Charles McKenzie v SynCo Global Pty Ltd
[2025] FWC 820
•2 APRIL 2025
| [2025] FWC 820 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Charles McKenzie
v
SynCo Global Pty Ltd
(C2025/784)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 2 APRIL 2025 |
Application to deal with contraventions involving dismissal – date of dismissal established – extension of time required for lodgement – whether exceptional circumstances exist justifying an extension of time – satisfied that exceptional circumstances exist – extension warranted and granted – conference to be listed.
What this decision is about
This decision concerns an application by Mr Charles McKenzie (Applicant) to deal with a general protections claim involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (Cth) (Act). Mr McKenzie is claiming, amongst other matters, that he has been adversely terminated for the protected reason of a temporary absence due to illness or injury and had raised concerns about his treatment in the workplace.
Mr McKenzie commenced employment with SynCo Global Pty Ltd (Respondent or SynCo) as Project/Development Director[1] in mid-January 2023. SynCo is a small business involved in the development of renewable energy projects and asset management.
There is a dispute about the circumstances of Mr McKenzie’s dismissal in January 2025, including how and when it was communicated and the effective date of the termination. The Respondent’s stated reason[2] included alleged performance issues.
For reasons that I will outline below, I have found that Mr McKenzie’s dismissal was effective on 10 January 2025. The s.365 application in this matter was filed by the Applicant in the Fair Work Commission (Commission) on 1 February 2025.
Section 366(1) of the Act states that an application to deal with a dispute of this kind must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.366(2). Adopting 10 January 2025 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 31 January 2025.[3] The application was therefore made 1 day after the 21-day limit. Given this finding, Mr McKenzie requests the Commission grant a further period for the application to be made under s.366(2) of the Act. Principally, this request is based upon the contention that the delay is “trifling” and that he was operating on the basis of “advice” he had received from the Fair Work Ombudsman (FWO) which confirmed that he had until midnight on 1 February 2025 to lodge the application.
The Respondent opposes the extension of time request on the basis that there are no exceptional circumstances that permit an extension of time to be granted.
Section 366(2) of the Act allows the Commission to extend the time period within which an application to deal with contraventions involving dismissal can be made where it is satisfied that there are exceptional circumstances.
The Commission conducted a MS Teams Video Hearing to enable the extension of time matter to be determined. Mr McKenzie provided two witness statements[4] and was cross-examined. Ms Yu, the Respondent’s founder and Chief Executive Officer also provided a witness statement[5] and was briefly cross-examined. The Respondent was represented by a lawyer with permission.[6]
As will become clear, having assessed all the circumstances of this matter and the relevant statutory considerations, I have determined that there are relevant exceptional circumstances warranting an extension of time. The considerations leading to, and consequences of that finding, are also outlined below.
Observations on the evidence
The absence of any direct evidence from the FWO about the information provided to Mr McKenzie is somewhat problematic. Although I have not drawn an adverse inference from this absence, I have determined this matter on the basis of evidence that is properly before the Commission.
I found that Mr McKenzie’s position and evidence on some more peripheral matters was confused and not always consistent, but I accept that he was honest and open about his understanding of the information provided to him by the FWO. His evidence about that particular aspect was clear and consistent, and not shaken under cross-examination. It was also completely consistent with his evidence about what he was doing in the period between receiving that information and the date the application was lodged. There is also objective evidence[7] of the fact that Mr McKenzie spoke to the FWO on the date he confirmed.
However, Mr McKenzie’s evidence about the circumstances in which he collected the posted (hard-copy) version of the dismissal letter, and his attempts to ascertain more direct evidence of the FWO information, was far less convincing.
Ms Yu’s evidence was limited to the facts directly associated with the letter of dismissal and the broad circumstances of the business, and I accept that evidence.
It is not necessary, or appropriate, for the Commission to make findings about the broader circumstances of Mr McKenzie’s employment arrangements and the grounds for the dismissal, which remain very much in dispute, but are generally beyond the scope of the present matter.
The events relevant to the timing of the dismissal and the explanation for the delay in lodging the application
On 9 January 2025, Ms Yu sent an email to Mr McKenzie’s personal email address with a dismissal letter and proposed separation deed attached.[8] The dismissal letter is set out in full below, but I observe that it stated that Mr McKenzie’s, “employment with SynCo will terminate with effect from 5:00pm ACST on 10 January 2025”. The email itself also thanked Mr McKenzie for his service and advised that a copy of the attached letter was also being mailed to his (postal) address. Shortly afterwards on the same day, Ms Yu also notified Mr McKenzie of the email via text message to his mobile phone stating, “…an urgent email has been sent to your personal email”.
