Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application lodged out of time - application dismissed.

[1] This decision concerns a jurisdictional objection raised by Employsure Pty Ltd (Employsure) to an application by Mr Thai Luu for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Luu was employed by Employsure on 26 November 2019 as a full-time business development manager (BDM) in the Gippsland region until his dismissal on 15 January 2021. He claims that his dismissal was unfair.

[3] Employsure raises the jurisdictional objection that the application is lodged more than 21 days after the dismissal took effect.

[4] The application was filed on 6 February 2021 at 12:01am, 1 minute late.

[5] Mr Luu was dismissed by email on 15 January 2021. However, he submits that he had not seen the contents of the email as he disconnected from work following his doctor's instructions.

[6] On the previous day, Mr Luu attended a performance meeting with his manager where it was discussed that he had not met his sales targets for the previous quarter. Mr Luu submits that he was subject to these "performance management/return to form meetings" on a monthly basis over the last 3-4 months. He further submits that it was not apparent to him that his employment would be terminated because he was permitted to record the meeting to discuss the matter of his performance with a support person and respond at the scheduled follow-up meeting the following day and over the same period he received communications concerning work plans for the future.[1]

[7] Mr Luu further submits that he had experienced severe anxiety due to personal circumstances which impacted his capacity to perform his duties which Employsure did not genuinely consider before making the decision to terminate his employment.

[8] Mr Luu also relies on the medical evidence submitted and mental health plan in support of his submission that he was so affected and that this contributed to the delay in actioning his unfair dismissal application.

[9] Mr Luu submits he disconnected from work responsibilities and only became aware of his dismissal after a car courier company telephoned and texted him advising that it was instructed to collect his company vehicle on 19 January 2021.

[10] Mr Luu tendered evidence that on 5 February 2021 that he accessed the Fair Work Commission online lodgement service from 6:29pm. His evidence also shows that he viewed the Commission website including information on lodging applications from 3:58pm. Evidence of a word document created at 10:11pm is described by Mr Luu as the document he used to cut and paste in the unfair dismissal application to avoid being timed out from the online lodgement service.[2] Mr Luu submits that the Fair Work Commission website times out after a certain amount of time, which is why his first and second attempt failed. The third attempt succeeded after he developed a Word document that enabled him to cut and paste his material into the application form before actioning the payment of the filing fee. The process, Mr Luu contends, contributed to the one-minute delay.

[11] Employsure submits that Mr Luu was subject to a performance management procedure, having received warnings from August 2020 to December 2020. It contends that a further disciplinary meeting occurred on 14 January 2021 where it is contended that Mr Luu was informed that his employment was at risk.[3]

[12] Employsure submit that a further meeting was scheduled for 15 January 2021 to discuss of the meeting outcome. It is further submitted that Mr Luu did not present for work, but rather called in sick, presented a medical certificate to cover a 2-week absence, which Employsure say was for the purpose of avoiding the meeting outcome.[4]

[13] Employsure emailed a letter to Mr Luu on 15 January 2021, confirming the termination of his employment. Prior to the email, Mr Luu's manager sent to him a text message at 5:17pm advising that an outcome letter would be sent shortly.[5] The uncontested evidence was that an email containing an attachment was received by Mr Luu merely minutes after the text message.

[14] Employsure submit that it is reasonable that Mr Luu understood the letter informed him of his termination of employment. It further submits that its decision to terminate Mr Luu having received his medical certificate was for the purpose of not adding to his stress.[6]

[15] In respect to merit, Employsure submit that the evidence of Mr Luu is contested and should an extension of time be granted the arguments concerning merit will be contested.

[16] On 18 March 2021, I convened a hearing to determine whether to allow an extension of time for the lodgement of the application for unfair dismissal.

[17] It was not contested that the Applicant was dismissed from his employment on 15 January 2021.

[18] Section 394(2) of the Act provides 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 under s.394(3).

[19] However, s.394(3) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

• (a) The reason for the delay; and

(b) Whether the first person became aware of the dismissal after it had taken effect; and

(f) Fairness between the person and other persons in a similar position

[20] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd[7] (Nulty) where it was held that:

"To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 regular occurrence, even though it can be a on 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."[8]

[21] I now turn to the Applicant's arguments for an extension of time in relation to each of the considerations of s.394(3).

[22] Mr Luu submits that the reason for the delay in filing the application by one minute was due to:

• His awareness of his termination of employment was on 19 January 2021, after receiving a text message from the vehicle courier company to make arrangements for its collection and not on the date he received the email from his manager because he submits that he did not open the attachment.

