Doug Callander v Banarang Aboriginal Corporation
[2024] FWC 2080
•6 AUGUST 2024
| [2024] FWC 2080 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Doug Callander
v
Banarang Aboriginal Corporation
(U2024/5357)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 6 AUGUST 2024 |
Application for an unfair dismissal remedy – whether applicant dismissed – extension of time
On 11 May 2024 Mr. Doug Callander (applicant) filed an application under s.394 of the Fair Work Act 2009 (Act) for a remedy for what he alleged was his unfair dismissal by his previous employer, Banarang Aboriginal Corporation (respondent). The respondent objected to the application on the basis that the applicant was dismissed by them by email on 8 December 2023, that the application was therefore outside the 21-day time period for the filing of such applications and there were no exceptional circumstances justifying an extension of time.[1]
At the hearing, the applicant maintained that he was not dismissed in December 2023 as alleged. He said that his employment came to an end on or about 23 April 2024 when he submitted a letter of resignation to the respondent. The applicant said that the circumstances constituted a dismissal within the meaning of s.386(1)(b) of the Act. He said he was forced to resign because of conduct engaged in by the respondent. The applicant said that the respondent failed to respond to his repeated requests for work and he had no reasonable option open to him but to resign. In that case, the applicant said that his application was within the statutory time period and no extension of time was required.
After the conclusion of the hearing, I considered it appropriate to give consideration to whether or not the circumstances of the case may also involve a dismissal within the meaning of s.386(1)(a), that is, whether the applicant’s employment had been terminated on the employer’s initiative. The parties were notified of this issue and given an opportunity to provide written submissions.
The respondent did not argue that the applicant was not a person protected from unfair dismissal as set out in s.382. The respondent was not a small business employer. Although it was accepted by the parties that the applicant was engaged as a casual employee, the respondent did not contend that the applicant had not completed the minimum employment period[2] and I am satisfied on the facts that the applicant had completed that period.
Background and Evidence
The matter has some history to it that can be briefly summarised. Most of the factual background is uncontroversial.
The applicant commenced employment with the respondent as a security guard in December 2022. He said he was employed on a casual basis and worked three regular shifts, from 3.00pm to 10.00pm on Friday, Sunday and Monday, at two sites in the eastern suburbs of Sydney. He had previously worked at those times on a permanent part-time basis at the same premises for a different company performing the same duties, from 2019 until December 2022. When the contract to provide services at those premises changed hands and the respondent secured the contract, the respondent offered the applicant the same position on a casual basis which he accepted.
The applicant would receive notification of his shifts via a text message linked to an app, and he would accept his shifts by logging into the app. The applicant worked on a regular and ongoing basis. He would occasionally work additional shifts but typically would work the same three shifts he was rostered for. The applicant said he had a reasonable expectation of ongoing work on this basis.
There was no formal written contract of employment in evidence.
On or about 21 November 2023 the respondent received a complaint from the owner/operator of the sites at which the applicant worked. The complaint was about two separate incidents involving the applicant at the sites on 6 and 19 November respectively.
On 24 November 2023 the applicant contacted his manager, Mr. Heath Spratt, to ask why he had not been allocated any shifts. During the conversation the applicant was told about the complaints and the incidents they referred to. During that conversation, according to the applicant, Mr. Spratt said words to the effect that he “wouldn’t be required for the shifts anymore” and when the applicant asked what he could do, Mr. Spratt replied “Nothing really. Well, you could lodge some incident reports.” The applicant replied that he would lodge the reports. When the applicant asked, “What now?” Mr. Spratt replied that “There may be something in the city...”. The applicant said that he may not be suited to that work but would lodge the incident reports.
The applicant lodged two incident reports with the respondent on 28 November 2023.
On 29 November 2023 the respondent replied, through Mr. Spratt, as follows:
Incident reports have been received and we are continuing the investigation, as you have noted below and as I also made clear to you in our phone call the main issue we are up against is the safety breach related to the child in the Woolworths dock, not the door.
As I also noted, Banarang as your employer has Not dismissed you in any way shape or form. We are merely at the mercy of our clients.
During this investigation period, the time frame of which I can not define at this point of time, Banarang (being your employer) is able to offer you shifts as per demand of the greater business based on your availability and traffic management skillset.
