Ayten Saridas v SolGold PLC
[2023] FWC 289
•20 MARCH 2023
| [2023] FWC 289 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Ayten Saridas
v
SolGold PLC
(C2022/6665)
| DEPUTY PRESIDENT BELL | MELBOURNE, 20 MARCH 2023 |
Application to deal with contraventions involving dismissal – whether period in letter of resignation is included – application filed out of time – circumstances not exceptional – application dismissed.
On 30 September 2022, Ms Ayten Saridas (Applicant) applied under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal (the Application).
Section 366(1) requires an application under s.365 to be made within 21 days after the dismissal took effect. In her application Ms Saridas states that her dismissal took effect on 10 September 2022. In its Form F8A Response to the general protections application filed on 28 October 2022, SolGold PLC (Respondent) raised a jurisdictional objection on the ground that the application was made outside the 21-day time limit set out in s.366(1). The Respondent states the dismissal took effect on 10 August 2022, making the application outside the 21-day timeframe by 30 days.
The matter was listed for conciliation on 24 November 2022 but was unable to be resolved. The matter was then allocated to me. Following the issuing of directions for the filing of evidence and submissions, the hearing of the matter took place on 3 February 2023.
After conferring with the parties at a mention hearing, I resolved to conduct the matter by way of a hearing. I also granted both parties permission to be represented and I record here that I was assisted by both practitioners in the conduct of the hearing.
There were two key issues in dispute before me. The first was the date of dismissal. On the Applicant’s case, if the date of dismissal was 10 September 2022, then no extension of time is required. The second issue – being the extension of time question – arises depending upon the outcome of my findings regarding the date of dismissal.
I note for completeness that in the Respondent’s Form F8A response, it alleged that the termination of employment occurred at the Applicant’s initiative, by way of resignation. This particular contention was amplified in the Respondent’s written submissions. At the hearing before me, the Respondent frankly acknowledged that the termination of employment was a “constructive dismissal”. As will become evident, that acknowledgement was plainly correct and, for that reason, it is not necessary for me to consider whether or not there was a “dismissal” but, rather, when that dismissal occurred and whether the timing of that dismissal necessitates an extension of time being granted under s.366(1).
Each party called one witness. Ms Saridas gave evidence for herself. Mr Rufus Sugana-Gandhi, Group General Counsel and Group Company Secretary for the Respondent, gave evidence for the Respondent. Each witness was cross-examined. In the conduct of the hearing, Mr Sugana-Gandhi was referred to as simply ‘Mr Gandhi’ and I will do the same for consistency in these reasons.
Factual background and findings
The Respondent is a resources company, focussed on the discovery and development of copper and gold deposits. It appears that (at least in around mid-2022), its primary activities were focussed on the Andean copper belt in South America and, specifically, Ecuador. Approximately 99% of its employees are Ecuadorian.
The Respondent is listed on the London Stock Exchange and Toronto Stock Exchange. Its head office is located in Brisbane, Australia.
On 5 May 2022, the Applicant signed an employment contract for employment with the Respondent as its Chief Financial Officer. Her employment commenced on 27 June 2022.
Having regard to the nature and seniority of her position, the employment contract is detailed. It is unnecessary to summarise it, although there was a defined probationary period and provisions for termination as follows:
“13. PROBATION PERIOD
There will be a probationary period from the commencement date as defined in clause 1.1 for the period specified in Schedule 2 during which time either party may terminate this Agreement on four weeks' notice.”
There was no dispute the Applicant was within the probationary period at all material times.
While the Applicant resided in Sydney, she would sometimes fly to Brisbane for the week before returning home, although she worked in both locations (and the evidence indicates business travel elsewhere, as well).
On the week beginning Monday, 8 August 2022 the Applicant flew from Sydney to Brisbane for work. When she went to Brisbane for that week, it was her expectation to be in Brisbane for the whole week. Those plans soon changed.
