Joseph Walsh v All Ways Glass and Glazing
[2023] FWC 781
•31 MARCH 2023
| [2023] FWC 781 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Joseph Walsh
v
All Ways Glass And Glazing
(U2023/443)
| DEPUTY PRESIDENT LAKE | BRISBANE, 31 MARCH 2023 |
Application for an unfair dismissal remedy – jurisdictional objection – application made outside of statutory timeframe – application for extension of time dismissed – no dismissal – objection upheld – application dismissed.
This decision concerns an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) by Mr Joseph Walsh (the Applicant). All Ways Glass And Glazing (the Respondent) has raised two jurisdictional objections to the application proceeding on the basis that the application was allegedly made out of time. If the Commission finds that an extension of time should be granted, the Applicant has not been dismissed within the meaning of s.386 of the Act.
The jurisdictional objections arise because – it is claimed by the Respondent – the Applicant did not file his application within the 21-day statutory timeframe. If an extension is granted, the Applicant has not been dismissed by the Respondent. The Applicant left of his own accord and requested a separation certificate.
The Applicant was self-represented, and the Respondent was represented by the owner and father of the Applicant, Mr Gregory Walsh.
Background
The Applicant began his employment on 6 October 2020 as an apprentice glazier. The Applicant alleges that he was dismissed on 15 December 2022. The Respondent alleges that the Applicant was not terminated. The application was lodged with the Commission on 17 January 2023.
On 15 December 2022, the Applicant was in the workshop working on a sliding window. Mr Walsh entered the workshop, and an altercation began due to the window being broken. Tempers rose, and the altercation led to the Applicant walking away from Mr Walsh. The Applicant then called Ms Rhonda Walsh – the mother of the Applicant and ex-wife of Mr Walsh – to pick him up from the workplace. The Applicant then re-entered the workshop to collect his sunglasses. The Applicant then left the workshop for a second time. As Ms Walsh arrived, Mr Walsh approached the vehicle and stated words that are currently in contention. The Applicant then entered the car, and both the Applicant and Ms Walsh left the workplace.
The Applicant’s Submissions and evidence
In summary, the Applicant submits that he was dismissed on 15 December 2022 by Mr Walsh on two clear instances. The first instance being when the Applicant re-entered the workshop to grab his sunglasses, and the second instance being when Ms Walsh arrived to pick the Applicant up from work. To support this submission, the Applicant gave oral evidence and Ms Walsh also provided her own witness statement and oral evidence in support.
Evidence of the Applicant
On 15 December 2022, the Applicant was fixing a broken sliding window in the workshop. As he was working, Mr Walsh came into the workshop and accused the Applicant of breaking the frame of the sliding window. The Applicant asserts that the window was already broken when he took it apart. This led to a verbal altercation between the two men. Mr Walsh grabbed the piece of framing and waved it in the Applicant’s face. The Applicant told Mr Walsh not to do it again, otherwise he would get mad. Mr Walsh repeated this action, upsetting the Applicant. He left the workplace and called Ms Walsh to pick him up. As the Applicant awaited the arrival of Ms Walsh, he walked back into the workshop to collect a pair of sunglasses that he left inside. As he was collecting his sunglasses, Mr Walsh told the Applicant to pack all his things as he was not coming back.
Ms Walsh then arrived at the workshop. Mr Walsh approached the vehicle and told her that the Applicant will not be working again in the future. The Applicant accepted this as termination of his employment.
Leading up to the filing of his application, the Applicant admitted that he had no guidance or support with the process and was ignorant of the procedures for filing an application for unfair dismissal. He knew Mr Walsh was going away for the Christmas holidays so he could not contact Mr Walsh. In the New Year, the Applicant texted Mr Walsh asking for a termination certificate and two weeks of pay in lieu of notice. The Applicant requested the termination certificate as he would be unable to get Centrelink support without it.
The Applicant decided to make an unfair dismissal application on 17 January 2023. He was originally not thinking of filing an application until he was informed by Mr Walsh that he would not be receiving any pay in lieu of notice. As the Applicant had been out of work for one month and was relying on the payment, he sort compensation through the Commission.
