Manpreet Banga v Threadneedle Street Brokers Pty Ltd T/A Hartley Financial
[2023] FWC 534
•3 MARCH 2023
| [2023] FWC 534 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Manpreet Banga
v
Threadneedle Street Brokers Pty Ltd T/A Hartley Financial
(U2022/10186)
| COMMISSIONER P RYAN | SYDNEY, 3 MARCH 2023 |
Application for an unfair dismissal remedy – jurisdictional objection – whether application filed prematurely – application made in accordance with s.394(1)
Introduction
Mr Manpreet Banga (Applicant) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Threadneedle Street Brokers Pty Ltd (Respondent).
The Form F2 Application (Application) was filed on 19 October 2022 and records the date the dismissal took effect as 18 October 2022.
The Form F3 Response (Response) was filed on 14 November 2022 and records the date the dismissal took effect as 18 October 2022. The Response also raised a jurisdictional objection that the Applicant was not dismissed. Rather, the Respondent contends that the cessation of the employment relationship occurred by way of a mutual separation agreement.
The Response stated that the mutual separation agreement provided that from 18 October 2022, the Applicant would not perform any further work for the Respondent to allow the Applicant the opportunity to devote his time to seeking and obtaining alternative employment. Further, the Respondent would pay to the Applicant four weeks’ notice on a weekly basis. The Response stated that the Respondent made payments to the Applicant on a weekly basis and accrued annual leave up to 15 November 2022.
Having regard to the matters set out in the Response, at a case management hearing, I raised with the parties the issue of whether the Application was filed prematurely, and if so, whether the Commission should exercise its discretion pursuant to s.586(b) of the FW Act to waive the irregularity in the manner in which the Application was made.
The Respondent opposed the Commission waiving the irregularity and submitted that the Application should be dismissed. The Applicant disputed the Application was filed prematurely.
Following the case management hearing, I issued directions for the filing of evidence and submissions on the issue of whether the Application was filed prematurely, and if so, whether the Commission should exercise its discretion pursuant to s.586(b) of the FW Act to waive the irregularity in the manner in which the Application was made.
The matter was heard before me on 12 December 2022.
I exercised my discretion to grant permission to the parties to be represented by a lawyer, as I was satisfied as to the matters set out in s.596 (2)(a) and (c) of the FW Act. The Applicant was represented by Mr S Banga. The Respondent was represented by Ms P Forster.
For the reasons that follow, I am satisfied that the Application was made in accordance with s.394(1) of the FW Act and was not filed prematurely.
Relevant Background
On 19 July 2021, the Applicant commenced employment with the Respondent in the role of Senior Financial Advisor.
In late September 2022, there were discussions between the Applicant and Mr David Hartley, the Respondent’s Director and Senior Financial Advisor, relating to a request by the Applicant seeking increased remuneration.
On 18 October 2022, the Applicant met with Mr Hartley. The parties are in dispute about what occurred in this meeting.
The Applicant contends that Mr Hartley advised him that the Respondent cannot meet his salary expectations and was terminating his employment effective immediately. The Applicant stated he was required to hand over equipment and keys belonging to the Respondent and advised that his final pay would be paid weekly over the next four weeks.
The Respondent contends that after advising the Applicant that it could not meet his salary expectations, the parties agreed to end the employment relationship so that the Applicant could pursue other opportunities. The Respondent contends that the Applicant requested his notice payment to be paid out on a weekly basis rather than a lump sum, to which the Respondent agreed, before inviting the Applicant to provide a letter of resignation.
The Applicant stated that later that day, he received a notification on his mobile telephone confirming that he had been signed out of the Respondent’s IT systems.
On 19 October 2022, the Applicant filed the Application, contending that he was dismissed on 18 October 2022.
On 20 October 2022, the Applicant received an email from Ms Sue Norman, the Respondent’s Practice Manager. The email stated:
“…Also, as discussed on Tuesday please forward email confirming your employment ended 18/10/2022 and that you would like the 4 weeks notice period and annual leave paid on a weekly basis rather than as a lump sum payment (assume this is still your preference).”
The Applicant did not reply to this email.
The Respondent subsequently paid the Applicant a week’s salary plus superannuation each week until 15 November 2022. The Applicant’s accrued annual leave was paid out on 15 November 2022.
Summary of Applicant’s Submissions
The Applicant submitted that he was protected from unfair dismissal and had ‘standing’ to make the Application.
The Applicant submitted that his employment was terminated on 18 October 2022 and the Application is not premature. It follows that there is no irregularity to waive or rectify.
Summary of Respondent’s Submissions
The Respondent submitted with reference to the decision of a Full Bench of the Commission in Mihajlovic v Lifeline Macarthur[1] that where an employee has been terminated on notice, the employment relationship ends when the notice period expires.
The Respondent submitted that the Applicant was paid his notice period on a weekly basis and therefore the employment did not cease until at least 11 November 2022. In support of this submission, the Respondent submitted that the Applicant continued to accrue annual leave and receive superannuation payments for this period.
The Respondent further submitted that the Application’s lack of merit supports dismissing the Application.
Consideration
The issue to determine is whether the Application was filed prematurely, that is, before the Applicant’s dismissal took effect.
An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the FW Act.[2]
While the parties are in dispute about what was said in the meeting between the Applicant and Mr Hartley on 18 October 2022, the email from Ms Norman on 20 October 2022 corroborates the Applicant’s contention that the employment ended on 18 October 2022 and that the issue was whether any notice payments and entitlements were to be paid in a lump sum or by instalments on a weekly basis.
The Applicant did not respond to Ms Norman’s email and it appears that the Respondent unilaterally elected to make the payment of any notice and entitlements over the ensuing four-week period and included superannuation contributions and the accrual of annual leave.
Having regard to the materials before me, I am satisfied that the employment relationship ended on 18 October 2022, and therefore, the Application was not filed prematurely.
In relation to the payment of superannuation contributions and accrual of annual leave over the period up to 15 November 2022, I do not consider that is determinative of whether the employment relationship remained on foot beyond 18 October 2022 where there are contemporaneous records in the form of the filing of the Application on 19 October 2022 and the email from Ms Norman on 20 October 2022, that the employment relationship ended on 18 October 2022.
In coming to this conclusion, I do not make any finding about whether the employment relationship ended on 18 October 2022 by way of resignation by the Applicant, a termination at the initiative of the employer, or whether the parties agreed to do so. That will be an issue to determine as part of the substantive proceedings.
Conclusion
The Application was made in accordance with s.394(1) of the FW Act and was not filed prematurely. The matter will be listed for further programming.
COMMISSIONER
Appearances:
Mr S Banga, solicitor for the Applicant.
Ms P Forster, solicitor for the Respondent.
Hearing details:
Sydney (via Microsoft Teams video-link):
2022.
12 December.
[1] [2014] FWCFB 1070 at [17].
[2] Ibid at [42].
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