s.394 - Unfair dismissal

• [1] This decision concerns an application made by Mr Kevin Kendall (Mr Kendall or the Applicant) pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The respondent is The Pilbara Infrastructure Pty Ltd (the Respondent).

• [2] Mr Kendall made this application on 11 July 2021.

• [3] It appears that this application has been made more than 21 days after the dismissal took effect.

• [4] Section 394(2) of the Act requires that an application such as this must be made within 21 days after the dismissal took effect. However, The Fair Work Commission has the discretionary power to allow a further period for such an application to be made if it is satisfied that there are exceptional circumstances. This provision is set out below.

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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."

• [5] Mr Kendall provided a written response regarding the out of time issue in accordance with the Commission's direction. The Respondent advised that it will not object to an extension of time, subject to the Commission being satisfied that there are adequate reasons for the grant of an extension of time.

• [6] This decision considers whether or not there are exceptional circumstances in this case and whether a further period within which to make the application should be granted.

• [7] From the application as filed, it is apparent that the Respondent sent a letter, dated 16 June 2021, to the Applicant stating that the termination of his employment was effective as of Wednesday 16 June 2021.

• [8] The unchallenged explanation of the Applicant is that around 5 July 2021 he received a small amount of money from the Respondent into his account. The Applicant says he did not receive any notifications about this transfer from the Respondent to his normal email address, through which he had been communicating with the Respondent for years.

• [9] The Applicant says that he remembered an old email address from when he started work with the Respondent 12 years prior. On 5 July 2021 the Applicant was able to reinstate this email account to gain access to it. He located an email from the Respondent with the letter of dismissal dated 16 June 2021.

• [10] Over the next 6 days he sought free legal assistance and spoke to the Commission on its phone hotline. The Applicant lodged his unfair dismissal remedy application in the Commission on 11 July 2021.

• [11] The Applicant submits that the Respondent sent the letter of termination to an old email address and that he had told his Superintendent and the Respondent's Human Resources team, numerous times, not to use that email address because it was not current and not the correct email address to use. The Applicant submits that this was the reason for the delay in making the application.

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

• [12] The Applicant first became aware of his dismissal on 5 July 2021.

• [13] Importantly, in this case, a dismissal does not take effect until an employee is aware that they have been dismissed or has at least had a reasonable opportunity to become so aware.[1]

• [14] Generally, where an employee is advised of their dismissal by email, the presumption is that an employee will have had a reasonable opportunity to become aware of their dismissal if the email is received in the inbox of the employee's email address.[2]

• [15] In this case the circumstances were that the email was received in an inbox of an email address that was no longer used by the Applicant and this fact was known to the Respondent. Consequently, receipt of this email into that inbox on 16 June 2021 did not amount to the Applicant having a reasonable opportunity to become aware of the dismissal from 16 June 2021, when assumedly the termination of employment letter was sent.

• [16] Consequently, the Applicant's dismissal did not take effect on 16 June 2021 but rather took effect on 5 July 2021. This was the first reasonable opportunity the Applicant had to become aware that his employment had been terminated.

Any action taken by the person to dispute the dismissal

• [17] There is no evidence that the Applicant took any action to dispute his dismissal other than the making of this application.

Prejudice to the employer (including prejudice caused by the delay)

• [18] I do not accept that there is any prejudice to the employer if a further period to apply was allowed.

• [19] The Respondent's termination of employment letter says that, despite numerous attempts to contact the Applicant, he had been un-contactable for 40 days.

• [20] The letter says that the Respondent had no other choice but to consider the Applicant as having abandoned his employment.

• [21] The Applicant contests that he had abandoned his employment. He submits that he had a medical certificate from his doctor advising that he would be unable to work through to 5 July 2021. The Applicant had responded to the Respondent's prior letter dated 31 May 2021 regarding his fitness for work, but he did not receive a response to his email from the Respondent.

• [22] It is only at a hearing of this matter that the merits of the parties' respective positions would become clear.

• [23] Consequently, I view the merits of the application as a neutral factor in determining the extension of time issue.

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

• [24] There is no information regarding fairness between the Applicant and other persons in a similar position, meaning persons similarly seeking an extension of time to make such an application.

• [25] Superficially it appeared in this matter that the application had been filed 21 days after the dismissal took effect. However, as explained above, this is not the case in the circumstances.

• [26] The application was made within 21 days of 5 July 2021, which is the date the dismissal took effect. The application has not been made out of time and so may proceed to be heard and determined by the Commission.

• [27] The Commission in due course will advise the parties of a date for hearing with appropriate directions.

• [28] The Commission, prior to the hearing, will also conduct a conciliation conference with the parties to explore possible alternative resolutions of this application.

[1] Ayub v NSW Trains [2016] FWCFB 5500, [36].

[2] Ayub v NSW Trains [2016] FWCFB 5500, [50].

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