It would appear that a key focus of the Applicant’s work had been an important capital raising, also described as a ‘cash box’ raising by the parties. That capital raising failed or, perhaps more accurately, was perceived by the Board of the Respondent as being likely to fail and, for that reason, was discontinued before (in the Board’s view) reputational damage would accrue to the Respondent.
The cause of the capital raising being unsuccessful (to adopt a more neutral term) is a matter in contest between the parties, although it is not necessary for me to resolve it.
It is undisputed, however, that the Board attributed some significant responsibility for the unsuccessful capital raising to the Applicant. In her evidence (which is unchallenged on this aspect and I accept it), she recalls the following conversation with the (then) Chief Executive Officer, Mr Cuzzubbo, on 9 August 2022:
“Cuzzubbo: Ayten I am sorry, but you will have to leave the company. I offered the Board my resignation after the failed cash box raising but they do not want me to resign. It is best that you to resign.
Me: Darryl you know as well as I do that the only reason the capital raising failed is the Board did not follow the advice of management and the external advisors.
Cuzzubbo: I know Ayten, but they want you to resign. I think it is your best interests is to resign.
Me: This is most unfair. I am being made a scapegoat for the failed capital raising and my criticisms of the Board. I will need some time to take advice before I decide whether to resign.
Cuzzubbo: The Board and the shareholders want you to go. It is much easier if you will agree to resign. I understand you will need some time to take advice.
Me: Yes. I will let you know about the resignation. I am going back to my hotel to clear my head and will come in tomorrow.
Cuzzubbo: As there is no need for you to come back to the office, you can leave your computer here.”
Mr Gandhi gave evidence of a conversation between the Applicant and Mr Cuzzubbo on that day. His evidence was entirely based on what Mr Cuzzubbo had told him, however, and the Applicant’s counsel objected to its tender. I accepted the evidence, albeit only as to explain Mr Gandhi’s state of mind about whether the Applicant had resigned, but not as to the accuracy of Mr Cuzzubbo’s conversation with the Applicant that day.
Notwithstanding those hearsay objections, Mr Gandhi was cross-examined about that evidence and asked to confirm (which Mr Gandhi agreed) that, what he had been told by Mr Cuzzubbo on 9 August 2022, was to the following effect:
“'Ayten has been asked to leave because the board has lost faith in her capability. During the conversation with the board, I had offered my own resignation. Someone had to resign. The members of the board were embarrassed by the capital raising.' And then there were discussions about a deed later.”
On the same day following that meeting, the Applicant exchanged text messages with Mr Cuzzubbo. One of those messages stated she had “gone back to the hotel” and “won’t be in the office for the rest of the day”. Mr Cuzzubbo’s message said he understood and then said “I feel incredibly sorry for bring u into this”. The Applicant then stated:
“I won't allow the Board to use me as a way to defend their actions. I'm happy to stand up to their bullying and am not afraid. If anyone needs to resign it's not going to be me.”
On 10 August 2022, the Applicant attended the office. She attended a meeting with Mr Cuzzubbo and Ms Tania Cashman. Ms Cashman was the Head of People for the Respondent. The Applicant states in her evidence (and I accept) the conversation included the following:
“Me: You will get your resignation. I still have to make a few phone calls before I send it.
Cuzzubbo: That is fine Ayten.
Cashman: Are you ok?
Me: Yes. I am heading back to Sydney today.”
It would appear that this conversation possibly covered more ground but neither party gave details of it in chief. Under examination, the Applicant confirmed, with apparent reference to events occurring on 10 August 2022, that:
“I was told by [Mr Cuzzubbo] that my meetings that week, he would cancel them. I asked him, the work that I was working on, what he wanted me to do with them, and he said, 'Just leave it, it's okay, we'll take care of it.'”
