Martin Barkl v Knox Grammar School
[2024] FWC 2932
•22 OCTOBER 2024
| [2024] FWC 2932 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Martin Barkl
v
Knox Grammar School
(U2024/9360)
| COMMISSIONER CRAWFORD | SYDNEY, 22 OCTOBER 2024 |
Unfair dismissal application filed out of time – delay of 230 days – dispute about date of dismissal and at which party’s initiative – no exceptional circumstances - extension of time not granted – application dismissed.
Background
Martin Barkl (Mr Barkl) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he was unfairly dismissed by Knox Grammar School (Knox Grammar). Mr Barkl’s application was filed on 13 August 2024.
Mr Barkl commenced full-time employment with Knox Grammar as a teacher on 21 May 1984. Mr Barkl taught physics prior to the end of his employment.
On 26 August 2024, Knox Grammar filed a Form F3 employer response. Knox Grammar raised two jurisdictional objections to the application. Firstly, Knox Grammar argued Mr Barkl resigned from his employment and was not “dismissed” by Knox Grammar. Secondly, Knox Grammar argued Mr Barkl’s application was not filed within 21 days of the dismissal taking effect and that an extension of time should not be granted to Mr Barkl.
I issued directions for the filing of material and listed a determinative conference/hearing regarding whether Mr Barkl should be granted an extension of time to file his unfair dismissal application for 14 October 2024 via video.
Mr Barkl represented himself at the determinative conference/hearing on 14 October 2024. Knox Grammar was represented by Lara Hurrell from the Association of Independent Schools NSW.
At the beginning of the proceeding on 14 October 2024 I indicated my provisional view was that I should conduct a less formal determinative conference as opposed to a hearing, given Mr Barkl was representing himself. There was no opposition from the parties. I conducted a determinative conference.
Material filed
Mr Barkl
Mr Barkl filed material that constituted a mixture of evidence and submissions in support of his request for an extension of time. I decided to admit all the material as evidence. This was not opposed by Knox Grammar. The material filed by Mr Barkl was:
· A Form F2 Unfair dismissal application. The application identifies a dismissal date of 5 December 2023. Mr Barkl argues in his application that he gave notice of his resignation on 23 September 2022 with the resignation to take effect when Mr Barkl’s accrued leave entitlements had been exhausted. Mr Barkl argues Knox Grammar ended the employment in early December 2023 prior to Mr Barkl’s leave entitlements being exhausted. Mr Barkl indicated his entitlements were not due to be exhausted until around 30 April 2024. Mr Barkl claims he has suffered financial detriment from his employment ending in early December 2023, primarily through lost superannuation contributions and not receiving at least one period of end of term leave in addition to his long service leave entitlements.
· Mr Barkl sent an email to the Commission on 21 August 2024 providing further information about why he missed the 21-day filing period.
· Mr Barkl sent an email to my chambers on 8 September 2024 which contained further information about his case. Mr Barkl referred to issues with the calculation of his long service leave entitlements and confusion concerning the end of his employment with Knox Grammar.
· Mr Barkl filed a series of email exchanges between Mr Barkl and Knox Grammar representatives. There is initially an email from Mr Barkl to Candice Gillett (People and Culture Advisor) dated 23 September 2022 where Mr Barkl provides notice that he intends to resign and retire from being a teacher. Mr Barkl states “[m]y preference is for the effective date to be at the expiration of all my leave entitlements, which I estimate to be close to Easter, 2023, under the current arrangements… I will await the School’s response.” Ms Gillett responds on 28 September 2022 and indicates “I will make contact with Payroll to confirm your leave entitlements and come back to you regarding your end date.” Ms Gillett sent Mr Barkl another email on 5 October 2022 which provided information about Mr Barkl’s long service leave balances and sought confirmation from Mr Barkl regarding whether he wanted to take leave at full pay or at half pay. The remaining emails are sent on various dates from 9 January 2024 to 8 August 2024 and involve Mr Barkl querying his long service leave balance and the end date for his employment and responses from Knox Grammar representatives. The emails demonstrate a back-payment was made to Mr Barkl on 2 April 2024 because Knox Grammar realised it had not calculated Mr Barkl’s long service leave entitlements correctly. The trigger for Mr Barkl’s unfair dismissal application appears to be an email from Scott James (Principal) to Mr Barkl on 6 August 2024 that ended with: “Martin, I consider this matter finalised.”
I marked the material filed by Mr Barkl as Exhibit A1. Mr Barkl was cross-examined on his evidence during the determinative conference.
Mr Barkl made oral closing submissions at the end of the determinative conference.
Knox Grammar
Knox Grammar relied on the following evidence in opposing the granting of an extension of time to Mr Barkl.
Ms Gillett provided a witness statement dated 18 September 2024. Ms Gillett gave evidence about her various communications with Mr Barkl during his period of long service leave. In addition to emails that were also filed by Mr Barkl, Ms Gillett attached an email she sent to Mr Barkl on 14 December 2022 which included the following question to Mr Barkl:
“Would you prefer:
1.A lump sum payment on 24th [of] January 2023 of your outstanding long service leave balance
2.To continue on your current arrangement being paid out your long service leave until it runs out...
