Lachlan Schilt v Santoni Pty Ltd T/A Santoni Pizza

[2020] FWC 7052

[2020] FWC 7052

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lachlan Schilt
v
Santoni Pty Ltd T/A Santoni Pizza
(U2020/15926)

DEPUTY PRESIDENT CLANCY MELBOURNE, 23 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] On 13 December 2020, Mr Lachlan Schilt made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Schilt’s unfair dismissal application is Santoni Pty Ltd T/A Santoni Pizza (Santoni Pizza).

[2] Mr Schilt recorded in his Form F2 – Unfair Dismissal Application (Form F2) that his dismissal was notified on 25 November 2020 but that it took effect on 27 October 2020. This indicated that the unfair dismissal application may not have been made within 21 days of his dismissal taking effect. As s.394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or “within such further period as the Commission allows” under s.394(3), this file was allocated to me for the purposes of determining whether an extension of time for the making of Mr Schilt’s application should be granted.

[3] The parties filed material in response to Directions I made on 15 December 2020 and I conducted a Determinative Conference on 23 December 2020. Mr Schilt was accompanied by his mother, Ms Soulla Nicodimou. Santoni Pizza was represented by its Director, Mr Michael Koutroulis.

Background facts

[4] Mr Schilt commenced employment with Santoni Pizza in December 2017. It would appear he commenced as a casual employee and may subsequently have become a part time employee. The parties could not agree in their evidence before me as to what Mr Schilt’s regular hours of work were. In any event, during the COVID-19 lockdown restrictions in Victoria, Mr Schilt’s hours were reduced and he received JobKeeper payments. The parties’ versions of events differ but it is clear on the evidence before me that they had a difference of opinion as to the hours of work Mr Schilt should have been performing as time went on. Certainly it became the case that what hours of work Santoni Pizza required of Mr Schilt and what Mr Schilt was prepared to make himself available to perform did not align and this was a festering source of tension.

[5] On 22 October 2020, Mr Schilt says he sent a text message to his manager, Ms Sarah Subbiah, to advise as to his availability the following week and in particular, to inform her that he was only available to work on Saturday 31 October 2020. He says that on 25 October 2020, Ms Subbiah sent him a text message confirming he would only be working on 31 October 2020.

[6] Mr Schilt says that on 27 October 2020, he received an updated roster via text message which had him working four shifts on each day of 29 October 2020 to 1 November 2020. This prompted the following text message exchange between Mr Schilt and Ms Subbiah on 27 October 2020:

•  Mr Schilt at 10:24PM:

“Im only able to work saturday”

•  Ms Subbiah at 10:46PM:

“Ok not a problem. I’ll take you off the roster all together then and job keeper as you aren’t willing to work any shifts required. Thanks”

•  Mr Schilt at 10:58PM:

“Im only able to work a limited number of shifts until i finish my exams which will be in under a month, after than ill be available to work majority of the week. I dont really think that im being unreasonable with that. Obviously i still want to work otherwise i would tell you i cant do any shifts. But its your decision so if you want to take me off completely thats fine.”

•  Ms Subbiah at 10:59PM:

“Thanks all the best for your future!” 1

[7] Mr Koutroulis says Santoni Pizza proceeded to notify the Australian Taxation Office, Mr Schilt was taken off JobKeeper payments and Santoni Pizza no longer received JobKeeper payments for him. 2

[8] On 30 October 2020, Santoni Pizza made a payment to Mr Schilt in respect of accrued annual leave.

[9] Mr Schilt says that because he had three university examinations from 9 to 13 November 2020, and was otherwise engaged in study and revision during the week prior, he did not contact Ms Subbiah again until 14 November 2020. In his text message that day, he wrote:

“Hey sarah i haven’t been paid any jobkeeper for last week just wondering when you think this will come through?” 3

[10] Mr Schilt says there was no response to this message until he spoke with Ms Subbiah on 16 November 2020. He says she told him that he was no longer being paid because he had been removed from the JobKeeper scheme and further, that others had also been removed from JobKeeper for not meeting the minimum shift requirements. Mr Schilt says that at no stage did Ms Subbiah mention that he had been dismissed but she did, however, mention that there was a possibility for him to work the occasional Saturday shift in future.

[11] On 17 November 2020, Mr Schilt sent the following email to Santoni Pizza:

“Hi,

I spoke to Sarah yesterday and she told me that I had been taken off JobKeeper. I don’t believe this is allowed. Below is an extract from the government regarding the rules for the payment of JobKeeper.

Based on this I am seeking my missing jobKeeper payments.

Employee eligibility for JobKeeper payments is not set out in the new amendments to the Fair Work Act; instead it is contained in the Rules. That is, the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020.

Below is an extract from the Rules (JobKeeper Explanatory Statement, F2020L00419)) Issued by the Treasurer (my highlights in yellow).

