Dane Samuel Holdman v Mackenzie Marine and Towage Pty Ltd
[2024] FWC 2385
•3 SEPTEMBER 2024
| [2024] FWC 2385 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dane Samuel Holdman
v
Mackenzie Marine and Towage Pty Ltd
(U2024/537)
| COMMISSIONER SCHNEIDER | PERTH, 3 SEPTEMBER 2024 |
Application for an unfair dismissal remedy
Mr Dane Holdman (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Mackenzie Marine and Towage Pty Ltd (the Respondent).
It appears that the application may have been lodged outside of the 21-day period prescribed by the Act. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time. A Hearing of the matter was held before the Commission. At the Hearing, the Applicant gave evidence on his own behalf and called the following witness:
· Dr Michaela Pearce (Dr Pearce), Partner of the Applicant.
The following witnesses gave evidence on behalf of the Respondent at the Hearing:
· Mr Sean Mackenzie (Mr Mackenzie), Managing Director of the Respondent.
· Mr Ian Saunders (Mr Saunders), General Manager of the Respondent.
· Ms Letisha Alderman (Ms Alderman), Accounts Manager & HR Administrator of the Respondent.
· Mr Carl Newman (Mr Newman), Operations Manager of Tug Services.
Following the Hearing on 6 March 2024, the parties provided written closing submissions on 11 March (from the Applicant) and 14 March 2024 (for the Respondent).
To provide a brief factual overview, the Applicant was engaged by the Respondent on a casual basis and, at some point in 2022, was identified as a potential candidate for the position of Marine Engineer, as a vacancy due to retirement was expected at some point in 2023.
The Applicant enrolled in TAFE, in late 2022, to commence studies the year following in order to qualify for the expected position. It was negotiated that the Applicant would receive a full-time wage to support himself during his studies. The parties dispute whether the Applicant’s engagement was ever altered to permanent/full-time at that point in time.
In June 2023, the Applicant was informed that the expected retirement of the Marine Engineer was delayed, and therefore the position would no longer become vacant as predicted. Following this, there is significant dispute between the parties about what transpired and lead to the ultimate termination of the Applicant.
Dismissal date
Relevant Law
Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:
“394 Application for unfair dismissal remedy
(1)A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
…
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b)within such further period as the FWC allows under subsection (3)…”
As the Full Bench has stated, in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
The parties are in dispute over several key facts including the dismissal date.
Submissions and Evidence
Applicant
The Applicant, in his closing submissions, outlined that he believes his termination took effect on 9 January 2024, as this was when the Respondent clearly outlined that they would not be making a redundancy payment. This was communicated to the Applicant through the Respondent’s legal representatives, and the Applicant then took this to be his notification of termination.
The Applicant submits that the Respondent did not clearly articulate that he was terminated prior to 9 January 2024. The Applicant submits that Mr Newman, during his testimony, confirmed that the Respondent had not dismissed the Applicant on 30 June 2023.
The Applicant submits that it was the evidence of Mr Mackenzie and Mr Saunders, at the Hearing on 6 March 2024, that the Applicant had not been dismissed on 30 June 2024, and instead the Applicant’s employment had reverted to casual employment.
The Applicant asserts that he was never provided with a notification that his employment had been terminated by the Respondent. The Applicant maintains that he was not terminated on the dates put forth by the Respondent.
Evidence of Dane Holdman
The Applicant states that he commenced casual employment with the Respondent in February 2022 and later, on 16 December 2022, he received a full-time employment contract from the Respondent. This contract was issued to him by Ms Alderman, a copy of the correspondence was provided to the Commission.
The Applicant states that he signed the contract, on 19 December 2022, and returned it to the Respondent, delivering it to Ms Alderman’s desk, on Tuesday 20 December 2022.
Subsequently, the Applicant states that his payslip changed, effective 20 December 2022, from “TS Deckhand – Casual” to “TS Tug Permanent – Hour”. The Applicant states he continued to work under this contract until his dismissal.
The Applicant met with Mr Ian Saunders and Mr Carl Newman on 30 June 2023. The Applicant states that, during this conversation, it was not communicated to him that his employment with the Respondent had been terminated. The Applicant states he felt blindsided during the meeting and did not feel adequately prepared.