I sought approval to allow you to run out your long service leave (option 2) as this isn’t an option we normally approve. However given your tenure and significant LSL balance, I wanted to present this option to you.
Could you please advise as soon as possible which option you would prefer and I will advise payroll…”
During the determinative conference, Ms Gillett provided an email response from Mr Barkl dated 15 December 2022. Mr Barkl stated:
“I'm sorry that I was unavailable when you tried to call yesterday. Thank you for your thoughtful advocacy and for presenting the options clearly. My preference is for option 2, please.”
I marked Ms Gillett’s statement and the attached emails Exhibit R1. Ms Gillett was not required for cross-examination.
Jane Atkinson (Payroll Manager) provided a witness statement dated 18 September 2024. Ms Atkinson provided evidence about her interactions with Mr Barkl in 2024 regarding the calculation of his long service leave balance. Ms Atkinson identified an error in Knox Grammar’s calculations and took steps to have the error rectified. Ms Atkinson attached the relevant emails to her statement.
I marked Ms Atkinson’s statement and the attached emails Exhibit R2. Ms Atkinson was not required for cross-examination.
Leanne Edmond (Chief People and Culture Officer) provided a witness statement dated 18 September 2024. Ms Edmond gave evidence that she approved Mr Barkl’s extended notice period in 2022 which allowed Mr Barkl to continue exhausting his long service leave entitlements. Ms Edmond provided evidence about her communications with Mr Barkl in 2024 concerning his reflections on his time with the school and raising concerns about the end of his employment. Ms Edmond attached the relevant emails to her statement.
I marked Ms Edmond’s statement and the attached emails Exhibit R3. Ms Edmond was not required for cross-examination.
Selina Ellis (Payroll Officer) provided a witness statement dated 18 September 2024. Ms Ellis gave the following evidence about a phone call with Mr Barkl in late November 2023 after Mr Barkl called the payroll team:
“a. Martin asked with words to the effect of, “When is my long service leave finishing?”
b. I replied with words to the effect of, “You finish on 7 December 2023 and will be paid your final pay on the 12th of December 2023. This will include your remaining long service leave, non-term time and annual leave calculation and annual leave loading.” I also confirmed an approximate final payment amount.
c. He then asked with words to the effect of, “Can you please send me the payout calculations with the payslip when the final pay is done?”
d. I replied, “Yes I will send that through.”
e. I also said words to the effect of, “I will let BUPA know that the salary sacrifice will end as well.”
Ms Ellis then stated: “On 11 December 2023, I emailed BUPA to confirm that Martin’s membership terminated on 8 December 2023. On 12 December 2023, I processed the pay run including Martin’s final pay.” Ms Ellis gave evidence about some further communications with Mr Barkl about his final pay in January 2024 and attached copies of emails exchanged with Mr Barkl.
I marked Ms Ellis’ statement, and the attached documents, Exhibit R4. Ms Ellis was not required for cross-examination.
Knox Grammar relied on an outline of submissions dated 18 September 2024. Ms Hurrell made oral closing submissions at the end of the determinative conference.
Extension of time
Section 394(2) of the FW Act provides that an unfair dismissal application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was Mr Barkl “dismissed” and what date did the employment end?
It is well established that there can be a termination at the initiative of the employer where an employee provides notice of their resignation to take effect on a future date and then the employer acts to end the relationship before the notice period has expired.[1] I consider that is precisely what occurred in this case.
The evidence confirms Ms Ellis communicated to Mr Barkl in late November 2023 that his employment would end on 7 December 2023. Ms Ellis then processed Mr Barkl’s final payments. It is clear from the two separate payments Knox Grammar made to Mr Barkl that he had not exhausted his long service leave entitlements at that point in time. The evidence demonstrates Mr Barkl still had a significant amount of long service leave accrued on 7 December 2023.
The decision to end Mr Barkl’s employment on 7 December 2023 was contrary to the arrangements confirmed in emails between Ms Gillett and Mr Barkl on 14 and 15 December 2022. Ms Gillett and Mr Barkl agreed that Mr Barkl’s resignation would take effect when Mr Barkl’s long service leave “runs out”. That was consistent with what Mr Barkl initially requested in his resignation email dated 23 September 2022.
Given Mr Barkl had not exhausted his long service leave on 7 December 2023, his resignation was not due to take effect on that date. Ms Ellis selected the end date for Mr Barkl’s employment and in doing so Knox Grammar terminated Mr Barkl’s employment at the initiative of Knox Grammar on 7 December 2023.
I find Mr Barkl was “dismissed” by Knox Grammar effective 7 December 2023.
Unless this finding is challenged by Knox Grammar, it would appear to trigger an entitlement to payment in lieu of notice of termination for Mr Barkl.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[2]
I have determined above that Mr Barkl was dismissed effective 7 December 2023. The 21-day filing period ended on 28 December 2023. Mr Barkl’s unfair dismissal application was filed 230 days late on 13 August 2024.