A physical copy of the dismissal letter was also posted to Mr McKenzie’s residential address on 9 January 2025. Ms Yu subsequently received confirmation that this letter was delivered at 2.08 pm on 10 January 2025 via Australia Post’s mail tracking services.
Mr McKenzie read the email and the attached dismissal letter on the morning of 10 January 2025.
The dismissal letter read as follows:
“Dear Charles
Your employment with SynCo Global Pty Ltd (SynCo)
This letter is to advise you of the termination of your employment with SynCo on the basis that your performance in the role of Project Director does not meet SynCo’s expectations.
My concerns regarding your performance include not following reasonable instructions in a timely manner and not engaging appropriately with internal and external stakeholders which has resulted in a loss of confidence in your capacity to adequately discharge your role. I have previously raised these concerns with you.
Despite my ongoing efforts to provide you with an opportunity to improve your performance and meet the company’s expectations, this has not occurred. As a consequence, SynCo does not consider it feasible for you to continue in your role.
This letter provides you formal notice of the termination of your employment in accordance with the terms of your employment contract. Your employment with SynCo will terminate with effect from 5:00pm ACST on 10 January 2025 (Termination Date). Until that time, you are directed not to:
(a) perform any duties;
(b) contact any client, consultant, contractor, agent or employee of SynCo; or
(c) attend any SynCo premises or any other work-related premises, including but not limited to any current or prospective project sites or the premises of any client, consultant, contractor or agent.
Following the Termination Date, the company will pay you your statutory and contractual entitlements as set out below:
(a) any unpaid salary for work performed up to and including the Termination Date;
(b) a payment in lieu of notice for the remainder of your notice period; and
(c) payment of your accrued but untaken annual leave calculated as at the Termination Date.
These payments will be subject to the deduction of tax, as required by law.
We appreciate this may be a difficult time for you. To support your transition to alternative employment, SynCo is prepared to offer you an ex-gratia payment of $5,000.00 (five thousand) (subject to applicable tax). This offer is conditional on you signing the attached Separation Deed and returning it to me on or before the Termination Date. If you do not accept these terms, you will only be entitled to receive your statutory and contractual entitlements, you will not be entitled to the ex-gratia payment.
Certain obligations you have to SynCo survive the termination of your employment contract. We remind you that SynCo expects you to comply with your ongoing obligations, including without limitation, your obligations relating to confidential information and post-employment restraints.
Please arrange for the return of all SynCo property in your possession, custody or control on or before the Termination Date via registered post to Unit 2608, 2 Como Crescent, Southport QLD 4215. This includes, but is not limited to, any documents, laptop, iPad, satellite phones and the company drone. You are also required to destroy any confidential information you may have stored on personal, electronic or storage devices, as well as copies of all confidential information and property.
We would like to take this opportunity to thank you for your service to SynCo and we wish you the best in your future endeavours.
If you have any questions regarding this letter, please contact me via email on [deleted].”[9]
At 8.54 am on 10 January 2025, Mr McKenzie texted Ms Yu to confirm that he had received her (9 January 2025) email and requested access to his work email for the purpose of retrieving his employment contract to determine his entitlements. Ms Yu immediately sent Mr McKenzie a copy of his employment contract to his personal email address and notified him of such by text message. Mr McKenzie opened this text message on the same day and Ms Yu received a concurrent “read” receipt.
At around lunchtime on 10 January 2025, Mr McKenzie met with a friend, who is a lawyer but was not acting for the Applicant or providing legal advice, and had a general discussion about his dismissal and the options available to him.
I accept on balance that Mr McKenzie collected from his letterbox, and then read, the physical copy of the dismissal letter on Saturday 11 January 2025. He was, however, aware at least by early on 10 January 2025 that the letter had been posted to him because he was advised of this in the email that he read at that time.
Following the dismissal, Mr McKenzie spoke to a number of people about his intended application but did not seek or obtain formal legal advice. It is apparent from his evidence that he knew that there was a time limit for the making of a s.365 application and that the timing and means associated with the notification of the dismissal may be important.
