DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Duy Minh Le
v
Kaytee Electrical & Sheetmetal Engineering Service
(U2018/5209)

Application for an unfair dismissal remedy – extension of time - date of dismissal inferred – application found to be made with 21 day period – extension of time considered in the alternative – extension of time granted.

Introduction

[1] Mr Duy Minh Le (the Applicant) filed a completed Form F2 – Unfair Dismissal Application form with the Fair Work Commission (Commission) on 20 May 2018. The Applicant had been employed by Kaytee Electrical & Sheetmetal Engineering Service (the Respondent).

[2] The Applicant alleges that the termination of his employment by the Respondent was unfair in that as a result of a slowdown in work, the Applicant was asked to take his remaining accrued annual leave in March 2018 and that on exhaustion of his annual leave in the pay period ending 18 April 2018, he was offered no further work by the Respondent. The Applicant claims that he was not notified by the Respondent that his employment had been terminated.

[3] The Respondent objected to the application on two grounds. Firstly, that the application had not been made within 21 days of the dismissal taking effect and secondly, that the Applicant’s dismissal was a case of genuine redundancy.

[4] Determination of the extension of time application was conducted, pursuant to s 398 of the Fair Work Act 2009 (the Act), by way of a conference on 3 August 2018 to determine the extension of time application and jurisdictional objection raised by the Respondent.

[5] The Applicant appeared at the conference and gave evidence on his own behalf. Mr Dean Byrne, Workshop Manager for the Respondent, appeared and gave evidence on behalf of the Respondent.

Statutory provisions

[6] The relevant statutory provisions are to be found at s 394 of the Act and provide as follows:

“394  Application for unfair dismissal remedy

(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.

(2)  The application must be made:

(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:

                     (a)  the reason for the delay; and

(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

                     (e)  the merits of the application; and

(f)  fairness as between the person and other persons in a similar position.”

[7] It is clear from the statutory provisions that the Commission can extend the time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances under s 394(2)(b) of the Act. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters under s 394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

Evidence and submissions

Applicant’s case

[8] The Applicant filed an Outline of argument 1 and gave the following evidence.

[9] The Applicant stated that on 16 March 2017, he was advised by Mr Byrne that there was insufficient work and he was directed to take annual leave from 22 March 2018. The Applicant stated that he was contacted by Mr Byrne on 29 March 2018 and was requested to return to work following Easter. The Applicant stated that he performed work on Tuesday, 3 April 2018 and Wednesday, 4 April 2018.

[10] The Applicant further stated that he contacted Mr Byrne on 5 April 2018 to advise that he was unwell and could not work that day. In response, he was advised by Mr Byrne that there was no work and that he (Mr Byrne) would contact the Applicant when there was some work available. The Applicant proceeded to take his remaining annual leave from 5 April 2018 which was then exhausted in the week of 12-18 April 2018.

[11] The Applicant furnished copies of his pay slips 2 which revealed the following pattern of work attendance and annual leave in the period 15 March 2018 – 18 April 2018:

[12] The Applicant gave evidence that he attempted to contact Mr Byrne by telephone in the period of his annual leave between 5 – 18 April 2018 to find out whether there would be any work available after 18 April 2018 as his annual leave would be exhausted at that date. According to the Applicant, Mr Byrne did not return his phone messages.

[13] The Applicant gave further evidence that following the exhaustion of his annual leave, he made further efforts to contact Mr Byrne by telephone in the week following 18 April 2018 as to the availability of work but no response was received. The Applicant stated that at no stage was he advised verbally or in writing that his employment had been terminated for reason of a lack of work. Nor did he receive a Separation Certificate. His final pay slip was for the pay period ending 18 April 2018. The Applicant stated that in the period after 18 April 2018 he was waiting for contact from the Respondent regarding work and was not aware that he had been dismissed from his employment.

[14] The Applicant did however acknowledge that as a consequence of the slow-down of work at the Respondent’s business he had commenced looking for alternate employment after 5 April 2018.

