Damien Finley v Robert Horvath T/A Sugar Reef Bistro
[2020] FWC 3243
•24 JUNE 2020
| [2020] FWC 3243 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Damien Finley
v
Robert Horvath T/A Sugar Reef Bistro
(U2020/5084)
COMMISSIONER SIMPSON | BRISBANE, 24 JUNE 2020 |
Application for unfair dismissal – two jurisdictional objections –- Whether termination was at the initiative of the employer – Termination at initiative of employer – When did termination occur - No exceptional circumstances – Application dismissed.
[1] On 17 April 2020, Mr Finley filed an application for unfair dismissal remedy in accordance with section 394 of the Fair Work Act 2009 (the Act) alleging his employment with Robert Horvath T/A Sugar Reef Bistro (the Respondent) was terminated unfairly.
[2] Part 1.4 of the Form F2 application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Mr Finley answered on the Form F2 “No” and provided the following reason:
“Delayed due to failure to get intouch with buisness owner after weeks of trying and mutiply attempts at contact, also due the covid-19 pandamic.”
[original text kept]
[3] On 12 May 2020, the Respondent lodged a Form F3 – Employer response to unfair dismissal application and objected to the application on the basis it was made outside the time required in s.394(3) of the Act and that Mr Finley was not dismissed.
[4] On 12 May 2020, correspondence was sent from the Fair Work Commission (the Commission) to Mr Finley and the Respondent noting the jurisdictional objections t and advising that a conciliation conference had been scheduled for 22 May 2020.
[5] On 13 May 2020, the Respondent’s representative sent correspondence to the Commission advising the Respondent did not wish to attend a conciliation conference, and instead have the jurisdictional objections dealt with in the first instance. The conciliation conference was cancelled.
[6] On 15 May 2020, correspondence was sent to Mr Finley and copied to the Respondent from the Chambers of Vice President Catanzariti advising that the application had been received outside the 21-day legislated time frame and that before the merits of the application could be determined, a decision would need to be made by the Commission to extend the time in which Mr Finley was allowed to lodge application. Mr Finley was also advised that the Commission may extend the time period for lodging an unfair dismissal application only if satisfied that there were exceptional circumstances. The matters the Commission is required to consider in deciding whether to grant a further under s.394(3) of the Act were set out.
[7] On 19 May 2020, Mr Finley sent the Commission an email and six attachments. The email included a statement as follows:
“The claim was lodge late because I was still hopeful for contact between me and rob in regards to my position, once it got to the point of consistent non-answers it made it clear to me his true intentions and I went ahead with my claim even though I was 3 days past time frame, I was waiting to see about all the new information in regards to covid as it kept changing and I wanted to know my rights within in these uncharted times, i was also lead believe that due to covid-19 timeframe were extended.”
[original text kept]
[8] The matter was subsequently allocated to my Chambers to determine whether a further period should be allowed under s.394(3) of the Act for the application to be made and whether there was a dismissal in accordance with s.386 of the Act.
[9] Directions were issued requiring the formal filing of material in relation to both jurisdictional objections and both objections were listed for Hearing on 18 June 2020. Mr Finley appeared on his own behalf, and I granted leave for Mr Zack McKay of Finemore Walters & Story Solicitors to represent the Respondent for the purposes of the jurisdictional objection.
Submissions and evidence
[10] The Respondent filed an outline of submissions and witness statements from Mr Robert Horvath, 1 Ms Ikota Bugeia,2 Mr Mauro Farletti,3 Mr Cody Bedford,4 Ms Lihua Zhou,5 Ms Shakira Kyle,6 Ms Tia Doyle-Brockfield7 and Mr Frank Anthony Venturi8 in relation to the two jurisdictional objections. Mr Finley only wished to cross examine Mr Horvath, Mr Farletti and Mr Venturi at the Hearing.
[11] The Respondent asserted that the date Mr Finley’s employment ceased was 23 March 2020. In response to Mr Finley’s submission that he made an error stating his date of dismissal was 23 March 2020 on the Form F2, the Respondent submitted that Mr Finley failed to provide reasons as to why he made the error, and states that it was only after the Respondent’s objection that Mr Finley reversed his position.
[12] As noted above, Mr Robert Horvath is the owner of the Bistro. Mr Horvath gave evidence stating that although he was aware that there would be closures due to Covid-19, he denies ever telling Mr Finley that he would be out of work due to the pandemic and that he denies referring Mr Finley to Centrelink.