On 22 January 2025, Mr McKenzie contacted the Fair Work Infoline and spoke to an Officer[10] from the FWO Customer Services area with the specific intent to determine the end date of the 21-day period. Mr McKenzie was given a customer reference number and enquiry number. In that call, Mr McKenzie fully described the events associated with the provision of the two copies (email attachment and then hard copy) of the letter of dismissal. The information provided by the FWO is not before the Commission. It is not clear what view was taken by the FWO about the effective date of the dismissal or the other basis for any information that was provided. I find that Mr McKenzie was (correctly) informed that the 21-day period commenced the day after his dismissal took effect, which he remained unsure about, but in any event as a result of that discussion, he clearly understood that the FWO officer had advised that the 21-day limit in his case would expire at midnight on Saturday 1 February 2025.
I observe that this latter information was not correct on any version of the date of effect of the dismissal. If the effective date of dismissal was taken to be 10 January 2025, the 21-day period expired on Friday 31 January 2025. If the effective date of dismissal was taken by the FWO to be 11 January 2025, when the hard copy of the letter was read by Mr McKenzie, which is the most probable explanation for the calculation, the 21-day period would expire on Monday 3 February 2025, given that 1 February 2025 was a Saturday.[11]
It is evident that Mr McKenzie then planned to take informal advice from others and inform himself about the substance of the matter and lodge his application on the last day of the period as he understood it to be. Although in the lead up to making the application he was awaiting some feedback on his draft application from others, it is also clear on the evidence that the arrangements around this were all put in place on the basis that he intended to lodge on that final day, which would have been within the period as he was informed by the FWO.
I find that Mr McKenzie was proactive and diligent in seeking information from a proper source about the operation of the 21-day time limit and this was appropriate given the confusion that existed in his mind about when the dismissal took effect.
The effective date of the dismissal
The key reference point for the 21-day time limit is the date that the dismissal took effect.
I have set out the facts concerning this aspect above. It is clear on the evidence that Mr McKenzie had on 9 January 2025 been provided with an email containing the letter of dismissal and a text message to his mobile phone alerting him to the email. It is also clear that by early on 10 January 2025, Mr McKenzie had read the email and the accompanying letter of dismissal and was informed that he was dismissed with effect from 5.00 pm that day.
In his case, Mr McKenzie contended[12] that he had not received a “lawful letter of termination”, and that he remained employed and continued to accrue rights and protections as an employee of SynCo. This is of course directly at odds with the fact that he has made a s.365 application on the basis of his dismissal (stating 10 January 2025 as the date of effect as recorded in the dismissal letter). Although there may be some room to overlook the stated date on that basis, the application fundamentally contends that a dismissal has taken place. The above notion is also misplaced for reasons set out below.
To the extent that Mr McKenzie contends (in the alternative) that the dismissal was not effective until the date he had opened and read the hard copy dismissal letter on 11 January 2025, this also cannot be accepted in this case.
Section 117(1) of the Act provides that “An employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given)”.
The Note 2 to s.117(1) states:
‘Section 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:
(a) delivering it personally; or
(b) leaving it at the employee’s last known address; or
(c) sending it by pre-paid post to the employee’s last known address.”
The Courts and this Commission have consistently distinguished between effective notice (which confirms a dismissal) and notice that complies with s.117 of the Act. I observe that failure to comply may lead to a breach of the Act.
As observed by a Full Bench of this Commission in Ayub v NSW Trains[13] (Ayub), a dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware. Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter.[14]
In Ayub, the Full Bench also considered[15] whether a dismissal could be communicated by email. The Commission considered that generally, where an employee is advised of their dismissal by email, the presumption is that an employee will have had a reasonable opportunity to become aware of their dismissal if the email is received in the inbox of the employee’s usual email address. However, this presumption may be rebutted where there is evidence of circumstances that demonstrate that mere receipt of the email in the inbox did not amount to a reasonable opportunity to become aware of the dismissal. Such circumstances might include the employee being incapacitated due to illness or unable to access their email. As also noted in Ayub, a refusal to open an email would not be a circumstance that demonstrates that an employee did not have a reasonable opportunity to become aware of the dismissal.
None of the caveats discussed above apply in this case.
