Braith John Steven Hartfield v Pitfort Pty Ltd, James Paul Carter, Emma Barclay
[2024] FWC 2219
•20 SEPTEMBER 2024
| [2024] FWC 2219 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Braith John Steven Hartfield
v
Pitfort Pty Ltd, James Paul Carter, Emma Barclay
(C2024/2631)
| DEPUTY PRESIDENT DEAN | CANBERRA, 20 SEPTEMBER 2024 |
Application to deal with contraventions involving dismissal – date employment ended – extension of time – application dismissed.
This decision concerns an application made under s.365 of the Fair Work Act 2009 (the Act) by Mr Braith John Steven Hartfield (Applicant), alleging that he was dismissed in contravention of the general protections provisions of the Act by Pitfort Pty Ltd and its Directors, James Paul Carter and Emma Barclay (together, the Respondents). The Applicant claims that his employment with Pitfort was terminated on 5 April 2024.
The Respondents jointly filed a form F8A Employer Response which objected to the application on two grounds. The first ground was that the Applicant was not ‘dismissed’ within the meaning of the Act. It was asserted that the Applicant resigned from his employment with Pitfort on 24 October 2023. The second ground was that the application was therefore made outside the 21-day statutory time limit required by s.366 of the Act.
The Commission first needs to determine whether the application was filed outside the 21 day time limit (which requires a determination as to the date the employment ended) and if so, whether an extension of time should be granted to file the application. Second, if the application was filed within time or an extension is granted, whether the Applicant was dismissed within the meaning of the Act.
At the hearing to deal with these two issues, Mr P Smith of Legal Aid ACT appeared with permission for the Applicant, and Mr W Ward of Mills Oakley appeared with permission for the Respondent.
The Applicant gave evidence on his own behalf and the Respondents called evidence from the following persons:
· James Paul Carter – Director and co-owner
· Emma May Barclay – Director and co-owner
· Lauren Tye – Operations Manager
· Ally Smith – Senior Sales Executive
· Nikola Brozinic – Sales Consultant
· Sam Howes – Sales Consultant
· Charissa Turbin – Property Manager
For the reasons set out below, I find that the Applicant’s employment ended on 24 October 2023 and no extension of time is granted for the application to proceed.
Background and Evidence
The Respondents operate a small real estate agency in the ACT.
The Applicant commenced employment as a Sales Associate on 20 June 2022. In January 2023 he moved into a Sales Agent role and entered into a new employment contract at that time.
The Applicant and Mr Carter became personal friends shortly before Mr Carter employed the Applicant, and their friendship continued during the Applicant's employment.
As is common in the real estate industry, the Applicant was paid a salary and was eligible to be paid commission on sales he achieved. In order to receive commission payments, the sales commission earned by the Applicant needed to exceed the base salary paid to him. If he did not achieve enough sales to meet his base salary, this became a ‘debit’ against the Applicant and would need to be repaid through subsequently earned sales commissions.
The Respondent said that in July 2023, a performance management process commenced as the Applicant had failed to meet his sales targets for the previous 6 months. This was conducted primarily by Mr Carter and Ms Tye, the Operations Manager, and included weekly meetings to monitor his performance against previously set key performance indicators. The Applicant denied he was not performing and said his performance review on 7 July 2023 was ‘positive’. He described the weekly meetings as ‘an informal check in’. He said he was never performance managed by the Respondents but rather a performance development plan was implemented, which he agreed to in a meeting on 7 July 2023.
On 13 September 2023 Mr Carter sent an email to the Applicant stating he wanted to discuss ‘plans moving forward with your debit credit agreement’. The email stated that the Respondent ‘cannot facilitate a debit credit agreement long term without traction and results’. It went on to say that:
“We have been doing our best to work with you and support you over the past few months, after not seeing enough promising movement within your database over the first six months. We had hopes that these check ins and offered guidance would assist you in listing and get our debt under control.
