Cody-Lee Doubleday v Wodonga Electrical Pty Ltd
[2025] FWC 82
•13 FEBRUARY 2025
| [2025] FWC 82 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Cody-Lee Doubleday
v
Wodonga Electrical Pty Ltd
(C2024/6892)
| COMMISSIONER FOX | MELBOURNE, 13 FEBRUARY 2025 |
Application to deal with contraventions involving dismissal – Application alleged to have been filed outside the 21-day timeframe – Applicant is found to have resigned – No exceptional circumstances found – Extension of time not granted – Application dismissed.
On 26 September 2024, Mr Cody-Lee Doubleday filed an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission to deal with a general protections dispute involving dismissal against Wodonga Electrical Pty Ltd (the Respondent).
In his Form F8, Mr Doubleday stated that he was dismissed from his employment on 13 September 2024. Mr Doubleday filed his application with the Commission on 26 September 2024, which is within 21 days of his dismissal, as required under s.366(1)(a) of the Act. However, in its Form F8A, the Respondent raised a jurisdictional objection to Mr Doubleday’s application, contending that Mr Doubleday was dismissed on 28 August 2024, and had therefore filed his application outside the 21-day timeframe.
The matter was referred to me for the hearing of this jurisdictional objection. I issued Directions for the matter and the parties filed material in accordance with these Directions. This material was compiled into a Digital Hearing Book, and at the commencement of the Determinative Conference, noting that there were no objections from either party, I admitted into the evidence this Digital Hearing Book.
Section 366(2) of the Act allows the Commission to consider extending the period within which a general protections application involving dismissal may be made, if it is satisfied that there are exceptional circumstances. I can only exercise my discretion if I am satisfied that there are exceptional circumstances.
The meaning of “exceptional circumstances” was considered and summarised by the Full Bench in Nulty v Blue Star Group:[1]
“[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.”
In the conduct of this matter, a further jurisdictional issue arose. At the Determinative Conference, and in the material filed, Mr Doubleday asserted that he had resigned from his employment voluntarily and was not dismissed by the Respondent. Whilst this is a general protections involving dismissal application, and not a remedy for unfair dismissal application, pursuant to the reasoning of the Full Bench in Lisha Herc v Hays Specialist Recruitment (Australia) Pty Ltd,[2] I will consider whether an extension of time should be granted. Nevertheless, as outlined below, Mr Doubleday’s reason for the delay is inextricably linked to the question of whether he resigned.
The Commission must consider the factors set out in s.366(2) of the Act in determining whether there are exceptional circumstances which warrant the granting of an extension of time. These factors are as follows:
a. the reason for the delay;
b. any action taken by the person to dispute the dismissal;
c. prejudice to the employer (including prejudice caused by the delay);
d. the merits of the application; and
e. fairness as between the person and other persons in a similar position.
I consider that the reason for the delay, and whether there was any action taken by Mr Doubleday to dispute the dismissal, turns on when, and indeed if at all, Mr Doubleday was dismissed
In March 2024, the Respondent employed Mr Doubleday to perform electrical work. Issues arose between the parties regarding Mr Doubleday’s performance. Matters came to a head on 28 August 2024 when a discussion took place between Mr Doubleday and one of the Respondent’s Directors, Mr Matthew Moodie. It was Mr Doubleday’s evidence that when he came to work the next day, on 29 August 2024, he resigned and advised the Respondent that he would be going on what he termed ‘immediate leave’, in lieu of working out his one-week notice period.[3]
While it was Mr Doubleday’s intention to use his paid leave instead of working out his notice period, the Respondent instead elected to pay him two days of leave for the 29th and 30th of August and paid the remaining leave balance out in his final pay – effectively waiving the remainder of the notice period. This is consistent with the final timesheet Mr Doubleday sent to Ms Ebony Rahaley, a Director of the Respondent, setting out the hours he worked and the leave for his final week as follows:[4]
26/8 7 –3.30 Benalla 8 hours
27/8 7 –3.30 Yarrawonga 8 hours
28/8 7 – 3.30 Sothervale 8 hours
29/8 LEAVE 8 hours
30/8 LEAVE 8 hours
+Remaining leave
It was Ms Rahaley’s evidence that she paid Mr Doubleday’s final pay as per the timesheets he submitted – the only difference being that she paid out the ‘+remaining leave’ owing as at the end of the pay period ending 30 August. If, as the Respondent contends in its Form F8A, Mr Doubleday had been terminated on 28 August 2024, then it does not accord with Mr Doubleday’s final payslip, which shows that he was on paid leave on 29 and 30 August 2024.
