Adam Spencer v Solotrust Unit Trust T/A Golden Sheaf Hotel [2021] FWC 215

1 Fair Work Act 2009 s.394—Unfair dismissal Adam Spencer v Solotrust Unit Trust T/A Golden Sheaf Hotel (U2020/14215) DEPUTY PRESIDENT DEAN SYDNEY, 18 JANUARY 2021 Application for an unfair dismissal remedy – effective date of dismissal - extension of time – no extension granted. [1] This decision concerns an application by Mr Adam Spencer (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. [2] The Applicant was employed by Solotrust Unit Trust T/A Golden Sheaf Hotel (the Respondent) from August 2019 as a sous-chef. [3] There is a conflict as to when the Applicant’s dismissal took effect. The Applicant claims that his dismissal was effective from 8 October 2020. The Respondent disputes the effective date claimed by the Applicant and contends that it was 7 October 2020. [4] The controversy about/over/of?? the effective date raises the issue as to whether the application, made on 29 October 2020, has been brought within the statutory timeframe. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s 394(3). [5] The matter was listed for hearing by telephone on 15 January 2021. Mr B Bevan of Holding Redlich Lawyers appeared for the Applicant and Mr Schoninger of HFW Australia appeared for the Respondent. [6] In support of the Applicant’s case, witness statements of the Applicant and Mr Bevan was tendered. Mr Bevan had acted as the Applicant’s support person at a meeting with the Respondent that occurred on 7 October 2020. [7] The Respondent called evidence from Mr Ben Turner (Group Executive Chef), Mr Luke Rosie (General Manager) and Ms Sarah-Ellen Maxwell (People and Performance Director), each of whom provided witness statements. When did the dismissal take effect? [2021] FWC 215 DECISION -- 1 of 6 -- [2021] FWC 215 2 [8] On the material before me, I am satisfied and find that the dismissal took effect on 7 October 2020. [9] It is not in dispute that a meeting occurred on 7 October 2020, attended by the Applicant, Mr Bevan, Mr Turner and Mr Rosie, during which the Applicant was told by Mr Rosie that his employment would be terminated. The matter in dispute is whether the Applicant was told his employment would be terminated “effective immediately”, which is the evidence of Mr Turner and Mr Rosie. The Applicant says that the words used by Mr Rosie were “we are going to have to terminate your employment with the Hotel”, and this is supported by Mr Bevan. [10] Mr Turner gave evidence that at the conclusion of the meeting he accompanied the Applicant to the kitchen to collect his personal belongings, then the Applicant left the premises. [11] Just after midnight (8 October 2020 at 00:24:27 AEDT), Ms Maxwell sent an email to the Applicant which referenced the meeting of 7 October and attached a letter of termination and a statement of service. The letter of termination, dated 7 October, is in the following terms: “Dear Adam This letter is to confirm that your employment as Sous Chef at Solotrust Unit Trust (11 008 386 074) Trading as Golden Sheaf Hotel has been terminated effective of Wednesday, 7 October 2020. If you require any further information, please contact me directly. Regards Sarah-Ellen Maxwell” [12] The Applicant contended that the dismissal did not take effect on 7 October because it was not communicated in plain or unambiguous words. All that was communicated, it was argued, was a future intention to dismiss the Applicant, and he was not plainly informed he was dismissed or that his employment was terminated until the email he received on 8 October. It followed that 8 October was the effective date of dismissal as it was this date he was plainly informed his employment had ceased. [13] There is no doubt that for a dismissal to be effective, it must be clearly communicated to the employee. There is also no doubt it can be communicated orally. [14] I am satisfied in this case that it was clearly communicated on 7 October 2020. I prefer the evidence of Messrs Turner and Rosie that the Applicant was advised during the meeting on 7 October that his employment was terminated effective immediately. It is consistent with the actions that followed in that Mr Turner accompanied the Applicant to the kitchen to collect his belongings, and the Applicant then left the premises. While the email confirming the dismissal was sent just after midnight, it clearly states that the dismissal was effective from 7 October. Mr Bevan confirmed he was provided with a copy of the email by the Applicant shortly after it was received by him. Neither the Applicant nor Mr Bevan, a partner at his law firm, took any steps to confirm the effective date of the dismissal, which I consider should have been done in the circumstances that there was genuinely a question as to the effective date of dismissal. -- 2 of 6 -- [2021] FWC 215 3 [15] The Applicant also relied on an automated message he received on 8 October 2020 from the Department of Home Affairs in which it confirmed the Respondent had notified the Department that the Applicant’s employment had ceased. In my view, this does not assist the Applicant as the notification does not record the date the employment ceased, rather it only confirms the date the Department was notified by the Respondent of the cessation of the Applicant’s employment. [16] I also note the form F2 filed by the Applicant records 7 October 2020 as the date his dismissal took effect. [17] Much was made by the Applicant of whether the termination letter was ‘valid’ because it was on a letterhead