Kingsley Karunaratne v APS Industrial Pty Ltd
[2023] FWC 2475
•28 SEPTEMBER 2023
| [2023] FWC 2475 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kingsley Karunaratne
v
APS Industrial Pty Ltd
(U2023/8183)
| COMMISSIONER TRAN | MELBOURNE, 28 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – extension of time – application dismissed.
On 30 August 2023, Mr Kingsley Karunaratne (the Applicant) made an application to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act (the Act) in relation to the termination of his employment by APS Industrial Pty Ltd (the Employer).
The Employer objected to Mr Karunaratne’s application on the grounds that:
- It was made outside the 21-day timeframe specified in s 394(2) of the Act; and
- The Employer did not dismiss the Applicant.
Mr Karunaratne’s employment ended on 8 August 2023 by way of resignation. He says that he was forced to resign due to conduct of the Employer in the month prior to his resignation.
Before determining whether the dismissal (if any) was unfair, the Commission must be satisfied that an application was made within time or allow a further period of time under s 394.
Having considered the evidence and submissions of the parties, and the factors in s 394(3) of the Act, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. Therefore, the application is dismissed. My detailed reasons follow.
Background
Mr Karunaratne commenced employment with the Employer on 3 November 2011 as Technical Internal Sales.
On 8 August 2023, Mr Karunaratne’s employment with the Employer ended. Both parties’ evidence is that the employment ended by way of a resignation, verbally on 8 August 2023 and by email at 5.00pm on that same date.[1]
Mr Karunaratne’s evidence is that he was unwell, both physically and mentally, and could not “get to lodge” the application until the last moment, being 29 August 2023.[2] However, when he began looking at the process on the Commission’s website, he did not have the mental capacity to complete it as he was “psychologically very down”, and so did not.[3]
He took to his bed and the following day, did succeed in making the application – one day late – on 30 August 2023 at about 4:00pm.[4]
Materials before me
Directions were issued and material, including witness statements, documentary evidence and submissions, were filed by both parties in accordance with those directions.
An in-person hearing was held on 21 September 2023.
At the hearing, Mr Karunaratne provided evidence under affirmation. I found Mr Karunaratne to give his evidence that was consistent with his witness statement and materials, and in an honest, genuine and sincere manner. I asked a number of questions of Mr Karunaratne during the hearing, and he answered each thoughtfully and fully.
The Employer supplemented its written submissions with brief verbal submissions.
While Mr Karunaratne acknowledges that he lodged his application one day late, he alternatively submits that he is within time on the basis that his employment contract:
provided that either party may terminate the contract by giving two weeks' notice (contract clause 19);
the Employer paid him two weeks' payment in lieu of notice;
pursuant to clause 20 of this employment contract, he remained an employee of the employer as he was paid while not working; and
therefore his employment end date was 2 weeks after 8 August 2023 and his application made on 30 August 2023 was within the standard time limit of 21 days after the dismissal took effect.
When did the dismissal take effect?
It is not disputed that Mr Karunaratne’s employment ended on 8 August 2023 by way of resignation.
Mr Karunaratne’s evidence is that:
After the above meeting on 8th of August she (being his manager) sends me an email scheduling another meeting within 3 days. I was devastated how they can give me 3 days to improve on things that they say about my performance. This pushed me in to my limits and I felt very sick. I had no other choice and felt I was forced & pressured to offer my resignation on the same day at 5.00pm.[5]
The Employer tendered an email of Mr Karunaratne to Ms Kathryn McCann (National Customer Service Manager of the Employer and Mr Karunaratne’s manager) which indicates that it was sent on Tuesday 8 August 2023 at 5:11pm.[6] The subject of the email was ‘Resignation’ and the text of the email was:
Hi Kathryn,
Please accept this message as formal notice of my resignation from my position effective today.
Yours sincerely
Kingsley Karunaratne[7]
In oral evidence, Mr Karunaratne confirmed that he sent the above email and further stated that he then walked into Ms McCann’s office to let her know that he had sent an email resigning. He then handed back his laptop computer and the keys to his desk cupboard.[8]
The Employer also issued a Centrelink form SU001 - Employment Separation Certificate, which the Applicant provided as part of his materials. The form is dated 10 August 2023 and notes that Mr Karunaratne’s employment ceased on 8 August 2023.[9]
Mr Karunaratne submits that, by operation of the notice and payment in lieu of notice provisions of his employment contract, his employment ended 2 weeks later and thus an application filed on 30 August 2023 was within the relevant time period.