In our meeting last week, we went over your KPI’s again and agreed that you needed to be meeting them weekly, per your contract as a debit credit agent, which you agreed to. We discussed logging all your calls through AgentBox for tracking and reporting purposed (sic), which you also agreed to. Upon pulling your reports this week, we can see that only 4 calls have been logged over the past 8 business days since our last meeting. It was great to see monthly EDM go out and hopefully you were able to get some good responses to this to add to the pipeline. I’m a tad concerned that you also mentioned the Googong exchange is falling through which will prevent the Debit Credit reducing and sales process re commencing (although I’m not sure if you managed to resolved these concerns from the buyer).
We are at a point now, where we need to consider what is best for the business moving forward as well as yourself. As continuing your debit credit with no new properties listed and a current and growing debt of $21,010.64, is becoming a large risk for the business, and I’m sure will be stressful for you.There were two properties that were definitely going to list with you from our last catch up.
In good faith, we are happy to extend you another two weeks, to list these properties. If you do not have new listing signed within the fortnight (end of September), we will have to reconsider your debit credit agreement with Carter + Co Agents and look into other options. If you are able to list another property within the fortnight/before the end of September, we are happy to continue your debit credit agreement, upon the condition one new property is listed each month moving forward until you are in a position to become a stand-alone contractor.
I would have ideally liked to have this conversation in person. If you can please advise when you believe you will be returning to work, so we can schedule and go over this in person.
Kind regards
James Carter”
The reference to ‘stand alone contractor’ was explained by Mr Carter in cross examination. He said all the real estate agents working with the Respondent were contractors, which was the business model of the Respondents.
The Applicant gave evidence that he met with Mr Carter on 15 September 2023 and was told that his retainer was ‘exceeding high amounts and was going to be paused’. He said that the last pay on retainer he received was 10 October 2023.
On 18 October Ms Tye emailed the Applicant to ascertain his plans moving forward as the Applicant had not met his key performance indicators.
The Applicant subsequently requested a meeting with Mr Carter, Ms Barclay and Ms Tye, which took place on 24 October 2023. This meeting is important as the Respondent asserts the Applicant resigned at this time which is denied by the Applicant.
24 October meeting
Broadly speaking, Ms Tye, Mr Carter and Ms Barclay gave consistent evidence about the meeting on 24 October.
Ms Tye, Mr Carter and Ms Barclay all say that during the meeting the Applicant advised that he no longer wanted work in real estate or continue as a Sales Agent, and that he was not in a position to keep working as he needed money coming in and sales was not working out for him.
Ms Tye and Mr Carter gave evidence that the Applicant stated he felt uncomfortable about leaving given the large debt he had built up (as he and Mr Carter were good friends), and that as he had not secured a new role as yet, he would like to continue trying to list and sell properties until he found a new position. He requested that he be allowed to pursue his remaining ‘leads’ in the hopes of paying back some of the debt he had accumulated.
Ms Tye also gave evidence that Mr Carter offered that the Applicant could continue to use their office space while looking for another job so that he would not be isolated at home while looking for another role.
The Applicant’s account of the meeting was that he said he needed an income stream as his last pay was 10 October, and Ms Barclay indicated there were no salary roles available at that time. The Applicant said that if he was unable to have a consistent income stream from the Respondent on a regular basis, he would need to look at other casual or part time employment. He said Ms Tye stated he would need to repay his debt, and they could look at options involving future sales commissions being split so that 50% went to him and 50% went to paying back the debt. The Applicant also said that Ms Barclay offered that he could continue working weekends and assist in property management open homes, in addition to helping Mr Carter during open homes and auctions, to which the Applicant agreed.
Shortly after the meeting, Ms Tye sent and mail to the Applicant, Ms Barclay and Mr Carter in the following terms:
“Hello all
Following on from our chat earlier today, I thought I would send through an overview of what we have discussed.
Braith will continue employment as a commission only agent until he has found a new job. In this time, he will continue prospecting and anything that is converted into a listing will be passed along to James. James agreed if he takes the sales to a 50% commission split to get the debit credit paid back.
If Braith is able to refer 3 genuine leads that convert to listings (estimated) based on a $10K plus commission. Leaving $2,171 in cash for payments (give or take based on commission earnings). Our discussed goal is for full amount to be paid back within 12 months; however we are happy to reassess as the year goes on.
Braith, please keep us in the loop on when you think you will be looking to start your new job.”.
Ms Tye gave evidence that the reference to continuing in employment was a reference to him working on his two remaining listings and not a reference to him remaining as an employee.
