Brenden Quinn v Hera Resources Pty Ltd trading as Aurelia Metals
[2022] FWC 576
| [2022] FWC 576 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brenden Quinn
v
Hera Resources Pty Ltd trading as Aurelia Metals
(U2021/11734)
| COMMISSIONER MCKINNON | SYDNEY, 21 MARCH 2022 |
Application for an unfair dismissal remedy – effective date of dismissal – exceptional circumstances – extension of time not allowed.
For just over 7 years, Brenden Quinn worked as a Surface Fixed Plant Fitter at the Hera Mine in Nymagee, New South Wales. He was employed by Hera Resources Pty Ltd trading as Aurelia Metals. On 15 November 2021, Mr Quinn gave one month’s notice of his resignation in writing. Mr Quinn says he was forced to resign because, after recently joining the Australian Workers’ Union, he was forced to change to a roster that he was unable to work due to its effect on his home life.
On 6 December 2021 - the 21st day after Mr Quinn’s notice of resignation – Mr Quinn applied to the Commission for an unfair dismissal remedy. Four days later, on 10 December 2021, he withdrew the application. He did so on advice from the Union to the effect that because his effective date of dismissal was 15 December 2021 (the expiry of his one-month notice period), he should withdraw and refile the application after that time. It appears that this advice was given to Mr Quinn after the Union received a letter from the Commission on 8 December 2021. The Commission’s letter noted that if the dismissal took effect on 15 December 2021, Mr Quinn’s application had been lodged prematurely.
On 16 December 2021, Mr Quinn - again acting on the advice of the Union - made this application for an unfair dismissal remedy. Aurelia Metals objects to the application because it says that Mr Quinn’s effective date of dismissal was 24 November 2021, the date his final pay was made. Aurelia Metals says that on that basis, the application is filed 1 day late. Aurelia Metals separately objects to the application on the basis that Mr Quinn resigned and was not dismissed.
This decision deals only with whether additional time should be allowed to Mr Quinn to make his application. It records my reasons for concluding that Mr Quinn was dismissed on 24 November 2021, that his application was 1 day late, and that no additional time should be allowed. For the purposes of this decision only, I have assumed - without deciding - that Mr Quinn was dismissed by Aurelia Metals. It is unlikely that he was. However, it is not necessary to answer the question finally because having decided not to allow additional time for the application to be made, the application must be dismissed.
When the dismissal took effect
Section 386 of the Act deals with the meaning of dismissal. A person has been dismissed if their employment with their employer has been terminated on the employer’s initiative, or they have resigned from their employment, but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Section 394(2) requires an unfair dismissal remedy application to be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Commission allows.
In Siagian v Sanel Pty Ltd[1], Wilcox J considered the effect of a payment in lieu of notice of termination on an employee’s employment. Wilcox J held that in the absence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately upon payment in lieu of notice.
Facts relevant to the date of dismissal in this case are these:
1. Mr Quinn worked a 7 day on/7 day off swing roster. His last day performing work for Aurelia Metals was 15 November 2021, coinciding with the end of a 7-day ‘on’ swing.
2. On 15 November 2021, Mr Quinn resigned. His letter of resignation advised that he was “providing 1 month notice as per my employment contract. My last day of employment with Aurelia will be 15 December 2021, please pay all outstanding entitlements including accrued unused annual leave and pro rata long service leave in with my final pay”.
3. Also on 15 November 2021, Mr Quinn had a conversation with his supervisor about his resignation. The supervisor told him that he was not required to return to work for the next swing.
4. On 17 November 2021, Aurelia Metals wrote to Mr Quinn. In a covering email, it said:
“The attached letter outlines the terms on which we have agreed your employment with Hera will cease and the termination payments owed. Could you please confirm any items, if any, you have stored at camp or onsite and I can arrange for them to be couriered to your home address?”
5. Aurelia Metals’ letter, attached to the email of 17 November 2021, included these statements:
“We confirm that your employment will end effective on 15 December 2021 (Termination Date).
This letter confirms the terms on which we have agreed your employment with Hera will cease.
1.Hera has elected to make you a payment in lieu of the notice period required in your employment contract.
