on 20 June 2024 that he would commence proceedings in the Commission within seven days if his proposed options to settle the matter were not met, Commission proceedings were not commenced. The Department advised that it would continue with the disciplinary outcome provided in its letter of 18 April 2024.[8]

• [15] Mr Taylor filed his application for an unfair dismissal remedy in the Commission on 3 October 2024. Mr Taylor's position is that the application was filed within the statutory timeframe. This is because, Mr Taylor contends, the 18 April 2024 letter does not state when the demotion was to take effect. Mr Taylor says that he had already been transferred to Hopkins Correctional Centre temporarily in 2023 but there was no indication in the letter as to when the reduction in remuneration was to occur. Mr Taylor submits that in these circumstances, the 18 April 2024 letter was - in effect - notice of the dismissal, but the dismissal did not take effect until the reduction of his remuneration occurred on 17 September 2024. Mr Taylor says that this contention is consistent with the position of the Full Bench in Ayub v NSW Trains (Ayub).[9] Accordingly, Mr Taylor submits that his application was lodged within the 21-day period when it was filed on 3 October 2024.

• [16] I do not accept Mr Taylor's contention. There was no requirement in the VPS Agreement for the Department to communicate the demotion decision to Mr Taylor with the provision of notice. By clause 25.12(d), the Department was required to "advise the Employee of the discipline outcome in writing..." That is what the Department did by the 18 April 2024 letter. That letter did not purport to provide notice of the demotion to Mr Taylor. It makes no reference to the outcome taking effect at an ascertainable later time. Rather, the letter communicated that a "final decision" had been reached by the Department regarding "an appropriate disciplinary outcome." That "outcome" was communicated under a heading titled, "final outcome."

• [17] Mr Taylor's evidence in these proceedings does not demonstrate that he was under any misapprehension as to the immediate implementation of the disciplinary outcome. Mr Taylor's witness statement acknowledges that, in his view, the letter "confirmed" that the Department "would proceed with its proposed disciplinary outcome."[10] Mr Taylor gave evidence that he was issued the letter personally during a meeting in the acting general manager's office, at which Mr Taylor responded that he "intended to pursue the dispute resolution, or review of action."[11] That is what Mr Taylor did on 1 May 2024. I am satisfied that the 18 April 2024 letter made it sufficiently clear to Mr Taylor, and he understood, that the disciplinary outcome would be implemented forthwith.

• [18] In respect of a dismissal without notice, the Full Bench in Ayub concluded that the 21-day period for lodgement of an unfair dismissal application should not be interpreted to begin to run before an employee becomes aware of the dismissal or has at least had a reasonable opportunity to become aware of it.

• [19] It is not in dispute that Mr Taylor did not become aware of the 18 April 2024 letter until he received it on 26 April 2024. I am satisfied and I find that the dismissal was communicated to Mr Taylor on 26 April 2024. It follows, having regard to Ayub, that the 21-day period for Mr Taylor to lodge his unfair dismissal application expired on 17 May 2024.

• [20] Mr Taylor's application was lodged on 3 October 2024, representing 139 days from 17 May 2024. Mr Taylor's application was therefore lodged outside the 21-day timeframe for lodgement prescribed by s 394(2)(a) of the Act.

• [21] 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.[12] 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.

• [22] Under s 394(3) of the Act, the matters the Commission must take into account in order

to determine whether exceptional circumstances exist are set out below and I consider them in the analysis that 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.

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

• [23] 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.[13]

• [24] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[14] However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[15]

• [25] Mr Taylor submits that the reason for the delay between April and September 2024 is his activation of the dispute resolution provision of the VPS Agreement following notification of the demotion. Mr Taylor submits that clause 13.6 obliges the parties to genuinely attempt to resolve the dispute and that, by clause 13.6(c), no person covered by the agreement will be prejudiced as to the final settlement of the dispute by the continuous work in accordance with the clause. Mr Taylor says that there should be no prejudice to him by commencing his unfair dismissal application against the Department in October 2024 when the reduction in his remuneration did not take place until September 2024.

• [26] Mr Taylor gave evidence that he left this matter to the CPSU.[16] Subsequently, Mr Taylor engaged his legal representatives and said that he then left matters in their hands.[17] Mr Taylor submits that he should not be held responsible for any errors on the part of his representatives for failing to commence an unfair dismissal application sooner.

