Christian Leatherbarrow v Nightbreeze Pty Ltd
[2024] FWC 1396
•29 MAY 2024
[2024] FWC 1396
The attached document replaces the document previously issued with the above code on 29 May 2024.
An amendment is made to correct a typographical error under the appearances at page 4.
Associate to Deputy President Dean
Dated 29 May 2024
| [2024] FWC 1396 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Christian Leatherbarrow
v
Nightbreeze Pty Ltd
(U2024/2397)
| DEPUTY PRESIDENT DEAN | CANBERRA, 29 MAY 2024 |
Application for an unfair dismissal remedy – date employment ceased – application made within time.
On 4 March 2024 Mr Christian Leatherbarrow (Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 alleging he had been unfairly dismissed from his employment with Nightbreeze Pty Ltd (Respondent).
The Respondent objects to the application on the grounds that the Applicant resigned from his employment on 1 February 2024 and so was not dismissed, and his application was lodged outside the required timeframe.
The Applicant disputes the Respondent’s jurisdictional objections. He contends that he did not resign and that his employment ceased at the initiative of the Respondent on 29 February 2024.
The Commission is required to determine whether this application has been made outside the required 21-day timeframe, and if so whether an extension of time is warranted, prior to the merits or any other jurisdictional objections being determined.[1]
The matter was listed for hearing on 13 May 2024 to deal with this jurisdictional objection. At the hearing, both the Applicant and the Respondent were granted permission to be represented, the Applicant by Mr M Heffernan of Industrial Relations Claims and the Respondent by Mr B Dwyer of McCullough Robertson Lawyers. The Applicant gave evidence on his own behalf. Evidence was given for the Respondent by Ms Jacqueline Morgan and Ms Fiona Pomeroy.
For the reasons set out below, I find that the Applicant’s employment with the Respondent ceased on 29 February 2024. As a result, his application lodged on 4 March 2024 is made within the required timeframe and no extension of time is necessary.
Background and findings
The Applicant was employed on a part time basis as a nursing assistant with the Respondent for over 5 years.
Over the course of January 2024, events occurred that culminated in the Applicant being given a Final Warning by the Respondent, the basis for which was disputed by the Applicant. The details of these events are not relevant to the matter the Commission is required to decide now and are not set out in this decision.
On 1 February 2024 the Applicant and Ms Morgan had a discussion (the discussion) in the hallway outside the staff room at the instigation of Ms Morgan. The Applicant contends he was directed by Ms Morgan to hand over his keys during the discussion, having been told he would be stood down until a meeting was held to address concerns about his performance. The Respondent contends the Applicant resigned during the discussion after having been told he would be stood down, and handed back his keys and name badge voluntarily.
Given the events and conduct of the parties that followed the discussion, I am satisfied and find that the Applicant did not resign. Rather, he considered he was stood down from 1 February 2024 until confirmation of the cessation of his employment was provided by the Respondent on 29 February 2024.
The events that followed the discussion are in most part not disputed and are as follows:
a.The Applicant’s partner called and left a message for the Respondent to return his call within one hour of the discussion taking place;
b.A further call was made by the Applicant’s partner to the Respondent the following day when no return call had been received;
c.On 6 February 2024 Ms McMurtrie, the Director of Nursing for the Respondent, sent an email to the Applicant in the following terms:
“Good afternoon Christian
Further to my email at 0603 on 1/2/24 to meet me, this had not come to fruition. I am aware you were on shift. My understanding is that you had resigned and given your badge and key to Jackie. I am aware I had not received to my desk any correspondence re this decision you had made at that moment. In moving forward and noting the complaint on my desk, firstly, I need to know, are you resigned from [the Respondent], and note you have a right of reply as part of natural justice to table your feedback on this complaint. I look forward to your response.”
d.On the same day the Applicant replied to Ms McMurtrie as follows:
“Hi Lorraine, thank you for the correspondence. No I have not resigned. Jackie told me I am being stood down and asked for my keys back that I was to give them to her. Jackie said ‘I want your keys and your …’ I was assuming that name badge was next. I gave it to her. I told her that I have a meeting with you on that day and Jackie stated ‘she will not see you today’. Kind regards Christian.”