Can you please confirm with my team as I have CC into this email your availability for work shifts?
I appreciate your understanding on this matter & we endeavour to resolve all present issues in a timely manner.
The applicant said he did not see the email when it was sent. He said it did not come to his attention until after 14 December 2023. I accept his evidence on that point.
On 14 December 2023 he instructed his solicitors to file an unfair dismissal application (first application) with the Commission. In that application the applicant alleged that he had been dismissed by the respondent during the conversation on 24 November, or in the alternative, by two weeks after that date in which period the applicant said he had not been offered further work or had any other contact from the respondent.
The applicant said that on 10 January 2024 he was advised by his lawyers that the response by the respondent to the first application had included a copy of the respondent’s reply of 29 November 2023 in which the respondent had confirmed that the applicant had not been dismissed and that they were conducting an investigation. He said that he then instructed his lawyers to discontinue the first application as he realised that there had been an error and that he was still employed.
Thereafter the applicant made a series of attempts to contact the respondent. He rang Mr. Spratt on 12 January to explain what had happened but the call was not answered. The applicant left a voice message. He rang again on the 15 January. The call was not answered so he sent Mr. Spratt a text message. The same thing occurred on 16 January.
On 19 January the applicant emailed Mr. Spratt explaining that he had not received the email of 29 November. He said that because of his economic circumstances and lack of work he had vacated his residence in Sydney and was temporarily living with friends interstate but would be happy to return if work were available. There was no response to the email.
The applicant emailed the respondent again on 29 January 2024 asking about any results of the investigation into the November incidents and inquiring as to whether there was any work available. There was no response.
On 6 February and 5 March the applicant emailed the respondent asking if there was any work and, on the latter date confirming that he was back in Sydney. Again, the respondent did not reply.
The applicant asserted that all of the emails between himself and Mr. Spratt regarding his availability and requests for work were copied to persons from the respondent who were responsible for scheduling of work. He was not challenged on the point and I accept his evidence on this issue.
On 23 April 2024 the applicant sent the following correspondence to the respondent:
I have enjoyed the last 6 years or so working at the Woolworths and Dan Murphys docks in Double Bay including the last year and a bit with Bangarang (sic). The income from this role was an important component of my income. It’s a pity it came to such an abrupt end.
The events since my last shift, late in 2023, and the lack of any response to my more recent attempts to engage and request shifts, have left me with few options.
So please accept this letter as my formal resignation.
I wish you well with your career and future endeavours.
The Respondent’s Emails of 8 December 2023
The respondent tendered an email dated 8 December 2024 (4.49pm). The email from Banarang Human Resources, titled “Your Availability” was unsigned. It was addressed to the applicant. It said:
Hi Doug,
We have not heard back from you for some time regarding availability and can only assume you are no longer interested in receiving allocations for future shiftwork with Banarang Aboriginal Corporation.
As such, we wish you all the best for your future endeavours.
Above that email was another email. This email was from Mr. Spratt to the applicant. It bore the same date but had a time stamp of 2.43pm. The email purported to show the first email from Human Resources being forwarded on by Mr. Spratt to the applicant. Mr. Spratt said that he had forwarded the email on.
There are some obvious difficulties with these emails. First, they are dated December 2024, not 2023. Mr. Spratt said this must have been an “I.T. error”. Second, Mr. Spratt was unable to explain how it was that the email apparently forwarding another email bore an earlier time stamp to the email it was forwarding. Third, the spelling of the applicant’s name in the 2.43pm email from Mr. Spratt is incorrect even though previous emails from him had used the correct spelling. Fourth, Mr Spratt could not say who within the respondent organisation had sent the first email. It is not clear how Mr. Spratt had knowledge of the email and was able to pass it on without knowing who the author of the first email was. Fifth, the response filed by the respondent to this application said that the applicant was not dismissed. It said the applicant was offered other shifts but did not respond. Mr. Spratt explained this by saying that the response form must have mistakenly included information from the response form that was filed in the first application. The problem with that explanation is that the first application was filed on 14 December 2023, that is, after the termination emails were purportedly sent. If the response to the first application did say the applicant had not been dismissed, the 8 December emails were apparently not taken into account by the respondent in preparing the response. That is plainly improbable. Mr. Spratt confirmed that the emails were never provided in response to the first application. If they had been sent, that is also improbable.