The Applicant submits that the Respondent sought to change the nature of his employment back to casual without any form of agreement between the parties.
Evidence of Michaela Pearce
Dr Pearce is the Applicant’s partner. Dr Pearce outlines the discussion she had with the Applicant, following the meeting on 30 June 2023. Dr Pearce states that the Applicant was unsure of the outcome of the meeting and did not know whether he was terminated. Dr Pearce states that the Applicant informed her that he was not told he was terminated in the meeting.
Dr Pearce assisted the Applicant in drafting a follow up email, containing a summary of the meeting, sent on 11 July 2023.
Dr Pearce was present as a support person during a meeting held on 22 July 2023, with the Applicant informing the Respondent that she would be present for the discussion relating to his employment/redundancy/termination. During this meeting, Dr Pearce states that the Respondent presented with confusion in response to the Applicant’s comment about redundancy/termination.
Dr Pearce states that she regularly corresponded with the Fair Work Ombudsman, the Commission, and a community legal centre on behalf of the Applicant. Dr Pearce asserts that she was informed a dismissal dispute could not be lodged as the Applicant had not been notified of his termination.
Respondent
The Respondent submits that the dismissal in fact took effect on 30 June 2023 or, alternatively, at the latest, 13 July 2023.
On 30 June 2023, the Applicant was notified by Mr Saunders, acting on behalf of the Respondent, that there was no longer an expectation that a Marine Engineer position would become vacant within the Respondent's operations during 2023, and that the Applicant's position was to remain casual or reverted to casual employment.
On 11 July 2023, the Applicant wrote to Mr Saunders detailing the events of 30 June 2023 and sought clarification on his employment status with the Respondent.
On 12 July 2023, Mr Ian Saunders informed the Applicant that his employment status has remained casual.
In addition to corresponding with the Applicant, the Respondent states that, on 7 July 2023, the Respondent wrote to the Applicant, requesting confirmation of his availability to attend work on 13 July 2023. The Applicant failed or alternatively refused to report for work on 13 July 2023 and, accordingly, by the refusal to accept the offer to be rostered for work on 13 July 2023 as a casual employee, the Respondent decided not to engage the Applicant beyond that time.
The Respondent says the employment terminated effective from 30 June 2023 or, alternatively, from 13 July 2023 and submits that the evidence shows the Applicant was aware that his employment ceased by 13 July 2023.
Evidence of Sean Mackenzie
Mr Mackenzie is the Managing Director of the Respondent.
Mr Mackenzie gave evidence regarding the Applicant’s employment history with the Respondent and the events surrounding the expected retirement of a Marine Engineer.
Mr Mackenzie was present for the meeting on 22 July 2023, during which he states the Applicant commenced discussions about a potential redundancy payment.
Evidence of Ian Saunders
Mr Saunders is the General Manager of the Respondent. Ms Alderman is Mr Saunders’ direct report.
Mr Saunders provides a general overview of the Respondent’s policies and records as relevant to the Applicant’s employment.
Mr Saunders provides insight into his involvement in the identification of the Applicant as a candidate for the expected vacancy and the decision to pay him a full-time wage.
Mr Saunders was present at the meeting of 30 June 2023 and received the Applicant’s notes regarding the meeting in the following days. Mr Sanders disagrees with the Applicant’s recollection of events.
The remainder of Mr Saunders’ evidence outlines his correspondence with the Applicant following the events of late June 2023.
Evidence of Letisha Alderman
Ms Alderman is the Accounts manager and Human Resources Administrator for the Respondent.
Ms Alderman states that the Applicant was initially employed under a verbal contract in early February 2022. Ms Alderman provided further detail of the Applicant’s increase in pay to a full-time rate and her involvement in that arrangement.
Ms Alderman denies the Applicant’s assertion that the contract was handed in to her office. Ms Alderman states she did not chase up the executed contract because of the understanding that the Applicant would be receiving full time pay to support him during his studies regardless.
Ms Alderman asserts that the change on the Applicant’s payslips is reflective of the agreement for higher pay and not a direct result of the alleged conversion to permanent/full-time employment.
Evidence of Carl Newman
Mr Newman is the Operations Manager of Tug Services in Esperance for the Respondent.
The Applicant reported to Mr Newman who, in turn, reported to the General Manager (Mr Saunders).