He confirmed that he has no statutory entitlements owing. All that he is seeking is payment in lieu of notice.
In cross-examination, the Applicant conceded that when he re-entered the workshop, he did punch a glass sign in the workshop and kick a rubbish bin. Both were damaged.
Evidence of Ms Rhonda Walsh
Ms Walsh provided the Commission with a brief witness statement and oral evidence in the hearing.
She confirmed that she collected the Applicant from the workplace on 15 December 2022. She also confirms that Mr Walsh approached the vehicle and made it very clear verbally that the Applicant was not to return to the workplace. The words were, “he would not be coming back here to work”. In no uncertain terms, the Applicant was dismissed.
Ms Walsh acknowledged that she was involved and assisted the Applicant in filing his application to the Commission. She provides that it was the Applicant’s decision to file the application, he received the termination certificate and was advised no payment would be made in lieu of notice. This led to him deciding to file his application.
Respondent’s submissions and evidence
In summary, the Respondent submits that the Applicant was not dismissed. He requested a separation certificate and two weeks of pay in lieu of notice. When he did not receive payment, he launched his application for unfair dismissal. The reasons given by the Applicant for the lateness of his application are not exceptional.
Evidence of Mr Gregory Walsh
During the hearing, Mr Walsh provided testimony of the events on 15 December 2022 and the communications received from the Applicant post 15 December 2022 and prior to the filing of the application. He maintains that the Applicant’s statement of events is factually incorrect and denies that a termination occurred.
He rejects the Applicant’s contention that the Applicant did not break the window. Mr Walsh informed the Commission that the window the Applicant was working on was between six to twelve months old and in perfect condition when it was brought into the workshop. When the Applicant damaged the frame of the window, this is what led to the initial argument in the workshop between the Applicant and Mr Walsh.
Mr Walsh stated that he did not talk to the Applicant after he left the workshop for the first time. When the Applicant re-entered the workshop, he understood that the Applicant was livid, so re-engaging in a discussion with the Applicant would have been a fruitless endeavour. The Applicant was swearing as he walked around the workshop. This is when the Applicant punched a sign and kicked a rubbish bin, damaging both items and injuring his hand in the process.
The Applicant then went out the front of the business on the footpath and began screaming obscenities. Ms Walsh’s car then pulled up to the front of the business. Mr Walsh approached Ms Walsh’s car and said the words, “get him out of here”. The Applicant tried to hush Mr Walsh to prevent him from making a scene. The Applicant entered the car and left the workplace. Mr Walsh then spent the next twenty minutes cleaning up the blood and glass from the broken sign left in the wake of the Applicant’s rampage.
Mr Walsh received no contact from the Applicant from 15 December 2022 to 3 January 2023. He confirmed that he checks his mobile phone and email every day. The Applicant was expected at work on 16 December 2022 but did not attend or contact the business. Mr Walsh expected the Applicant would return on 16 December 2022 as the Applicant has a history of not returning to work. Mr Walsh gave the Commission an example where the Applicant was absent for a twenty-one day period between 26 August 2022 to 24 October 2022.
The Applicant did not attend work on 19 or 20 December 2022. The business was then closed for the holidays between 21 December 2022 to 16 January 2023.
On 4 January 2023, Mr Walsh received a text message from the Applicant requesting a separation certificate so he may apply for Centrelink support and two weeks of pay in lieu of notice.
On 16 January 2023, Mr Walsh with the support of administrative staff drafted up the separation certificate.
On 17 January 2023, Mr Walsh issued the separation certificate by email. In the email, Mr Walsh explains that he did not provide two weeks of pay in lieu of notice as he did not dismiss the Applicant from his role. He also provided “fatherly advice”, asking him not to seek Centrelink support, finish his trade, and to get in contact with another glazier that he contacted, informing him that the Applicant was looking for work.