Mr Doubleday’s final payslip stated that his employment ended via ‘normal termination’.[5] At the Determinative Conference, it was Ms Rahaley’s evidence that the payroll software used by the Respondent has a drop-down menu which has a list of pre-formatted reasons as to why the employment relationship ended. It was her evidence that she would almost always select ‘normal termination’ when someone finished their employment, regardless of whether they resigned or had been dismissed.
It is evident from the correspondence between the parties that Mr Doubleday did not take issue with the payout of his leave and the notice period being waived, although he did have a concern with the calculation of his final pay. On 6 September 2024, Mr Doubleday emailed Ms Rahaley enquiring as to why his annual leave loading had not been paid as part of his final pay.[6]
On 13 September, Mr Doubleday emailed Ms Rahaley noting the lack of response to his earlier enquiry and attached to this correspondence a ‘notice of intent’.[7] A copy of this notice of intent was not filed by either party in the proceedings. When responding to Mr Doubleday’s email, Ms Rahaley wrote the following: ‘(y)ou were fired due to misconduct, insufficient work quality and refusing to follow instructions.’[8] Mr Doubleday then responded as follows: ‘I was not fired, I received no notice or warnings and therefore no sufficient time or solution to rectify issues. I quit without notice, agreed in the moment.’[9]
It is apparent from these emails that there was disagreement as to how the employment relationship came to an end, and that Ms Rahaley’s email of 13 September prompted Mr Doubleday to consider that his employment had been terminated. This characterisation by Ms Rahaley was evidently a surprise to Mr Doubleday as he believed he had resigned from his employment.
At the Determinative Conference, it was Ms Rahaley’s evidence that she thought Mr Doubleday had been handed a termination letter dated 7 August 2024 by Mr Moodie, and that she believed that it had been communicated to Mr Doubleday that he was being terminated, with the effective date of dismissal to be 22 August 2024. Further, it was her evidence that she was of the view (mistakenly) that Mr Doubleday was not entitled to the payment of annual leave loading because he had been terminated.
It was Mr Doubleday’s evidence that a discussion did occur with Mr Moodie regarding his work performance at that time. However, Mr Doubleday submitted that he was never given a copy of this termination letter, nor was he advised that his employment was being terminated. Instead, it was his evidence that during this discussion an agreement was reached between himself and Mr Moodie that they would agree to work on improving their working relationship.
Ms Rahaley’s evidence was that she was unaware that Mr Doubleday had not received this letter of termination, and that she was not aware of the outcome of the discussion between Mr Moodie and Mr Doubleday, as she had only just returned from a period of parental leave and was busy dealing with other matters. Ms Rahaley was not present when this discussion occurred but contradictorily, also gave evidence that Mr Doubleday received the letter but then put it aside and disregarded it. It is unclear how she came to hold this view if she was not present when this discussion occurred. Ms Rahaley did not give any evidence as to this conversation that took place between Mr Moodie and Mr Doubleday.
Mr Moodie did not give evidence at the Determinative Conference.
Critically, Ms Rahaley gave evidence that in her email of 13 September to Mr Doubleday, she had written that he was terminated, in the ‘heat of the moment’ and as she was attempting to let Mr Doubleday know why the Respondent would not be providing him with a reference. Overall, I found Ms Rahaley’s evidence to be at times evasive and inconsistent in relation to Mr Doubleday's employment ending.
A dismissal does not take effect unless and until it is communicated to the employee. The Respondent provided no evidence of Mr Doubleday being dismissed and a dismissal being communicated to Mr Doubleday. It is Mr Doubleday’s evidence that following a conversation on 29 August with Mr Moodie, he resigned. I found Mr Doubleday's evidence to be credible and consistent. On the evidence before me, I find that Mr Doubleday was not dismissed, but rather, resigned voluntarily from his employment on 29 August 2024. He was on paid leave until 30 August, which was his last day of employment.
