James Moon v Mayan T/A Black Ant Gourmet or Kin Kin General Store

[2021] FWC 6307

[2021] FWC 6307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Moon
v
Mayan T/A Black Ant Gourmet or Kin Kin General Store
(U2021/7088)

DEPUTY PRESIDENT LAKE BRISBANE, 9 NOVEMBER 2021

Application for an unfair dismissal remedy – no dismissal – application made outside of statutory timeframe – application for extension of time refused – application dismissed

[1] James Moon (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment by Mayan T/A Black Ant Gourmet or Kin Kin General Store (the Respondent).

[2] Before considering the merits of the application, I must determine whether and when the Applicant was dismissed within the meaning of s.386 of the Act, whether he filed his application within time and, if not, whether there are any exceptional circumstances warranting the granting of an extension of time.

[3] Directions were issued for the filing of material in respect of these jurisdictional issues and a hearing was held before me via Microsoft Teams on 21 October 2021. The Applicant appeared on his own behalf and Jodie Williams and Brett Gowley appeared for the Respondent.

Evidence and submissions

Applicant’s submissions

[4] The Applicant submits that he was dismissed by the Respondent on 30 April 2021. Whilst conceding that he had resigned from the role via a text message sent to Mr Gowley on 30 March 2021, the Applicant asserted that the Respondent did not acknowledge or respond to his resignation. On 1 April 2021, the Applicant sent a text message stating that he wished to remain employed for an additional three weeks. No response was received in respect of that message either.

[5] On 10 April 2021, the Applicant contacted Mr Gowley because he had not received his payslips. On 14 April 2021, Mr Gowley told the Applicant he would speak to Ms Williams. The discussions about payment being made to the Applicant for those three weeks continued for a couple of weeks. The Applicant asserts that at no time during this period did the Respondent acknowledge the Applicant’s resignation by text message on 30 March 2021. When the Respondent had stopped paying the Applicant, the Applicant decided not to return to work until the issue was resolved as it was costing him more money to go to work.

[6] The Applicant stated he met with Ms Williams and Mr Gowley on two occasions. At the first meeting, the Applicant says he was told that he was not owed any money, nor did he have any outstanding leave entitlements. He maintained that he was owed three weeks’ wages and requested copies of his missing payslips dating back to the commencement of his employment on 1 September 2020. On 21 April 2021, he was paid the three weeks of wages that had been initially contested. The Applicant advised the Respondent that he agreed to recommence work however was told in a meeting with Mr Gowley and Ms Williams on 27 April 2021 that he was now a contractor, as per a previous arrangement he had with the Respondent.

Respondent’s submissions

[7] The Respondent’s submits that the Applicant resigned from his role on 30 March 2021 on his own volition.

[8] The Respondent noted that the Applicant had initially been engaged by the Respondent as a contractor. That arrangement continued until 1 September 2020, following a request from the Applicant that he become an employee to assist with his personal circumstances.

[9] The Respondent states that on 30 March 2021, Mr Gowley received the following text message from the Applicant:

“Evening.
I’m not cant come in tmw. I also can not work on the books any more [sic]…
I’ll be there Tuesday after I drop the kids off at school.”

[10] Mr Gowley understood this to constitute a resignation by the Applicant.

[11] Mr Gowley notified Ms Williams of the Applicant’s resignation on 30 March 2021, and she in turn immediately advised Karina Jones, who undertakes bookkeeping tasks for the Respondent, of same.

[12] The Respondent accepts that the Applicant sent Mr Gowley a second text message on 1 April 2021 stating that he wished to extend his employment for a few more weeks. This was communicated to Ms Williams, who was not willing to agree to this. She had requested a face-to-face meeting with the Applicant on multiple occasions to discuss moving forward, however, the Applicant was unable to attend until 27 April 2021. The purpose of the meeting was to explain to the Applicant as to why his reinstatement was denied. During that meeting, the Respondent made it clear to the Applicant that they would not have him back on payroll due to his poor work performance and attitude. However, they were willing to continue to engage him as a subcontractor, as they had done before he became an employee. Ms Williams and Mr Gowley understood that the Applicant had agreed to this arrangement. He sent a text message later that day, which read:

“Hey good to talk to you .
I’m not going to be around this week.
I’ll contact you at the weekend .
I’m not going to cause any shit for you and jody.
You have been good to me.”