As a result, Mr Barkl needs an extension of time to pursue his application pursuant to s.394(3) of the FW Act.
Was the application made within such further period as the Commission allows?
Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a)the reason for the delay; and
(b)whether Mr Barkl first became aware of the dismissal after it had taken effect; and
(c)any action taken by Mr Barkl 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 Mr Barkl and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]
Consideration
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 28 December 2023. The delay is the period commencing immediately after that time until 13 August 2024, although circumstances arising prior to that period may be relevant to the reason for the delay.[4]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]
Mr Barkl does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Barkl has not provided any reason for any part of the delay.[6]
Mr Barkl has essentially referred to confusion and a lack of awareness about his legal position as the reason that he did not file an unfair dismissal application until 13 August 2024. However, it is well established that ignorance is not a satisfactory explanation for filing an application late.[7]
As identified above, I consider it is clear from written records that Mr Barkl’s employment ended on 7 December 2023. The various emails exchanged between Mr Barkl and Knox Grammar representatives did not have the legal effect of keeping the employment relationship on foot. These communications constitute Mr Barkl disputing the end of his employment and the payments made to him when his employment ended.
I am not satisfied that Mr Barkl has an adequate explanation for what was clearly an extremely long delay in filing his unfair dismissal application. I consider this factor weighs strongly against a finding of exceptional circumstances and the granting of an extension of time.
Did Mr Barkl first become aware of the dismissal after it had taken effect?
Although I accept Mr Barkl was confused about the process that was implemented when his employment ended, Mr Barkl was made aware that his employment would end on 7 December 2023 when he spoke with Ms Ellis in late November 2023. I consider this to be a neutral factor.
What action was taken by Mr Barkl to dispute the dismissal?
While Mr Barkl took a range of actions to dispute issues with Knox Grammar after his employment ended on 7 December 2023, I would characterise most of these actions as Mr Barkl disputing his long service leave entitlements, rather than disputing his dismissal. However, several of Mr Barkl’s emails refer to Knox Grammar imposing a “termination” on him. I am therefore satisfied Mr Barkl took actions to dispute his dismissal. I consider this factor weighs in favour of a finding of exceptional circumstances and the granting of an extension of time.
What is the prejudice to the employer (including prejudice caused by the delay)?
I accept Knox Grammar’s submission that the delay of around 230 days has caused it prejudice. Knox Grammar cited several authorities in support of its submission.[8] I consider this factor weighs against a finding of exceptional circumstances and the granting of an extension of time.
What are the merits of the application?
It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”, or in this case, s.394(3)(e).[9]
I do not consider Mr Barkl’s application has overly strong prospects of success. It is clear Mr Barkl had decided to retire from teaching, the only contentious issue is when the employment ended. I also can understand why Knox Grammar wanted to finalise the arrangements at the end of the school year in 2023 and can see the commercial sense in that decision. While it was extremely regrettable that errors were made regarding Mr Barkl’s long service leave entitlements, that matter will not be overly relevant to assessing whether Mr Barkl was unfairly dismissed.
However, given the existence of contested facts between the parties, I consider the merits to be a neutral factor in this case.
Fairness as between Mr Barkl and other persons in a similar position
As a Full Bench has noted, “this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”[10] In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.[11]
I accept Knox Grammar’s submission that granting an extension of time to Mr Barkl when there has been a delay of 230 days and where Mr Barkl has not provided an adequate explanation for the delay can be considered unfair given numerous other persons in a similar position have not been granted an extension of time. I consider this factor weighs against a finding of exceptional circumstances and the granting of an extension of time.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
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.[12] 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.[13] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension.[14]
Mr Barkl has not provided an adequate explanation for the extremely long delay between his dismissal taking effect and the filing of his unfair dismissal application. While I have found that Mr Barkl took steps to dispute his dismissal during that period, I have also found that granting an extension of time will cause prejudice to Knox Grammar and that there would be a degree of unfairness to other persons who have filed late applications in similar circumstances and have not been granted an extension of time.
Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances
Conclusion
I decline to grant an extension of time for the filing of the application.
The application is dismissed.
COMMISSIONER
Appearances
Mr Barkl representing himself.
Ms Burrell for Knox Grammar.
Determinative conference:
2024.
Sydney (by video via Microsoft Teams).
14 October.
[1] Brunner v Amalgamated Marketing Pty Ltd [2015] FWC 7837; Mr Chirstopher Patterson v Re-Engage Youth Services Incorporated [2018] FWC 20; Harish Kumar v BD Vincentia Pty Ltd [2021] FWC 6591.
[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Ibid [40].
[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1, [14].
[8] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300; GHD Pty Ltd v Black [2023] FWCFB 38, [51].
[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[10] Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963, [41].
[11] See Elrifai v Demons Formwork & Construction Pty Ltd[2011] FWA 5090, [19].
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[13] See ibid.
[14] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].
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