The Applicant asked me to draw an inference that a failure to call Mr Cuzzubbo or Ms Cashman was because their evidence would not have assisted the Respondent’s case. It appears that both Mr Cuzzubbo and Ms Cashman were in Australia and potentially available to give evidence, but the Respondent had not spoken to them. While I would be prepared to draw that inference if there was any relevant matter to which it applied, I do not consider that the rule in Jones v Dunkel was engaged having regard to the evidence led by the parties and their submissions about it. Aside from the limited witness evidence described above from the Applicant (which the Respondent did not seek to challenge), the evidence was largely documentary.
While the exact sequence in the chronology is not entirely clear, the Applicant’s evidence included various text messages with Ms Cashman. A number of those appear to have been sent between 12.35pm and 10.49pm on 10 August 2022, with the final of those messages referring to her not getting “home” until late.
The first of the messages in evidence was sent at 12.35pm. It was a message from the Applicant to Ms Cashman that stated:
“Anyway let's get the paperwork done so I can move on. I'll send the formal resignation when I get home. Wish you the best and if you are in Sydney come over because we still need to have that bottle of wine together x”
There was further discussion by text message to the effect of a proposed non-disclosure deed, which could potentially be accompanied by an additional four weeks’ payout. The Applicant did not consider the deed would actually protect her and rejected that idea. There was some discussion from the Applicant regarding how “the market” would interpret her departure. The Applicant also stated:
“What I would appreciate though is reviewing the announcement before it goes out. I want it benign and nothing explicit other than I resigned after x weeks.”
The Applicant’s evidence is that, following the meeting on 10 August 2022 with Mr Cuzzubbo and Ms Cashman described above, she sent an email to the team who reported to her. The Applicant’s witness statement states she did so as she had been “told by Mr Cuzzubbo that I was not wanted in the business”. The email (10 August email), included in the Respondent’s material, was as follows:
“Team,
I didn’t want to be sending you this email but with a heavy heart I advise that I will be resigning and leaving today. I’m sad because I was looking forward to working with you and making the changes that is needed. But my role is not tenable and I wish you all the best of luck.
I have included my personal email address above.
Take care and hopefully our paths will cross again.
… ”
As the 10 August email indicated, the Applicant had copied her personal email address. The subject heading for the email was “Resignation”.
Shortly after sending the 10 August email, the Applicant left the Brisbane office. Before she left, she gave her access pass to Ms Cashman. She collected a small number of personal belongings in her office. Consistent with the Applicant’s statement to Mr Cuzzubbo and Ms Cashman earlier that day, the Applicant then returned to Sydney.
On 11 August 2022, Mr Gandhi caused a statement (Market Announcement) to be published on the Respondent’s website. Mr Gandhi’s purpose was “to announce to the market that the Applicant had resigned from her role as Group Chief Financial Officer”. He did so on the basis that (in his view) the Applicant had resigned, she had communicated that fact to her team, had returned company property and left the office.
The Market Announcement relevant stated:
“MANAGEMENT CHANGE
SolGold announces that Ayten Saridas, Group Chief Financial Officer ("CFO"), has resigned effective immediately. The Company has appointed Keith Pollocks as Interim CFO until a permanent replacement is appointed.
Mr Pollocks has extensive international experience leading global finance functions for a range of public and private multinational companies predominantly across banking, infrastructure, resources, and mining. Throughout his career, Mr Pollocks has held various senior finance and commercial management roles in Australia, Europe, US, and Asia and specialised in capital raising, mergers and acquisitions, financial risk management, investor relations and strategic transformation. Mr Pollocks started his career with Shell International and has recently held CFO roles at Victory Offices (ASX:VOL), Kasbah Resources Limited (ASX: KAS) and Newcastle Coal Infrastructure Group. He holds a Bachelor of Business, Master of Commerce and is a Chartered Corporate Treasurer and Certified Practising Accountant.”
The Market Announcement also described a separate resignation from the board of a director, as well as another employee. For the statement about the director, the Market Announcement stated he resigned “effective from 12th August 2022” but he would be remaining as advisor to the company’s technical committee for a period afterwards.
