Max Schweiger v SRG Global Corporate (Australia) Pty Ltd
[2022] FWC 658
[2022] FWC 658
The attached document replaces the document previously issued with the above code on 31 March 2022 to correct minor typographical and formatting errors at paragraphs 3, 15, 23 and 33.
Associate to Commissioner McKinnon
Dated 1 April 2022
| [2022] FWC 658 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Max Schweiger
v
SRG Global Corporate (Australia) Pty Ltd
(C2021/8336)
| COMMISSIONER MCKINNON | SYDNEY, 31 MARCH 2022 |
Application to deal with contraventions involving dismissal – when the dismissal took effect.
Max Schweiger began working for a predecessor company to SRG Global Corporate (Australia) Pty Ltd (SRG) on 21 June 1993. Over a period of approximately 28 years, he came to see himself as a part of the business, most recently in the position of General Manager, Building & Products.
On 20 December 2019, Mr Schweiger’s wife died. After a brief period of leave coinciding with SRG’s annual Christmas shutdown, Mr Schweiger returned to work. In September 2020, SRG directed Mr Schweiger to take a 6 month ‘sabbatical’ from his employment. Agreement was reached for Mr Schweiger to commence leave from 2 November 2020, and on 20 April 2021, the leave period was extended by agreement for a further 6 months.
There is a dispute about what happened on 20 April 2021 when the leave period was extended by agreement. There is also a dispute about what happened next. Mr Schweiger says he was dismissed without notice by SRG on 15 or 22 November 2021. He has applied for the Commission to deal with a general protections dispute involving dismissal. SRG says Mr Schweiger was not dismissed and that he resigned from his employment on 20 April 2021, with effect from 3 November 2021. SRG submits that for this reason, the application made by Mr Schweiger is filed outside the mandatory 21‑day lodgement period for such applications under the Fair Work Act 2009 (Cth).
I have decided that Mr Schweiger was dismissed by SRG and that the dismissal took effect on 15 November 2021. The consequence of this finding is that Mr Schweiger’s application was made within the prescribed 21 day period. The application is in time and can proceed to conciliation. These are my reasons for dismissing SRG’s jurisdictional objections.
When the dismissal took effect
Section 386 of the Act deals with the meaning of dismissal. A person has been dismissed if their employment has been terminated on their employer’s initiative, or they have resigned from their employment, but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Section 366(1) requires an application for the Commission to deal with a dismissal dispute under Part 3-1 of the Act to be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Commission allows.
In Siagian v Sanel Pty Ltd[1], Wilcox J considered the effect on an employee’s employment of a payment made by the employer in lieu of notice of termination. Wilcox J held that in the absence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately upon payment in lieu of notice. In Ayub v New South Wales Trains (Ayub)[2] a dismissal was found not to take effect until communicated to and known by the affected employee. Ayub cites the earlier case of Stevanovski v Linfox Transport[3] as authority for the proposition that at common law, an employment contract is terminated with effect from the date the termination is communicated to the employee and only when “clear on its terms”.
There is also a line of authority, discussed by the Full Bench in Bupa Aged Care Australia v Tavassoli[4], about whether the expression of an intention to resign is a resignation in fact. In some cases, an employer’s acceptance of a purported resignation without first clarifying the employee’s position may be the act that terminates the employment. The authorities commonly deal with this question in the context of voluntariness and resignations ‘in the heat of the moment’. The context in Mr Schweiger’s case is different, but the question is the same. That is, did Mr Schweiger resign on 20 April 2021 or was it SRG’s act in purporting to accept his resignation that brought the employment to an end?
The facts relevant to whether, and when, Mr Schweiger was dismissed, are these.
On 7 September 2020, Mr Macgeorge told Mr Schweiger that he wanted him to take a 6-month sabbatical and “come back refreshed”. Mr Schweiger was open to the idea but asked for it to commence at the end of the year after he had finished work on a few projects. They discussed a change of role for Mr Schweiger when he came back, including “perhaps” a contract role. Mr Macgeorge said he would “look after” Mr Schweiger, “whatever happens”.
On 10 September 2020, Mr Macgeorge confirmed that Mr Schweiger’s leave would start “at the beginning of November 2020”, being Monday, 2 November 2020. Mr Schweiger agreed to take leave. They discussed how the leave should be treated, including as leave without pay or half pay. They also spoke about Mr Adam O’Dea taking over Mr Schweiger’s role and Mr Schweiger coming back in a consulting role around post-tensioning and products. Mr Macgeorge instructed Mr Schweiger to put in a leave application the following day.
