Maximilian Enthoven v Darktrace Australia Pty Ltd

[2023] FWC 1282

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Maximilian Enthoven
v

Darktrace Australia Pty Ltd

(U2023/2860)

DEPUTY PRESIDENT EASTON SYDNEY, 31 MAY 2023

Unfair dismissal application filed out of time – was the employee dismissed – agreement to allow the employee to resign after he had already been dismissed – when did the dismissal “take effect” – time that the termination of the employment relationship took effect – time that the termination of the contract of employment took effect – delay of payment in lieu of notice – extension of time – delay caused by negotiations regarding outstanding commission payments – not a credible or reasonable explanation for the delay – no exceptional circumstances found – application dismissed.

1. On 1 March 2023 Mr Maximilian Enthoven was called to a meeting and told that his employment with Darktrace Australia Pty Ltd was terminated. At the meeting Mr Enthoven was given a letter that confirmed that the employment "will be terminated immediately (Effective Date, 1st March 2023)” and that Mr Enthoven's final pay will include two weeks’ salary that "will be paid through the next standard pay run." Mr Enthoven was not paid his final termination payment until 30 March 2023.

1. On 6 March 2023 Mr Enthoven asked Darktrace to allow him to resign. On 7 March 2023 Darktrace agreed and issued a revised letter “accepting” Mr Enthoven’s “resignation.”

1. Over the next few weeks Mr Enthoven tried to negotiate his final commission/incentive payment, but no resolution was reached. Mr Enthoven also sought advice from an employment law specialist in relation to his dismissal.

1. Mr Enthoven did not make his application under s.394 of the Fair Work Act 2009 until 4 April 2023. Section 394(1) requires Mr Enthoven make his application for an unfair dismissal remedy within 21 days after the dismissal “took effect.”

1. Darktrace raised a jurisdictional objection to the application on the basis that Mr Enthoven had resigned his employment.

1. If Mr Enthoven was dismissed, and if the dismissal took effect more than 21 days before his application was made, then Mr Enthoven's application was late.

1. Three key questions arise for determination:

(a)was Mr Enthoven dismissed?

(b)if so, when did the dismissal take effect?

(c)if the application under s.394 was made late, can and should the time for making the application be extended?

1. For the reasons that follow I find that Mr Enthoven was dismissed, that the dismissal took effect on 1 March 2023, that his application was made late and that there are no exceptional circumstances that would permit an order to extend the time for the making of the application.

Was the Applicant dismissed?

1. On 1 March 2023 Mr Enthoven was told in a meeting that his employment was immediately terminated - primarily because he had not met his sales target for February 2023 and earlier targets. In the meeting Mr Enthoven tried to save his job by relying on sales that he said were about to crystalise.

1. On 6 March 2023 Mr Enthoven…