Also on 24 October 2024 after the conclusion of the meeting, the Applicant sent an email to Ms Tye, Ms Barclay and Mr Carter which said: ‘Thank you guys and I cannot stress to you all how grateful I am for the opportunity you have given me since being here. I will keep you all updated on how things are tracking’.
Ms Barclay replied to the Applicant that day saying; ‘Thanks Braith. Sad that you are leaving, but also understand it’s the best decision for you. Definitely want to see you at OzTag and remain in touch pls!’
Ms Tye said that after the meeting she completed the ‘offboarding’ process in their employee software program called Employment Hero, which included that the Applicant had resigned effective 24 October 2023. There was some dispute about whether this process was actually undertaken shortly after the meeting or much later. In her oral evidence, Ms Tye said she “made notes” at the time but did not officially archive the Applicant in the system.
Ms Barclay gave evidence that she was aware the Applicant told other staff members on 24 October of his resignation because they said something to her about it.
In essence, the Applicant’s evidence was that he never resigned, and never told anyone that he was resigning.
The Applicant was not paid by the Respondents after 24 October 2023. There is no suggestion this was disputed by the Applicant until 5 April 2024.
Conduct post 24 October 2023
The Applicant gave evidence that he continued in his role, understanding that he remained employed until 5 April 2024. He said his day to day tasks remained unchanged and he continued to arrive at work between 8.30am and 9am each day, engaged with prospective clients and sellers, attended daily sales meetings, had lunch mostly with another staff member, and spent the afternoons letterbox dropping pamphlets and flyers for the Respondent. He said his day usually finished between 5.30pm and 6pm, but sometimes later if he was attending auctions or open homes after hours.
Ms Tye gave evidence that after 24 October 2023 she observed the Applicant come into the office sporadically, often for only a few hours in the middle of the day. On these occasions, she said she observed him lying on the couch of people’s offices. Ms Barclay also said that the Applicant ceased his regular attendance at the office from 24 October, which was consistent with her understanding that he was no longer employed by the Respondent. The management of the Applicant’s performance also ceased at this time.
Similarly, Mr Carter said that prior to the Applicant’s resignation, he attended the office Monday to Friday generally between 8am and 4.30pm, however after his resignation he attended only very sporadically. Mr Carter said he did not monitor the Applicant’s attendance as he was not employed, however he did note the attendance was limited to completing studies and coming in for lunches with other staff.
Mr Brozinic gave evidence that he had a conversation with the Applicant on the afternoon of 24 October and the Applicant told him he had resigned, saying words to the effect of “I just have decided to go to university and study law. I just let Emma and James know I’m not working here any longer”. Mr Brozinic offered to be a referee for the Applicant and gave evidence he recalled being contacted for a job the Applicant had applied for with the Attorney General’s office in late 2023. Mr Brozinic also gave evidence that the Applicant told him he intended to try to sell a couple of properties to pay Mr Carter back the debt he owed.
Mr Howes also gave evidence that the Applicant informed him he had resigned, and that he intended to commence studies. Further, he said the Applicant only attended the office for a few hours and his activities when he was in the office were primarily online shopping and socialising with other staff.
Ms Smith gave evidence that she had heard from a colleague on 24 October 2023 that the Applicant had resigned, so she sent him a text message saying “is it true?” and the Applicant responded saying “it is”. She also said she saw the Applicant the following day and had a conversation about his resignation, and that the Applicant would be attending the office while he was looking for another job.
Ms Tye said she had a conversation with the Applicant on 1 November 2023 about his job search and also asked for an update on the properties he was working on to pay back his debt.
Ms Tye said that on 29 November 2023 the Applicant listed a property and as he had not secured another job, Mr Carter was happy for him to do the work on the listing until he found employment, at which time Mr Carter would then take over and finalise the listing. The Applicant said he listed the property and signed the Agency Agreement with authority to do so on behalf of the Respondent, and an email was sent to the vendor confirming the Applicant was the listing agent and point of contact for the sale.
Ms Tye gave evidence that on 5 December the Applicant had still not found another job and was still coming into the office intermittently to spend time with the team and to socialise, so as a gesture of good will she invited him to the office Christmas party.