[13] Mr Mauro Farletti gave evidence that he has worked with Mr Horvath since March 2013 and in that time, he has never seen Mr Horvath terminate someone’s employment. Mr Farletti stated that at no time did Mr Horvath advise him or give any indication that the Bistro would be closing due to the Covid-19 restrictions.
[14] Mr Bedford, a current employee, gave evidence that he “saw Damien on the phone talking about the benefit of Centrelink JobSeeker and the extra cash from the government, whilst on shift at the restaurant”.
[15] Mr Finley filed an outline of submissions and supporting evidence. Being self-represented, it was appropriate to clearly identify what Mr Finley regarded as his evidence at the Hearing. Mr Finley adopted a section of his written submission of 9 June 2020 (paragraphs 6 to 21) as a statement of his evidence 9, a separate four-page statement containing seven paragraphs also dated 9 June 2020, and a further one-page statement responding to the statement of Ikota Bugeia, Mauro Farletti and Cody Bedford.
22 March 2020
[16] Mr Horvath also stated that on 22 March 2020, he had been working with Mr Finley. He said throughout the evening shift, Mr Finley was on his mobile phone viewing the Government JobSeeker benefits through Centrelink. It is Mr Horvath’s evidence that Mr Finley had stated that he would be better off on JobSeeker and could kick his feet up at home and make more money than he could at work.
[17] On the same night, Mr Horvath said that the Government had announced that pubs and clubs, had to close or operate as takeaway only. As the Bistro is located within a pub, this also included the Bistro. Mr Horvath stated that he made it clear to all employees at the time that the Respondent would stay open for take away only.
[18] Ms Zhou, a current employee, gave evidence that she was working the shift on 22 March 2020 and was present when the Government announced the Covid-19 restrictions. Ms Zhou stated that “we were told verbally, immediately after the announcement, that the restaurant would have to close but it was allowed to do takeaway”. Mr Zhou said Mr Finley was present.
[19] Ms Tia Doyle-Bedford, a current employee, gave evidence that on 22 March 2020, she did not hear any altercation on which Mr Horvath fired Mr Finley. Ms Doyle-Bedford also stated that during the night she was never told, nor did she hear, of any of her colleagues being told that the restaurant would be closing down.
[20] Mr Frank Anthony Venturi, owner of the East End Hotel, gave evidence that he watched the Government announcement on 22 March 2020. During the course of the evening, Mr Venturi stated that he heard Mr Finley state that he would be better off on Centrelink payments than working and that Mr Finley appeared to be upset.
[21] Mr Finley said that on 22 March 2020, Mr Robert Horvath, informed him that the Respondent would be shutting down due to the Covid-19 pandemic and advised Mr Finley to apply for a JobSeeker payment through Centrelink, as he would not be able to pay Mr Finley anymore.
23 March 2020
[22] Mr Horvath said that on 23 March 2020, Mr Finley attended work in the late morning and commenced packing up the kitchen, saying that the Bistro had to shut the door. Mr Horvath stated he had told Mr Finley that the Bistro would continue to operate takeaway only. Mr Horvath said that evening Mr Finley was rostered on the evening shift, and Mr Horvath stated that Mr Finley spent the shift researching the JobSeeker scheme.
[23] It is Mr Horvath’s evidence that Mr Finley assisted him putting signs on the Bistro’s window and door saying that the Bistro would only be open for takeaway.
[24] Mr Horvath said he recalled that Mr Finley turned up at the Bistro on Monday 23 March during the dinner shift, however there were no dinner orders, and he again spent the night on his mobile phone, telling Mr Horvath that he would be better off on JobSeeker and that he would receive more money to stay at home and not have to work at all. Mr Horvath said he did not say anything to Mr Finley during that evening in relation to dismissal or even in relation to potentially closing the Bistro.
[25] Ms Shakira Kyle, a current employee, gave evidence that on 23 March 2020, she repeatedly heard Mr Finley state that he would be better off on the government payments and other Covid-19 grants that would be offered to people on Centrelink.
[26] Mr Venturi stated that on 23 March 2020, he saw Mr Finley packing up the kitchen and that Mr Horvath had asked Mr Finley what he was doing, to which Mr Finley said that the pub had shut. He said Mr Horvath responded to Mr Finley, stating that they were still doing takeaways. Following this, Mr Venturi stated that Mr Finley said to him and Mr Horvath “I would be better off on JobSeeker now, as the government has announced bonuses and double the dole due to the pandemic”.