The applicant said he did not ever receive the emails of 8 December. I accept that evidence. On the available evidence I cannot even be satisfied that these emails were ever sent to the applicant. As no termination was ever communicated to the applicant in December 2023 (and noting that the respondent expressly disavowed any “dismissal” in its correspondence of 29 November 2023), I conclude that there was no termination of the applicant’s employment in December 2023.
Consideration
Whether a person has been “dismissed” for the purposes of Part 3-2 of the Act depends on whether their circumstances come within one or other of the two limbs of s.386. That section relevantly provides:
(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.
In Khayam v. Navitas English Pty Ltd t/a Navitas English[3] a Full Bench of the Commission summarised the approach to be taken to the interpretation and application of s.386(1)(a) as follows:
The analysis of whether there has been a termination at the initiative of the employer for the purpose of s 386(1)(a) is to be conducted by reference to termination of the employment relationship, not by reference to the termination of the contract of employment operative immediately before the cessation of the employment. This distinction is important in the case of an employment relationship made up of a sequence of time-limited contracts of employment, where the termination has occurred at the end of the term of the last of those contracts. In that situation, the analysis may, depending on the facts, require consideration of the circumstances of the entire employment relationship, not merely the terms of the final employment contract.
As stated in Mohazab, the expression “termination at the initiative of the employer” is a reference to a termination that is brought about by an employer and which is not agreed to by the employee. In circumstances where the employment relationship is not left voluntarily by the employee, the focus of the inquiry is whether an action on the part of the employer was the principal contributing factor which results, directly or consequentially, in the termination of the employment.[4]
In that matter, the majority also made a number of observations about the application of Part 3-2 of the Act to casual employees:
It is reasonably apparent that, notwithstanding that it is expressed as an exclusionary provision, the purpose of s 384(2)(a) is to confirm that casual employees of the type referred to are included in the operation of Pt 3-2 and are able to make an application for an unfair dismissal remedy. However there is a difficulty in that, conventionally, casual employment is taken to be constructed of daily or shorter contracts of employment (although this is not a universal indicium of casual employment and in some cases the existence of a longer-term contract of employment may be inferred). Where a casual employee is taken to be engaged under a sequence of daily contracts, then if a casual completes their engagement on a particular day and is never thereafter engaged by the employer, contractually the employment has come to an end by agreement due to the effluxion of the contractual term rather than by any act by the employer to terminate the contract. If that situation was incapable of being characterised as a dismissal under s.386(1)(a) it would substantially or entirely defeat the operation of s.386(2)(a).[5]
The evidence as to the applicant’s status as a casual employee and terms of engagement was limited. The applicant accepted that he was a casual employee in these proceedings and in the first application. He accepted that the position was offered to him as a casual position and that he accepted it on that basis[6]. Nothing was put to the contrary. I proceed on the basis that the applicant was a casual employee at all relevant times.
The balance of the terms of the applicant’s engagement are difficult to ascertain. There was no written contract in evidence that expressly provided that the applicant was engaged on a series of short-term contracts that concluded at the end of each shift. There was no evidence about any conversation at the point of engagement from which it might be possible to discern clear oral terms of the contractual arrangement. However, there was some evidence as to the applicant’s previous engagement and the fact that the applicant was employed by the respondent to perform the same work at the same times and at the same venues as he had performed under his previous part-time contract for his previous employer for over three years. The evidence was that this was the work that he ultimately performed. He did not perform other work, aside from an occasional additional shift. Having regard to the history of the applicant’s previous engagement and the circumstances in which he was employed by the respondent, it may be argued that this arrangement was well-understood by the parties at the point of engagement and the applicant had a reasonable expectation that this work would continue. However, I do not think that the evidence is sufficient to permit a conclusion that there was a departure from the conventional form of casual engagement or that a contractual term existed that the applicant would, subject to any variation or termination of the contract, be guaranteed the three regular shifts on Friday, Sunday and Monday at the two venues, on an ongoing basis.