The Applicant said he listed a second property on 15 January 2024 and again signed the Agency Agreement on behalf of the Respondent.
In late March the Applicant said he attended a CPD training event to maintain his real estate licence. He said information was presented there about a ‘minimum income threshold amount’ that agents must meet before entering into a commission only arrangement. As a result, he contacted the Fair Work Ombudsman who he says advised him that it appeared the Respondents had breached a number of their obligations, and gave him the contact details for Legal Aid.
Ms Tye said that on 3 April 2024 the Applicant and Mr Carter approached her in the office and asked her to schedule a meeting for them, and Ms Barclay, which occurred on 5 April 2024.
The Applicant said this followed a discussion he had with Mr Carter in which he questioned why he was put on a commission only basis when he had not met the minimum income threshold amount, and told Mr Carter he had spoken with the Fair Work Ombudsman. He said the meeting with Mr Carter ended abruptly at that point, with Mr Carter saying they needed to have a discussion with Ms Tye which was then scheduled for 5 April 2024.
5 April 2024 meeting
Ms Tye, Ms Barclay and Mr Carter meet with the Applicant on 5 April 2024. They all gave evidence that the Applicant asserted he ought to be backpaid to October 2023 and that he said he ‘revoked’ his resignation. The Applicant stated he had attended the office every day and had been working for the business since October 2023.
Ms Barclay expressed that it was their friendship with the Applicant and his willingness to repay the debt that was the reason he had been allowed to continue to come into the office.
Mr Carter said something similar; that it was only because the Applicant was a personal friend that he had been allowed to continue using the office to complete his studies and visit other staff members.
The Respondents say they told the Applicant he could not unilaterally revoke his resignation, and that they did not owe him any money. The discussion concluded with the Applicant being told the Respondent would not be negotiating with him in terms of any payment, that his access to the office was revoked, and he should only make further contact through his lawyer.
The Applicant gave evidence that Ms Barclay stated he had not been employed since October 2023 and he would not be paid any money. The Applicant told her he was offended as he had two properties listed in his name, and he had been an employee since he had commenced with the Respondent. The Applicant said Ms Barclay stated he had resigned in front of Mr Carter and Ms Tye in October and they were all witnesses to that occurring. The Applicant again denied he had resigned. The Applicant questioned why he had not been paid annual leave from 17 January 2023 to 24 October 2023 and was told it had been applied to his debt. He objected, saying he had not agreed to that. The Applicant said Mr Carter stated he felt like he was being blackmailed and this was the end of their friendship. He was asked to return his access cards, and later that day he saw that his ‘profiles’ on various websites was removed and his access to various websites was also removed.
Other matters
There was a dispute about the contents of a Separation Certificate provided to or issued by Centrelink. In my view it is not possible on the evidence to determine with any level of certainty whether it was the Respondents or the Applicant who advised Centrelink of the termination date of 24 October 2023.
When did the employment end?
Ultimately, for the purposes of considering whether the application has been made within time, it is not necessary to determine whether the employment ended for reasons of dismissal or resignation. It only matters when the employment ended.
I am satisfied that the employment ended on 24 October 2023 for the following reasons.
I am satisfied that the Respondent had legitimate concerns about the Applicant’s performance, given his inability to list a reasonable number of properties for sale from January to July 2023 (ie sufficient to meet the cost of his salary), and had undertaken a process of managing the Applicant’s performance. It does not matter whether such a process is called ‘performance development’ or ‘performance management’ – the effect is the same in that the Respondent was attempting to improve the performance of the Applicant.
The management of the Applicant’s performance ceased on 24 October 2023, which supports a view that the Applicant was no longer employed from that date.
As at 24 October 2023 all payments to the Applicant had ceased as he had accrued a considerable debt given his inability to secure listings. It is understandable that neither party wanted the debt to continue to accrue.
I accept that the Applicant told other employees he had resigned on or after 24 October 2023, corroborating the evidence of the Respondents. Further, Ms Barclays email to the Applicant immediately after the 24 October meeting, which said “sad that you are leaving but also understand it’s the best decision for you” is in my view clearly a reference to leaving employment. If the Applicant had not resigned during that meeting, one would expect that his receipt of that email would have prompted a response to the effect that he was not ‘leaving’.
