John Byrne v Freeman Freighters Pty Ltd

[2022] FWC 1168

[2022] FWC 1168

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

John Byrne
v

Freeman Freighters Pty Ltd

(U2022/2046)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 16 MAY 2022

Application for an unfair dismissal remedy

1. The applicant, John Byrne, has applied for unfair dismissal remedy under the Fair Work Act 2009 (Act) alleging that his dismissal was unfair. He was employed by the respondent, Freeman Freighters Pty Ltd as a driver until his dismissal on a date that is in dispute. The applicant contends that the date on which his dismissal took effect was on 20 January 2022 when he received an email advising that his employment had been terminated, or alternatively on 1 February 2022 the day on which he received an employment separation certificate from the respondent. The respondent contends that the dismissal took effect on 17 October 2021. The application for an unfair dismissal remedy was lodged on 16 February 2022. Both on the respondent’s contended date of dismissal and the applicant’s first mentioned date, the application lodged was outside of the time prescribed in s 394(2) of the Act. In either circumstance it will be necessary to consider whether further time should be allowed to the applicant to lodge his application. If the dismissal took effect on 1 February 2022, then the application will have been lodged in time.

1. The relevant factual matters are not seriously in contest.

1. In early October 2021, the applicant became unfit to perform his job. On or about 5 October 2021, Ms Kylie Paget, the applicant’s partner, had a telephone conversation with a representative of the respondent, the outcome of which was that the applicant would be permitted to take a period of unpaid leave until after the new year. The respondent engaged a casual driver to cover for the applicant during his absence.

1. In email exchanges between Ms Paget and an employee of the respondent on 12 and 14 October 2021, Ms Paget requests that the applicant be paid two days of annual leave in order to meet anticipated school fees expenditure and indicating that the applicant was intending to use the balance of his leave over the Christmas period.

1. As events transpired the respondent paid out the entirety of the applicant’s accrued annual leave balance on 20 October 2021.

1. The respondent contended that in the email exchange referred to above that Ms Paget had requested that the applicant be paid all entitlements. Therefore, the respondent considered that this was a request to terminate employment. No reading of Ms Paget’s email could reasonably lead to that conclusion. It is plain on the text of the email from Ms Paget that the applicant wanted to use some of his leave to assist with school fee payments and that the balance of leave was sought to be paid over the Christmas period. This request is made in the context of the earlier arrangement for leave without pay until after the New Year. Nothing in the exchanges suggests that the unpaid leave arrangement was to be departed from by either party.

1. The applicant did not resign from his employment by reason of the request for payment of a portion of his annual leave accrual and the respondent did not tell the applicant at that time or more specifically on 20 October 2021 that his employment was terminated. The respondent’s contention that the dismissal took effect on that date is untenable and is rejected.

1. On 12 January 2022, Ms Paget sent an email to Mr Freeman advising that the applicant’s doctors had certified him unfit to work until 7 March 2022, that as a consequence the applicant had applied for sickness benefits from the Commonwealth but the application cannot be approved “until he received something from [the respondent] to say that he will still have a job to come back to in March when the certificate runs out”.

1. Mr Freeman’s response email to Ms Paget advised that the staff member who had dealt with the earlier request for annual leave had advised him that she had paid out all of the applicant’s entitlements in October 2021, that he would be happy to discuss with the applicant the possibility of recommencing work when he confirms that he is available but that he was unable to offer employment at the moment because of the effect the Covid-19 pandemic was having on the business.

1. A further email to Mr Freeman from Ms Paget on 13 January 2022 asked for a current payslip verifying that there were no outstanding leave entitlements, acknowledged the position outlined by Mr Freeman as to the applicant’s intended work resumption in March 2022 and restated the request for an indication in writing that the applicant is still employed to support his sickness benefits application.

1. After some further email exchanges, a staff member of the respondent, Ms Tracy O’Dea, sent an email to the applicant on 20 January 2022 advising that, following the request for payment of annual leave “as [he] [was] unable to perform [his] duties” that all “entitlements were paid out and termination of employment”. On the same day, the applicant responded to Ms O’Dea indicating that this was the first time he had been advised that his employment had been terminated and requesting confirmation of the grounds on which he was terminated and an explanation for the failure to notify him of the termination of his employment. On 21 January 2022, the applicant sent a text message to the respondent’s operations manager complaining about the fact that he was not informed that his employment had been terminated and that he had a few days earlier requested a date on which he could return to work when fit. Later that day the applicant requested by email to Ms O’Dea that a separation certificate be provided to him on that day.

1. No separation certificate was provided and no response to the emails described above was given by the respondent.

1. On 24 January 2022, Ms Paget sent another email to Ms O’Dea requesting an explanation for the applicant’s employment termination and requesting a separation certificate.

