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[2020] FWC 6048
procedural. Application for a further period under s 394(3) refused; the out‑of‑time unfair dismissal application dismissed (paras [44]–[45]).
Mr Jeong, who alleged he was a part‑time managing director and employee of GDI Pty Ltd, was removed as a director by shareholder notice dated 10 August 2020. He filed an unfair dismissal application on 4 September 2020, three days outside the 21‑day limit. He sought an extension under s 394(3), relying on family dispute, relocation, police contact, negotiations with the employer and psychological distress. The Commission applied the statutory s 394(3) factors and precedents on 'exceptional circumstances', found the explanations and credibility wanting (noting the applicant was a lawyer who had time to advance claims within the filing period), found no decisive employer prejudice, and considered the merits only modestly in his favour. The Commission concluded there were no exceptional circumstances, refused the extension and dismissed the unfair dismissal application (paras [10]–[15], [28]–[37], [38]–[44]).
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2 cited instruments linked from this judgment.
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Mr Sang Yun Jeong (the Applicant) lodged an unfair dismissal application under s 394 of the Fair Work Act 2009 claiming his employment was terminated with effect on 11 August 2020. The application was filed on 4 September 2020, three days after the 21‑day limit prescribed by s 394(2). He therefore sought an extension under s 394(3) on the basis that exceptional circumstances justified the late filing (paras [1]–[2], [16]).
GDI Pty Ltd (the Respondent) opposed the application. The background is unusual: the Applicant had been appointed a director of GDI on 6 January 2017 and asserted he was a part‑time Managing Director paid $26,500 p.a. He had personal and family links to the Okamoto family who were effectively controllers of the company. A shareholder notice dated 10 August 2020 purported to remove him as a director; the Applicant disputed some details about delivery and when he first read the letter. He moved out of the family home and started full‑time employment on 17 August. A series of letters and demands were exchanged, and a jurisdictional objection was raised by the Respondent that the Applicant was not an employee (paras [5]–[9], [21]–[27]).
Deputy President Asbury conducted a hearing on 9 October 2020, confined to whether a further period should be allowed under s 394(3). The Commission refused the extension and dismissed the out‑of‑time unfair dismissal application for lack of exceptional circumstances (paras [3]–[4], [44]–[45]).
Statutory framework and test
Meaning of "exceptional circumstances"
Assessment against statutory factors
Weighing the factors collectively
Result
Before: Commission authority had already articulated that "exceptional circumstances" are to be given their ordinary meaning, and may arise from one exceptional matter or a combination of ordinary factors. Prior authorities cited include Nulty, Stogiannidis, Shaw and Kornicki. Those authorities established the multi‑factorial assessment and that merits need not be explored in depth for an extension application (paras [11]–[15], [38]).
After: This decision applies those settled principles to a fact pattern of a short delay (three days) and confirms several practical points:
Statutory test (para [10])
Meaning of “exceptional circumstances” (paras [11]–[12])
Credibility and applicant conduct (paras [31]–[34])
Absence of prejudice (para [37])
Conclusion (para [44])
This decision is most directly engaged where:
This is a Fair Work Commission decision at Deputy President level applying established Full Bench authorities. It principally follows and applies prior Commission authorities (Nulty; Stogiannidis; Shaw; Kornicki), the judgment cites and relies on those authorities at paras [11]–[15] and [38]. It does not purport to overrule or alter those lines; rather it exemplifies their application to a factual setting where the late filing was small but explanations were unrewarding to the applicant’s case. Any later treatment by tribunals or courts should be checked in subsequent decisions, but this decision is best read as an application of existing guidance about 'exceptional circumstances' and the weighing exercise under s 394(3).
Disclaimer: This analysis summarises and explains the reasoning in Deputy President Asbury’s decision in Mr Sang Yun Jeong v GDI Pty Ltd [2020] FWC 6048. It is legal information, not legal advice. I can make mistakes. Before you rely on any part of this or act on it, obtain a qualified Australian lawyer to check how it applies to your circumstances.
s.394 - Application for unfair dismissal remedy
Application for an unfair dismissal remedy - Application filed outside time required in s. 394(2) - No exceptional circumstances established - Extension of time to make application refused - Application dismissed.