• [27] I am not satisfied that Mr Taylor has provided an acceptable or reasonable explanation for the delay. There is no reasonable basis for inferring that the CPSU did not act in Mr Taylor's best interests, and a case of representative error in relation to the union is not made out. Mr Taylor raised a dispute with the Department on 1 May 2024. A meeting between the CPSU and the Assistant Commissioner was scheduled to occur on 17 May 2024, being the final day of the 21-day statutory timeframe. It is conceivable that in the absence of a resolution, the CPSU may have sought instructions to file an unfair dismissal application on Mr Taylor's behalf that day, within time. However, on 17 May 2024 Mr Taylor informed the CPSU that he had engaged legal representation, and the union ceased to act.[18] In any event, these events occurred prior to the expiration of the 21-day statutory timeframe.

• [28] There is no evidentiary support for concluding that the late filing of Mr Taylor's application can be attributed to error on the part of his legal representatives. The general propositions to be taken into account in determining whether representative error constitutes an acceptable explanation for delay in the context of an application for an extension of time are as follows:[19]

(1) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(2) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless, and delay occasioned by the conduct of the applicant.

(3) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

(4) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.

• [29] It is not necessary for an applicant to demonstrate that they were "blameless" for the delay in filing an unfair dismissal application beyond establishing the fact that they gave appropriate instructions to a representative in a timely fashion.[20]

(a) There is no evidence before the Commission of any correspondence that passed between Mr Taylor and his legal representatives such as to ground a claim of representative error.

• (b) Relevantly, there is no evidence that Mr Taylor instructed his legal representatives to lodge an unfair dismissal application on his behalf at any time prior to 17 September 2024. Indeed, the submission advanced by Mr Taylor (but without any evidentiary foundation) is that he very promptly gave instructions to his legal representatives to commence an unfair dismissal application after the September reduction in remuneration.[21]

(c) Mr Taylor's evidence is that he left the matter in the hands of his representatives. There is no evidence demonstrating that he gave instructions that his legal representatives failed to carry out.

• [31] In the absence of any evidentiary support for the contention, there is no basis for me to conclude that representative error provides an acceptable or reasonable explanation for the delay.

• [32] While not advanced by Mr Taylor as an explanation for the delay, I have considered whether the delay can be attributed to Mr Taylor's diagnosed depression, anxiety and the psychological symptoms he says he suffered from during 2024.[22] I accept Mr Taylor's evidence that he has been seeing a psychologist and takes psychotropic medication. However, I do not consider that these matters provide an acceptable reason for the delay when considered individually, or collectively against the other reasons advanced. This is because while Mr Taylor was later unfit for employment, the documentary evidence demonstrates that Mr Taylor was seemingly able to provide instructions to his legal representatives for the preparation of a letter to the Department containing settlement options in June 2024. He was also able to lodge a WorkCover claim on 3 July 2024. These actions post-date his dismissal and are inconsistent with a conclusion that Mr Taylor was incapacitated by the state of his health, such that he was not capable of making an unfair dismissal application at any earlier time. Accordingly, I do not consider that Mr Taylor's mental health provides a reasonable or acceptable explanation for the delay.

• [33] Mr Taylor also relies upon clause 13.6 of the VPS Agreement to explain the delay. This clause provides that the parties must genuinely attempt to resolve the dispute through the processes set out in the VPS Agreement and do so expeditiously. Further, clause 13.6 contains a status quo provision and proceeds by stating that a person covered by the VPS Agreement will not be prejudiced in the final settlement of a dispute by the continuance of work in accordance with that clause_._

• [34] Mr Taylor submits that the Department failed to properly engage in the dispute resolution process in clause 13.[23] However it is not apparent how any purported failure by the Department to engage could provide a credible explanation for the delay. Mr Taylor had initiated a dispute against the Department, and it was for him to progress it. Further, I do not accept that reliance upon a status quo provision provides a reasonable explanation for the late filing of an application in the Commission that is subject to strict statutory compliance deadlines. It was open to Mr Taylor at all times to preserve his position by filing an application for an unfair dismissal remedy with the Commission, while simultaneously negotiating a settlement outcome with the Department if that was his preferred outcome.

• [35] I have taken into consideration Mr Taylor's contention that the reduction in his remuneration did not take place until September 2024, and this makes his circumstances unusual. As earlier stated, Mr Taylor's position is that the demotion did not take effect until the maintenance of his salary ceased. However, for the reasons given at [17] of this decision, I am satisfied that Mr Taylor was aware that the dismissal had taken effect prior to the reduction in his remuneration. Indeed, Mr Taylor's salary was maintained only by reason of his election to challenge the dismissal in May 2024 pursuant to clause 13, such as to trigger the status quo provision in the VPS Agreement. In these circumstances, I am not satisfied that it was reasonable for Mr Taylor to wait until his remuneration reduced in September 2024 to lodge his application for an unfair dismissal remedy or that this provides an acceptable reason for the delay.

• [36] Finally, I note that the evidence discloses that Mr Taylor has caring responsibilities for his daughter. I do not understand Mr Taylor's case to draw a connection between these responsibilities and the late filing of his application. Nor do I consider, having regard to the evidence, that any such connection is borne out.