On 11 September 2020, Mr Schweiger did as he had been instructed. He contacted payroll to discuss putting in the leave application and sent an email to Mr Macgeorge confirming their agreement for him to take a 6 month leave of absence (sabbatical) from 2 November 2020 “and returning on 3 May 2021”. The email ended with Mr Schweiger “looking forward to coming back refreshed and continuing my longstanding relationship with SRG”. Mr Macgeorge responded by approving the leave and copying in Maria Spathis, Payroll Officer, and Roger Lee, Chief Financial Officer, “to formalise the arrangement”.
Mr Schweiger commenced leave on Monday 2 November 2020.
On 20 April 2021, Mr Macgeorge called Mr Schweiger ahead of his expected return on 3 May 2021. Mr Schweiger took notes of the conversation while it was taking place. He recorded being asked if he was “ready to come back” and responding “no”, explaining that he had spent half of the sabbatical in lockdown and needed a “further 6 months”. Mr Schweiger said to Mr Macgeorge that he “might be back earlier”, and Mr Macgeorge replied, “that would be a bonus if that happened”. Mr Macgeorge denies making this last statement, but I find that he did. This is because I accept Mr Schweiger’s notes as an accurate (if not comprehensive) record of the conversation.
Mr Schweiger’s notes record the agreement for him to take a further 6 months leave at half pay, and the “need to send email to Maria and Skye” in payroll and human resources. The notes are consistent with the events that followed. Mr Schweiger continued on leave for a further 6 months. On 30 April 2021, he sent an email to Maria Spathis, copying in Skye Britton, SRG’s HR Manager - East. The email confirmed his discussion with Mr Macgeorge and the agreement for “a further 6 months leave at half pay as per the current arrangements”.
Mr Macgeorge’s notes of his conversation with Mr Schweiger on 20 April 2021 are in the form of an email to Shanelle Zanazzi, SRG’s HR Manager – West the same day. The notes are more detailed than Mr Schweiger’s notes, but they are not inconsistent. I accept Mr Macgeorge’s notes as an accurate record of the discussion from his perspective. As is to be expected from the summary of a conversation, they are also not a comprehensive account of what was discussed.
The email to Ms Zanazzi records “the details of the discussion as follows:
“• Max has advised that he would like another 6 months off utilising his leave at half pay
· He has advised that he does not want to return in the future in a full time role and would prefer a consultancy arrangement similar to Cameron Hinton where we use him on an as need basis. He understands this may not be available but I advised we could discuss it later in the year and that I was open to exploring this
· I advised that I would now make decisions based on him not returning in a full time capacity and would plan accordingly
· He wants to remain connected to SRG into the future
· We agreed he would email Maria Spathis and copy me in regarding taking leave at half pay for another 6 months
· We agreed we would talk further closer to the end of the next 6 month period
Can you please ensure Maria is processing appropriately including further leave accruals.”
SRG relies on this email as evidence that Mr Schweiger resigned from his employment on 20 April 2021. I do not accept that he did. The email indicates Mr Schweiger’s preference not to “return in the future in a full-time capacity” but also that he wants to remain connected to the business “into the future”; that he would take a further period of leave and that he and Mr Macgeorge would talk again – including about his preference for a consultancy arrangement. The exchange arose in the context of Mr Schweiger requesting an extension of his leave, and Mr Macgeorge responding by asking him “where this was going”, because he wanted certainty for the business. The prospect that Mr Schweiger would “be back” earlier than the agreed 6 months was also discussed and welcomed by Mr Macgeorge.
What emerges from the evidence is that Mr Schweiger wanted to continue working for SRG after his period of leave. At its highest, the conversation on 20 April 2021 prompted an expression of interest from Mr Schweiger to either vary his contract of employment or replace it with a contract for services at some future time. Mr Macgeorge was open to exploring an alternative to full‑time employment. The only certainty in this regard was that they would talk again before Mr Schweiger’s leave expired.
Mr Macgeorge’s advice to the effect that he would now make decisions based on Mr Schweiger not returning in a full‑time capacity takes the matter no further, for two reasons. Firstly, it ignores the possibility that Mr Schweiger might return in other than a full‑time capacity, such as on a part-time or casual basis. Secondly, there is no evidence of any steps Mr Macgeorge actually took in this regard.
Mr Macgeorge did not, for example, appoint a permanent replacement to Mr Schweiger’s full-time role. When Mr Adam O’Dea stepped into Mr Schweiger’s role (with modifications) from the time he commenced leave on 2 November 2020, he did so only on an “interim” basis. When the leave period was extended, so too was the interim appointment of Mr O’Dea.