Mr Newman confirms that the Applicant commenced employment with the Respondent as a casual deckhand in February 2022.
Mr Newman provides insight into his involvement in the identification of the Applicant as a candidate for the expected vacancy and the decision to pay him a full-time wage.
Mr Newman provides the most detail regarding the decision to increase the Applicant’s wage. The Applicant’s financial concerns and reduction in casual work available are central to Mr Newman’s evidence regarding the decision to increase his pay to support his studies.
Mr Newman was present at the meeting of 30 June 2023, in which he informed the Applicant about the change to the expected upcoming vacancy.
Consideration and Findings
The termination date in this matter is hidden in a web of contested facts and muddied by the parties’ fruitless attempts to resolve the matter following the fall out of the employment relationship.
Upon review of the materials, and the Applicant’s own correspondence, I am satisfied that the Applicant was aware that his engagement with the Respondent had ended much earlier than January 2024. Likewise, the Respondent’s communication with the Applicant in late June 2023 and early July 2023 conveys a message contradictory to its assertion that the employment ended at that time for the purposes of the calculation. The Respondent’s correspondence in that period appears to convey that the Applicant is still employed, albeit on a casual basis, which did not last for any notable period due to his dissatisfaction with that arrangement.
There is considerable correspondence back and forth between the parties following the events of late June 2023 that makes clear the Applicant was aware his engagement had come to an end much earlier than is asserted.
The below is an outline of the timeline of correspondence following the meeting of 30 June 2023 and the relevant excerpts or summaries of each:
· 11 July 2023, the Applicant emails the Respondent with notes in summary of the meeting discussion: the Applicant acknowledges the discussion about the expected retirement no longer being on the table and that the Applicant could only continue as a casual employee.
· 12 July 2023, the Respondent emails the Applicant in response to his meeting notes. The Respondent asserts that the Applicant’s employment has remained casual and that, until another position comes up, casual employment is the only engagement on offer.
· 12 July 2023, the Applicant responds to the Respondent’s email: the Applicant includes information regarding the alleged signing of the full-time contract in December 2022.
· 13 July 2023, the Respondent responds to the Applicant: the Respondent states it is unable to locate the signed contract and disagrees with the Applicant about his pay slips reflecting a change in engagement type.
· 16 July 2023, the Applicant responds to the Respondent: the Applicant reiterates his understanding of the 30 June 2023 meeting and his execution of the full-time contract. In this email, the Applicant states “I wanted to come to you directly to sort this out as I don't wish to take the next step and entertain litigation at this stage. I believe that we can come to an agreement and would like to leave on good terms. As you can appreciate, currently the minimum that I am asking for is to be made redundant, as I accepted a contract that was offered to me which was fulfilled by both parties up until the last pay run when I did not receive my pay.”
· 22 July 2023, the Applicant emails the Respondent: In this email, the Applicant summarises a meeting held earlier that day. The Applicant commences discussions regarding a potential redundancy payment. The Applicant ends the email by stating “I am very sad that my time has had to end like this, particularly my treatment by management during the June 30 meeting.”
Following the above, the correspondence between the parties largely appears to be concerned with a potential settlement/redundancy.
Upon review of the evidence before me, it is clear that the Applicant was aware that the expected vacancy was no longer on the table and, regardless of the status of the Applicant’s employment as casual or full time, only casual engagement was available for the foreseeable future which was not agreeable to the Applicant.
It is apparent from the Applicant’s email on 16 July 2023 that he was aware his engagement was ending, or had ended, and that he was beginning the process of discussing potential severance options.
The correspondence from the Applicant on 22 July 2023, after a meeting with the Respondent, makes it pellucidly clear that the Applicant was aware his engagement had come to an end.
Accordingly, the Applicant was aware of his dismissal by, at the very latest, 22 July 2023 following the meeting held with the Respondent. Such conclusion is logical in the circumstances of the meeting held earlier that day, in which the Respondent likely had opportunity to more clearly articulate its position in relation to the end of the Applicant’s employment.
It is plausible that the Applicant could have been aware that his engagement was no longer prior to that date. However, considering the prior ambiguity from the Respondent and lack of a further formal discussion following the 30 June 2023 meeting, I am inclined to conclude that 22 July 2023 is the clearest date upon which the Applicant should have been aware of his dismissal and, indeed, his awareness of this is clear from the correspondence provided.