[27] Mr Finley said that on 23 March 2020, Robert Horvath again told him to go to Centrelink because he would not be able to pay Mr Finley. Mr Finley said after being advised again by Mr Horvath to apply for a JobSeeker payment, Mr Finley logged onto the Centrelink website to register for the JobSeeker scheme however found that he was required to have a separation certificate to obtain the payment.
[28] Mr Finley said he understood the Government had brought out the JobSeeker payment plus a bonus $550 to help those who lost their jobs for a short period of time. He said he went home the evening of 23 March and applied online for Centrelink where it requested he get a separation certificate to add to his application. Mr Finley said believing this to be the right way he requested one from Mr Horvath as he had welcomed a new baby just three weeks prior and already had a three-year-old at home and his family relies on his income and he had just returned from non-paid paternity leave. Mr Finley said Mr Horvath said he would let him know where he stood and what was happening and that he would know more around June or July.
24 March 2020
[29] It is Mr Horvath’s evidence that on 24 March 2020, he received a text message from Mr Finley, where he demanded that Mr Horvath provide him with a separation certificate, so he could apply for his Centrelink payments. There was a text message attached to the statement of Mr Horvath under the name of Damian Finley marked as being sent at 9.46pm on Tuesday 24 March that read as follows:
“Hey rob, I will need a separation certificate an reasons being, I have printed of the form an will come in to see you tomorrow as I need to be signed off, Thanks”
[original text kept]
[30] Mr Horvath said later on the 24 March 2020, Mr Finley attended the premises and handed Mr Horvath a separation certificate that Mr Finley had filled out and asked Mr Horvath to sign. Mr Horvath said that he did not sign the separation certificate at the time. Mr Horvath stated that the date recorded on the separation certificate for “date employment” ceased was 23 March 2020.
[31] Mr Horvath stated Mr Finley was rostered to work on the evening of 24 March 2020, however he did not attend to work his allocated shift. Mr Horvath said that on that day at 12.29pm he posted on the Sugar Reef Bistro Facebook page “Open for Take Aways Lunch and Dinner”.
[32] Mr Horvath said that he is aware that Mr Finley had contacted bookkeeper Ms Carol Vaughan, however he said Ms Vaughan is not an employee of his and is a third-party bookkeeper and she did not want to get involved in any discussions with Mr Finley directly. Mr Horvath said that he is aware that Mr Finley requested a separation certificate from Ms Vaughan also. There was a copy of a separation certificate attached to the Form F3 response filed by the Respondent. Mr Horvath gave evidence that his was a document prepared by Ms Vaughan, but it was not the proper separation certificate which Mr Horvath said he completed himself and was later given to Mr Finley. Mr Horvath said the actual separation certificate was the one baring his signature that was filed as part of Mr Finley’s material and was dated 25 March 2020.
[33] Ms Bugeia stated that on 24 March 2020, Mr Finley was taking to her and fellow colleagues about him leaving the Bistro. Ms Bugeia stated that Mr Finley knew that the business was doing take away only and stated that he knew this because everyone was working while the dining section was closed.
[34] Mr Farletti said he saw Mr Finley arrive at the Bistro at approximately 5:30 pm on 24 March 2020, in which he requested that Mr Horvath sign the separation certificate as soon as possible so he can go to Centrelink as “he needs to feed his family”. Mr Finley then turned to Mr Farletti and asked whether he would be staying or going, and then said that he was better off on Centrelink benefits.
[35] Mr Finley submitted that on 24 March 2020, he sent a text message to Mr Horvath requesting a separation certificate and stating he will come in to see Mr Horvath the following day as he needed the certificate to be signed off.
25 March 2020
[36] The Respondent relied on a Facebook post of Mr Finley dated 25 March 2020 at 8:28 pm. The Facebook post states as follows:
“I’m looking for work any jobs available, will help at minimum pay, within reason, I trying not go to mines so please help me out as I can help u, I’ve just had a baby girl only couple weeks old and a 3 year old, Centerlink is not going to help MI much so I need work asap. Lost my full-time job.”
[original text kept]
[37] The Respondent submitted that the reference to “full time” role is reference to his employment with the Respondent. Mr Horvath said that this confirmed that Mr Finley was aware of 25 March that he had lost his fulltime job per his own wording in the post.