There was also no communication to the business between 20 April 2021 and 3 November 2021 (either among managers, employees or clients) to the effect that Mr Schweiger had resigned, or been replaced, or would not be returning. No information was provided to the human resources team to the effect that Mr Schweiger had resigned, or would be finishing up on 3 November 2021, or would be working out his 3-month notice period as part of his second 6-months’ leave. When the leave was initially approved in September 2020, human resources employees had been copied into the approval for the purpose of formalising the arrangement. Similarly, when the leave was extended, human resources were to be (and were) notified. But on 4 November 2021, the day after Mr Schweiger’s supposed resignation was to have taken effect, Ms Zanazzi remained under the impression that he would have “hours of work post-sabbatical”.
On 27 October 2021, Mr Schweiger called Mr O’Dea. He asked what he would be doing on his return to work the following week. He mentioned the possibility of returning in a part‑time or consulting capacity. He noted that the office was currently closed for renovations and said he was happy to remain on leave until January when the office re-opened. Mr O’Dea told him he did not know what Mr Schweiger would be doing, and that he would have to speak to Mr Macgeorge. He told Mr Schweiger to call Mr Macgeorge. He then sent a message to Mr Macgeorge to say that he had spoken to Mr Schweiger, who was going to call Mr Macgeorge.
Mr Schweiger did not call Mr Macgeorge. I accept his explanation for the omission on the basis that he thought Mr Macgeorge would call him, despite the advice from Mr O’Dea that he should be the one to make the call. A longstanding managerial employee, his last discussion about returning to work after the leave period had occurred on 20 April 2021 when Mr Macgeorge had called him. This was approximately two weeks before the end of the scheduled leave period at the time. In that conversation, they had agreed to discuss the matter again before the end of the second 6 month leave period, so that by October 2021, Mr Schweiger was expecting to hear again from Mr Macgeorge.
In the meantime, Mr Schweiger logged on to SRG’s ‘ConnX’ portal and saw that Mr O’Dea was referred to as his manager. He took the reference at face value, having been absent for the better part of 12 months. He called Mr O’Dea to ask what he would be doing on his return the following week. Mr O’Dea did not know. Mr Schweiger said he was happy to remain on leave until January 2022 when the office re-opened, and they could work out “what they wanted to do” with him. Likely, this also suited Mr Schweiger. Given his history with the business, Mr Schweiger assumed things would work out and that he would remain on leave until they did.
Mr Macgeorge did not call Mr Schweiger before 3 November 2021. He was waiting for Mr Schweiger to call him, which I accept as a partial explanation for his inaction. But Mr Macgeorge’s evidence is also that it was clear to him that Mr Schweiger had resigned on 20 April 2021. Advice from Mr O’Dea on 27 October 2021 that Mr Schweiger was expecting to come back to work the following week put him on notice that Mr Schweiger may have had a different understanding.
It seems out of character, in those circumstances, for Mr Macgeorge to take no steps to contact Mr Schweiger to discuss his return in at least some capacity, as they had agreed to do. After all, he considered Mr Schweiger a very experienced employee of longstanding, who had a lot of knowledge relevant to SRG’s business. He supported his ongoing connection to the business. He had been open to the prospect of Mr Schweiger returning as a consultant, although no actual consulting roles for Mr Schweiger were ever considered. I infer from Mr Macgeorge’s silence toward Mr Schweiger from 27 October 2021 until after the processing of his final pay on 12 November 2021 that Mr Macgeorge first wanted to achieve the certainty of an end to the employment relationship.
As noted above, Ms Zanazzi made an inquiry on 4 November 2021 about what Mr Schweiger’s hours of work would be upon his return. There is a gap in the evidence about how and when this was communicated to Mr Macgeorge, and how and when he responded. There must have been an email chain that followed because on 10 November 2021, Ms Zanazzi replied to an email (that is not in evidence) about the termination of Mr Schweiger’s employment. Ms Zanazzi instructed payroll to “terminate Max Schweiger’s employment effective of 3 November 2021 in the November monthly payroll”, with the termination payment to “consist of accrued annual leave and long service leave” and with no mention of notice of termination.
Ms Zanazzi did not have the authority to terminate Mr Schweiger’s employment. Mr Macgeorge agrees that he was the decision maker in this regard. Mr Macgeorge instructed to Ms Zanazzi to terminate Mr Schweiger’s employment with effect from 3 November 2021. Payment of Mr Schweiger’s accrued employment entitlements was then made on Friday 12 November 2021, and a payslip sent to him. Mr Schweiger received the payslip over the weekend and was surprised to see that it recorded the termination of his employment.