[1] This Decision concerns an application by Mr Sang Yun Jeong (the Applicant) under s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in respect of his dismissal by GDI Pty Ltd (the Respondent). In his Form F2 Application for an unfair dismissal remedy, the Applicant states that his employment was terminated on 11 August 2020 and that the termination took effect on that date. The Respondent in its Form F3 Response objects to the application on the basis that it asserts the Applicant was not an employee and was unable to be dismissed and that he was removed as a Director of the Respondent on 10 or 11 August 2020.
[2] The application was filed with the Commission on 4 September 2020. By virtue of s. 394(2) of the Act an application under s. 394 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. 394(3). Assuming that alleged employment relationship was terminated on 11 August 2020, the application was required to be made by 1 September 2020. It was therefore made three days outside the time required in s.394(2) of the Act. It is therefore necessary to determine whether a further period should be allowed under s. 394(3) of the Act for the application to be made.
[3] The matter was allocated to me for hearing and I issued Directions requiring the parties to file any additional material they sought to rely on in relation to whether further period should be granted. The parties filed voluminous material including a series of letters exchanged by their legal representatives making various claims, counter claims and threats.
The approach to deciding whether a further period should be granted
[10] As previously noted, s. 394(2) of the Act requires that an unfair dismissal application under s. 394 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s. 394(3) of the Act. Section 394(3) sets out the circumstances in which the Commission may allow a further period for an unfair dismissal application to be made as follows:
"(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."
[11] The approach to deciding whether there are "exceptional circumstances" in a particular case is that the term is given its ordinary meaning, and encompasses circumstances:
out of the ordinary course, unusual, special or uncommon, but not necessarily unique unprecedented or rare; or
• involving a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors that taken together are exceptional.[1]
[12] 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.[2]
[13] The assessment of whether "exceptional circumstances" exist requires a consideration of all of the relevant circumstances. As a Full Bench of the Commission observed in Stogiannidis v Victorian Frozen Foods Distributors t/as Richmond Oysters (considering similar provisions in s. 366(2) of the Act):
"[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time 'needs to provide a credible explanation for the entire period', it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay."[3]
[14] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application and does not include the period from the date of the dismissal to the end of the 21 day period.[4] However, the circumstances from the time of the dismissal must also be considered and ultimately a decision made as to whether those circumstances are exceptional circumstances.[5]
[15] Even when exceptional circumstances are established, discretion as to whether time should be extended remains, which should be exercised having regard to all the circumstances, including whether an extension is fair and equitable.[6] The circumstances from the time of the dismissal must also be considered and ultimately whether the reason for the delay or part of it constitutes exceptional circumstances.[7] I turn now to consider each of the matters in s.394(3) of the Act.
[16] As previously noted, the delay which must be considered in determining whether to extend time for making an application is the period beyond the prescribed 21 day period. For the application in the present case to have been filed within time, it was required to be filed by 1 September 2020. It was filed on 4 September 2020, three days outside the required time. The majority of circumstances identified by the Applicant in the present case to explain the delay, relate to the period following the termination of his directorship by the Respondent. I turn now to consider the reasons for the delay as advanced by the Applicant.
[17] In the Form F2 Application, the Applicant identifies that the application has been made outside the time allowed under s. 394(3) of the Act and explains the delay as follows:
"I have been unfairly dismissed by my employer on 11 August 2020. Then, I had sought legal advice and contacted the Employer regarding my termination and termination entitlements on 19 August 2020. To which I received a response denying me of my termination entitlements on 21 August 2020. I have requested that my lawyer send my employer a response on 24 August 2020.
On 31 August my lawyer received a response from my employer's lawyers alleging me of unfounded misconduct and breaches of the director's duties among other things. These allegations caused me to prepare a response with my lawyer until now.
On 2 September, employer's lawyers sent my lawyer another letter seeking reimbursement of wages and company property among other things. I am currently in the middle of drafting a response to all of their false allegations and unfounded claims.
Further to the above, on or about 28 August 2020, the crimes investigation branch tried to get in touch with me. On 30 August 2020, I visited the police station and had an interview for the police to investigate the allegations. I found out that I was reported to the Police by the shadow director of may employer, Keiko Okamoto, for unreasonable allegations such as stealing company property, embezzlement and assault.
Moreover I had been in the process of moving house since 17 August 2020 and was trying to settle into my new residence while preparing the new place.