EXPLANATORY STATEMENT

Issued by authority of the Treasurer

Once an employer decides to participate in the JobKeeper scheme and their eligible employees have agreed to be nominated by the employer, the employer must ensure that all of these eligible employees are covered by their participation in the scheme. This includes all eligible employees who are undertaking work for the employer or have been stood down. The employer cannot select which eligible employees will participate in the scheme. This ‘one in, all in’ rule is a key feature of the scheme.

Fair work Commission website states:

The Australian Taxation Office administers the JobKeeper payment scheme.

Please let me know if there are any issues.

Thanks,
Lachlan” 4 (Mr Schilt’s highlighting)

[12] Mr Schilt says that on 25 November 2020 Ms Tina Huang, Santoni Pizza’s Accountant/Bookkeeper, contacted him and advised him that he was no longer receiving JobKeeper as he had refused to work and that as a part time employee, there was a minimum number of working hours he was required to fulfil. He also says Ms Huang advised that he had previously been given three warnings for failure to take on shifts. Mr Schilt denies ever receiving any warnings and says that he asked Ms Huang to provide these warnings to him. He says Ms Huang said she would speak to Ms Subbiah and get back to him. Mr Schilt says it was only on this day that he became aware that his employment may have been terminated.

[13] On 5 December 2020, Mr Schilt sent a text message to Ms Huang stating:

“Hi Tina, just following up on your call from last week. You said you would speek to Sarah and get back to me but i haven’t heard anything from you so was wondering where we stand as i still have not been paid.” 5

[14] Ms Huang responded on 6 December 2020:

“Sarah and I have tried to resolve the issue with you, if you have any more questions you can call michael – [phone number redacted]. Thanks” 6

[15] On 9 December 2020, Mr Schilt emailed Mr Koutroulis:

“Hi Michael,

I am seeking clarification if I am still employed at Santoni or if I have been terminated from my employment.

If I have been terminated, please advise on what grounds.

Your response is appreciated.

Regards,
Lachlan Schilt” 7

[16] Mr Koutroulis says he telephoned Mr Schilt and advised that he was removed from the roster and JobKeeper payments after consenting to this course of action. 8 However, Mr Schilt says because his email did not prompt a response from Mr Koutroulis, he proceeded to file his unfair dismissal application on 13 December 2020.

Was Mr Schilt dismissed and if so, what is the date of dismissal?

[17] The term “dismissed” for the purposes of the unfair dismissal jurisdiction is defined in s.386(1) of the Act:

“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.”

[18] The Full Bench of the Commission in Ayub v NSW Trains (Ayub) 9 discussed when a termination of employment at the employer’s initiative can be said to have taken effect for the purpose of s.394(2)(a) in the following way:

“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective.”

[19] Mr Schilt’s evidence was that he was confused by Ms Subbiah’s text message on 27 October 2020 and he did not know what she meant. He also said that it was unclear to him that he had been dismissed because Ms Subbiah mentioned on 16 November 2020 there was a possibility for him to work the occasional Saturday shift in future. More particularly, Mr Schilt said he interpreted Ms Subbiah’s words “I’ll take you off the roster all together then and job keeper as you aren’t willing to work any shifts required” in the text message on 27 October 2020 as meaning he would be taken off the roster for that forthcoming week only. He says that this is what he understood to be the case when he texted in reply “…so if you want to take me off completely thats fine.”

[20] I did not find this evidence of Mr Schilt’s persuasive, particularly having regard to Ms Subbiah’s precise words and the reference to JobKeeper. It is one thing to be taken off a roster for a week but another to be taken off JobKeeper, which is payable to eligible employees regardless of whether shifts are actually worked in a particular week.

[21] Further, I regard the text message of Ms Subbiah that stated “Thanks all the best for your future!” as being one of finality. It was not a text that stated, for example, “all the best for your exams”. Mr Schilt’s answer and demeanour in response to my direct question asking him what he thought those precise words of Ms Subbiah meant satisfies me that he was aware that his employment with Santoni Pizza was over on 27 October 2020. I consider Ms Subbiah’s language in her text messages on 27 October 2020 was unambiguous. These words and the subsequent conduct of Santoni Pizza three days later in paying out Mr Schilt’s annual leave communicated to Mr Schilt that his employment had been terminated.

[22] I am satisfied Mr Schilt was dismissed by Santoni Pizza on 27 October 2020.

Extension of Time

[23] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s.394(3). I have accepted that Mr Schilt was dismissed with effect from 27 October 2020, so the period of 21 days ended at midnight on 17 November 2020. Mr Schilt’s application made on 13 December 2020 was therefore filed 26 days outside the 21-day period. Mr Schilt therefore requires the Commission to grant a further period of time for the application to be made under s.394(3) of the Act. Santoni Pizza opposes this request.