A more recent Full Bench of the Commission[16] has held:
“[18] It must be accepted that a dismissal, which is principally concerned with the ending of the employment relationship governed by a contract of employment, may be effective even though notice of termination (or payment in lieu) does not comply with s. 117 of the Act or the dismissal of the employee was otherwise in breach of the employment contract. The employment contract and the employment relationship are related but distinct. And so a notice, whether oral or in writing, of dismissal which is ineffective to terminate the employment contract may nonetheless be effective to terminate the employment relationship. Thus, the wrongful dismissal of an employee (because of inadequate notice or some other contractual breach) by an employer, or a unilateral resignation by an employee other than in accordance with the terms of the contract, will generally be effective to bring the employment relationship to an end, but the contract of employment is not automatically thereby discharged.”[17] (citations omitted)
This is also in line with an earlier Full Bench of the Commission: [18]
“[29] Turning to appeal ground 2, which concerns s.117 of the Act, Stratacache relevantly referred to Metropolitan Fire and Emergency Services Board v Garth Duggan. In that decision, a Full Bench of the Commission found that the purpose of s.117 is to ensure that employees are given clear and adequate notice, or payment in lieu of notice of their termination. The Full Bench further summarises that notice to dismiss the employment relationship remains valid even if notice of termination did not comply with s.117. Relevantly, the Full Bench stated:
“it is clear in our view that if an employer terminates the employment of an employee without giving notice, or payment in lieu thereof, in accordance with an obligation owed by the employer under a contract, award, enterprise agreement or s.117 of the Act, the result is that the employer has acted unlawfully and/or wrongfully and the employee will have one or more causes of action available to him or her under the contract, award, enterprise agreement and/or the Act to remedy the deficiency in notice. However, an unlawful or wrongful dismissal does not invalidate or render void the termination of the employment relationship. Whether the employment relationship has been terminated is a question of fact.”“ (citations omitted)
Further, the Federal Court has held[19] that a notice of termination of employment would not be invalid merely because it was provided by email.
I also observe that even assuming, without deciding, that the note in s.117 of the Act provides the only means of giving the notice, it is arguable that Mr McKenzie received proper (hard copy) written notice. As posited by the Full Bench in Ayub,[20] a dismissal may not take effect merely upon delivery of a notice of dismissal to an employee’s usual postal address if, having regard to the surrounding circumstances, the employee did not have a reasonable opportunity to read the document. For example, if an employee is on annual leave or away from home when the dismissal letter is delivered, the dismissal takes effect when the employee first has a reasonable opportunity to read the letter and not when the letter is delivered. In this case, the written notice was delivered at Mr McKenzie’s home address before the stated effective time of dismissal. He was also given proper notification that a letter of termination had been provided by mail and indeed, he was aware of all of this and had already read the letter (attached to the email) on the morning of 10 January 2025.
In any event, for reasons outlined above, Mr McKenzie was advised in writing of his dismissal at least by early morning on 10 January 2025 and he was expressly aware of the dismissal and immediately engaged with the Respondent in connection with the termination.
The dismissal letter provided for it to take effect on 5.00pm on 10 January 2025 and this notice was clear and effective.[21] It also did not involve having a retrospective effect as contended by Mr McKenzie.
Mr McKenzie’s dismissal was effective as at the stated date and time. Given the 21-day period that then operated, an extension of time is required in this matter.
Should an extension of time be granted?
Section 366 of the Act relevantly provides as follows:
“s.366 Time for Application
(1) 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).(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.”
Section 366(2) of the Act provides the Commission with discretion to extend the time for lodgement beyond the 21-day period where it is satisfied that exceptional circumstances exist to warrant that action. In considering whether exceptional circumstances exist for this purpose, I am required to take into account the considerations outlined in paragraphs (a) to (e) of s.366(2) of the Act. I have done so in this matter.
Although the statutory discretion in s.366(2) requires the relevant considerations to be assessed in an overall manner and these are interrelated, it is convenient to discuss the issues under the various factors raised by the respective subsections of the Act. In assessing these matters, I have considered the ordinary and natural meaning of “exceptional circumstances” and whether the combination of factors when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. They need not be unique, unprecedented, or very rare but exceptional circumstances are not regularly, routinely or normally encountered.[22] The test of exceptional circumstances also represents a “high hurdle”.[23]
Where “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in s.366(2). This will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that the time for making the application should be extended.[24]
Reason for the delay
The delay is the period commencing immediately after the end of the 21-day period until the date the application was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay.[25]
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 for the delay. 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 an applicant’s favour; however, all of the circumstances must be considered on their own merits.[26]
It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. That is, it is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay.[27]
Further, the reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[28]
The delay in this matter is one day and this is the focus of the present consideration. For reasons set out earlier, the fact that the delay involves a single day does not make it “trifling” as suggested by Mr McKenzie and requires a credible explanation to support a finding under this consideration.