For me to comprehend the problem and psychologically get on top of my affairs, all while working full-time, had caused the delay in making the application."
[18] On 7 September 2020, the Associate to Vice President Catanzariti sent correspondence to the Applicant advising that the application had been received outside of the 21 day time frame allowed under s. 394(2) of the Act and that the Commission may extend the time period for lodging an unfair dismissal application only if satisfied that there are exceptional circumstances for not lodging the application in time. The correspondence also set out the matters the Commission is required to consider in deciding whether to grant a further period under s.394(3) of the Act.
[19] On 8 September 2020, the Applicant responded to Vice President Catanzariti's correspondence confirming that he wished to proceed with the application. That correspondence, and a further response to the Respondent's material dated 24 September 2020, was relied on by the Applicant at the hearing in relation to whether he should be granted a further period in which to make his unfair dismissal application. The Applicant also gave oral evidence at the hearing. In his 8 September correspondence, the Applicant cites the following matters to explain the delay and contends that they are exceptional circumstances:
The dismissal is rooted in a family dispute;
He was corresponding with his employer to resolve this matter;
He had to search for alternative accommodation and income;
He had to issue a concerns notice with respect to defamation;
He was reported to police and investigated by same;
He was under emotional and psychological distress.
[20] The Applicant also said in the correspondence of 8 September 2020 that the family dispute involved his partner, her brother and her mother (Mrs Okamoto) on 6 August 2020, suddenly leaving a house where they resided with him, without a word. Mrs Okamoto returned on 11 August and handed him "my dismissal letter signed by the shareholder Mr Chris White". The Applicant states that he did not open the letter until 15 August 2020 and that the dismissal was harassment born out of a family feud.
"Take notice that I, the undersigned, being the sole holder of 10,000 ordinary shares, by this notice remove Sang Yun JEONG as a director of the Company in accordance with clause 15.3 of the company's constitution and section 203C of the Corporations Act 2001 (Cth). The removal is effective immediately."
[23] The Applicant stated that he moved out of the family home and obtained alternative accommodation on 16 August 2020 and commenced employment at CJM Lawyers on 17 August 2020. The Applicant also said that in addition to organising the move to his new accommodation, where he was attempting to make a good impression on his housemates, he was required to find new homes for his pets - three cats and a bird. Further the Applicant states that he started a full-time job on 17 August 2020 which necessitated him working five days a week and that he was required to adapt to this work environment.
[24] The Applicant also set out a history of correspondence between himself and his lawyers on the one hand and the Respondent and its lawyers on the other hand. The correspondence, much of which was tendered by the parties, establishes that the Applicant was claiming entitlements said to arise from the termination of his employment from as early as 19 August 2020 and that he continued to make various demands for a financial settlement which were refused by the Respondent.
[25] The Applicant's initial letter of demand headed "Termination of Employment of Sun Yun Jeong" was sent to the Respondent on 19 August 2020 and stated that he sought an amount of $70,370.60 plus any other entitlements to be paid to him within 14 days. The letter also stated that if the payment was not made, the Applicant may report the matter to the Fair Work Ombudsman or the Fair Work Commission. On 21 August 2020, a Director of the Respondent, Mr Watanabe sent an email to the Applicant which the Applicant said denied him his entitlements. A further response was sent on 28 August 2020 by the Respondent's legal representative denying the and the That response denied that the Applicant was an employee and sought a signed undertaking from him in relation to a range of matters including return of Company property and repayment of money said to be owed by the Applicant to the Respondent.
[26] The Applicant said that he was occupied with this correspondence and had understood that the dispute would be settled amicably via the exchanges with the Respondent's legal representative. The Applicant decided to file his unfair dismissal application on 4 September because of the long responses to his correspondence sent to him by the Respondent's legal representative and his lack of time to review the responses and because the Respondent's stance was "evidently in denial of his entitlements". The Applicant also asserted that he became aware on or around 14 August 2020 that Mrs Okamoto was defaming him and that on 19 August he sent a Notice of Concerns asking for an apology. Lawyers for Mrs Okamoto (the same firm representing the Respondent) sent a letter to the Applicant requesting particulars and the Applicant is in the process of responding, which further delayed him filing his unfair dismissal application.