I accept the evidence of the witnesses for the Respondents that the Applicant only attended the office on a sporadic basis after 24 October 2024, and primarily for social reasons. While the arrangement to allow a former employee to continue to use office space might in ordinary circumstances be unusual, I accept the evidence of the Respondent that the Applicant and Mr Carter were personal friends, and that Mr Carter was concerned about the Applicant being ‘isolated’ if he was at home by himself while not employed.
I also accept that the Applicant offered to continue to pursue the two listings he had as at 24 October as a means by which he could repay the debt he owed the Respondents. As a real estate agent with his own real estate licence, it was open to the parties to agree to this arrangement.
There is no doubt that the Applicant was named in the two agency agreements relating to these listings as the listing agent on behalf of the Respondent. It does not follow, however, that he remained employed after 24 October 2023 simply because he had two properties listed, as he had his own real estate licence.
It is also true that the Respondent did not remove the Applicant from various websites and databases until after 5 April 2024.
In weighing up all the evidence, I accept that on the balance of probabilities the Applicant’s employment came to an end on 24 October 2023.
As a result of this finding, the application has been made outside the 21 day time limit allowed by the Act and can only proceed if the Commission grants and extension of time for the application to be filed.
Should an extension of time be granted for the application to proceed?
The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]
Section 366 of the Act provides:
366 Time for application
An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:(a) the reason for the delay; and
(b) any action taken by the person 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 person and other persons in a like position.
The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] 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.”
The onus of establishing exceptional circumstances lies with the Applicant. However, the Applicant’s evidence and submissions did not engage in any detail in this matter, other than to assert that as the dismissal did not take effect until 5 April 2024, the application had been made within time.
It was clear in both the response filed by the Respondents that there were two jurisdictional objections, and the Notice of Listing and Directions issued by the Commission also made it clear that the hearing was to determine both jurisdictional objections. The consideration of whether there are exceptional circumstances proceeds based on the information now before the Commission.
I now deal with each of the provisions of s.366(2) of the Act.
Reason for the delay
The period of delay requiring explanation to be considered is the period beyond the prescribed 21-day period for making 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 supports a finding that there are exceptional circumstances.[3]
For the reasons outlined earlier, the Applicant did not consider his application had been made outside of the 21-day time limit. No other reason for the delay was provided.
Any action taken by the person to dispute the dismissal
There is no evidence that the Applicant took steps to dispute his dismissal other than the making of this application.
Prejudice to the employer (including prejudice caused by the delay)
I do not accept that the Respondent would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time.
The merits of the application
In Nulty v Blue Star Group Pty Ltd[4], the Full Bench said:
“It would appear that this factor, described in the Act as ‘the merits of the application’ is directed towards some elementary assessment of the potential prospects of the matter if the extension was granted and the matter proceeded to hearing and ultimately determination.”
For the purpose of determining whether to grant an extension of time for the Applicant to file this application, the Commission ‘should not embark on a detailed consideration of the substantive case.’[5]
For the reasons already given, I have found the Applicant’s employment ended on 24 October 2024. There is a question which is not necessary to determine now as to whether the termination was at the initiative of the Respondent or not, given the Respondents ceased paying the Applicant on or around 10 October 2023. There are arguments both for and against this proposition which would involve a detailed consideration of the substantive case.
Fairness as between the person and other persons in a similar position
Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[6] considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’[7]
There was no evidence to suggest there were other persons in a similar position.
Conclusion
The onus is on the Applicant to demonstrate that his circumstances are out of the ordinary course, unusual, special or uncommon. Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. On this basis, no further time is allowed for the application to proceed and the application is dismissed.
DEPUTY PRESIDENT
Appearances:
P Smith for Braith John Steven Hartfield.
W Ward for Pitfort Pty Ltd, James Paul Carter, Emma Barclay.
Hearing details:
2024.
By Video:
June 26.
Final written submissions:
12 August 2024.
[1] [2016] FWCFB 6963.
[2] [2011] FWAFB 975.
[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.
[4] [2011] FWAFB 975.
[5] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
[6] [2015] FWC 8885.
[7] Ibid at [29].
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