• [37] For the reasons given, I do not find that any of the matters relied upon by Mr Taylor as reasons for the delay, individually or collectively, provide an acceptable or reasonable explanation for the delay. This weighs against the grant of an extension of time.

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

• [38] It is uncontested that Mr Taylor became aware of the dismissal on 26 April 2024. It follows that Mr Taylor had the benefit of the full 21-day period to file an application for an unfair dismissal remedy. This weighs against granting an extension of time.

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

• [39] Where an applicant takes action to dispute a dismissal, it will put the employer on notice that the dismissal is actively contested and may, depending on all the circumstances, favour the grant of an extension of time.[24]

• [40] Mr Taylor disputed the dismissal both before the demotion was finalised and after it was effected. This weighs in favour of an extension of time.

• [41] Mr Taylor submits that there is no prejudice to the Department. The Department concedes, properly in my view, that the lateness of the application has not caused it any disadvantage or unfairness.

• [42] I am unable to identify any particular prejudice that would accrue to the Department were an extension of time to be granted. However, the mere absence of prejudice is not in itself a factor that would warrant the grant of an extension of time. I consider this to be a neutral factor in the present case.

• [43] The Commission should not embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[25] However, I record Mr Taylor's submission that his substantive application has merit. His written material contends that there was not a valid reason for the dismissal, which is a point the Department contests and which has not been the subject of any evidence. In addition, Mr Taylor submits that the Department should have considered various relevant mitigating factors when it was investigating the matter concerning his employment record and performance history, in addition to victimisation, harassment and privacy complaints earlier made by Mr Taylor in 2023 that he says the Department did not investigate. Mr Taylor contends that these matters give rise to an apprehension of bias, which offends the principles of procedural fairness. There is a further contest between the parties as to whether the outcome was proportionate to the seriousness of the matter, a matter about which there was some limited evidence before the Commission, but which is further informed by the Commission's findings as to valid reason.

• [44] In circumstances where the parties hold substantially different views as to the appropriateness of the process undertaken by the Department and the validity of the dismissal, I am unable to form a concluded view on the merits of the substantive application in the absence of further evidence. Accordingly, I consider this factor to be neutral in my assessment.

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

• [45] Mr Taylor accepts that the consideration of fairness is not likely to lead the Commission to a concluded view. There are no matters of fairness before me in the relevant sense. Nor do I consider that any matter arises on the evidence before the Commission. Accordingly, this factor is neutral in my consideration.

• [46] The time limit that applies to the exercise of a person's right to bring an application under s 394 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.

• [47] The test of exceptional circumstances in s 394(3) of the Act establishes a high hurdle for an applicant for an extension.[26] Having regard to my consideration of the statutory criteria, and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances either when the various circumstances are considered individually or together. While Mr Taylor has taken action to dispute the dismissal, he has not provided a reasonable or acceptable explanation for the delay in lodging his application in the Commission. The other criteria weigh against the grant of an extension or are neutral considerations.

• [48] As I am not satisfied that there are exceptional circumstances, the power to extend the time in which Mr Taylor's unfair dismissal application may be made is not enlivened. Accordingly, Mr Taylor's application for an unfair dismissal remedy is dismissed.

Mr R Ternes, of counsel, on behalf of the applicant.

[1] AE509129; the 2020 VPS Agreement has been replaced by the Victorian Public Service Enterprise Agreement 2024

[2] Exhibit 1, Digital Court Book excluding item 3 of Section C 'Applicant's Clinic Notes' pp 496-1185 (DCB) 100-101 at [9]-[10]

[9] Ayub v NSW Trains [2016] FWCFB 5500; 262 IR 60 at [32] noting the reference to "possible but unidentified exceptions" (see transcript of proceedings dated 12 December 2024 (Transcript) at PN304-PN306)

[12] [2011] FWAFB 975; [2011] 203 IR 1

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

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

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

[19] Clark v Ringwood Private Hospital (1997) 74 IR 413 at 418-9; see also C. Davidson v Aboriginal & Islander Child Care Agency, Print Q0784 12 May 1998, (Ross VP, Watson SDP, Eames C); Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 at [25]; Qantas Ground Services Pty Ltd v Rogers [2019] FWCFB 2759 at [17]; Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd [2011] FWA 2802 at [18]; Long v Keolis Downer [2018] FWCFB 4109 at [52]

[20] Qantas Ground Services Pty Ltd v Rogers [2019] FWCFB 2759 at [17]; see also Long v Keolis Downer [2018] FWCFB 410

[22] DCB Section C (excluding item 3 - see note 2 above)

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

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

[26] 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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