Kyle Foster v Belgravia Health & Leisure Group Pty Ltd

[2024] FWC 3510

[2024] FWC 3510

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kyle Foster
v

Belgravia Health & Leisure Group Pty Ltd

(U2024/12519)

DEPUTY PRESIDENT COLMAN MELBOURNE, 16 DECEMBER 2024

Unfair dismissal application – resignation – out of time – application dismissed

1. Kyle Foster has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). His former employer, Belgravia Health and Leisure Group Pty Ltd (Belgravia), objects to the application, firstly on the ground that it did not dismiss Mr Foster, and secondly on the basis that the application is out of time and there are no exceptional circumstances to warrant an extension.

1. Mr Foster resigned from his employment with Belgravia. On 30 August 2024, Mr Foster sent an email to Tim Free, its operations manager, attaching a resignation letter in which he stated that he was formally resigning from his position effective 4 weeks from the date of the letter. The letter stated that he had decided to pursue a better opportunity, one that was more aligned with his family’s needs and his long-term career goals. The covering email stated that his resignation would take effect from 27 September 2024. Mr Foster contends that he was forced to resign because Belgravia unreasonably refused his request to extend the period of annual leave he had been taking, following a period of parental leave and the birth of his child. He said that his partner had post-partem depression, and that he was not ready to go back to work. He also said that Belgravia had previously indicated that he would be able to extend his leave but then refused to allow this. Mr Foster believes that the refusal was connected to the fact that he had been looking for other jobs.

1. Section 386 of the Act states that a person has been dismissed if the person’s employment was terminated ‘on the employer’s initiative’, or if a person resigned but was ‘forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.’ I find that Mr Foster was not forced to resign. The matters to which he refers were good reasons for him to resign, but they were not matters that compelled him to do so. The resignation letter makes no reference to forced resignation or circumstances of compulsion. It referred instead to his pursuit of a better opportunity, and to long-term career goals. Mr Foster said that on 30 September 2024, he found a new job, on a higher salary. This fact tells against Mr Foster’s submission that he was forced to resign, firstly because a higher salary would be a logical reason to leave his old job willingly, and secondly because a new job would presumably require him to commence work, rather than permit him to take more time off. (It would also appear that the most Mr Foster could hope to be awarded in compensation, should his unfair dismissal application proceed and succeed, is three days’ wages, as this is the extent of his compensable loss). In any event, I do not accept that Mr Foster had no choice but to resign. He decided to do so, for his own good reasons. I find that Mr Foster was not dismissed on the employer’s initiative, nor was he forced to resign by the conduct of his employer.

1. Further, if there was a dismissal, it occurred on 27 September 2024, the day on which Mr Foster’s alleged forced resignation took effect. Mr Foster stated in his application that the dismissal occurred on 30 September 2024, but he explained at the determinative conference that this was in fact the date that he had been due to return to work. The unfair dismissal application was lodged on 20 October 2024, 23 days after the alleged constructive dismissal on 27 September 2024. Applications under s 394 must be made within 21 days of the dismissal. The Commission can only extend time if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in ss 394(3)(a) to (f). I am not satisfied that there are exceptional circumstances. I find that there was no good reason for the delay; the applicant was aware that the date of the alleged constructive dismissal was the date he specified in his email; Mr Foster did not refer to any other action that he took to dispute the dismissal; and there is no prejudice to the employer. If there was a dismissal, the application would have merit, but in my view there was no dismissal. There are no considerations that are relevant to the matter in s 394(3)(f). Taking into account the mandatory considerations, I conclude that there are no exceptional circumstances in this case. An extension of time cannot be granted.

1. For each of the above reasons, the application is dismissed.

DEPUTY PRESIDENT

Appearances:

K. Foster for himself
M. Farkas for Belgravia Health & Leasure Group Pty Ltd

Hearing details:

2024
Melbourne (by telephone)
16 December

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