A dismissal date of 22 July 2023 is the most charitable possibility in this matter, and this still renders the application substantially out of time.
Conclusion
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[3]
As I found above, the dismissal took effect on 22 July 2023. The final day of the 21-day period was therefore 12 August 2023 and ended at midnight on that day. It is a matter of record that the application was made on 15 January 2024.
The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Extension of time
Relevant Law
Under section 394(3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
· the reason for the delay; and
· whether the Applicant first became aware of the dismissal after it had taken effect; and
· any action taken by the Applicant to dispute the dismissal; and
· prejudice to the employer (including prejudice caused by the delay); and
· the merits of the application; and
· fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[4]
I set out my consideration of each matter below.
Discussion of criteria
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 12 August 2023. The delay is the period commencing immediately after that time until 15 January 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[5]
The Applicant submits that the primary reasons for the delay are the lack of clear communication of the dismissal and lack of valid reason for such dismissal.
The Applicant submits that he was hoping to resolve the issue directly with the Respondent, doing away with the filing of any legal claims, which further contributed to the delay.
The Applicant asserts that he does not submit ignorance of the timeframe as a reason for delay.
The Applicant contends that he promptly filed this claim upon it becoming clear that no direct resolution would be reached between the parties
In response to the reasons for delay, the Respondent highlights that the Applicant had been receiving advice from a legal practitioner for quite some time prior to lodgement.
The Respondent further submits that the correspondence between the parties prior to lodgement suggests a familiarity with employment law regulations.
The Respondent highlights that the Applicant does not assert any representative error as contributing to the delay.
The Respondent notes several periods of time in which the Applicant took no action to dispute his dismissal or further his claim.
The Respondent disputes the assertion that the Applicant was not aware of his dismissal.
In summary, the Respondent submits that the Applicant has not provided a credible or acceptable reason for the entire period of delay which would lend to an extension being granted.
Having regard to the above, I am satisfied that the initial ambiguity around the end of the employment relationship would have reasonably contributed to some form of delay. However, such a reason only explains a short initial period of the delay and, in this matter's broader context, is not strongly supportive of a finding of exceptional circumstances. As discussed earlier, I am satisfied that the Applicant was very aware his engagement had ended by mid-July 2023 and so, accordingly, the application should have been lodged in August 2023.
The Applicant’s submission regarding a lack of valid reason for his dismissal is more relevant in consideration of the merits under the criteria in the Act, which will be discussed later in this decision. I am not satisfied that any lack of a valid reason for dismissal is a reasonable excuse for delay, in the circumstances where the Applicant was clearly aware of his employment ending (regardless of the reason), which would weigh in favor of a finding of exceptional circumstances.
I am inclined to agree with the Respondent's submissions in respect of the bulk of the delay; the Applicant has not provided credible reasons which would account for the majority of the delay and weigh in favor of a finding of exceptional circumstances.
Although it is understandable that parties may wish to settle a dispute between themselves (rather than pursuing formal action), it is not wise to delay lodgment where strict time periods apply, only filling when it is painfully clear that direct solutions have been exhausted.
Did the Applicant first become aware of the dismissal after it had taken effect?
This issue has largely been traversed, above, in the discussion regarding the effective dismissal date. The Applicant alleges that he first became aware of the dismissal after it had taken effect as it was not clearly communicated to him until much later.
As noted earlier in this decision, I am inclined to agree that the Applicant’s dismissal was not clearly communicated to him on the termination dates asserted by the Respondent. And, as noted above, I accept that this contributed to some level of confusion.
What action was taken by the Applicant to dispute the dismissal?
The Applicant submits that he took notable action to dispute the dismissal. In summary, the Applicant took the below action:
· The Applicant contacted “Fair Work” to initiate an enquiry and seek advice.
· Correspondence to the Respondent containing notes of the meeting on 30 June 2023.
· Attended a second meeting with the Respondent on 22 July 2023.
· Several emails sent back and forth between the parties following the initial discussions in attempt to resolve the outstanding issues.
· Sought legal advice and retained a representative for part of the settlement discussions.
The Applicant infers that the Respondent strung him along during the settlement discussions to waste his resources and delay lodgement.