[24] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 10 Exceptional circumstances may 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 can be considered exceptional.11

[25] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[26] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of Mr Schilt’s application.

Reason for the delay

[27] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 12

[28] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period, which ended at midnight on 17 November 2020. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period. 13

[29] Mr Schilt provides the following reasons for the delay:

•  During his telephone call with Ms Subbiah on 16 November 2020 following his query as to why he had not received his JobKeeper payment, she did not say he had been dismissed and further, advised that there would be a possibility for him to work the occasional Saturday shift in the future;

•  No response was received to his email dated 17 November 2020 chasing up his JobKeeper payment, particularly in relation to his employment status;

•  Until he spoke to Ms Huang on 25 November 2020, he believed he was dealing with a pay dispute. It was only after his conversation with Ms Huang on this day, despite her not explicitly advising his employment had been dismissed, that Mr Schilt first thought he had potentially been dismissed; and

•  No response was received from Mr Koutroulis to his email of 9 December 2020 seeking to confirm his employment status.

[30] I do not consider there were any circumstances within the 21-day period prescribed for making an application that had any bearing on the 26-day period of delay from 18 November 2020 to 13 December 2020. Whilst Mr Schilt says he was confused about his employment status, I consider that Ms Subbiah’s text messages on 27 October 2020 were unequivocal in indicating that the employment relationship had come to an end and that Mr Schilt was on notice from that day that he was no longer employed by Santoni Pizza. The pay out of his accrued annual leave on 30 October served to confirm the dismissal.

[31] I do not consider that Mr Schilt’s explanations outlined above, individually or collectively, provide an acceptable or reasonable explanation for the delay. In this case, the absence of an acceptable explanation for the delay between 18 November 2020 and 13 December 2020 weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[32] As I have concluded that Mr Schilt should have first become aware of his dismissal on 27 October 2020, he therefore had the full period of 21 days to lodge his unfair dismissal application. This is therefore a neutral consideration.

Action taken to dispute the dismissal

[33] I am satisfied that from 14 November 2020, 18 days after his dismissal, Mr Schilt made a series of enquiries with Santoni Pizza about JobKeeper payments. On 25 November 2020, Mr Schilt queried the warnings it was claimed by Ms Huang that he had received. The first query squarely directed at termination was on 9 December 2020. To the extent these queries constitute “action to dispute the dismissal”, I would attribute them minimal weight.

Prejudice to the employer

[34] I cannot identify any prejudice that would accrue to Santoni Pizza if an extension of time were to be granted. I do not consider the mere absence of prejudice as a factor that would point in favour of granting an extension of time. It is a neutral factor. Some decisions of the Commission take a different view and have held that the absence of prejudice weighs in favour of an extension. Even if I was to adopt this approach, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

[35] I am required to take into account the merits of the application in considering whether to extend time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.

[36] Mr Schilt submits that his dismissal was unfair for the following reasons:

•  He has never been notified, verbally or in writing, that he has been dismissed;

•  He has never received any warnings, written or verbal, in the entire time he was employed by Santoni Pizza and despite his requests for copies of these warnings, these have never been furnished;

•  During his entire period of employment with Santoni Pizza, he was never made aware of any minimum shift requirements;

•  Prior to 22 October 2020, he had notified Ms Subbiah on several occasions that he would have limited availability to work due to his upcoming university examinations and that in previous years, he had always worked less hours during his examination periods which had never been a problem.

[37] Santoni Pizza submits that the dismissal was not unfair because Mr Schilt agreed to be removed from JobKeeper and from the rosters as a consequence of refusing to work the rostered shifts.

[38] It is evident to me that the merits of the application turn on some contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits at this stage. I do not consider the merits of this case tell for or against an extension of time. I therefore consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[39] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. While the parties have raised matters going to the merits of Mr Schilt’s application, neither party has brought to my attention any relevant matter concerning this particular consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[40] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.

[41] Having regard to the matters that I am required to take into account under s.394(3), and all of the matters raised by Mr Schilt, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, Mr Schilt’s application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

L. Schilt on his own behalf.
M. Koutroulis for Santoni Pty Ltd T/A Santoni Pizza.

Hearing details:

2020.
Melbourne (via Microsoft Teams):
December 23.

Printed by authority of the Commonwealth Government Printer

<PR725837>

 1   Exhibit R4 - DCB at p81.

 2   DCB at p36.

 3   Exhibit R4, DCB at p80.

 4   Exhibit A3, DCB at p23.

 5   Exhibit A5, DCB at p24.

 6   Ibid, DCB at p24.

 7   Exhibit A6, DCB at p25.

 8   DCB at p36.

 9   [2016] FWCFB 5500.

 10   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 11   Ibid.

 12   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 13   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].