The Applicant evidently saw, or had her attention drawn to, the Market Announcement. By text message on 11 August 2022, she complained to Mr Cuzzubbo in the following terms:
“Darryl, I noticed that an announcement has already been made to the market that I have resigned. I have not in fact yet resigned. I've been working with my lawyer today to craft a response but now that it's been announced we will need to change that. I don't know what the rush was but this is not proper process and you have mislead the market by announcing something that has not yet happened. I'm very disappointed and will respond accordingly.”
Mr Cuzzubbo’s response was:
“Ayten, I saw your note to your team stating that had resigned on top of you verbally telling me. I acted on that which I believe I had to. I'm honestly sorry that you feel that way.”
The Applicant then replied:
“Despite my email to the team you had not yet formally received my resignation Darryl. I will have something to you tomorrow now that a resignation seems irrelevant”
On 12 August 2022, the Applicant sent the Respondent a letter titled “Letter of Resignation” (the Letter of Resignation). The letter begins:
“I acknowledge the verbal advice provided to me by Darryl Cuzzubbo on 9 August 2022 that the Board of SolGold PLC have directed me to resign from my role as Chief Financial Officer.
By this letter I give the written notice required of termination of my Employment Agreement dated 5 May 2022.
Please be on notice that:
1. My resignation is being forced on me by the actions of the Board of SolGold PLC;
and2. Darryl Cuzzubbo advised me that:
a. this was not an outcome he wanted; and
b. the Board hold me responsible for the failed capital raising; and
c. he offered his resignation to the Board of SolGold instead; and
d. the Board rejected Mr. Cuzzubbo’s offer of his resignation in favour of my resignation; and
e. if I did not resign, I would be terminated by the Board; and
f. the Board informed him that the Board and shareholders had lost faith in me for me to continue in the role.
3. I reject the suggestion shareholders have lost faith and dispute that shareholders have been provided with an honest and balanced record of the decision to carry out a Cash Box offering against any other forms of capital raising.
4. I am wrongly being made a “scapegoat” and/or being identified by the Board of SolGold and/or its management (as directed by the Board of SolGold) as the cause of the failed capital raise to shareholders.
The letter is five pages in length and would appear to have been drafted with the assistance of legal representation. It is not necessary to set it out in full. Much of the letter that follows the extract above relates to the Applicant’s position concerning the circumstances of the failed capital raising and a whistleblowing complaint she made, neither of which are matters I need to address for the current application. In the conclusionary parts of the letter, the Applicant states:
“As I remain an employee of the Company until the end of my notice period, I make this whistleblowing complaint to Tania Cashman – Chief People Officer.”
In the following period, it was accepted by the Respondent that the Applicant was not paid her four week notice period at this time or at all. The Applicant also states that she had not been paid her annual leave entitlement – I accept her evidence, noting that nothing was advanced to contradict it in the Respondent’s evidence in chief.
It is unclear why the Applicant’s notice and leave entitlements were not paid, although the Applicant included an email chain from September 2022, in which the Applicant states her disappointment that “you have linked the payment of what is a relatively minor statutory entitlement under my employment contract conditional on me signing a Deed.” The reference to the deed was to a “Deed of Settlement” sent to her by the Respondent on 6 September 2022, although that document was not in evidence. The Applicant stated in her email that, upon legal advice, she would not be signing the proposed deed. If there was a basis to withhold these amounts, I am not aware of it.
According to the Applicant’s Form F8, the date the dismissal took effect was 10 September 2022. This accords with the final day of the four week period from the date of her Letter of Resignation. The Applicant filed her an application under s.365 of the Act on 30 September 2022, which would make her application within 20 days of 10 September 2022.
When did the dismissal occur?
The Respondent’s case is that the Applicant resigned on 10 August 2022. It says she did so by her email to her team of that date.
The Applicant’s case is that she did not resign by any conversation or conduct on 9 or 10 August 2022. Rather, she says she foreshadowed her intention to resign and, on 12 August 2022, she gave notice of her resignation.