• Due to his participation in making arrangements for the collection of the vehicle, it was apparent to him that his employment was terminated. However, he submits that he had not expected the outcome while attending the performance management/return to form meeting on 14 January 2021, although he concedes that it might have been a possibility because he was subject to monthly meetings and he was invited to bring along a support person at each meeting.

• On 15 January 2021 while feeling anxious, he attended a medical appointment where he was given a medical certificate for a two-week absence from work. Mr Luu was aware of a scheduled meeting to discuss the outcome of his performance meeting and sending through the medical certificate validated his absence from work and the follow-up meeting.

• His medical certificate covered the period of 15 January to 29 January 2021, and it was at this time that he suggests he was not in a mental state to deal with an unfair dismissal application. There is no medical certificate that covers the balance of the period leading to the filing of the application.

• Mr Luu submitted a mental health plan that expired on 5 February 2021. It is apparent from the mental health plan that he suffered a condition warranting psychiatric medical treatment.

• On the 21st day following the termination of employment, Mr Luu attempted to file his application through the Commission's electronic portal. Mr Luu submitted web browser evidence that he attempted to file an application well before the cut off time of midnight. Mr Luu submits that he first tried to file at 4:00pm, a second attempt failed because he says he may have taken too long to enter his data and the third attempt was successful after he created a word document to cut and paste.[9]

[23] The Commission's portal data supports Mr Luu's submission that he commenced the online lodgement process in the afternoon of 5 January 2021. Mr Luu also submits that the portal times out, which was the reason he attempted to file multiple times. The Commission's portal for online applications has a timeout function where there is no action after 20 minutes. Records show that Mr Luu gained access at around 4:00pm but the data captures actual time when the online lodgement is successful. Applications lodged prior and after Mr Luu's attempt shows successful lodgement.

[24] The Commission's website contains a statement concerning the timeout function as follows:

"The website before a user starts the process states:

For your security, the system will log you out if there has been no activity for 20 minutes. We recommend that you have all your documents ready before you start lodging your application online.

(Online Lodgment Service | FWC Main Site)"

[25] The timeout function does not occur where there is activity while completing the online form. Mr Luu's submission that he was timed out while completing his submission is not entirely accurate, it is most likely that he was inactive on his online application which resulted in a timeout.

[26] Employsure submit that while Mr Luu states that he was not aware of the termination of employment until 19 January, it says that it is reasonable that he was aware of the termination on 15 January but elected not to deal with the communication of his termination of employment.[10]

[27] Employsure also submits that Mr Luu's explanation concerning his health and personal legal issues as the reason for filing his application on the last day is not exceptional and Mr Luu's reliance on the mental health plan and medical certificate does not support the contention that he was unable to file his application on time. Employsure further states that Mr Luu's reliance on internet connectivity issues are not out of the ordinary, special or uncommon.[11] In any event Employsure submit that Mr Luu's medical evidence is inclusive to 29 January 2021, and there is no justification for the delay in filing between 30 January and 5 February 2021.[12]

[28] The medical evidence demonstrates that Mr Luu was suffering a severe form of anxiety that impacted his capacity to perform his duties, however, the evidence does not confirm whether he was in such a state to prevent him from making an unfair dismissal application. The evidence shows that Mr Luu had made an effort to file an application commencing at 6:30pm but did not succeed until 12:01am. Mr Luu does not submit there were internet connectivity issues, rather his difficulty was with the timing out function. From the evidence I am not satisfied that Mr Luu's delay is not exceptional or unusual, the delay in filing the application occurred because he waited until the 21st day and the timeout function occurred due to inaction for more than 20 minutes while on the online system.

[29] Nevertheless, all factors in s.394 must be taken into account in determining whether there are exceptional circumstances.

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

[30] Mr Luu contends that he was unaware of his dismissal on 15 January 2021, but rather on 19 January 2021. He submits he did not attend to calls, texts or emails upon his doctor's advice.

[31] However, Employsure contend that Mr Luu should have known of his termination of employment on 15 January 2021 or at least he consciously ignored the correspondence. In support of this position, Employsure rely on its submission that when Mr Luu was invited to the meeting on 14 January 2021 that he was advised that his employment was at risk and took absence with a medical certificate knowing that the meeting scheduled for 15 January 2021 may lead to a dismissal. It also relies on the text message of Mr Luu's manager which states "I am sorry to hear you are not well. We did not want the outcome of the RTF meeting, which was to be delivered to you at 1pm today, to hang over you for the next few weeks. As such, I will be emailing you the outcome shortly. Any questions, please don't hesitate to reach out."[13] Employsure contends that this text was sent at 5:17 pm, and Mr Luu confirmed the time of receipt even though the text message tendered in evidence was time stamped at 7:03pm.