The following Monday, 15 November 2021, Mr Macgeorge called Mr Schweiger. Mr Schweiger asked if his employment had been terminated and Mr Macgeorge was careful in his response. He did not express surprise at Mr Schweiger’s question, but nor was he clear about what had happened. Instead he responded, including in words to the effect, “you have not been terminated…that is just system terminology…You have finished work. There are no hard feelings… I instructed payroll to pay out your leave”. Mr Schweiger knew then that his employment had come to an end. What he did not understand was the reason for the termination of his employment.
On the evening of 15 November 2021, Mr Schweiger sought to clarify the position by sending an email to Ms Britton. He asked if she could explain why his leave had been paid out. He then rang Ms Britton to discuss the matter. He asked whether he had been terminated, what the scenario was, and whether he had been made redundant. Ms Britton told him to speak to Mr Macgeorge as she was not involved, even though she had been made aware of the instruction to terminate Mr Schweiger’s employment on 10 November 2021.
Mr Macgeorge tried to call Mr Schweiger again on 17 November 2021. I do not accept Mr Schweiger’s evidence about his inability to respond to this attempt. I find that he was simply avoiding Mr Macgeorge’s call.
Mr Schweiger later called Mr Macgeorge on 22 November 2021 and when he could not get through, Mr Macgeorge rang him back. They discussed the transfer of Mr Schweiger’s mobile phone number. Mr Schweiger asked for clarification about what had happened with his employment. Mr Macgeorge was again careful with his words, responding to the effect that Mr Schweiger’s employment had “ceased”. He did not, either then or earlier on 15 November 2021, explain that it was his understanding that Mr Schweiger had resigned.
It was only after Mr Schweiger had made this application on 6 December 2021 that the notion of his resignation on 20 April 2021 emerged. On 13 December 2021, Ms Zanazzi wrote to Mr Schweiger “to confirm” acceptance of his resignation and agreement to “waive the requirement” for him to provide notice of termination. This was on the asserted basis that Mr Schweiger would not be able to return to work as a full-time employee after his leave ended on 3 November 2021. The evident purpose of the letter was to bolster SRG’s legal position in relation to the unfair dismissal application. At best, it was a new spin on the conversation of 20 April 2021; an attempt to create certainty where there had been none. At worst, it was a fabrication.
On that note, it is necessary to make some observations on credibility in response to SRG’s urging that adverse credibility findings should be made against Mr Schweiger. I do not accept some of Mr Schweiger’s evidence, including that he was unable to call Mr Macgeorge in the period from 17 to 22 November 2021, but I did not find him an unreliable witness. Mr Schweiger gave clear and consistent evidence and made appropriate concessions. He was unshaken under cross-examination, which at times was unnecessarily aggressive. Where Mr Schweiger’s written evidence was demonstrably incorrect, this was largely explained either by imperfection of memory or by imprecision. At times his written evidence was prone to exaggeration. There was no deliberate attempt to mislead.
I cannot say the same of the evidence of Mr Macgeorge. His oral evidence was tainted by his not wanting to answer questions directly, at the risk of deviating from his written statement. He answered direct questions in a general way or not at all. Some of his answers were no more than a restatement of, and justification, for SRG’s legal position. Mr Macgeorge flatly rejected the notion that on 4 November 2021, Ms Zanazzi might not have known that Mr Schweiger’s employment had come to an end the day before, despite clear email evidence to the contrary. On some issues, his version of events was less plausible than that of Mr Schweiger. For these reasons, and where conflicts emerged in the evidence that were necessary to resolve, I have generally preferred the evidence of Mr Schweiger.
Conclusion
I find that Mr Schweiger’s employment was terminated at the initiative of SRG on 12 November 2021 when it paid out his accrued employment entitlements. The dismissal took effect on 15 November 2021 when the fact of dismissal was communicated to Mr Schweiger.
The consequences of this finding are that Mr Schweiger has standing to apply to the Commission to deal with the dispute, and that his application was made on the 21st day after the dismissal took effect. It was made in time.
The jurisdictional objections made by SRG are dismissed.
The application will now be referred for conciliation.
COMMISSIONER
Appearances:
D Lestal of Santone Lawyers for the applicant.
J Darams of Counsel for the respondent.
Hearing details:
2022.
Sydney (by video):
March 23.
[1] (1994) 122 ALR 333.
[2] [2016] FWCFB 5500 at [21].
[3] [2001] AIRC 388; PR903594.
[4] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 from [35].
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