In support of those contentions, the Applicant relies on future-looking language of various key statements or conversations. For example (my emphasis):
· On 9 August 2022, she told Mr Cuzzubbo “I will let you know about the resignation”. Allied to this statement was a contemporaneous text message where she stated to Mr Cuzzubbo “If anyone needs to resign it's not going to be me”.
· On 10 August 2022, she told Mr Cuzzubbo and Ms Cashman “You will get your resignation.” That was further qualified by her following statement “I still have to make a few phone calls before I send it.” Allied to this statement was a contemporaneous text message that day where she stated to Ms Cashman “I’ll send the formal resignation when I get home” and, at the end of that day, “Will send resignation in writing tomorrow to formalise everything”.
Similarly, in relation to the 10 August email relied upon by the Respondent, the Applicant states that it was referring to a resignation in the future, as her email stated “ … with a heavy heart I advise that I will be resigning and leaving today”.
Taking these statements together (and similar statements following on 11 August 2022) the Applicant contends she did not resign prior to her Letter of Resignation on 12 August 2022. She then contends that, by the Letter of Resignation, she gave notice of her resignation, whose notice period then ran for a further four weeks. As her employment contract required her to report to Mr Cuzzubbo, she says there is no indication she did anything to the contrary, as she says she was following the direction given by Mr Cuzzubbo to no longer attend work.
In her written submissions, the Applicant also attacks the effect or character of the 10 August email. She states:
“The respondent’s jurisdictional objection is reliant on a finding by the Commission that:
(a) the email from the applicant dated 10 August 2022 to the members of her team who reported to her was a notice of termination within the meaning of the Employment Agreement; and
(b) the team members who reported to the applicant were authorised to receive a notice of termination; and
(c) the applicant’s leaving her computer and returning to Sydney was not authorised by Mr. Cuzzubbo, the Chief Executive Officer of the respondent (Cuzzubbo); and
(d) the actions of the applicant in paragraph was repudiatory conduct by the applicant; and
(e) the silence of the respondent after receiving the applicant’s letter of resignation on 12 August 2022 is of no relevance; and
(f) the applicant abandoned her employment on 10 August 2022; and
(g) the notice and availability offered by the applicant to undertake work at the direction of the respondent contained in the 12 August 2022 letter was not genuine.”
It is tolerably clear to me that the Applicant’s employment relationship was terminated on 10 August 2022 or, at the latest, on 11 August 2022.
The Applicant was a very highly-paid executive, working in a publicly listing mining and exploration company. The company was in the process of attempting a capital raising. That capital raising was assessed, at least by the board, as likely to fail. Rather than failure, the board cancelled the proposed capital raising. Rightly or wrongly, the board blamed the Applicant.
In somewhat stark terms, the Applicant was given a choice to jump ship or be pushed. That decision was communicated on 9 August 2022. The Applicant was plainly displeased with the board’s decision and, in the Applicant’s view, being made a scapegoat. But as might be expected by someone of her seniority, she was under little illusion that she was being asked to leave.
Further discussions ensued on 10 August 2022, with the CEO and the Head of People. The Applicant’s evidence of that conversation was her saying “You will get your resignation. I still have to make a few phone calls before I send it ” and then also stating “I am heading back to Sydney today.” What occurs shortly after was sending the email titled “Resignation” to her team.
She then returns her pass and computer, collects her possessions, and leaves to Sydney. She was otherwise originally planning to remain in Brisbane for the week. Together with the sending of the 10 August email, I am satisfied that the Applicant’s employment relationship was terminated on 10 August 2022 by those events.
Contrary to the Applicant’s submissions, I do not accept the use of the future tense – “will” - in her conversation on 10 August 2022 and the 10 August email that followed alter that conclusion. The 10 August email states that “… with a heavy heart I advise that I will be resigning and leaving today.” So far as that statement conveys future events, it was to two events occurring that day – her “resigning” and “leaving”. She did both. Objectively, it is difficult to see how such an email, from someone as senior as the Applicant, to her team would be construed otherwise, not just in relation to the immediate recipients but to anyone else in the company to whom it might have been forwarded. There were no restrictions to her team on how the email should be used or to whom it might have been sent.