[32] A text message from Mr Luu was sent to Mr Chong at 7:00pm which stated "I have requested to be left alone. This was an order from my doctor as work is making a big part of me being unwell. Why is this not possible? I am so over all this. Theres no respite from fate."[14]

[33] Mr Luu submitted that it was not apparent that the meeting of 14 January 2021 would carry a risk of termination, but he conceded that the actions of his employer were leading to a dismissal. The medical certificate obtained on 15 January 2021 states the reason for the absence is his anxiety and does not reason the anxiety is due to performance management. Employsure submit that Mr Luu was anxious because of a performance management process and this was the reason for his absence with a medical certificate. This reason, it contends is insufficient to prevent an employer from effecting a termination of employment.

[34] Employsure contend that the email sent to Mr Luu at 5:17pm was during business hours and it is not unreasonable that Mr Luu appraise himself of the contents. While the Commission has been critical of termination of employment by email, in this instance it is probable that Mr Luu either could not or would not deal with the consequences of the meeting held on 14 January 2021. Employsure made the decision to terminate Mr Luu's employment by email despite not holding the meeting as scheduled and despite the medical certificate it received that morning. Putting aside the merits of the dismissal I am satisfied that Mr Luu suspected if not known of his termination of employment on 15 January, but certainly by his own admission knew of the termination on 19 January 2021. This awareness of the termination of employment 4 days after the email was not so detrimental to delay Mr Luu from filing an application within the required timeframe.

[35] Mr Luu did not provide any evidence of his disputation of the termination of the employment. Even when the vehicle courier company made arrangements for the collection of the company vehicle, Mr Luu accepted the return of the vehicle was a consequence of the termination of employment.

[36] Employsure submits that Mr Luu took no action to dispute his dismissal.

[37] I accept that there was no attempt to dispute the dismissal and this consideration does not weigh in Mr Luu's favour.

[38] Employsure submits that it has not suffered prejudice by the delay. However, the lack of prejudice does not weigh in favour of an extension of time, therefore I find this consideration a neutral factor.

[39] Mr Luu submits that his termination of employment was unfair and in support of this submission he states that during the period of the COVID pandemic, BDM's were allocated appointments with prospective clients. Prior to COVID, BDM's had allocated locations and Mr Luu was based in the Gippsland region which had earlier dealt with the bushfires. Despite the bushfires he states that his performance met targets. However, he states that with the removal of BDM location, appointments or referrals were sent to preferred BDMs. Mr Luu submits that he was not a preferred BDM and was placed in tier 4, which was considered "death row" as no support was forthcoming unlike the other tiered groups.[15] Mr Luu considered there was some hope when in late 2020 he was informed that he would be promoted to tier 3 in the new year. Mr Luu also submits that the aggressive targets were constantly changing, and despite this, he received no prospect leads or access to seminars which was a means of support to BDMs to reach their targets.

[40] In addition to the work stresses due to unequal treatment between BDMs, Mr Luu submits that in 2020 he endured serious family circumstances. Mr Luu submits that his personal circumstances affected his capacity to meet targets which also lead to regular return to form meetings and his allocation to tier 4 BDM. Mr Luu raised the manner in which there was no consideration for his personal circumstances when he took a period of sick leave but was pressured to return to work to attend to appointments, which ultimately were withdrawn from his schedule. Mr Luu tendered in evidence emails between himself and the Talent Team Leader. Mr Luu described the approach by Employsure to his personal circumstances as "what they cannot control is irrelevant", and therefore it was expected that he would set aside those concerns and focus only on work. Further to the submissions that Employsure showed no consideration of his personal circumstances, Mr Luu in referencing the meeting held on 14 January 2021 where his immediate manager was absent was in his view indicative of any absence to "return the BDM to form".

[41] Mr Luu did not provide any prior warnings relating to performance but did acknowledge that he was subject to monthly "return to form meeting". An email tendered by Mr Luu dated 14 October 2021 refers to a "return to form plan" and also alludes to ongoing lead commitments. This email suggests the return to form process was a performance management process rather than a disciplinary process likely to result in a termination of employment. However, none of these documents were tendered, therefore no view can be formed and should the matter of merit be tested this evidence would likely be contested. Mr Luu further submits that his termination of employment was effective from 15 January 2021 without notice.