[38] Mr Horvath said that on 25 March Mr Finley sent him a text message saying:
“Please do not delay my separation certificate as it feeds my family thanks hence why I had the form printed already”.
[39] According to an attachment to the statement of Mr Horvath this text message was sent at 6.31pm on 25 March 2020.
[40] Mr Horvath stated that at 9:05 pm on 25 March 2020, he sent a text message to Mr Finley along with a photograph of the separation certificate. On the following day, Mr Horvath and Mr Finley exchanged text messages to organise a time for the separation certificate to be provided to Mr Finley.
[41] Mr Finley said after he provided the certificate to Mr Horvath on 25 March 2020, he sent the text referred to above at 6:31pm. Mr Finley tendered a separate certificate signed by Mr Horvath dated 25 March 2020 that indicated the reason for separation was “government closed all hotels due to corona virus”.
26 March 2020
[42] Mr Horvath said on 26 March said he texted Mr Finley indicating he would drop the separation certificate to his home and Mr Finley texted back saying that he had to come into town anyway, so he would drop in. Mr Horvath said Mr Finley attended the Bistro in the afternoon of 26 March 2020 to take his separation certificate.
[43] At 8:38 pm on 26 March 2020, Mr Horvath stated that Mr Finley sent the following text:
“Don’t need the certificate, just went to load it and it now says I don’t need it WTF, anyway I’ve been asked by BP to go back so we probably be moving, wherever they want MI too, so happy days”.
[original text kept]
27 March 2020
[44] Forming part of Mr Horvath’s evidence was what he said was a screenshot of a Facebook post of Mr Finley’s on 27 March that stated:
“Not going back to work for any of the shit crews ive had to ensure and that list is endless they just winging it everyday. So if this virus doesn’t kill me its done me a fabour… I will be starting with winning already. Fuk the sheep. Really only wanna hang with wolves”
[original text kept]
[45] Mr Horvath said on 27 March 2020 at 8.23pm he received a text from Mr Finley saying”
“Ran into old Margaret from young OZ she was with another younger woman today and she asked me if I will be wanting bar work or kitchen work when all goes back to norm, just never know what’s next hey? Should be back to norm sooner than later”.
30 March 2020
[46] Mr Horvath said that on 30 March the Prime Minister announced the JobKeeper payment would be calculated at a higher amount than the JobSeeker scheme and Mr Finley’s manner changed after the announcement of JobKeeper a flat rate of $1,500 regardless of working less.
31 March 2020
[47] Ms Bugeia stated that Mr Finley messaged her on 31 March 2020. Their exchange is as follows:
Mr Finley: | U still working U be better off not 1500 a fortnight 750 a week not to work hhhmmmm, wat to do |
Ms Bugeia | Yeah I’m still working when roby needs me, yeah my family and I are trying to claim the whole centrelink thing |
Mr Finley: | Yeah it’s easy enough |
[original text kept]
1 April 2020
[48] Mr Horvath does not dispute that Mr Finley provided information regarding termination on 1 April 2020 and tendered the text message sent by Mr Finley at 11:10 am to him. The text stated as follows:
“Hey, so you told me to go to Centrelink cos you not going to be able to stay open just no work or can’t pay anyone you said, u sacked me vertuly (sic) on the spot… and I thought you called me a friend for nearly 20 years… WTF who needs enemies with U as a friend. I’ve been advised by Centrelink to contact fair work an (sic) why shouldn’t I…?”
[original text kept]
[49] Mr Finley submitted that he observed that the Bistro was continuing to trade, despite him being advised on the 22 March 2020 that the Bistro would be shutting down. Subsequently, Mr Finley sent a series of text messages between 25 March 2020 to 1 April 2020 to Mr Horvath and Ms Carol Vaughan, inquiring about the operation of the business.
[50] Mr Finley stated that he also said that he inquired about the status of his employment, and he was expecting to start receiving remuneration from the JobKeeper scheme.
[51] Mr Finley submitted that as he had not received any response from Mr Horvath or Ms Vaughn, he sent information to Mr Horvath on 1 April 2020 regarding termination of employment and the required notice period provided on the Fair Work Ombudsman website. On the same date, Mr Horvath responded as follows at 12:20 pm:
“I have just checked on this and yes you are to be paid two weeks sorry I didn’t know”.