However, the correspondence from the respondent dated 29 November 2023 has a bearing on the ongoing existence of the applicant’s employment. This was the last communication the applicant received from the respondent. It reaffirmed that he had not been dismissed and indicated that there would be an investigation process conducted by the respondent of indefinite duration. It invited the applicant to advise of availability for alternative work. Once he became aware of the existence of the correspondence, this is precisely what the applicant did throughout January 2024 and beyond. This correspondence clearly represented to the applicant that his employment was ongoing and that an investigation process was underway. The applicant was entitled to rely on that representation and did so, to his detriment, when he instructed his lawyers to discontinue the first application because of it. The applicant’s employment remained on foot as a result of this correspondence.
Was the applicant dismissed and if so, when?
I have concluded that the applicant was not dismissed in December 2023 by the emails dated 8 December. There was no other contact from the Respondent after that time and so there was no express termination of the applicant’s employment by the respondent. The applicant maintained that a dismissal was brought about because the respondent simply ignored the applicant’s communications which ultimately meant he had no work offered to him and was left with no real choice but to resign.
It is clear enough that an employer may dismiss a casual employee within the meaning of s.386(1)(a) by telling them that they will not be given any more work. In Balgowan v. City of Sydney RSL and Community Club Ltd[7] Commissioner Saunders (as he then was) was asked to determine such a question[8] on remittal from a Full Bench and found that the evidence in that case did not support that conclusion. A dismissal does not ordinarily take effect unless and until it is communicated to the employee by plain or unambiguous words or conduct.[9] The effective date of a dismissal can be more difficult to determine where there is no express communication, including the case of casual employees, no communication in relation to future work. As Deputy President Colman observed in his dissent Khayam;
One of the jurisdictional facts which the Commission must decide before considering the merits of any unfair dismissal application is that the application was made within 21 days after the dismissal took effect, or such other period as the Commission allows. The FW Act requires that the date of dismissal must be identified with certainty. Casuals who are simply not re-engaged may have difficulty identifying such a date.[10]
The Applicant contended that his employment ceased on 24 April 2024 when he tendered his resignation. I do not think the evidence supports a conclusion that the applicant’s employment endured at that point. The question of whether an employment relationship continues to exist is a question of fact and it is necessary to consider all of the circumstances to determine whether the has been a communication of dismissal by words or conduct.[11] In deciding whether an employment relationship has ceased to exist, it is necessary to determine what a reasonable person in the position of the parties would have understood was the objective position.[12] In my view, having regard to all of the circumstances including the work history, the history of the interactions and correspondence, it would have been reasonably apparent by one week after the applicant’s penultimate correspondence to the respondent on 5 March 2024, that the respondent did not intend to contact the applicant or provide him with any further work and in that case, that the applicant’s employment was at an end.
I am also of the view that the dismissal of the applicant was on the initiative of the respondent. The applicant’s employment was brought to an end by the act of the employer which resulted directly or consequentially in the termination.[13] That act was the deliberate decision not to respond to the applicant’s attempts to clarify his situation and return to work. The employment relationship was not left voluntarily by the applicant. Had the employer not taken the action, the employee would have remained in the employment relationship. It was the action of the respondent that either intended to bring the employment to an end or had that probable result.[14] I conclude that the applicant was dismissed by the respondent within the meaning of s386(1)(a) and that the dismissal took effect on 12 March 2024.
Are there exceptional circumstances justifying an extension of time?
As I have concluded that the dismissal took effect on 12 March 2024 and it was accepted that the application was not filed until 11 May 2024, the application is outside the 21-day statutory time period prescribed by s.394(2). I turn then to consider the matters in s.394(3) to determine whether a further period should be allowed for the making of the application.
Reason for the delay
The delay in the filing of the application is the period from the last date on which the application could have been filed, in this case 2 April 2024 and the date the application was made. As the applicant maintained that the application had been made within the 21-day time period, he provided little by way of explanation as to why he waited until 11 May to file his application. He said that the respondent had not provided him with the courtesy of a reply and did not bother to formalise his termination. He said he believed he was ignored and “punished” for bringing the first application. He did not provide any evidence that there were any obstacles to the making of an application.