Whether the person first became aware of the dismissal after it had taken effect - s.394(3)(b)
[35] It is not in dispute that the Applicant was aware that the Respondent had terminated his directorship of the Respondent on 10 August 2020. The Applicant's evidence that he was not aware of this until he opened the termination letter on 15 August 2020 is not credible. In all of the circumstances, the proposition that the Applicant would ignore a letter that on his own evidence was hand delivered to him by Mrs Okamoto, a "shadow director of the Respondent and the mother of his partner) and placed prominently around his home, defies belief. Any reasonable person would have apprehended that the letter was of some significance given the effort that Mrs Okamoto went to in pursuit of its delivery. In any event, even on the Applicant's evidence, he knew by 15 August 2020 that his directorship of the Respondent had been terminated. At best, this is not a matter that weighs in favour of a further period being granted and is a neutral consideration.
Any action taken by the person to dispute the dismissal - s.394(3)(c)
[36] While the Applicant has initiated numerous disputes with the Respondent, the disputes relate primarily to entitlements he claims arising from his alleged status as an employee of the Respondent. The Applicant does not directly dispute the termination of his directorship and obtained another full time position within two days of the date he asserts he became aware that he had been removed as a Director. At best, this is not a matter that weighs in favour of a further period being granted and is a neutral consideration.
Prejudice to the employer (including prejudice caused by the delay) - s.394(3)(d)
[37] I cannot identify any prejudice that would accrue to the Respondent, other than the usual prejudice of being required to defend the application if I decided to allow a further period within which the application could be made. The delay is not extensive so that there would be any difficulty involving recollection of events or availability of relevant witnesses. By itself the absence of prejudice would not warrant a conclusion that there are exceptional circumstances nor provide a proper foundation to grant an extension of time under s.394(3) of the Act. However, the absence of prejudice does favour the Applicant, and weighs in favour of a further period being granted.
[38] In the matter of Kornicki v Telstra-Network Technology Group[8] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."[9]
[39] After considering the material filed by the parties it is clear that there are factual disputes between the parties. I do not consider that the application is totally without merit, although it is not possible to say that it has strong prospects of success.
[40] The application is met with a jurisdictional objection on the basis that the Applicant was not an employee. Whether that objection would succeed could only be determined at a hearing. I also note that in the Form F2 application, the Applicant seeks a declaration that he was an employee and an order that his termination entitlements be paid and that the matter is dealt with confidentially. Further I note that the demands for settlement set out in his correspondence with the Respondent, also relate to entitlements from his period of putative employment and not from the alleged dismissal. These are outcomes that can only be obtained from Court. The Applicant is a legal practitioner, the fact that he is claiming relief that is not available in an unfair dismissal application is a matter to which I attach some weight.
[41] Given the voluminous and largely irrelevant material filed by both parties, the only certainty would be legal costs for both parties. In all of the circumstances, of the present case, merit weighs against a further period being granted, albeit not significantly.
Fairness as between the person and other persons in a similar position - s.394(3)(f)
[42] It is not clear whether this criteria requires consideration by the Commission of the position of other persons dismissed by the same employer or whether it also contemplates that the Commission consider the position of other persons generally who have sought further periods in which to make applications on similar grounds. The first approach may be relevant in cases where a number of employees are dismissed at the same time or by the same employer and some of those employees are granted a further period and some are not. The latter approach may require comparison of the circumstances of a particular applicant whose case is being considered by a member of the Commission to be compared with those of applicants in other cases considered by other members of the Commission where a further period is sought on the same or similar grounds.
[43] There are no other employees of the Respondent in the Applicant's position. Accordingly, this matter is a neutral consideration.
[44] Having regard to the matters I am required to take into account under s. 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case. This is so whether the various circumstances are considered individually or together. There is no satisfactory explanation for the delay and the Applicant is not blameless, particularly considering that he is a legal practitioner who should understand the time limit in relation to making an unfair dismissal application. While there is an absence of prejudice to the Respondent, the Applicant did not take steps to dispute his alleged dismissal but rather sought entitlements said to arise from his claim to have been in an employment relationship with the Respondent. It is also relevant that the Applicant is seeking a remedy in the form of a declaration as to his status as an employee and payments arising from the period he claims he was employed by the Respondent, which is not available in the unfair dismissal jurisdiction.