[52] Mr Finley stated he received two weeks’ wages on 1 April 2020.
7 April 2020
[53] On 7 April 2020, Mr Finley sent further correspondence to Ms Vaughan to seek clarification about his employment. Ms Vaughan responded on the same day and stated that Mr Finley would need to speak to Mr Horvath. Following this, Mr Finley sent multiple text messages to Mr Horvath.
12 April 2020
[54] Ms Bugeia stated that Mr Finley messaged her on 12 April 2020. Their exchange is as follows:
Mr Finley: | R u still working |
Ms Bugeia | Yeah |
Mr Finley: | Where, east closed that’s wat my separation cert says, closed due to covid. Someone must be lying hey? |
[original text kept]
13 April 2020
[55] Mr Horvath said that on 13 April 2020 at 11.19am Mr Finley texted him as follows:
“Haven’t heard from you in weeks what’s going on, are you applying for the job keeper payments ????”
[56] Mr Horvath said that Mr Finley resent him the same text message again at 12.07pm.
14 – 16 April 2020
[57] Mr Horvath also confirms he received various text messages from Mr Finley from the 14 April 2020 to 16 April 2020, however did not respond as he was of the view that Mr Finley had left his employment. Mr Finley submitted that on 15 April 2020, he received an email from Ms Vaughan and Mr Horvath informing him that his employment had been terminated and that he was to be paid his outstanding entitlements. Mr Finley did not file a copy of this email with the Commission.
[58] Set out below are text messages sent by Mr Finley to Mr Horvath on 14 to 16 April:
14 April 2020 16:58 pm: | “Haven’t heard from you an wondering if u are aware and upto date with what’s going on, could you let us know please, cos I’m pretty sure it’s payday?” |
15 April 2020 at 1:13 pm: | “Haven’t heard from you an wondering if u are aware and upto date with what’s going on, could you let us know please, cos I’m pretty sure it’s payday?” |
15 April 2020 at 4:32pm: | [image attached] “How’s this guy going??” |
16 April 2020 at 9:58 am: | “Haven’t heard from you in weeks wats going, are you applying for job keeper payments????” |
16 April 2020 at 12:59 pm: | “Going on 4weeks waiting for details about WATS going on.????” |
16 April 2020 at 1:37 pm: | “OK so I have been advised to give you till end of the business day to correct your ways, as I have tried for days on end to get answers. If still no response, then that’s on you, it’s really not hard to do the right thing by people” |
[original text kept]
17 April 2020
[59] On 17 April 2020, Mr Finley lodged his Form F2 application in the Commission.
Whether termination at initiative of the employer and date employment ended
[60] The Respondent submitted that the Commission has the discretion to find that Mr Finley was not dismissed but resigned on his own accord, or abandoned his employment, whereby the “date of dismissal” would be rendered futile given that the Respondent only needs to substantiate one of its objections above.
[61] The Respondent has always maintained that Mr Finley abandoned his employment, by requesting a separation certificate from the Respondent and failing to turn up for his allocated shifts. The evidence from Mr Horvath and his employees indicate a true intention, that Mr Finley was going to resign or abandon his employment or file an application for Government support or welfare.
[62] Mr Finley submitted that the Commission need not exercise its discretion to grant an extension of time as the application was made within 21 days of the Employer notifying him of the dismissal.
[63] Mr Finley submitted that the Commission should accept that his employment was terminated at the Employer’s initiative.
[64] Mr Finley submittedthat relying on the representations from Mr Horvath that he could not continue to employ him and that he should go to Centrelink, he registered for the JobSeeker payment, however to obtain the JobSeeker payment, he required a separation certificate signed by Robert Horvath and so he sought this from Robert Horvath.
[65] Mr Finley submitted that at that point, he understood that his employment had not been terminated but that due to the prevailing circumstances, the Respondent had to close and as such, he could not be usefully employed. Mr Finley said he subsequently made several attempts to seek clarification as to the status of his employment from Robert Horvath through text message, but he would not respond.
[66] Mr Finley submitted that in the case of Sharpe v MCG Group Pty Ltd 10, the Commission rejected an employer’s allegation that an employee had abandoned her employment. Mr Finley said the employer’s conduct “directly and consequently” resulted in the termination of his employment, and this is demonstrated by:
a. The employer’s payment of his entitlements in response to his grievance of 1 April 2020;
b. The employer’s refusal to engage or respond to his inquiries regarding the status of his employment between 23 March 2020 and 15 April 2020; and
c. The employer’s email of 15 April 2020 explicitly stating that my employment had been terminated.
d. The Employer’s conduct in waiting until 15 April 2020 to explicitly provide that the Applicant had been terminated is significant as that is 1 day after the 21 day time limit
would have expired on their version of events.