[15] The Applicant stated that he did not challenge the Respondent’s contention that there had been a slowdown of work, but submitted that the termination of his employment had not been clearly communicated to him and that he had also not received correct termination payment entitlements.

[16] The Applicant also submitted that his uncertainty as to whether he had been actually terminated was also due in part to his earlier experience with the Respondent in September 2015. He submitted that at that time, he was directed by the Respondent to not attend work for five weeks due to a lack of work and only returned to work in November 2015.

Respondent’s case

[17] The Respondent relied on the evidence of Mr Byrne in which he stated that he spoke with the Applicant on 5 April 2018, during which he directed him to take his remaining annual leave due to the lack of work. He further stated that during that conversation, he told the Applicant that due to the lack of work the Applicant should start looking for alternate employment. Mr Byrne had no further conversations with the Applicant after 18 April 2018.

[18] Mr Byrne conceded during his evidence that he had at no stage given the Applicant notice of termination of his employment, either verbally or in writing. Nor had he provided a Separation Certificate to the Applicant.

[19] Mr Byrne further conceded during his evidence that, in the period after 18 April 2018, he had received a text message from the Applicant. Mr Byrne was unable to confirm what date he had received the text but in any event he did not respond to the Applicant.

Consideration

Was the application filed within the 21 day statutory period?

[20] It is evident that there is some uncertainty as to when the Applicant’s employment was terminated. Identification of the date on which the dismissal took effect is a necessary step in determining the jurisdictional objection to the Applicant’s extension of time application.

[21] The date on which a dismissal should be considered to take effect is the date that the employee becomes aware that the dismissal has occurred. In the decision Mohammed Ayub v NSW Trains 3 the Full Bench explains as follows:

“[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.” (Emphasis added)

[22] I am satisfied that a lack of work orders had resulted in the Respondent’s decision to dismiss the Applicant. I accept that the Respondent’s initial approach to the decline in work was to direct the Applicant to use up his accrued annual leave. This is evident from the periods of annual leave taken by the Applicant for the week of 22 – 28 March 2018, two days in the week of 29 March 2018 and then the period from 5 – 18 April 2018.

[23] I am further satisfied that the Respondent spoke with the Applicant on or about 5 April 2018 regarding the need for the Applicant to take further annual leave. In that conversation, it was claimed by Mr Byrne that he suggested to the Applicant that he should start looking around for another job due to the lack of work of the Respondent.

[24] While the Applicant denies that he was encouraged by Mr Byrne to look for an alternate job, the fact that he did start looking for another job after 5 April 2018 strongly supports the evidence of Mr Byrne. The Applicant was obviously not blind to the tenuous nature of his employment, as evidenced by his commencing a search for alternate employment in early April 2018.

[25] However, the Respondent’s suggestion to the Applicant that he start looking around for another job cannot be characterised as a formal notice of dismissal in my view, particularly in the circumstances where the Applicant had been directed to take annual leave. The fact that the Applicant was directed to take his annual leave rather than be simply paid out on termination would lead to a reasonable inference on the part of the Applicant that work might be available at the end of the Applicant’s annual leave. This was clearly the Applicant’s hope as indicated by his attempts, the evidence of which I accept, to contact the Respondent regarding work availability during the period of and after the exhaustion of his annual leave.

[26] Had it been the intention of the Respondent to dismiss the Applicant with effect from a particular date, then clear advice of that date should have been provided to the Applicant. That did not occur.

[27] It appears that it was left to the Applicant to infer that he had been dismissed through his conversation with Mr Byrne on 5 April 2018; the exhaustion of his annual leave in the pay period ending 18 April 2018; and from the lack of response from the Respondent to the Applicant’s enquiries as to the availability of further work.