[45] The application for a further period is refused and the Applicant's unfair dismissal application must therefore be dismissed. An Order to that effect will issue with this Decision.
Mr Araki of Counsel instructed by Ellem Warren Lawyers for the Respondent.
[1] Nulty v Blue Star Group [2011] FWAFB 975 at [13] and see also Parker v Department of Human Services [2009] FWA 1638; Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394.
[2] Nulty v Blue Star Group [2011] FWAFB 975.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [38] - [39].
[5] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[7] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
Printed by authority of the Commonwealth Government Printer
Mr Sang Yun Jeong
GDI Pty Ltd [2020] FWC 6048
Application for a further period under s 394(3) refused; the out‑of‑time unfair dismissal application dismissed (paras [44]–[45]).
[4] A hearing was conducted on 9 October 2020. The Applicant is a lawyer and represented himself. Permission was granted for the Respondent to be represented by a lawyer on the basis that: the Applicant is a lawyer; the Respondent's Director Mr Okamoto does not speak English as a first language; the matter involves issues of complexity; and no issues of fairness arose. I was also satisfied that representation would enable the matter to be dealt with more efficiently having regard to its complexity, notwithstanding the many claims and counter claims raised by the legal representatives, some of dubious merit.
[5] The relevant background gleaned from copious and largely unhelpful submissions and correspondence filed by the parties, is somewhat unusual, and can be briefly stated. The Applicant met Mrs Okamoto in Tonga when he was 17 years old. Mrs Okamoto and her husband brought the Applicant to Australia, according to the Applicant, to look after him and provide for his safety and wellbeing. Mrs Okamoto paid for the Applicant's living costs and tuition fees at Bond University where he undertook a law degree and subsequently graduated and qualified as a legal practitioner.
[6] GDI Pty Ltd was incorporated by Mrs Okamoto's husband in 2015. Mrs Okamoto is not a director, but the Applicant refers to her as a shadow director. While the Applicant was a student at Bond University he was appointed as a director of the Respondent on 6 January 2017. The Applicant asserts that he was employed as Managing Director on a part-time basis and that his salary was $26,500 per annum plus superannuation. The Applicant also states that the Respondent was receiving JobKeeper payments in relation to his salary, and that these were paid to him.
[7] The Applicant formed a personal relationship with Mrs Okamoto's daughter who also works for the Respondent. On 10 or 11 August 2020, the Applicant was notified of his removal as a director of the Respondent for various reasons - again the subject of copious correspondence and submissions containing allegations and counter allegations - which it is not necessary to detail. It is sufficient to state that the allegations are of a personal nature and concern the Applicant's relationship with his partner who is Mrs Okamoto's daughter. The Applicant partially admits the allegations albeit he maintains that his conduct was a mistake he made for a short period and which he sincerely regrets and that he has reconciled with his partner.
[8] The notice terminating the Applicant's directorship of the respondent was delivered by Mrs Okamoto in the form of a letter dated 10 August 2020, which Mrs Okamoto states she left at the house at which the Applicant was residing on 10 August before returning on 11 August and delivering the letter to the Applicant personally. The Applicant disputes that Mrs Okamoto left the letter on 10 August but accepts she handed him an envelope on 11 August 2020 and that the same envelope was left at various locations in the house at which the Applicant resided.
[9] There is a dispute as to when the Applicant became aware of the contents of the letter as he states he did not open it until 15 August 2020. Thereafter there was a series of correspondence between the parties, with the Applicant being represented by CJM Lawyers, a firm with which he obtained employment subsequent to the ending of his relationship with the Respondent. Essentially the Respondent contends that the Applicant was not an employee and the Applicant claims to the contrary and has made various claims for entitlements said to arise from his employment, including his application for an unfair dismissal remedy, which as previously noted, was filed outside the time required in s. 394(2) of the FW Act.
[21] In his 24 September 2020 correspondence the Applicant elaborated on the events of 11 August 2020 and stated that he did not agree that Mrs Okamoto attended his house on 10 August to deliver the termination letter. Rather the Applicant said that on 11 September "a colleague" informed him that Mrs Okamoto had come to the office to drop off a letter. The Applicant requested that a copy of the letter be emailed to him but did not read it when it arrived in his mailbox.