[42] Employsure submits that Mr Luu was subject to a comprehensive performance management process over a 5-month period and that the process was fair and reasonable. As Mr Luu did not address his alleged underperformance, Employsure submit that it had a valid reason to dismiss his employment. Employsure did not provide any evidence concerning prior warnings relating to performance, it confirms that Mr Luu was dismissed for reasons concerning lack of performance and it confirms that the dismissal was immediate on 15 January 2021. Employsure submit the termination of employment through email occurred after Mr Luu was absent from the scheduled 1:00pm meeting on 15 January 2021, and they contend that the absence, albeit with a medical certificate was an attempt by Mr Luu to avoid the outcome of his performance meeting.

[43] Having considered the submissions of both parties, the disputed facts can only be tested at hearing. I note the facts show that the termination of employment occurred while Mr Luu was absent on sick leave and it occurred without the scheduled meeting as agreed between the parties. Further the facts are that the termination of employment occurred through email. Mr Luu's personal circumstances which he supports with evidence were not contested by Employsure as having an effect on Mr Luu's performance. There was no evidence that Employsure considered any of this evidence either during the performance management/ return to form meetings or when implementing the termination of employment. I note that Employsure did not contest the submissions made by Mr Luu concerning the change to aggressive sales targets or lack of support when BDM were no longer allocated a location or placed in a tiered system. I also accept the submissions of Employsure that it went into the meeting on 14 January 2021 without pre-empting the outcome to be a termination of employment. If this is the case, then it would be logical that Mr Luu, unless advised that a termination of employment was to occur, would not have expected the letter of termination the following day. Having considered all of this evidence I find that Mr Luu has established that the substantive application is not without merit. As there is an arguable case, the question of merit is in Mr Luu's favour.

[44] Mr Luu also contends that the merit is such to justify an extension of time to ensure justice in his case. While Mr Luu has presented a case that gives weight to an argument of unfairness based on merit, I am mindful that Employsure intend to contest Mr Luu's application should there be an extension of time. Employsure have not substantially dealt with merit in this matter, therefore I cannot reach a conclusion as Mr Luu proposes, that the consideration of merit alone justifies an extension.

[45] In relation to the point of notice, both parties conceded that notice was not given/paid to Mr Luu. Mr Luu contends this adds to the unfairness of the dismissal and should this be the case, failure to give notice when dismissed for performance reasons would be a consideration relating to merit. However, this matter is an extension of time and Mr Luu is not constrained from seeking his entitlements either directly from Employsure or through the Fair Work Ombudsman.

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

[46] Employsure submits that there was no other employee dismissed, therefore the issue of fairness is a neutral consideration. This consideration relates to fairness between the Applicant and persons in a similar position employed by the employer or affected by the same issue. There is no evidence of persons in a similar position or affected by the same issue, therefore I find this consideration neutral.

[47] In consideration of the time limit of 21 days as prescribed by the Act, the limit should be complied with except where there are exceptional circumstances warranting an extension of time.

[48] I need to be satisfied that there are exceptional circumstances to warrant a further period pursuant to s.394(3). To extend the statutory time frame is a strict test and rests on the circumstances of the case having considered each of the considerations or any combination of them collectively. On balance the combination of considerations relating to reason for the delay and action taken to dispute the dismissal does not weigh in favour of an extension of time, however I have found that only the consideration of merit weighs in Mr Luu's favour. While the application is only one minute late, there remains a high hurdle for an extension of time and the majority of considerations are not in Mr Luu's favour.

[49] While there is no capacity to direct Employsure to address the payment of notice, it is advisable that Employsure address this matter to avoid Mr Luu pursuing the matter through the Fair Work Ombudsman.

[50] Accordingly, the extension of time is refused, and the application is dismissed.

[1] Oral transcript at [12:30] - [28:38].

[2] Attachments to Applicant's outline of submissions, website browser history, Word document creation and actual Word document.

[3] Respondents outline of submissions at [8]-[9].

[7] [2011] FWAFB 975.

[9] Applicant's outline of submissions at [6] - [8].

[10] Respondent's outline of submission at [19]-[20].

[11] Respondent's outline of submissions at [30], [30.1] - [30.6].

[13] Text message of 7:03pm attached to witness statement of Malcolm Chong.

[14] Text message of Mr Luu at 7:00pm attached to witness statement of Mr Chong.

Printed by authority of the Commonwealth Government Printer