[67] In advancing his argument that his application was made within the legislated timeframe, Mr Finley relied on the decision of Ayub v NSW Trains, 11where the Full Bench of the Commission determine that a dismissal only takes effect when an employee either “became aware he… had been dismissed, or least had reasonably opportunity to become aware of this”.
[68] Mr Finley relied on his evidence that he only became aware that he was dismissed after receiving the email from Mr Horvath on the 15 April 2020. Mr Finley argued that in the alternative, he reasonably became aware that his employment was terminated on 1 April 2020.
[69] In his submissions, Mr Finley addressed the issue that he had stated on his Form F2 that his dismissal took place on 23 March 2020. Mr Finley stated that this was an error.
[70] The Respondent submitted that the true date for the cessation of employment is 23 March 2020 and this is supported by the evidence of Mr Horvath and his employees. The Respondent submitted that Mr Finley now asks the Commission to dispense with his error whereby he swore that the “date of dismissal” was listed as 23 March 2020 in his own application. The Respondent said that Mr Finley has provided no reason why he committed in writing to the date being 23 March 2020 and now, only after these objections were raised has he reversed on that position.
[71] The Respondent said that Mr Finley posted a Facebook post on the 25th March 2020 wherein he accepted that he had lost his fulltime role. The Respondent submitted that the reference to a “fulltime role” is reference to his employment with the Respondent. The Respondent said that Mr Finley now says he only became aware that he was no longer an employee of the Respondent on 15 April 2020, however this is vastly different from the wording he used in his Facebook remarks on 25 March 2020.
[72] The Respondent submitted that Mr Finley ought to have known that his employment was at an end as a result of the request for a separation certificate. Further, or in the alternative, the Respondent submitted that Mr Finley was aware as early as 25 March 2020 by his Facebook post, that his role was no longer and therefore the application remains out of time.
[73] Mr Finley submitted that the Commission should exercise its discretion to dispense of the error in his application wherein he submitted that the dismissal took place on 23 March 2020, and the Commission should exercise its discretion to accept that his dismissal took place either on 1 April 2020 being the date on which the Employer paid his entitlements and final pay; or on 15 April 2020, being the date on which he was informed that his employment had been terminated.
[74] Mr Finley said that on 1 April 2020, in frustration, he sent information to Robert Horvath stating that he considered himself to have been terminated on 23 March 2020 due to his representations. Mr Finley submitted that the Commission should not accept that as the date of termination as he expressed what he knew at the time on the grounds that that was the last day on which he worked.
[75] Mr Finley submitted that at no point between 23 March 2020 and 1 April 2020 was there any indication from either the Respondent or himself, that the employment relationship had come to an end. Mr Finley said following his representations on 1 April 2020, he was paid out his entitlements.
[76] Mr Finley submitted that his expressions of grievances should make it sufficiently clear that he did not consider his employment to have ended at his own initiative, rather, that in view of Mr Horvath’s conduct, he considered himself to have been dismissed, however despite this, the Respondent had not, at this point, indicated with any clarity, whether or not his employment had been terminated. Mr Finley said the Respondent deliberately did not respond to his repeated attempts to clarify the status of his employment.
[77] Mr Finley said that following receipt of his entitlements, he continued to seek clarification as to the status of his employment from the Respondent and continued to do so which objectively, is not conduct consistent with that of a person who has either abandoned or resigned from his employment.
[78] Mr Finley said following his agitation of the issue, by email dated 15 April 2020, Mr Horvath notified him that his employment had been terminated, and suspiciously, this is one day after the 21-day time limit expired on the Respondent’s version of events.
[79] Mr Horvath said that he did not reply to many of the text messages from Mr Finley and as far as he was concerned Mr Finley had left his employment, being unhappy with his pay and being able to obtain more on Centrelink. Mr Horvath said at no point in time had he told Mr Finley that that he was dismissed from work and he filled out the separation certificate based on Mr Finley’s own request to do so.
[80] Having considered all of the evidence I have not been satisfied that Mr Finley either abandoned his employment or resigned.
