David Newey v Sidebar Games Pty Ltd

[2024] FWC 1191

[2024] FWC 1191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

David Newey
v

Sidebar Games Pty Ltd

(U2024/3334)

DEPUTY PRESIDENT DEAN CANBERRA, 9 MAY 2024

Application for an unfair dismissal remedy – effective date of dismissal – application made within time.

1. On 22 March 2024, Mr David Newey (Applicant) made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 alleging that he was unfairly dismissed by Sidebar Games Pty Ltd (Respondent).

1. Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3).

1. There is a dispute about the date the Applicant’s dismissal took effect. It is necessary to determine the date the dismissal took effect to ascertain whether the application was made within the statutory time frame.

1. The matter was listed for hearing by telephone on 8 May 2024. The Applicant was self-represented. The Respondent did not wish to be heard and as a result did not attend the hearing.

Was the application made within 21 days after the dismissal took effect?

1. Briefly, a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.

1. The application filed by the Applicant records 28 February 2024 as the date he was told of his dismissal. The application also records 29 February 2024 as the date the dismissal took effect. However the Applicant gave uncontested evidence that he was very unclear about the date his dismissal took effect because the Respondent refused to speak with him directly about his dismissal, and to the extent anything was communicated to him, it was via a ‘slack’ message exchange between the Applicant and Mr Daniel Newey of the Respondent who is the Applicant’s brother, followed by a letter of termination.

1. The slack message exchange between the Applicant and the Respondent which was part of the Applicant’s evidence shows that the Applicant sought clarification about the Respondent’s intentions with respect to his ongoing employment. The Respondent did not make clear in those messages when his employment might end. 

1. The termination letter, dated 28 February 2024, records that the Applicant’s employment would end on 29 March 2024.

1. The Respondent submitted the termination letter mistakenly listed 29 March as the date the dismissal would take effect, and the Applicant knew this to be a mistake because he did not work after this date.

1. There is no evidence to suggest the Respondent took any steps to clarify with the Applicant the effective date of his dismissal, given it says the date in the termination letter was incorrect.

1. I am satisfied that there was a high level of confusion by the Applicant as to the date his dismissal was to take effect, caused in large part by the refusal of the Respondent to speak with the Applicant, and because the termination letter states unequivocally that his employment would end on 29 March 2024. The Applicant gave uncontested evidence that he understood this was the effective date because he was entitled to a four week notice period. I consider this to be a reasonable assumption on the part of the Applicant.

1. Given this set of circumstances, I consider it reasonable for the Applicant to have relied on what the Respondent put in writing in the termination letter, that being that the effective date of dismissal was 29 March 2024.

1. Accordingly, I find that 29 March 2024 was the date the dismissal took effect.

1. To the extent the application has been made prematurely, in that the application was made on 22 March and the dismissal did not take effect until 29 March 2024, I exercise the Commissions discretion under s.586(b) which allows me to waive an irregularity in the form or manner in which an application is made.[1]

Conclusion

1. The application for an unfair dismissal remedy has not been made outside the 21 day timeframe allowed by the Act and so no extension of time is necessary.

1. The application will now be referred for conciliation.

DEPUTY PRESIDENT

Appearances:
D Newey, on his own behalf.

Hearing details:
2024.
By telephone:
May 8.

[1] Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070.

Printed by authority of the Commonwealth Government Printer

<PR774618>