1. On 27 January 2022, Mr Freeman wrote by email to Ms Paget indicating that Ms O’Dea had advised him that Ms Paget had requested all of the applicant’s entitlements to be paid out, Ms O’Dea caused those entitlements to be paid out and the applicant’s employment was terminated. This was because the applicant had advised Mr Freeman that he was unfit to work and therefore unable to perform his duties. Ms Paget responds on the same day. She reiterates the circumstances of the leave request and sets out that which was requested. She points out that the applicant has not been advised that his employment was terminated and that the applicant took unpaid leave when he became unfit for work. She requests a separation certificate.

1. An undated separation certificate setting out the date employment was terminated as 17 October 2021 (which does not correspond with the date the respondent now alleges the dismissal took effect) was sent to the applicant and subsequently received by him on 1 February 2022.

1. As I have earlier indicated on no account could it be said that the applicant was dismissed on 20 October 2021. Mr Freeman did not at that time make a decision to dismiss and it appears that the respondent plainly misunderstood a request for annual leave as terminating the employment.

1. All of the email exchanges that occurred in the early or middle part of January 2022 were concerned with the circumstances which were said to have occurred in October 2021. Ms O’Dea’s email to the applicant on 20 January 2022 suggesting that employment had been terminated in October 2021 was not effective to terminate the employment relationship. She was merely restating the mistaken assumption made by the respondent that the applicant’s request for annual leave was in effect a request to end the employment relationship. That was wrong. Moreover, Ms O’Dea did not give evidence and there is no evidence of any actual or apparent authority that Ms O’Dea had to terminate the employment. To the extent that the respondent purported to treat the employment relationship as having ended it did not communicate this to the applicant. It did not communicate to the applicant that it was now departing from the earlier agreed leave without pay period until the New Year.

1. On a proper construction of the factual matrix described above it was not until 27 February 2022 when Mr Freeman wrote to Ms Paget that it could be said that the respondent was bringing the employment relationship to an end and notifying the applicant that that was the case. The subsequent sending of the separation certificate did not bring the employment relationship to an end. It was the communication by Mr Freeman on 27 January 2022 to Ms Paget who had been liaising with the respondent in respect of the applicant’s affairs that brought the employment relationship to an end.

1. I therefore determine that the dismissal of the applicant was effected on 27 January 2022. In those circumstances the application lodged on 16 February 2022 was lodged within 21 days after the dismissal took effect and so was within time. It is therefore not necessary to consider whether a further period should be allowed.

1. But if I am wrong about this conclusion and the employment ended on 20 October 2021, as the respondent contends, I would in any event allow a further period within which the applicant would be permitted to lodge his application because I am satisfied that there are exceptional circumstances, and they warrant an extension of time.

1. Self-evidently the reason for the delay or at least for a significant portion of it was the uncommunicated assumption made by the respondent that the employment relationship had ended in circumstances where the applicant was entitled to believe that the earlier agreed arrangement of unpaid leave continued to apply. The applicant only learned of the fact that the respondent contended that he had been dismissed in October 2021 towards the latter part of January 2022 and thereafter spent some time seeking to clarify the position with the respondent. Based on the correspondence earlier discussed, the applicant also had a reasonable basis for believing that his employment did not end until the latter part of January 2022. In the circumstances of the case this is an acceptable reason for the delay, or at least part of the delay, and it weighs in the applicant’s favour.

1. Plainly the applicant did not learn of his dismissal or that it took effect on 20 October 2021 until well after that date and well after the time for lodging an unfair dismissal application could be made. He was plainly disadvantaged by the fact that the respondent did not notify him of his dismissal. This consideration weighs in the applicant’s favour.

1. As is evident from the correspondence discussed above the applicant took steps to dispute his dismissal directly with the respondent. That it is so also weighs in his favour. There is no discernible obvious prejudice to the respondent including any obvious prejudice caused by the delay. It should be observed that the delay is largely caused by the respondent’s failure to tell the applicant that he had been dismissed. The absence of prejudice also weighs in the applicant’s favour.

1. As to the merits of the application, based on the material before me, some of which is discussed earlier, the application is not without merit. This consideration also weighs in the applicant’s favour.

1. Considerations as to fairness between the applicant and other persons in a similar position weigh neutrally since there is nothing before me which would assist in assessing this consideration.

1. Section 394(3) allows the commission to allow a further period for an unfair dismissal remedy application to be made if the Commission is satisfied there are exceptional circumstances taking into account the matters enumerated therein and discussed above. As is plain from that discussion, most of the relevant considerations weigh in the applicant’s favour. Taken together they disclose exceptional circumstances and in the circumstances of this case I would be positively disposed to exercising my discretion in favour of granting an extension of time. Were it necessary to do so, I would allow a further the period within which the applicant may file only unfair dismissal application, that is until 16 February 2022.

1. Directions for the further conduct of the application are separately issued to the parties along with this decision.

DEPUTY PRESIDENT

Appearances:

Ms K Paget on behalf of the applicant
Mr D Freeman on behalf of the respondent

Hearing details:

2022
Melbourne (by video)
11 April

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