[81] I have preferred the evidence of Respondent’s witnesses over that of Mr Finley where there is a conflict as Mr Finley’s version of events did change whereas of the three Respondent witnesses who were required for cross examination, each of them remained consistent. Their versions of events in dispute corroborated each other and were also consistent with evidence of a number of other witnesses for the Respondent who were not challenged.
[82] The picture that unfolds from the evidence tells against Mr Finley’s central claim that Mr Horvath told him both on the 22 and 23 March that there would be no work for him and to go to Centrelink. Instead the evidence favours Mr Horvath’s version that whilst the hotel may be closing the Bistro would continue to prepare meals take away meals and there was work still available.
[83] The evidence, points to Mr Finley formulating a view that he would be better served claiming JobSeeker than continuing to work for the Respondent. This is consistent with the evidence that it was Mr Finley who was pressing Mr Horvath to complete a separation certificate ending the employment relationship because he believed he needed it to present it Centrelink in order to qualify for increased JobSeeker payment.
[84] However, despite the idea of obtaining a separation certificate originating with Mr Finley, he could not obtain a separation certificate in the form he wanted unless Mr Horvath agreed. Without Mr Horvath agreeing to bring the relationship to an end in the manner proposed Mr Finley did not believe he could not achieve his objective of obtaining JobSeeker payments.
[85] In that sense the ending of the relationship can be characterised as Mr Finley asking to be terminated by Mr Horvath and Mr Horvath agreeing to terminate Mr Finley. Mr Horvath could have refused, and Mr Finley would then have to decided what to do next. In my view what brought the employment relationship to an end was not an act of resignation or abandonment of employment by Mr Finley, but instead Mr Horvath accepting a request to terminate Mr Finley. By accepting rather than rejecting the request, the termination occurred at the initiative of the Respondent. Mr Finley had not resigned either in writing or orally. Nor do I accept his failure to attend for one shift amounted to him having abandoned his employment, particularly given a level of uncertainty on 23 March given COVID-19 and the Government announcement on the evening of 22 March.
[86] Given my findings above I am satisfied that the termination was at the initiative of the Respondent, and it occurred at 9:05 pm on 25 March 2020, at the time Mr Horvath sent a text message to Mr Finley along with a photograph of the Separation Certificate he had completed and signed.
[87] I do not accept Mr Finley’s submission that a termination was not effective because he had not become aware of it until a later date. To suggest as Mr Finley has that he believed he had merely been stood down, is contrary to his other communications around that time indicating he believed he had lost his job, and it is simply not plausible that he did not understand the meaning of obtaining a separation certificate and providing it to Centrelink.
[88] Contrary to Mr Finley’s submission that the various attempts to contact the Respondent from March 25 through until mid-April were indicative of his believing he remained employed, I prefer to Respondent’s submission that the evidence points to a connection between the Government announcement of the more generous JobKeeker payment where employees remained connected to their employer, compared to the JobSeeker payment, as being the reason for Mr Finley’s reversal of attitude to being an employee of the Respondent. Contrary to Mr Finley’s submission he did not send communications from 25 March seeking clarity on the status of his employment. This only occurred from 1 April after the JobKeeper program was announced.
Whether to extend time
[89] Having rejected the first jurisdictional objection, I am now required to determine whether to allow a further period for the application to be made, taking into account the matters in s.394(3) of the Act. Given the termination occurred on 25 March 2020 and the application was not filed until 17 April 2020, the application was filed 2 days out of time.
[90] The Respondent submitted that the grounds raised by Mr Finley for an extension of time appear to be that the Respondent had not replied to his text messages, however the Respondent was not obligated to continue to respond to the ongoing text messages from Mr Finley. The Respondent provided the separation certificate as Mr Finley had requested and then, out of the blue, Mr Finley began asking about JobKeeper.
[91] The Respondent submitted that Mr Finley also appears to raise COVID-19 as a reason why the application was late, however there has been no change to unfair dismissal laws surrounding COVID-19 and it would be difficult to see how a misunderstanding about the timeframes would occur. In any event the Respondent submitted that a misunderstanding of the law is not sufficient grounds to allow an out of time application and relies on the decision in Woolworths v Lin [2018] FWCFB 1643.
[92] The Respondent submitted that Mr Finley has not outlined “exceptional circumstances” as was considered in Nulty v Blue Star Group [2011] FWAFB 975, where the Full Bench, Fair Work Australia stated:
“…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…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.”