The Applicant is out of time
The Respondent submits that if the Commission is satisfied that the Applicant was dismissed, then the Applicant’s termination was affected on 15 December 2022. The Applicant’s lodgement date of 17 January 2023 placed him outside of the 21-day time limit.
The Applicant submits at 1.4 and 1.5 of his Form F2 that he was notified of his dismissal and the effective date of his dismissal was 15 December 2022. The Applicant concedes that he did file his application outside of the 21-day statutory timeframe at 1.6. However, he explains that he was not provided with any information regarding his dismissal. He was only aware that he was dismissed on 15 December 2022 when he was told by Mr Walsh that he was “not to come back” and when he received an email with his separation certificate on 17 January 2023.
The Respondent submits that none of the exceptions to the 21-day time limit apply as set out in s.394(3) of the Act apply.
Jurisdictional Objections
Although there have been contentions raised regarding whether the Applicant resigned or was dismissed, I will need to determine whether the Application should be granted an extension of time. The Full Bench of the Commission states in Herc v Hays Specialist Recruitment (Australia) Pty Ltd:[1]
“[17] While it may be necessary to assume that an applicant is an employee for the purposes of determining whether an application for an unfair dismissal remedy is made outside the required time, and if necessary, whether a further period should be granted for the application to be made, such assumptions cannot be made with respect to other jurisdictional objections.
Where time is extended or an application is made within time, and an objection as to whether the applicant is an employee is raised, that objection must be dealt with before consideration can be given to other objections such as whether the person was dismissed, high income threshold or genuine redundancy.
We observe, without deciding, that there may be single cases where objections on the grounds of no dismissal, high income threshold, minimum employment period or genuine redundancy are made, and it is convenient to decide one of these issues without deciding the others. However, it is not a proper approach to deal with any of these objections before finding that an application is made within the required period or granting a further period and then determining whether an applicant is an employee and if necessary, the identity of the employer.”
If it should be found that an extension of time should not be granted, then I will consider whether the Applicant was dismissed.
Should a further period be granted?
Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for a general protections application involving dismissal be made:
“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b)whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a like position.”
The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[2] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[3] the Full Bench of Fair Work Australia stated that:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
Although Nulty concerned the expression ‘exceptional circumstances’ in the context of s.365 of the Act, its reasoning applies to s.394(3).
For the Applicant’s unfair dismissal application to proceed, it is necessary for him to obtain an extension of time under s.394(3) of the Act. I must therefore be satisfied that there are “exceptional circumstances”, taking into account each of the matters in s.394(3) of the Act.
Consideration of extension of time
Reason for the delay (s.394(3)(a))
The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[4] or a reasonable explanation.[5] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:
“The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each.” [6]
It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[7]
The Applicant’s chief reason for being unable to lodge his application in time was that he was ignorant of the procedures and deadlines for filing an application for unfair dismissal.
I am not satisfied that the explanation provided by the Applicant is a sufficient reason to meet the high threshold of establishing an exceptional circumstance. The principles of the statutory timeframe of filing an unfair dismissal application are already well established by Commissioner Roe in Rose v BMD Constructions Pty Ltd.[8] The Commissioner held that ignorance of the timeframe is not sufficient to justify an extension of time.
Therefore, the Applicant has not established a sufficient reason for delay. This consideration weighs against an extension of time.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
I am satisfied the Applicant became aware of his dismissal on 15 December 2022 during his verbal altercation with Mr Walsh. The Applicant was rostered to work on 16 December 2022, 19 December 2022, and 20 December 2022. However, he did not attempt to contact the Respondent or attend the worksite.
This consideration weighs against an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
The Applicant has taken no steps to dispute his dismissal with the Respondent besides lodging an unfair dismissal application.
This factor weighs against an extension of time.
Prejudice to the employer (s.394(3)(d))
The Respondent made no submission in relation to this factor and presented no evidence of any prejudice. That said, the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.[9] I consider this factor to be neutral.
Merits of the Application (s.394(3)(e))
In Kornicki v Telstra-Network Technology Group,[10] the Commission considered the
principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the
Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
Without a hearing on the merits, it is difficult to consider the merits of the Applicant’s claim. Accordingly, I find this a neutral factor in this application.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[11]
The parties did not draw to my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. This is ultimately a neutral factor in my determination.