that recorded details of a related entity to the Respondent, but was not the Applicant’s employer. Given my finding that the dismissal was clearly communicated and took effect on 7 October, the letterhead if incorrect does not change the fact that the Applicant was dismissed by the Respondent on 7 October 2020. [18] Finally, the Applicant argued that because he was paid for the day of 7 October, his dismissal took effect from 8 October. This does not support the Applicant’s argument, as the Respondent ought to have paid him for the day given he was not advised of his dismissal until after 3pm that afternoon. [19] Accordingly, I am satisfied that the application was made one day outside the prescribed period, as the 21st day after 7 October is 28 October 2020, not 29 October as contended by the Applicant. I now turn to consider whether an extension of time should be granted. Extension of time [20] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.1 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.2 [21] The onus rests with the Applicant to demonstrate that there are exceptional circumstances. [22] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following: (a) the reason for the delay; (b) whether the person first became aware of the dismissal after it had taken effect; (c) any action taken by the person to dispute the dismissal; (d) prejudice to the employer (including prejudice caused by the delay); (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. -- 3 of 6 -- [2021] FWC 215 4 [23] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application. Reason for the delay [24] The Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.3 [25] The Applicant put forward a number of matters as explanation for the delay in lodging the application (assuming I found the application was made out of time). [26] First, the Applicant contended that he genuinely believed his dismissal took effect on 8 October, being the date he received the termination letter, and referenced the matters outlined in support of his argument that his dismissal did not take effect until 8 October. He submitted these matters were unusual or special, such as to support a finding that exceptional circumstances existed. [27] Further, the Applicant contended he was under significant pressure and extreme stress due to the interrelation of his employment and visa status, as the termination of his employment meant he could be in breach of his visa conditions and subject to deportation. He said his stress was exacerbated by the COVID-19 pandemic and the severe impact on the hospitality industry. [28] No medical evidence was submitted to support a finding that the Applicant was suffering from such pressure and stress that it prevented him from making his application within time. [29] The Applicant was represented by a lawyer, including during the 7 October meeting. He was aware of the 21 day timeframe. [30] Having considered the evidence and submissions made by the parties, I find that the reasons provided by the Applicant do not constitute an acceptable reason for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances. Whether the person first became aware of the dismissal after it had taken effect [31] I have found that the Applicant was advised on 7 October 2020 that his employment with the Respondent was terminated immediately. I am therefore satisfied that the Applicant had the full 21 day period to lodge his unfair dismissal application. I consider this factor to weigh against a finding of exceptional circumstances. Action taken to dispute the dismissal -- 4 of 6 -- [2021] FWC 215 5 [32] The Applicant’s lawyer advised the Respondent at the conclusion of the meeting on 7 October 2020 that he intended to make an unfair dismissal application. No other steps were taken to dispute the dismissal. I consider that this factor does not weigh in favour or against a conclusion that there are exceptional circumstances. Prejudice to the employer [33] While the Respondent made submissions that it would be prejudiced if an extension were granted, I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances. Merits of the application [34] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission ‘should not embark on a detailed consideration of the substantive case. [35] Briefly, the Applicant submitted that his dismissal was substantively and procedurally unfair. [36] On the other hand, the Respondent submitted that his dismissal was a result of serious misconduct and followed a fair process. [37] There are clearly factual disputes between the parties evidenced by the forms F2 and F3 and the evidence filed for the purpose of this hearing. Overall, on the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration. Fairness as between the person and other persons in a similar position [38] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. [39] I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I consider this to be a neutral consideration in the present matter. Conclusion [40] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to -- 5 of 6 -- [2021] FWC 215 6 allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed. DEPUTY PRESIDENT Appearances: B Beven, for Adam Spencer. S Schoninger for Solotrust Unit Trust T/A Golden Sheaf Hotel. Hearing details: 2021. Sydney (By telephone): January 15. Printed by authority of the Commonwealth Government Printer <PR726220> 1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. 2 Ibid. 3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]. -- 6 of 6 --