The relevant clauses of Mr Karunaratne’s contract are:
19. TERMINATION WITH NOTICE
i. Following any Probationary Employment Period, either party may terminate this Contract by giving the required amount of written notice to the other party which is 2 weeks (“Notice Period”).
ii. The Notice Period will not be reduced under any circumstances.
20. PAY IN LIEU OF NOTICE
If notice of termination is given by either the Employer or Employee, the Employer is entitled to pay the Employee in lieu of the Notice Period or any other period. Pay in lieu of notice comprises the base salary (salary component of the remuneration package), superannuation, and any commission to which the Employee is entitled. During the period of time that the Employee is paid while not working with the Employer, the Employee will remain an employee of the Employer and is not entitled to work with any other person or on their own behalf.[10]
The Employer submits they elected to make a payment in lieu of notice of 2 weeks pay, and Mr Karunaratne tendered payslips that confirmed such a payment was made.[11] The Employer further submits that Mr Karunaratne resigned and made clear that the resignation was to take effect on 8 August 2023. He did not attend work after that date, and the employment ended on 8 August 2023.
A payment in lieu of notice is a decision of an employer to make a payment instead of requiring an employer to remain employed and work the period of notice. Lieu is the French word for place, and the literal meaning is a payment in place of notice.
The final sentence of Clause 20 does confuse the matter. The Employer submitted that the final sentence is a ‘garden leave provision’. I do not propose to determine that issue, as this is not a matter where the Employer has communicated something to an employee and then made a payment in lieu of notice such as to muddy the issue of when employment ended.
Rather it is clear from Mr Karunaratne’s email of 8 August 2023 at 5:11pm that it was his intention to resign, and his intention that his resignation was to take effect on that date. His actions immediately following that email by returning his computer and his key confirm this, demonstrating that he did not intend to return to work nor to complete any further work. The Employer accepted his resignation and elected to make a payment in lieu of notice. The payment does not alter when his resignation took effect.
Having regard to the above, I find that Mr Karunaratne’s employment ended with effect on 8 August 2023.
In accordance with s 394, an application for an unfair dismissal remedy must be made within 21 days of the above date, being 29 August 2023. Mr Karunaratne’s application was filed one day late, on 30 August 2023. In order to proceed, the application must therefore be allowed a further period of time in accordance with the Act.
Relevant Law
Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
Section 394(3) of the Act provides that:
[t]he 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 similar position.
The legislation is clear that the power to extend time is discretionary, but may only be exercised if first satisfied that there are exceptional circumstances.
Exceptional circumstances are not defined in the Act, but the case law, as summarised in Nulty v Blue Star Group Pty Ltd[12] at [13], establishes the following:
-the Commission must consider all of the circumstances;
-the phrase’s ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;
-however, the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare;
-a single event can be exceptional;
-a combination of factors or events could together be viewed as out of the ordinary, unusual, special, or uncommon, even though the individual factors or events in isolation are not exceptional.
The matters in s 394(3) are factors to be taken into account in ascertaining whether there are exceptional circumstances. The factors themselves do not have to be exceptional.
The final conclusion about whether there are exceptional circumstances requires a consideration of all the relevant matter, assigning appropriate weight to each, as set out in Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters.[13]
I take the following factors into account
394(3)(a) – the reason for the delay
The Applicant’s evidence and submission is that the reason for the delay in lodging his application was his “poor health and mental status” as a result of the events that led to his resignation, being the commencement of a performance improvement process.[14]
In oral evidence, Mr Karunaratne elaborated on his poor health, describing feeling shamed, embarrassed, humiliated and confused, depressive feelings and mentally numb, not eating or sleeping properly, and not engaging with his family.[15] He did not attend a doctor until after the standard time limit expired. He also described how the events that led to his resignation made him nervous and upset, especially considering his many years of employment where issues with his performance had never arisen.[16] It must be noted that Mr Karunaratne was referring to his entire working history, and not only his employment with the respondent Employer.
At the hearing, Mr Karunaratne tendered into evidence a medical certificate of a Dr Roshan Mendis.[17] The medical certificate was simply that – it stated that Mr Karunaratne was unfit to continue his usual occupation on 30 August 2023, the day on which he lodged his application.