The Respondent submits that the Applicant’s attempts to obtain an agreement for him to receive redundancy pay or similar is not an acceptable or credible explanation for the delay.
Further, the Respondent notes several periods of consecutive days and weeks during which the Applicant seemingly took no action.
Having regard to the matters, it is clear that the Applicant took action that reflects he contested the end of his employment, or at least he contested the terms on which it ended. The parties were clearly in lengthy discussions about a possible redundancy payment following the end of the Applicant’s employment.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submits that it would suffer prejudice if an extension of time were granted. The Respondent is of the position that the delay in this matter is considerable and therefore prejudicial.
The Applicant submits that the Respondent has laboured the process by drawing out negotiations.
Further, the Applicant submits that all of the issues within the application are those already raised with the Respondent at an earlier stage.
Although there is a notable delay, being one that is not minimal, in the filing of the application, I am not inclined to conclude that any material prejudice has been substantiated. I am also not inclined to agree with any submissions that the Respondent deliberately drew out negotiation (noting that the negotiations lasted for a significantly longer time than the lodgment period) for any strategic reasons regarding a potential unfair dismissal claim.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
One of the Applicant’s central concerns is that there was no valid reason for his dismissal. The Respondent is of the position that the Applicant no longer accepted casual engagement and therefore was not further engaged.
It is clear that the circumstances surrounding the downfall of the employment relationship are somewhat convoluted. The breakdown in the employment relationship is tied to several small disputes concerning the terms and conditions of the Applicant’s employment and some level of involvement or influence from several individuals outside of the Applicant and ultimate decision maker.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[6] and the same applies to section 394(3)(e)of the Act.
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Consideration
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding the criteria under the Act.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[7] Exceptional circumstances may 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 can be considered exceptional.[8]
From the materials provided by the parties, it is evident that the conduct of the Respondent (namely, the initial ambiguity in communicating the end of the engagement) contributed to some confusion and possible delay in the Applicant filing his application with the Commission. However, such ambiguity could only perhaps explain a short period (being the very initial period lasting into August 2023) of the delay and does not strongly support a finding of exceptional circumstances that would give rise to an extension for the entire delay. This is especially so in the circumstances where the Applicant should have been aware of his dismissal by at least 22 July 2023. Further, the Applicant’s other reasons for delay are not compelling.
I am not satisfied that an alleged lack of clear or valid reason for the dismissal, in the matter currently before the Commission, supports a finding of exceptional circumstances. In this matter, it would have been clear to the Applicant that his engagement had ended in, at least, late July 2023. Whatever the reason is for the end of one’s employment, delaying lodgment for such a significant period of time due to an apparent lack of reason or the purported lack of validity of that reason is not sensible. If an individual comes to be dismissed and believes no valid reason has been provided, the sensible course of action would be for that person to prioritize the lodgment of an unfair dismissal claim.
The primary reason for delay relied upon by the Applicant is his attempts to have discussions directly with the Respondent in order to negotiate a potential redundancy or settlement payment. While I accept this decision was well intentioned by the Applicant, the decision to delay lodgment in the hopes of reaching some agreeable position for a monetary payment was unnecessary. The decision to delay lodgment was the Applicant’s choice and I cannot be satisfied it was occasioned by any misdirection or promise from the Respondent. It appears that the Applicant eventually accepted no additional payment would be agreed to by the Respondent and only then opted to lodge this application in effort to address his grievances in some other way. Unfortunately, the Applicant lodged this application far too late.
In assessment of all the criteria, and upon review of the materials before me, I am not satisfied that there is anything in the current matter that rises to a level which would warrant a finding of exceptional circumstances.
In the event I have erred, and there are indeed exceptional circumstances, I would not be satisfied that it is appropriate for me to exercise my discretion and extend the period for the application to be made noting the considerable length of delay in filing.
Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.
The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order to that effect will be issued separately.[9]
COMMISSIONER
Appearances:
D Holdman, Applicant.
S Maré of Workwise Employment Lawyers for the Respondent.
[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Ibid; [2015] FWCFB 1877.
[3] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[4] [2018] FWCFB 901, [39].
[5] [2015] FWCFB 287, [12].
[6] [2011] FWAFB 975, [36].
[7] [2011] FWAFB 975, [13].
[8] Ibid.
[9] [PR778929].
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