2.Hera’s pay cycle means that on 15 November, you were paid two weeks in arrears and two weeks in advance (up to 30 November). Hera will treat the two weeks payment in advance as part payment in lieu of notice.
3.You acknowledge the amounts due to you by the Company in connection with the termination of your employment are:
(i)$4899.15 being payment in lieu of the balance of the notice period; and
(ii)$41,152.33 being payment for your untaken accrued annual leave and long service leave entitlements:
collectively, Termination Payments. All amounts are subject to the deduction of applicable tax.
4.You accept that the Termination Payments in paragraph 3 above are the only payments required to be made by the Company to bring your employment to an end. You accept the Termination Payments in full and final satisfaction of all entitlements or benefits arising in connection with your employment with the Company.
5.The Termination Payments will be made within 10 business days of the Termination Date.”
6. On 23 November 2021, what would have been Mr Quinn’s next 7-day on swing commenced. Mr Quinn did not attend for work.
7. On 24 November 2021, Aurelia Metals paid Mr Quinn the “Termination Payments” described in its letter of 17 November 2021. This included payment in lieu of the balance of the notice period as well as accrued leave payments to 15 November 2021 (annual leave) and 1 December 2021 (long service leave) respectively.
As can be seen, correspondence from Aurelia Metals on 17 November 2021 clearly stated the date of 15 December 2021 as the effective date that Mr Quinn’s employment would end, defined as the “Termination Date”. However, read in context, this statement was no more than Aurelia Metals’ acceptance of the period of notice given by Mr Quinn, which it had decided to pay in lieu. This is made clear in paragraphs (1) and (3)(i) in the letter of 17 November 2021 as well as by the actions of the parties on and after 15 November 2021.
Mr Quinn’s annual leave accrual was paid to 15 November 2021. Payment of his long service leave accrual was made to 1 December 2021, a date which is not explained and has no apparent bearing on any of the dates relied on as the “effective” date of dismissal. Importantly, there was a conversation between Mr Quinn and his supervisor on 15 November 2021, from which a mutual understanding arose that Mr Quinn would no longer be required to work for Aurelia Metals. This understanding was demonstrated by Aurelia Metals’ offer on 17 November 2021 to courier any of his property from site or camp to his home address, and by Mr Quinn when he did not attend for work on his next rostered shift on 23 November 2021. Aurelia Metals then made payment to Mr Quinn of his final pay, including an amount in lieu of notice of termination on 24 November 2021. It took 9 days after the resignation to process this payment, which was within the foreshadowed 10-day processing time for the “Termination Payment” described in the letter of 17 November 2021. There is no dispute that payment made on 24 November 2021 was received by Mr Quinn.
Taken as a whole, the facts demonstrate Aurelia Metals’ intention that Mr Quinn’s employment would come to an end effective immediately upon his resignation. Putting aside any enduring terms of his employment contract, all that remained of Mr Quinn’s employment relationship with Aurelia Metals after 15 November 2021 was completion of the notice period and, if relevant, the return of property. There is no evidence about whether the return of any property was required. The intentions of Aurelia Metals were muddied by defining the “Termination Date” in its letter of 17 November 2021. But the position was clarified on 24 November 2021 when payment of Mr Quinn’s final pay was made, including payment in lieu of the remaining balance of the notice period. By this act, Aurelia Metals brought the employment relationship to an end with immediate effect.
I find that the dismissal took effect on 24 November 2021. The consequence of this finding is that Mr Quinn’s current application was made 1 day late.
Should additional time be allowed?
Under section 394(2) of the Act, a further period of time to apply for an unfair dismissal remedy may be allowed to Mr Quinn if I am satisfied that there are exceptional circumstances. The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[2]:
“[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.”[3] [Emphasis added]
When considering whether to extend time if there are exceptional circumstances in a particular case, I must have regard to the matters identified in section 394(3) of the Act. These are:
the reason for the delay
whether the person first became aware of the dismissal after it had taken effect
any action taken by the person to dispute the dismissal
prejudice to the employer (including prejudice caused by the delay)
the merits of the application, and
fairness as between the person and other persons in a similar position.