[93] The Respondent submitted that Mr Finley has not provided any evidence proving that there were exceptional circumstances, and overall Mr Finley’s version of events and story has changed significantly since he filed his application. The Respondent said that it acknowledged that someone’s legal position ought to change or improve upon seeking legal advice, however the evidence and version of events ought to be the same – a change of position in relation to the evidence ought be explained. The Respondent submitted that Mr Finley’s evidence lacks consistency and credit.
[94] Mr Finley submitted that the Commission should exercise its discretion to allow an extension of time to allow the Application as there are sufficiently exceptional circumstances to allow this.
[95] Section 394 of the Act provides:
“(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWCC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exertional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[96] Section 386 of the Act sets out when a person has been dismissed from their employment and states:
“386 Meaning of dismissed
(1) 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.”
Consideration
Section 394(3)(a) – Reason for Delay
[97] Mr Finley submitted that the reason for the delay in filing his application with the Commission was due to his reliance on representations made by his employer. These representations included Mr Horvath directing Mr Finley to access payments through Centrelink due to the closure of the Bistro and that Mr Finley was under the impression the Respondent was applying for the JobKeeper scheme.
[98] Mr Finley further submitted that on 1 April 2020, once he had realised, he had in fact been terminated, he was “under a misapprehension as to the operation of the law” as he was not aware that a dismissal only takes effect from the date on which it was either communicated or it should have been reasonably clear to him that was the case. The relevant evidence as it goes to the reason for delay has already been summarised above. I have already rejected the evidence of Mr Finley concerning his claim that he did not understand he was terminated. I also reject the submission that Mr Finley was in some way prevented from filing an application because of COVID-19 or the manner in which the Commission was operating at this time. There is no evidence to suggest that either submission has merit. My conclusions concerning the reasons for the delay tell against extending time.
Section 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
[99] Mr Finley submitted that he first became aware that the dismissal had taken effect on 1 April 2020. I have rejected this submission and concluded he was aware he was dismissed when he was provided a photo of the separation certificate by Mr Horvath on 25 March 2020. This tells against extending time.
Section 394(3)(c) – any action taken by the person to dispute the dismissal
[100] Mr Finley relied on the text messages exchanged from the 1 April 2020 to demonstrate that he actively disputed his dismissal prior to the filing of his application. In my view Mr Finley’s grievance with the Respondent was motivated by his becoming aware that had he remained employed or been reemployed instead of being terminated on 25 March as he had requested, he could have become entitled to JobKeeper payments which were more generous than the JobSeeker payments.
[101] On that basis, Mr Finley was not in truth disputing the dismissal itself, but more the Respondent’s refusal to revisit the decision that he requested be taken by the Respondent on 25 March 2020 after becoming aware of JobKeeper. This tells against extending time.
Section 394(3)(d) – Prejudice to the employer
[102] Mr Finley submitted there was no delay, and there is no prejudice to the Respondent. If in the event the Commission does not accept that his dismissal came into effect on either the 1 April 2020 or 15 April 2020, he submitted that the delay is so brief it is not significant. I accept this submission, and the brevity of the delay tells in favour of extending time.
Section 394(3)(e) – The merits of the application
[103] Based on the finding that the employer terminated Mr Finley because Mr Finley asked the Respondent to terminate him, this tells against an extension.
Section 394(3)(f) – Fairness as between the person and other persons in a similar Position
[104] There were no submissions in relation to this criteria.
Conclusion
[105] I have considered each of the matters required to considered in section 394(3) and am not satisfied that there are exceptional circumstances warranting an extension of time and on that basis the application is dismissed as it is outside the jurisdiction of the Commission.
COMMISSIONER
Appearances:
Mr D. Finley appearing on his own behalf
Mr Z. McKay from Finemore Walters and Story
Hearing details:
2020,
Brisbane:
June 18
Printed by authority of the Commonwealth Government Printer
<PR720361>
1 Exhibit 6.
2 Exhibit 1.
3 Exhibit 10.
4 Exhibit 2.
5 Exhibit 3.
6 Exhibit 4.
7 Exhibit 5.
8 Exhibit 11.
9 Exhibit 7.
10 Sharpe v MCG Group Pty Ltd[2010] FWA 2357.
11 [2016] FWCFB 5500
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