The act of returning her pass, collecting her possessions, saying goodbye to her team and leaving to Sydney cannot be objectively[1] construed as anything other than the employment relationship coming to an end. While I accept that some of the Applicant’s statements demonstrated an intent to resign in the future, those statements were made in less formal contexts and were superseded by the events of 10 August 2022. I am satisfied that the events of 10 August 2022 evince an objective intention of a resignation occurring on 10 August 2022, culminating with the Applicant leaving “today”. She did leave and, under protest, she did resign.
I do not accept the Applicant’s written submission that I must find that the Applicant’s team members were “authorised” to receive a notice of termination. That proposition misstates what the team members were authorised to do. They were clearly authorised to receive emails from the Applicant and they were also authorised to pass them on. As the team members were just told by their direct manager that she was leaving “today”, it would also be expected that those employees would promptly ask the Applicant’s manager (the CEO) or others about who they would be reporting to next. If nothing else, it would be expected there would be some discussion of that event. This is clearly what occurred given Mr Gandhi’s contemporaneous awareness of the email that (with other events) formed the basis of his decision to issue a statement to the market.
I also do not accept the Applicant’s submissions that she was “authorised” by the CEO to leave her computer and to return to Sydney from 10 August 2022 onwards. This submission has an air of unreality, as it is suggesting that the Applicant was being placed on a form of gardening leave. It is unclear where the factual basis for the assertion lies, as the Applicant’s witness statement does not disclose a basis for it.[2]
The conversation with the CEO and Head of People on 10 August 2022 disclosed no evidence to support the contention that she had been directed to some form of gardening leave to serve out her notice period. So far as the Applicant explains why she left to Sydney, her witness statement points in the opposite direction, as it states she left because “I was told by Cuzzubbo that I was not wanted in the business.” I do not consider that the text messages with Mr Cuzzubbo on 9 August 2022 disclose any such “authorisation” and neither do the text messages the next day with Ms Cashman (which are, in any case, after the event).
There is no question the Applicant was directed to leave on 10 August 2022, but to describe that as a form of “authorised” employment for the period that followed cannot be sustained.
Even if a different view might be held of the events of 10 August 2022, I am left in no doubt at all that the employment relationship was terminated on 11 August 2022 following the release of the Market Announcement. That announcement, directed at shareholders and the market generally, described the Applicant’s resignation “effective immediately”. The Applicant became aware of the announcement on 11 August 2022. I note Mr Gandhi’s evidence (which I accept) was to the effect that he issued that notice because of his belief that the Applicant had resigned. But even if Mr Gandhi’s belief was misplaced, it is difficult to envisage a more objectively destructive act to the employment relationship of a person in the Applicant’s seniority than a market announcement describing the immediate end of the Applicant’s employment and the appointment of an Interim CFO. The Market Announcement was never retracted nor corrected.
Aspects of the Applicant’s written submissions are directed at the Respondent’s submissions, the latter of which contended some form of “abandonment” of employment. I accept the Applicant’s submissions that there was no abandonment of employment, but it does not follow that her absence was therefore due to an “authorised” absence. I noted above that the Respondent acknowledges there was a constructive dismissal. The termination of the employment relationship, assessed objectively, was at the initiative of the employer. The concept of “abandonment” in the circumstances before me has no role.
The heart of the Applicant’s submissions appear to rest on a contention that the notice of resignation provided in the Letter of Resignation had the effect of preserving both the employment contract and the employment relationship for the four week notice period that followed. I do not accept that the Letter of Resignation had that effect. I consider that the Applicant’s own assessment the day before was more accurate, which in her own words on 11 August 2022 when complaining to Mr Cuzzubbo about the Market Announcement, was that a “resignation seems irrelevant”.