[28] I am satisfied that there was no notice of termination given to the Applicant either verbally or in writing. The Applicant was consequently left in a state of some uncertainty as to his employment status beyond the date of the exhaustion of his annual leave in the week of 18 April 2018. This state of uncertainty is evidenced by the Applicant’s attempts to contact Mr Byrne by telephone in the period after 18 April 2018. While neither party was able to say with certainty on what dates that contact was attempted, it is clear on Mr Byrne’s evidence that he did at least receive a text message from the Applicant after 18 April 2018 which he did not respond to.

[29] It is relevant to observe at this point that the Applicant, having been employed by the Respondent for a period in excess of 1 year and less than 3 years, was entitled to two weeks notice of termination under s 117 of the Act, evidence on which I accept he did not receive.

[30] What date then could be inferred as the relevant date on which the Applicant could have become aware of his termination? A number of dates are possible:

(i) 4 April 2018 which was the last day on which he performed work for the Respondent;

(ii) 5 April 2018 which was the day on which the Applicant was encouraged by Mr Byrne to seek alternate employment;

(iii) 18 April 2018 as per the Applicant’s final pay slip;

(iv) 2 May 2018 which represents the notice period that the Applicant was entitled to receive beyond the date of his annual leave exhaustion and per his final pay slip.

[31] I accept the evidence of the Applicant that he was uncertain as to the date of his termination in the absence of notice of termination by the Respondent. Consequently, a termination date must be inferred. The fact that the Applicant’s final pay slip was for the period 14 -18 April 2018 infers that the date of termination was at least the 18 April 2018.

[32] As I have already observed, the Applicant was entitled to two weeks’ notice of termination under the Act. Had proper notice been provided to the Applicant on 18 April 2018, his date of termination would have been 2 May 2018. In the absence of any other communication or evidence of express notice to the Applicant, I infer that the Applicant’s date of termination was 2 May 2018.

[33] The inferred date of termination of employment of 2 May 2018 or later is within the 21-day time limit prescribed under the Act given that the application was filed on 16 May 2018.

Whether there are exceptional circumstances to allow an extension of time

[34] If my conclusion regarding the inferred date of termination is wrong and that the application was not filed within the 21 day statutory time limit, I must have regard to and weigh each of the considerations set out in s 394(3) of the Act in determining whether “exceptional circumstances” exist to warrant an exercise of the discretion to extend time in which the application may be made. The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd ⁴ where the Full Bench said:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. 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 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.”

[35] I will turn now to consider each of the matters that s 394(3) of the Act requires me to take into account in determining whether exceptional circumstances exist.

Section 394(3)(a): the reason for the delay

[36] One of the matters that must be considered is whether an acceptable reason for the delay in making the unfair dismissal application exists.⁵ It requires the Commission to consider whether there is a credible reason for the period that the application was delayed.⁶

[37] The Applicant’s last pay slip was for the pay period ending on 18 April 2018 and he filed his application on 20 May 2018, which is some 34 days after his last pay slip and 13 days beyond the prescribed 21 day period based on the date of his last pay slip.

[38] The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. 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 and ultimately whether that reason constitutes exceptional circumstances.⁷

[39] The explanation offered by the Applicant for the delay in filing his application is that he was simply not advised of the termination of his employment and that following the exhaustion of his annual leave in the week of 18 April 2018, he was uncertain as to whether he had been dismissed. I accept that evidence and also that he had been waiting for the Respondent to contact him regarding returning to work.

[40] While it is trite to observe that the “penny ought to have dropped” for the Applicant as to his dismissal after a week or two of no contact from the Respondent after 18 April 2018, it is significant that unchallenged evidence was given by the Applicant as to the fluctuations in work that the Respondent’s business experienced. Further, the Applicant cited his own experience during his employment with the Respondent in September 2015 where he was not required to attend work for several weeks due to a lack of work. I am satisfied that this prior experience combined with a lack of notice of termination contributed to a delay in the Applicant reaching a conclusion as to his employment having ended.

[41] I am consequently satisfied that a significant period of the delay in the filing of the application is attributable to the lack of notice of termination and to the Applicant’s uncertainty as to his dismissal. This weighs in favour of a finding of exceptional circumstances.