It was Mr Karunaratne’s evidence that he was aware of the time limit, had made enquiries about an unfair dismissal application by reviewing the Fair Work Commission’s website, and had begun an application prior to the time limit expiring.
Unfortunately, there is nothing unusual in feeling upset, nervous or unwell as part of a performance improvement process. There is also nothing unusual about being stressed or anxious following termination of employment.
I consider that this factor does not weigh in favour of extending time.
394(3)(b) - whether the person first became aware of the dismissal after it had taken effect
As detailed in paragraphs [17] – [18], Mr Karunaratne resigned on 8 August 2023 and indicated that his resignation would take effect on that date. He was therefore aware of when his employment ended.
I consider that this factor does not weigh in favour of extending time.
394(3)(c) - any action taken by the person to dispute the dismissal
The parties are in agreement that Mr Karunaratne did not take any action to withdraw or dispute the acceptance of his resignation prior to lodging this application.
I consider this factor neutral in my determination of this matter.
394(3)(d) – prejudice to the employer (including prejudice caused by the delay)
The delay was one day. The Employer in its submissions stated that it accepts that the delay is minimal.
I consider this factor neutral in my determination of this matter.
394(3)(e) – the merits of the application
The Employer submits that, should the Applicant be granted an extension of time, it will seek a jurisdictional hearing on the basis that it did not dismiss the Applicant.
Section 386(1) of the Act states:
(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.
Mr Karunaratne’s case is that he was forced to resign by a conduct or a course of conduct of the Employer, being action taken following raising concerns with him about his performance. In addition, Mr Karunaratne submitted that the course of conduct engaged in by the Employer in the months leading up to his resignation included requiring him to perform duties that were not within his job description, applying unnecessary pressure and finding errors in his performance.
The Employer submits that it was not unreasonable for it to place Mr Karunaratne under a performance improvement process, and that it had lawfully and reasonably directed the Applicant to attend meetings to discuss a performance improvement plan and the way forward. The Employer submits that these actions did not have the effect of bringing the employment to an end, referring me to the matter of Ashton v Consumer Action Law Centre[18] at paragraphs [47] and [48].
My assessment of the merits for the purposes of this matter is primarily whether the Applicant has an arguable case. While the submissions, evidence and filed material discloses that Mr Karunaratne did indeed resign during what appeared to be the early stages of a performance improvement process, I did not hear fulsome evidence on how Mr Karunaratne says the Employer’s conduct or course of conduct forced him to resign such as to render the resignation a dismissal within the meaning of s 382(1(b).
I consider this factor to weigh mildly against granting an extension of time.
394(3)(f) – fairness as between the person and other persons in a similar situation
The Employer submitted that there were no other employees in a similar position to the Applicant. The Applicant submitted that this factor was not relevant to his situation.
I consider this factor neutral in my determination of this matter.
I do not grant an extension of time
Weighing all the above matters, I formed the view that there were not exceptional circumstances such as to allow me to exercise a discretion to extend time.
I therefore dismiss Mr Karunaratne’s application for an unfair dismissal remedy.
COMMISSIONER
Appearances:
Mr Kingsley Karunaratne for himself
Mr Peter Thomas, General Counsel for the Respondent
Hearing details:
3:00pm Thursday, 21 September 2023 at the Fair Work Commission in Melbourne
[1] Digital Hearing Book (DHB) 71; Annexure R-1 to Respondent’s submissions.
[2] DHB 7; Applicant’s Outline of Argument; Extension of time, Question 3.
[3] Transcript PN17.
[4] Ibid PN18.
[5] DHB 17, Applicant’s Statement of evidence [10].
[6] DHB 71, Annexure R-1 to Respondent’s submissions.
[7] Ibid.
[8] Transcript PN48 – PN61.
[9] DHB 43-44, Employment Separation Certificate (SU001).
[10] DHB 37-38, Employment Contract cl 19-20.
[11] DHB 45-46, Payslip dated 10 August 2023.
[12] [2011] FWAFB 975.
[13] [2018] FWCFB 901 [39].
[14] DHB 7, Applicant’s Outline of argument; Extension of time, Question 3.
[15] Transcript PN16.
[16] Ibid PN46.
[17] Exhibit 18 – Medical Certificate, tendered during proceedings.
[18] [2010] FWA 9356.
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