Similar to the circumstances in Visscher v Giudice (2009) 239 CLR 361 (Visscher) at [53], the Applicant’s submissions elide the established difference between the termination of the employment relationship and termination of the employment contract. The majority in Visscher cited the following proposition from Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 427 per Brennan CJ, Dawson and Toohey JJ:
“It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson …”
More recently in Broadlex Services Pty Ltd v United Workers’ Union [2020] FCA 867 (a case considering circumstances relevant to a demotion), Katzmann J stated:
“In both Visscher (at [53]) and Byrne (at 427) reference was made to the statements of Latham CJ in Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 454 that “[a]n employer terminates the employment of a servant when he dismisses him …” and Dixon J in the same case at 469 that “[t]here is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve”. In Visscher (at [54]) reference was also made to the statement by Latham CJ in Automatic Fire Sprinklers Pty Ltd v Watson at 451 that:
[T]he wrongful dismissal determines the relationship of master and servant created by the contract, even though the servant may not have accepted his dismissal as entitling him to regard the contract as discharged.”
Even if it was accepted that the Applicant had affirmed her employment contract in the face of the Respondent’s repudiation (i.e. wrongful or constructive dismissal), the employment relationship had already been terminated. As set out above, I am satisfied that the employment relationship was terminated at the employer’s initiative on 10 August 2022 or, by no later than 11 August 2022.
It follows that I find that the Applicant was dismissed and the “dismissal took effect” for the purpose of s.366 of the Act on 10 August 2022 and by no later than 11 August 2022.
Extension of time
On this basis the application should have been filed by 31 August 2022 or 1 September 2022 and was, in the circumstances, approximately 30 days’ late. In my reasons that follow, nothing turns on whether the date the dismissal took effect was 10 or 11 August 2022.
Was the application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3] I set out my consideration of each matter below.
Section 366(2)(a) - Reason for the delay
In her witness statement, the Applicant’s evidence touching on the reasons for delay is:
“10. On 12 August 2022, I sent a letter of resignation dated 12 August 2022 which is Annexed and marked D.
11. Since 12 August 2022 I have communicated directly with Cashman and Cuzzubbo regarding executing a Deed of Release regarding the termination of my Employment Agreement. At no stage since 12 August 2022 have either Cashman or Cuzzubbo communicated with me that my letter of resignation dated 12 August 2022 was not accepted by the respondent as notice of termination in accordance with my Employment Agreement.”
I note that the Letter of Termination states (my emphasis) “As I remain an employee of the Company until the end of my notice period, I make this whistleblowing complaint to Tania Cashman – Chief People Officer.”
The Applicant refers to further emails between 6 and 19 September 2022 between herself and the Respondent. By the email of 6 September 2022, Mr Gandhi sent a proposed deed of settlement. No response was received to that until 19 September 2022, following a prompt from Ms Cashman on 19 September 2022. The Applicant’s reply on 19 September 2022 is that “following legal advice”, she would not be signing the deed. There is nothing else in the evidence to relevantly explain the delay.
The Applicant’s submissions state:
“8. If the Commissioner finds the General Protections Application was out of time, there are exceptional circumstances where the applicant acted in reliance on her letter of resignation dated 12 August 2022 and the respondent did not act to inform the applicant that they considered her employment terminated immediately because of her email to her team on 10 August 2022 and the leaving her computer in the office (something she did when every she returned to Sydney).
9. There is no reasonable basis for the respondent to claim:
a. the email sent by the applicant to her team on 10 August 2022 was a written notice of termination; or
b. the letter of resignation of 12 August 2022 was not the formal contractual notice of resignation requested by Cuzzubbo and Cashman.”
The Applicant’s evidence for the reasons for delay is, impliedly, because she believed that she was within time and there was no “reasonable basis” to assume otherwise. I say “impliedly” because the Applicant does not positively depose that this was her belief.
Nonetheless, a factor in the Applicant’s favour was that she had not been paid notice or entitlements, which ought to have occurred promptly. The Respondent’s failure to pay those amounts was unexplained.