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

[42] The Applicant submits, and I accept, that at no stage was he advised verbally or in writing that his employment had been terminated. He was left to infer that he had been dismissed from a conversation that he had with Mr Byrne on 5 April 2018; from the direction that he take annual leave; and the failure of the Respondent to contact him after his annual leave was exhausted in the period ending 18 April 2018. No explicit notice of termination was provided to the Applicant by the Respondent.

[43] The fact that the Applicant was not notified or aware of the date of his dismissal, and the need for that date of termination to be inferred, weighs in favour of a finding that there are exceptional circumstances.

Section 394(3)(c): any action taken by the person to dispute the dismissal

[44] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.⁸

[45] The Applicant took no action to contest the dismissal, other than lodging his unfair dismissal application. In the circumstances, I regard this as a neutral consideration.

Section 394(3)(d): prejudice to the employer (including prejudice caused by the delay)

[46] Prejudice to the employer will weigh against granting an extension of time. 9 However, the “mere absence of prejudice to the employer is an insufficient basis to grant an extension of time”.10 The employer must produce evidence to demonstrate prejudice.

[47] I am not satisfied that there would be any greater prejudice to the Respondent caused by the application being dealt with now than would have been the case had the application been made within the 21 day time period. Accordingly, prejudice to the Respondent is a neutral consideration.

Section 394(3)(e) the merits of the application

[48] When the Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group¹¹ it 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.”

[49] As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case”¹² for the purpose of determining whether to grant an extension of time to the applicant to make their Application.
[50] The Respondent contends that the termination was initiated due to a lack of work which the Applicant does not contest. However, it is the manner of communication of the termination, the lack of proper notice and payment of termination entitlements that is contested and at the heart of the Applicant’s contention that his dismissal was unfair.

[51] While unable to make a final assessment of the merits due to some factual disputes between the parties, I have had regard to the absence of notice of termination provided by the Respondent of which I have made findings above. I am satisfied that the notice of termination failures on the part of the Respondent, which goes to the merits of the application, weigh in favour of a finding of exceptional circumstances.

Section 394(3)(f): fairness as between the person and other persons in a similar position.

[52] No submissions were made by the Applicant on this issue and in any case I consider this criterion to be neutral in the present circumstances.

Conclusion

[53] I have found by inference, that the termination took effect on 2 May 2018. The application for an unfair dismissal remedy was made on 20 May 2018. The application was therefore filed within the required 21 day time period.

[54] If I am wrong on the date of termination that I have inferred and that the date of termination was actually an earlier date such that the application was made out of time, I have determined to exercise my discretion to grant an extension of time on the grounds that the Applicant has established exceptional circumstances exist. In reaching this conclusion, I have taken into account and weighed each of the matters referred to in paragraphs [36]-[52] above, and am on balance, satisfied that there are exceptional circumstances warranting an extension of time for the application to be made.

[55] The application for an extension of time is granted. The jurisdictional objection of the Respondent is dismissed. An Order granting the Applicant an extension of time within which to file his Application will be issued with this decision.

[56] The matter will now proceed for programming of the substantive application.

DEPUTY PRESIDENT

Appearances:

DM Le on his own behalf.

D Byrne for the Respondent.

Hearing details:

2018.

Melbourne.

August 3.

Printed by authority of the Commonwealth Government Printer

<PR609640>

 1   Exhibit A1, Applicant Outline of argument: Extension of time, dated 28 June 2018.

 2   Exhibit A2, Applicant pay slips for five week period from 22 March – 18 April 2018

 3   [2016] FWCFB 5500.

4 (2011) 203 IR 1.

5 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

6 Cheval Properties Pty Ltd v Smithers (2010) 197 IR 403 at 408-9.

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

Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood

Organic [2016] FWCFB 349 at [29]-[31].

8 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

 9   Ibid.

 10   Ibid.

11 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

12 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].