Reason for delay: The reason for the delay in this case is that Mr Quinn acted on the advice of his union and waited until the day after 15 December 2021 to make his application to the Commission. This was not good advice, but it was made in good faith - in reliance on both the express words of Aurelia Metals in its letter of 17 November 2021 and advice from the Commission that the earlier application had been lodged prematurely. Mr Quinn should not be held liable for the error of his representative in the circumstances. The reason for delay weighs in favour of a grant of additional time.
Whether the person first became aware of the dismissal after it had taken effect: Mr Quinn was an active participant in the circumstances that brought his employment to an end. The evidence does not support the conclusion that Mr Quinn only became aware of the dismissal after it had taken effect: The criterion is not relevant in the circumstances.
Any action taken by the person to dispute the dismissal: Although the application is 1 day late, Mr Quinn had earlier applied for an unfair dismissal remedy in time. His first application was made on the 21st day after 15 November 2021 - 12 days after the termination of employment took effect. Mr Quinn acted promptly on the advice of the Union to withdraw his first application and make a second application on 16 December 2021. Steps taken by Mr Quinn to dispute his dismissal after 15 November 2021 weigh in favour of a grant of additional time.
Prejudice to the employer (including prejudice caused by the delay): There is no prejudice to Aurelia Metals if the application proceeds 1 day late.
Merits of the application: On its face, Mr Quinn’s claim is unlikely to succeed. This is because Mr Quinn resigned in writing on 15 November 2021. He says he was forced to resign because of a change of roster that his home life could not accommodate and because he felt targeted as a union member. However, Mr Quinn agreed in writing to the roster change on 11 October 2021, more than one month before he resigned. He had commenced working on the new roster pattern, starting on a date of his choosing as agreed with Aurelia Metals. The meeting which made Mr Quinn feel targeted as a union member occurred on 26 October 2021. Mr Quinn continued in employment for a further three weeks after this meeting before submitting his resignation on 15 November 2021.
It is difficult to see how Mr Quinn’s resignation in those circumstances, primarily for reasons that he had considered before accepting the roster change, could have been forced by Aurelia Metals’ conduct in the sense that it left Mr Quinn with no effective choice but to resign. It is more likely than not that Mr Quinn also had other choices to address his concerns, including seeking to deal with his concerns about the meeting of 26 October 2021 either directly with Aurelia Metals or through the Union, or requesting flexible work arrangements to assist in meeting his family responsibilities.
Factors that might weigh in Mr Quinn’s favour on the broader issue of unfairness include his period of service and his involvement with union enterprise bargaining activities at the site. However, these matters only become relevant if Mr Quinn can establish that he was dismissed, because only a person who has been dismissed can apply for an unfair dismissal remedy. The merits of the case weigh strongly against the grant of additional time.
Fairness as between the person and other persons in a similar position: There is nothing before me to indicate that fairness as between two or more persons is a relevant factor in this case. It is a neutral consideration.
Conclusion on additional time: The Union’s wrong advice, the filing of an ‘in time’ application only to withdraw and refile the application 10 days later once it was out of time, as well as the ambiguity created by Aurelia Metals in its letter stating that the effective date of termination was 15 December 2021, are together exceptional circumstances. On balance, however, I am not satisfied that a further period of time should be allowed to Mr Quinn to make his application. Mr Quinn acted promptly and followed the advice he was given to bring the application when he did. But if the application is allowed, there remains to Mr Quinn the substantial jurisdictional hurdle of establishing that he was dismissed. On the available evidence, this hurdle is unlikely to be overcome. In the circumstances, all an extension of time will do is put the parties to the time and cost of unfruitful litigation about matters of jurisdiction.
On a separate matter, one consequence of this decision is that Mr Quinn has not been paid his full entitlement to annual leave, which should have been paid up to and including 24 November 2021. I recommend that the deficiency be rectified by Aurelia Metals within 7 days.
Disposition
The application is dismissed.
COMMISSIONER
Appearances:
J Shaw of The Australian Workers’ Union for the applicant.
J Wells of King & Wood Mallesons for the respondent.
Hearing details:
2022.
Sydney (by video):
March 16.
[1] (1994) 122 ALR 333.
[2] [2011] 203 IR 1.
[3] Ibid [13].
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