e.On 8 February 2024 the Applicant instructed his representatives to send an email to the Respondent which included the following:
“Urgently, our client instructs us that he has been asked if he has resigned from his employment. We wish to make it abundantly clear our client has not resigned from his employment nor does he intend to. He remains ready, willing and able to return to work at his employer’s discretion. He is currently stood down at the direction of Ms McMurtrie and awaits further communication.”
f.When no reply to this email was received, a follow up email was sent on 14 February 2024 by the Applicant’s representative which sought confirmation of the Respondent’s receipt of the 8 February 2024 email;
g.A further email was sent by the Applicant’s representative on 14 February 2024 which included the words:
“As you are aware our client has been stood down at the direction of Ms McMurtrie since 1 February 2024. Our client has since informed us that his annual leave is being deducted without his consent. Please advise the status of our client’s employment, if his absence is no longer at your direction then he requests to return to work.”
h.On 19 February 2024 Ms Morgan replied, apologising for the delay in responding and advising she would respond by close of business the following day;
Having received no further correspondence from the Respondent, the Applicant’s representative sent a further follow up email on 27 February 2024;
j.On 29 February 2024 Ms Morgan of the Respondent replied to the Applicant’s representative. The letter included the following:
“Christian Leatherbarrow verbally resigned his employment with [the Respondent] at approximately 12.45pm on 1 February 2024. The language of Christian Leatherbarrow was unambiguous, forceful, and indicated very clearly that the resignation was without notice, taking immediate effect. His statements were clearly heard by another person. Immediately prior to resigning his employment, Christian Leatherbarrow was informed by myself (in my then capacity as Clinical Coordinator) that he would be stood down on full pay until 2 February 2024 when he would be required to address concerns about his work performance/conduct … At no stage during the conversation preceding his resignation did I indicate that the stand down on full pay would go beyond 2 February 2024 … I also asked Christian Leatherbarrow if he intended to confirm his resignation in writing. I did not indicate to him that the resignation had to be in writing for it to be accepted. … Christian Leatherbarrow did not take any steps either in writing or verbally to retract his resignation in the days following his decision. The first contact that [the Respondent] received on this matter was from yourself on 8 February 2024.”
What is clear from the above events is that the Applicant expressly denied resigning when questioned by the Respondent on 6 February 2024, and the Respondent did not provide any response to this denial, i.e. setting out its position as to what transpired in the discussion, until 29 February 2024.
To the extent there was any discussion about resignation during the discussion, I accept the Applicant said he would resign if he ‘continued to be treated badly’. All the subsequent actions taken by the Applicant support the view he did not resign during the discussion.
I note Ms Pomeroy, an agency nurse, gave evidence that she overheard some of the discussion on 1 February 2024 between the Applicant and Ms Morgan. Her evidence was that the discussion occurred in the hallway outside the staff room where she was sitting. She says she heard the Applicant say words to the effect of “I’ve had enough of this, I quit”. It was not until 20 March 2024, almost two months after the event, that Ms Pomeroy wrote an email for the Respondent about what she heard. There is no doubt Ms Pomeroy had no vested interest in the outcome of this matter and I accept she gave her evidence honestly. However, she did not hear all the discussion and it was a lengthy period of time after the event that she wrote down what she recalled. In weighing up the totality of the evidence before the Commission, I consider she was mistaken in her recollection.
Conclusion
The evidence in my view supports a finding that the Applicant did not resign on 1 February 2024. Rather, he was stood down on that date. He promptly replied to the email from the Respondent on 6 February 2024 confirming he did not resign and confirming he considered he was stood down. His representatives wrote on multiple occasions reinforcing this view. It took the Respondent until 29 February 2024 to reply to the Applicant. The circumstances in this matter support a finding that the Applicant’s employment ended on 29 February when he was advised by the Respondent it considered he had resigned. The Applicant lodged this application on 4 March 2024. I am satisfied the application was therefore made within time.
This jurisdictional objection is dismissed and the application will proceed in the normal manner.
DEPUTY PRESIDENT
Appearances:
M Heffernan for Christian Leatherbarrow.
B Dwyer for Nightbreeze Pty Ltd.
Hearing details:
2024.
By video:
May 13.
[1] See Herc v Hays Specialist Recruitment (Australia) Pty Ltd[2022] FWCFB 234.
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