The highest that I consider the evidence allows me to be satisfied regarding the reasons for delay is that the Applicant was labouring under a belief that the Letter of Resignation was effective in preserving the employment relationship until 10 September 2022 and, therefore, she was within time. Despite the obvious involvement of legal practitioners, I note there was no evidence to the effect that she had been given legal advice in terms to that effect. That is not to suggest that there was legal advice given, but the point is that the Applicant had legal resources available if required.
As to the Respondent’s alleged failure to disavow the Applicant of her alleged belief that the employment was continuing in accordance with the Letter of Resignation, I do not consider this adds much. In part, I consider that the continuation of the employment relationship had a degree of unreality, largely for the reasons I have already stated. As best as I can discern, the Respondent did not disavow itself of the Applicant’s other complaints (c.f. the whistleblowing allegation) but this does not suggest that the Respondent in any way accepted those allegations.
In short, the reasons for the delay may be distilled to a belief that the Applicant was within her notice period, because of the Letter of Resignation, and that her belief was fortified (in her view) by the absence of a statement of correction by the Respondent.
I do not consider these reasons point in favour of exceptional circumstances.
Section 366(2)(b) - action was taken by the Applicant to dispute the dismissal
Where an Applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[4]
I am prepared to accept that the Letter of Resignation was action taken to dispute the dismissal, at least in the broader sense that she was challenging the basis for why her employment was terminated.
Section 366(2)(c) - the prejudice to the employer (including prejudice caused by the delay)
In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted.
Section 366(2)(d) - the merits of the application
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials, although at a relatively high level.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[5].
I consider that there are aspects of the Applicant’s claim that would appear to face difficulties, such as her “whistleblowing” complaint. On the material before me, this complaint did not arise until after she had been asked to resign. Indeed, as far I can discern from the Applicant’s ‘Form F8’ application, the best that might be said of it was that the Respondent had a private (undisclosed) belief that the Applicant might at some point in the future be making a whistleblowing complaint and, while that complaint was not articulated before 12 August 2022, that explains why she was asked to resign on 9 August 2022.
Despite my reservations, and in the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits.
Section 366(2)(e) - fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
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.[6] 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.[7]
Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[8]
Mere ignorance of the statutory time limit is not an exceptional circumstance.[9] I would make the same observation as to ignorance regarding the timing of the dismissal itself, particularly where (as here) the Applicant was legally represented.
The delay in the present case is significant – around 30 days. The reasons for delay are in part ignorance about the timing for making her claim due to the perceived effect of the Letter of Resignation. I am not satisfied that the reasons for dismissal, on their own or in combination with any other supportive matter establish exceptional circumstances. While I acknowledge that it might be confusing for persons to appreciate the difference between the termination of an employment contract and the termination of the employment relationship, that it is not of itself “exceptional”.
The Applicant took some steps to challenge her dismissal prior to her application. It is a factor that I consider assists her.
I am unable to form a concluded view about the merits of the application and, perhaps generously in the Applicant’s favour, I am prepared to treat this factor neutrally. The factor regarding the fairness between the Applicant and other persons in a similar position neither adds nor detracts from my consideration.
When having regard to all of the matters listed at s.366(2) of the Act, I am not satisfied that there are exceptional circumstances of the kind required by the statute.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for the Commission to deal with a dismissal dispute is therefore dismissed. An Order[10] to this effect will be issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
I Latham of Counsel for the Applicant
N Le Mare of Corrs Chambers Westgarth for the Respondent
Hearing details:
2023.
Melbourne (by video and Telephone):
February 3.
[1] Cf NSW Trains v Mr Todd James[2022] FWCFB 55 at [100] in the cited extract from City of Sydney RSL & Community Club Limited v Balgowan (2018) 273 IR 126, [2018] FWCFB 5.
[2] This is not a matter where any Jones v Dunkel inference might assist. Rather, the Applicant’s own evidence provides no basis for the alleged authorisation.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[4] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[6] Ibid [13].
[7] Ibid.
[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].
[10] PR750190.
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