Consideration of whether the Applicant was dismissed
Section 386 of the Act relevantly provides:
“386 Meaning of dismissed
(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.”
Section 386 of the Act has created a clear “bifurcation in the definition of “dismissal” and has created two clear grounds on which a claim could potentially proceed.[12] The Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan provided clarity as to these two distinct grounds:[13]
“[9] The distinction between a dismissal falling under s.386(1)(a) and one falling under s.386(1)(b) is sought to be explained in the Explanatory Memorandum to the Fair Work Bill 2008 as follows:
“Clause 386 – Meaning of dismissed
1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
● where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
● where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
[10] It seems clear from the above that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:
“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’
[12] Importantly, in Mohazab the Court did not decide that the termination of employment in that case was at the initiative of the employer because there had been a constructive dismissal. Indeed, the Court expressly observed that it was “. . . unnecessary to consider whether the facts fall within or without the notion of constructive dismissal.”
[13] As s.386(1)(b) is intended to capture or reflect the common law concept of constructive dismissal and as the Commissioner concluded that “the applicant was constructively dismissed” because she had accepted the Appellant’s repudiation of the contract of employment and thereby brought the contract and the employment under it to an end, we consider that when read in its entirety the Commissioner concluded that the Respondent had been dismissed within the meaning of s.386(1)(b) of the Act.”
In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, the Full Bench expanded on the content of the two limbs:
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable (sic) result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
(emphasis added)
The Applicant’s concessions regarding breaking the sign and kicking the rubbish bin does give his evidence some credibility. However, I believe due to the nature of the argument and how chaotic the event was, I am not inclined to give much weight to the Applicant’s evidence.
Ms Walsh did not witness the events in the workshop. She did attest in her witness statement that Mr Walsh approached the vehicle and made it very clear verbally that the Applicant was not to return to the workplace, stating “he would not be coming back here to work”. The difference between “get him out of here”, “do not come back”, and “do not return to the workplace”, and “he will not be coming back here to work” is quite subtle and can be lost in the commotion of heated tempers. I do respect that Ms Walsh has taken her time to give evidence in the Commission, and I am inclined to give her evidence some weight. However, as she cannot have known the mind of Mr Walsh, I find that the words she heard are not a clear indication of dismissal.
I accept that Mr Walsh may have handled the situation with the glass window rather harshly. The Commission cannot take any situation between an employer and employee lightly where there may be even the slightest indication of harsh treatment. However, Mr Walsh is running a small business. He has provided cogent evidence of the situation and I have no doubt that he had no intention of dismissing his own son from his business. This situation may have been the boiling point which led to the verbal altercation. However, I do not believe there was any intention to dismiss. I favour Mr Walsh’s evidence in this instance.
Despite the lack of a copy of the Applicant’s text message asking for a certificate and payment in lieu of notice, both the Applicant and Respondent in their evidence agree that the message did exist. Therefore, I am inclined to believe that the Applicant did send this message and that this is confirmation that the Applicant resigned from their position.
Conclusion
Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. If exceptional circumstances are found, I find that there was not a dismissal pursuant to s.386(1) of the Act.
The jurisdictional objections are upheld and the application for an unfair dismissal remedy is dismissed. I Order accordingly.
DEPUTY PRESIDENT
[1] Herc v Hays Specialist Recruitment (Australia) Pty Limited[2022] FWCFB 234 at 17 (Catanzariti VP, Asbury DP, Lake DP).
[2] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901, [14].
[3] [2019] FWC 25.
[4] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].
[5] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].
[6] [2018] FWCFB 901, [39].
[7] Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149, [31]–[33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine[2016] FWCFB 6963.
[8] [2011] FWA 673 at [11].
[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[10] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[11] Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].
[12] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, [47].
[13] City of Sydney RSL & Community Club Ltd v Balgowan[2018] FWCFB 5, [9]-[13] (Balgowan).
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