[13] On the basis of the correspondence exchanged between the parties and the evidence led by Mr Gowley and Ms Williams, the Respondent submits that it is clear that the Applicant resigned voluntarily and was not dismissed.

Consideration

[14] The first issue I must determine is whether the Applicant was dismissed. Section 386(1) of the Act relevantly provides thata 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.  

[15] Based on the evidence given by each party, I am satisfied that the Applicant resigned from his employment via text message on 30 March 2021. This was largely uncontentious. What was in dispute was the effect of this resignation in light of the Respondent’s failure to respond and the Applicant’s attempt to deviate from that decision.

[16] While it is not ideal that the Respondent chose to not respond to that message, that does not invalidate the resignation. Countless authorities have made it clear that resignations are unilateral and do not require acceptance to be valid. 1

[17] For example, in Delarouche-Souvestre v Public Transport Corporation, Commissioner Holmes quoted Gray J in the following terms:

“…in Birrell v Australian National Airlines Communication [1984] FCA 378. His statement of the law in relation to the giving of notice and the unilateral withdrawal thereof is most apposite. In relation to the first matter His Honour stated that:

‘The giving of notice of termination of a contract, in accordance with the terms of that contract, is a unilateral right. Its exercise does not depend in any way on the acceptance or rejection of the notice by the other party to the contract. The giving of such a notice operates to determine the contract by effluxion of the period of notice.’

…

It is clear that such a notice could be withdrawn by the consent of both parties to the contract; it seems unnecessary to determine whether, in the case of withdrawal of a notice by consent, the existing contract continues or a new contract comes into being. A question does arise, however, whether unilateral withdrawal of a notice is possible.’” 2

[18] Gray J considered a number of authorities in respect of unilateral withdrawal and concluded that:

“These authorities all support the view that unilateral withdrawal of a notice of termination of a contract of employment is not possible. In principle, this conclusion must be correct. The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adaption of any principle which could lead to such an unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties. This conclusion is consistent with authority to the effect that unilateral withdrawal by a landlord of notice to quit is not possible…” 3

[19] In light of these authorities, I am satisfied that the Applicant’s attempt to effectively withdraw his resignation – or prolong his exit – on 1 April 2021 were ineffectual given the Respondent was not willing to consent to such a course. Without that consent, the Applicant’s resignation of 30 March 2021 remained effective.

[20] On that basis, the Applicant’s application cannot proceed because he was not dismissed within the meaning of the Act.

[21] In any event, the Applicant lodged his application with the Commission 82 days after his termination, which is some 61 days outside of the 21-day time limit prescribed by s.394(2) of the Act. He would therefore need to demonstrate that exceptional circumstances exist which warrant the extension of time. The authorities indicate that this is a high barrier for an applicant to overcome. 4

[22] The Applicant claims the lodgement of his application to the Commission was delayed due to the action taken to dispute his dismissal with the Respondent. He says, it was only after months of attempting to recover the monies owed to him from the Respondent that he formed the view that the Respondent was “still messing” with him and were not going to honour their agreement. He further asserts that the Respondent’s lack of action impacted his mental health and he was unable to think beyond the next message or email. A doctor’s certificate was included in the application to the Commission.

[23] While it is clear the Applicant had many things on his mind and that he may have been confused or his focus elsewhere, he was still capable of engaging in work with the Respondent for a few weeks in May for which he had provided two invoices. This suggests that he was not so overwhelmed that he could have completed the three page online form at any stage during the 21 days and then at a later stage discontinued if he had resolved all the matters between himself and the Respondents.

[24] I am not satisfied that the evidence demonstrates that exceptional circumstances exist. Consequently, even if I had found that the Applicant had been dismissed, I would not have granted the extension of time.

[25] Accordingly, I order that the application be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   See CF Capital PLC v Catherine Willoughby [2011] EWCA Civ 1115 cited in Fato v La Sagra Pty Ltd T/A Sagra Restaurant [2017] FWC 4458.

 2   Delaroche-Souvestre v Public Transport Corporation[1999] AIRC 132.

 3   Farrelly v L&R Health Centre Pty Ltd [PR907849] [17] referring to Delaroche-Souvestre v Publich Transport Corporation [1999] AIRC 132.

 4   Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCF 901 [14]; Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 [13].