[22] The Applicant also said that at around 7.00 pm on 11 August 2020 he heard people moving around the family home where he was still residing. Mrs Okamoto, accompanied by two other persons, opened the Applicant's bedroom door at around 7.15 pm and one of those persons stated that they had a letter for the Applicant. The Applicant states that he told them to leave it by the door and Mrs Okamoto left a large brown envelope beside the door before closing the door and leaving the room. The Applicant states that he picked up the envelope and went outside his room to "check the situation" whereupon he saw the same envelope placed "all around the house" including the kitchen, on a table near the front door, in a meeting room and on a table near a stairwell. The Applicant said he was "dumbfounded and then went to sleep" and that he did not open the letter until 15 August 2020. The letter dated 10 August 2020, under the signature of Chris White, was in the following terms:
[27] In his oral evidence, the Applicant added that he was required to rescue his partner from imprisonment by her mother and that this involved police intervention which placed further demands on his time and thereby prevented him from making his unfair dismissal application with the required time.
[28] Notwithstanding the Applicant's dramatic description of the events surrounding the end of his relationship with the respondent (whether or not the Applicant was an employee) I do not accept that any of the matters advanced by the Applicant provide a reasonable or acceptable explanation for his lateness in filing his unfair dismissal application. The family dispute the Applicant refers to appears to be in significant part related to his own conduct. Unsurprisingly Mrs Okamoto took a dim view of that conduct, particularly as her daughter is the Applicant's partner and left the family home with her son and daughter.
[29] Notwithstanding his assertions about the effect of the termination of his directorship on the Applicant, he was able to write lengthy letters demanding entitlements as an employee and making assertions about defamation within the time in which he should have filed his unfair dismissal application. That an employee chooses to engage in direct negotiation with a former employer before lodging an unfair dismissal application will not necessarily provide a reasonable explanation for delay in filing an unfair dismissal application.
[30] By 28 August 2020, the Applicant should reasonably have known that his demands would not be met and that his dispute with the Respondent would not be resolved amicably. In short, the Applicant knew before the time in which he should have filed his unfair dismissal application, that the Respondent intended to resist his claims. This is not a case where the Respondent engaged in negotiations and lulled the Applicant into believing that it intended to resolve matters with him.
[31] I also note that on 19 August 2020, the Applicant was able to write a letter notifying Mrs Okamoto of concerns as a first step in defamation proceedings. This letter was also written and sent within the time the Applicant should have made his unfair dismissal application. The fact that the Applicant had to move house and relocate his pets is also not an acceptable explanation for the delay in filing his application. The Applicant had completed these activities by 15 August, well within the time in which his application should have been filed.
[32] Further, the fact that the Applicant obtained alternative employment and had to adjust to working on a full time basis, is not an acceptable explanation for the delay in filing. The Applicant commenced the full time position on 17 August 2020 - well within the time he should have filed his application - and it is unclear what adjustment he had to make that was so unusual or exceptional given that the mere fact of having full time employment cannot be so described. As previously noted by 19 August the Applicant managed to write a detailed letter of claim to the Respondent alleging entitlements he was owed. The letter was signed by the Applicant and was on the letterhead of his new employer, the firm which is representing him in these proceedings.
[33] Finally, the Applicant's evidence about the letter advising him of the termination of his directorship is ludicrous. Even allowing for the fact that the Applicant did not know that Mrs Okamoto had left the letter at the house he was residing in on 10 August 2020, by 11 August the Applicant had been handed an envelope by Mrs Okamoto who left it in his bedroom, and had observed the same envelope located at various parts of the residence. At that time, on the Applicant's own evidence, Mrs Okamoto (whom he refers to as a shadow director of his putative employer) had walked out of the family home together with her daughter (the Applicant's partner) and her son without giving a reason. That the Applicant chose not to open the letter for a further four days, almost defies belief, and is not a reasonable explanation for any part of the delay in filing his unfair dismissal application. This is particularly so, given that the Applicant is a legal practitioner.
[34] The Applicant has not provided an acceptable or reasonable explanation for any part of the delay in filing his unfair dismissal application in respect of the period from 1 September to 4 September 2020. The events as described by the Applicant between 11 August and 1 September 2020, also do not provide an acceptable or reasonable explanation for this delay. This is a matter that weighs against a further period being granted.