The most that can be said for the applicant in relation to the reason for the delay is that the lack of response from the respondent created considerable uncertainty for him as to whether he had been dismissed and if so, when that dismissal took effect. It is also the case that the applicant took active steps at least up until 5 March 2024 to resolve the matter. This provides a partial explanation for the delay but does not account for the totality of it. It is not necessary to account for the entire period of the delay to establish that there are exceptional circumstances[15]. It was nonetheless possible for the applicant to take steps to bring the matter to a head well before 11 May 2024.
Whether the person first became aware of the dismissal after it had taken effect
The applicant was not made aware of the dismissal by the respondent in clear and express terms. He was operating in an environment of uncertainty because of the respondent’s position. He did not have the benefit of a clear timeframe in which he needed to act. The applicant’s lack of awareness as to the date the dismissal took effect weighs in favour of a conclusion that there are exceptional circumstances.
Any action taken by the person to dispute the dismissal
The applicant was actively seeking clarification from the respondent about his position until at least 5 March 2024. Whilst there were no steps taken thereafter until the filing of the application, I consider this to be in large measure due the uncertainty surrounding the applicant’s status because of the respondent’s decision not to engage with him. In those circumstances I do not think that the applicant’s failure to take steps after 5 March, and any subsequent lack of notice to the respondent that the dismissal was actively disputed, should count against the applicant in the overall assessment.
Prejudice to the employer, (including prejudice caused by the delay)
The respondent contended that the application had not been brought in good faith, was vexatious and had unnecessarily consumed their time and resources. I do not accept that to be the case. In any event, a relevant prejudice is one that the respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. I am unable to identify any prejudice of that kind. I regard the issue of prejudice as a neutral consideration.
Merits of the application
It is unnecessary and undesirable to undertake a detailed assessment of the merits here. Nonetheless, on the available material it seems to me that the applicant has an arguable case that the circumstances surrounding the termination of his employment may constitute an unfair dismissal. This is because of the undisputed fact that the respondent chose to ignore the applicant’s contact with them even after he had explained that he had not received their communication of 29 November 2023 until January 2024. He was never told whether the investigation into the November incidents had been concluded and if so, what the outcome was. He was never offered a reason for his dismissal and never told that he had been dismissed. I am of the view that the merits of the application weigh in favour of a conclusion that there are exceptional circumstances justifying an extension of time.
Fairness as between the person and other persons in a similar position
The respondent accepted that there were no previous or current matters which attracted the relevant comparison under this heading. They said that allowing an extension of time would undermine the importance of established deadlines and set an unfavourable precedent for future cases. I do not consider that the question of fairness as between the applicant and others arises in this case. It is a neutral consideration.
Exceptional circumstances
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.[16] 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. [17]
Having considered the various matters referred to in s394(3) and weighed them in the balance I am satisfied that there are exceptional circumstances in this case. I consider it is appropriate to exercise my discretion and extend time for the making of the application to 11 May 2024.
The matter will be relisted for further programming on a date to be determined.
DEPUTY PRESIDENT
Appearances:
Mr Doug Callandar, for the Applicant.
Mr H Spratt, for the Respondent.
Hearing details:
By Video using Microsoft Teams at 2:00pm AEST on Tuesday, 9 July 2024.
Final written submissions:
Final submissions filed by the Respondent on 2 August 2024.
[1] Section 394(3).
[2] See section 384(1) and (2)(a). See also Chandler v. Bed, Bath ‘N Table Pty Ltd[2020] FWCFB 306.
[3] [2017] FWCFB 5162.
[4] At [75].
[5] Ibid at [71].
[6] See s.15A of the Act.
[7] [2018] FWC 1798.
[8] Ibid at [5].
[9] Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496. See also Ayub v. NSW Trains[2016] FWCFB 5500 at [17].
[10] At [127] fn 121.
[11] See for example Stimson v. Tawardrous[2020] FWC 3999 at [29] referring to Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 428; Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878 at [27].
[12] Stimson op cit at [30] citing Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [45] on the issue of an effective resignation. See also at [46].
[13] Mohazab v. Dick Smith Electronics Pty Ltd (1995) 62 IR 200.
[14] O’Meara v. Stanly Works Pty Ltd PR973462.
[15] Stogiannidis v. Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901at [40].
[16] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[17] Ibid. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.
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