I have earlier made detailed findings bearing upon this consideration.
The explanation for the delay was in essence that Mr McKenzie relied upon the information that he had been provided by the FWO about the last day he had to file his s.365 application; namely 1 February 2025. For reasons outlined above, that information was not correct, but I have found that this was his genuine understanding based upon the discussion with the FWO. Mr McKenzie contends that he was entitled to rely upon this information given its source and his actions in filing when he did were reasonable in those circumstances.
SynCo contends, in effect, that based upon the available evidence Mr McKenzie made the mistake in the calculation and there was no reasonable explanation for the late lodgement.
It has often been held by the Commission that the miscalculation of the 21-day time period by an applicant, without more, does not provide a reasonable explanation for any delay. It has also been held by the Commission that reliance on information from a credible source, even incorrect information, may be relevant to such an explanation. In Kay Stimson v Dr Michael Tawadrous[29] Deputy President Saunders accepted that information provided by the FWO about the calculation of the 21-day time limit was relevant to the (reasonable) explanation provided by the applicant in that matter. Although there were also some other complicating and extenuating factors, the approach in that decision is of assistance.
I have also considered whether Mr McKenzie’s actions contributed to the incorrect information that he relied upon, or to the delay more directly. The reasonable inference is that the FWO information was provided on the basis that the dismissal was effective on 11 January 2025. That is, 1 February 2025 would be 21 calendar days after (not including) the date of dismissal if calculated on that basis. This date of effect was Mr McKenzie’s belief, however the evidence[30] is that the entire scenario surrounding the dismissal was explained to the FWO Officer concerned. On balance, despite the limitations on the evidence, I am satisfied that Mr McKenzie was provided with the information he claims, and I accept that in the particular circumstances of this matter, including the uncertainty about the date of effect of the dismissal, he reasonably relied upon this in taking actions to lodge the application when he did. This also satisfactorily explains the single day delay involved.
This consideration weighs in favour of a finding of exceptional circumstances.
Any action taken by the person to dispute the dismissal
This is, in part, related to the explanation for the delay discussed above.
In this case, Mr McKenzie did not advise the Respondent that the dismissal was or may be contested and took no other action, beyond preparing to make this application, to dispute the dismissal.
This consideration marginally weighs against a finding of exceptional circumstances.
Prejudice to the employer (including prejudice caused by the delay)
During the hearing, the Respondent contended that it would suffer prejudice should the extension of time be granted. In brief terms it contended that as a small business, with projects early in the start-up stage and with limited resources, it would be prejudiced as a result of having to defend an application of the present kind.
In general terms, a relevant prejudice is one that a respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. The costs and inconvenience incurred in defending a claim in respect of which an extension of time has been granted are not directly relevant to this particular consideration.[31]
The delay here is one day and I am not satisfied that the Respondent has or will suffer relevant prejudice.
This is relevant[32] and I have taken this into account in my assessment of exceptional circumstances noting that the absence of prejudice to the employer is not of itself a sufficient basis to warrant an extension of time.[33] Further, and more directly, the absence of prejudice to the employer does not necessarily weigh in favour of concluding that exceptional circumstances exist.[34]
Merits of the application
The merits of the substantive application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[35] Further, the primary consideration is whether the applicant has an arguable case,[36] or as it has previously been stated, it is sufficient for the applicant to establish that the substantive application was not without merit.[37]
The present matter is a general protections case. In general protections matters, s.361(1) of the Act presumes that adverse action was taken for an alleged prohibited reason unless the employer proves otherwise, with the onus on the employer to be discharged on the balance of probabilities, in light of all the evidence. It has been held that the practical effect of s.361 is that in most cases, an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, is also necessary to rebut the presumption. Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question.[38]
The facts of the substantive matter are in dispute and have not been subject to any evidence before the Commission. In particular, the matters taken into account by the Respondent in making the decision to dismiss the Applicant are contested and the legal connection to the alleged proscribed reasons is not yet comprehensively set out. These would all be significant given the nature of the application. There are a large number of matters raised in the application that would be pertinent to an unfair dismissal application but are not directly relevant to an application of the present kind. However, it is sufficient for present purposes to find that based upon the Applicant’s application and associated contentions there appears to be some events (including the taking of some personal leave or at least an absence due to apparent illness of injury and the making of a complaint) that could conceivably provide the basis for a case which is not without merit under the general protections provisions of the Act. The Respondent has also stated a plausible defence to the application.