It may be argued that the Respondent’s actions in electing to pay out Mr Doubleday’s remaining leave on 30 August 2024 as a lump sum may constitute a termination at the initiative of the employer pursuant to the Decision of Commissioner Roberts in Isabel Nohra v Target Australia Pty Ltd.[10] However, noting that Mr Doubleday had approximately 38 hours of unused leave entitlements left, I do not consider that the Respondent’s actions in bringing forward the effective date of dismissal constitute a dismissal. Pursuant to a Full Bench of the Commission’s predecessor in ABB Engineering Construction Pty Ltd v Doumit,[11] I contend that the ‘circumstances of the case do not establish matters of fact or degree that would justify [my] finding that the employer took advantage of the resignation to in effect substitute a termination of the employment on its own initiative.’[12]
Mr Doubleday’s belief that he was dismissed arose due to the confusion created by the Respondent’s correspondence of 13 September 2024. This correspondence alerted Mr Doubleday to the Respondent’s view that he had been dismissed. It is evident that the reason for the delay was because Mr Doubleday did not ‘know’ that he had been dismissed. If he was not aware he had been dismissed, then he was unable to dispute the ‘dismissal’, which in turn caused the late filing of his application. As soon as Mr Doubleday became aware of the Respondent’s view that he had been dismissed, he took action to challenge the ‘dismissal’.
In the ordinary circumstance where an applicant is not aware they have been dismissed but upon discovering so then challenges it with the employer, and then files their application, I may likely consider the reason for the delay, and the action taken to dispute the dismissal would weigh in favour of a finding of exceptional circumstances. However, I do not consider it appropriate in this case to make such a finding when it has been established that Mr Doubleday, regardless of the correspondence of 13 September, was not dismissed. I therefore weigh these two factors as neutral.
I consider that there is no prejudice to the employer beyond what is ordinarily expected of a Respondent and therefore consider this to be a neutral factor. Further, neither party provided any substantive submissions with respect to fairness as between the person and other persons in a similar position and therefore, I also consider this factor to be a neutral consideration.
In considering the merits of the application, the Commission can only proceed with a s.365 general protections dispute involving dismissal where there has been a dismissal. In this case, as I have determined that there was no dismissal, Mr Doubleday’s application cannot proceed. I find that this weighs significantly against the granting of an extension of time.
In consideration of all the factors, of which four are neutral and one which weighs significantly against, I do not exercise my discretion to grant an extension of time.
For completeness, I shall now also specifically address s.386(1) of the Act. Section 365 of the Act empowers the Fair Work Commission to deal with a general protections dispute involving dismissal. If there is no dismissal, then an application cannot proceed.
Section 386(1) of the Act states as follows:
Meaning of ‘dismissed’
(1)[When a person has been dismissed] A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
As outlined above, I am of the view that Mr Doubleday resigned. As such, on the evidence before me, I do not consider that Mr Doubleday was dismissed at the initiative of the employer on 28 August, or at any other time, as per s.386(1)(a) of the Act. It is Mr Doubleday’s evidence that he voluntarily resigned from his employment on 29 August 2024. He does not assert, nor is there any evidence, that he was forced to do so because of the conduct of the Respondent. It is evident from the emails exchanged between the parties and Mr Doubleday’s oral evidence that he intended to, and did, voluntarily resign. As such, I do not consider that s.386(1)(b) has any application in this matter.
Having also determined that Mr Doubleday resigned from his employment, I find that the Commission does not have jurisdiction to deal with his general protections application.
Mr Doubleday’s application is dismissed and an Order[13] to this effect will be issued with this Decision.
COMMISSIONER
Appearances:
C Doubleday on his own behalf.
E Rahaley for the Respondent.
Determinative Conference Details:
2024.
Melbourne (By Video using Microsoft Teams):
10 December.
[1] [2011] FWAFB 975.
[2] [2022] FWCFB 234.
[3] Digital Hearing Book (‘DHB’) page 18.
[4] Ibid page 70.
[5] Ibid page 60.
[6] Ibid page 17.
[7] Ibid page 26.
[8] Ibid.
[9] Ibid page 27.
[10] [2010] FWA 6857 [10]–[11].
[11] Print N6999, 9 December 1996 per Munro J, Duncan DP and Merriman C.
[12] Ibid.
[13] PR784201.
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