Given the nature of this application and the consideration involved, this is a factor weighing very marginally in favour of exceptional circumstances.
Fairness as between the person and other persons in a similar position
Nothing of particular relevance has been raised in this regard.
The application of consistent principles and approaches to a request for an extension of time is relevant and appropriate,[39] and may relate to matters currently before the Commission or others previously decided. I have adopted that approach in this case. I therefore consider that this aspect weighs mutually between the parties as a consideration of exceptional circumstances in this matter.
Conclusions
Having assessed all the circumstances of this matter and the considerations provided by s.366(2) of the Act and weighed them accordingly, I am satisfied that there are exceptional circumstances. Further, given the exceptional circumstances found, it is fair and equitable that the time for making the application should be extended.
Accordingly, I hereby grant the required extension of time for the making of this application to enable it to have been validly made under s.366(2) of the Act.
The application will be listed for a conference as required by s.368 of the Act.
DEPUTY PRESIDENT
Appearances:
C McKenzie, the Applicant in person.
C Leong of King & Wood Mallesons, with permission, for SynCo Global Pty Ltd.
Hearing details:
2025
March 19
MS Teams Video.
[1] These titles were apparently used interchangeably during the employment and nothing turns on the difference for present purposes.
[2] Dismissal letter dated 9 January 2025.
[3] The 21-day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).
[4] Exhibits A1 and A2.
[5] Exhibit R1.
[6] Permission was granted for reasons provided separately to the parties, which were principally associated with the legal complexity concerning the date of effect of the dismissal, the absence of a clear position being advanced by the Applicant in the lead up to the hearing, and the efficiency of being able to deal with these matters during the course of the hearing itself.
[7] Attached to exhibit A2.
[8] There were no prior discussions about the proposed separation deed and no agreement was made between the parties.
[9] Termination letter dated 9 January 2025.
[10] The name was provided in the evidence before the Commission.
[11] Under s.36(2) of the Acts Interpretation Act 1901 (Cth), when the period falls on a weekend (or a public holiday), the timeframe is, in effect, extended until the next business day.
[12] Exhibit A1.
[13] [2016] FWCFB 5500 at [36].
[14] See also Foyster v Bunnings Group[2017] FWCFB 3923.
[15] Ayub at [50].
[16] Clarke v Uniti Group Limited[2023] FWCFB 133.
[17] Ibid at [18].
[18] Cody v Stratacache Australia Pty Ltd[2022] FWCFB 116 at [29].
[19] Southern Migrant and Refugee Centre Inc v Shum (No3) [2022] FCA 481, [191].
[20] Ayub at [42].
[21] See also Clarke v Uniti Group Limited[2023] FWCFB 133 at [19].
[22]Cheyne Leanne Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, 16 February 2011 per Lawler VP, Sams DP and Williams C.
[23] George Georgiou v Transurban Ltd[2022] FWCFB 155 at [17] – although stated in the context of a s.394 unfair dismissal application, this remains relevant given the close nature of the considerations involved.
[24] Ibid.
[25] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287 at [12].
[26] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[27] Ibid.
[28] Ibid.
[29] [2020] FWC 3999.
[30] Exhibit A2 as clarified during the hearing.
[31] See GHD Pty Ltd T/A GHD v Kevin Alan Black[2023] FWCFB 38 at [51] and Clarke v Service to Youth Council Inc [2013] FCA 1018 at [31,] which was applying the same consideration as presently applying.
[32] Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 as considered in Jervis v Coffey Engineering Group Pty Ltd AIRCFB PR927201, 3 February 2003 at [16].
[33] Brodie-Hanns v MTV Publishing Pty Ltd (1995) 67 IR 298 at [300].
[34] Miller v DPV Health Ltd (Hume)[2019] FWCFB 6890 at [20] to [22].
[35] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at [14].
[36] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[37] Telstra Network Group v Kornicki (1997) 140 IR 1 at [11].
[38] Keep v Performance Automobiles Pty Ltd[2014] FWCFB 8941 at [50].
[39] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090 at [19].
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