Menelas Michalitsis v Dig Dig Demolition Pty Ltd
[2023] FWC 3430
•20 DECEMBER 2023
| [2023] FWC 3430 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Menelas Michalitsis
v
Dig Dig Demolition Pty Ltd
(U2023/11033)
| COMMISSIONER ALLISON | MELBOURNE, 20 DECEMBER 2023 |
Application for an unfair dismissal remedy – extension of time – effective date of termination when dismissal notification goes to junk mail
What this decision is about
This decision relates to an application by Menelas Michalitsis (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges that he has been unfairly dismissed from his employment with Dig Dig Demolition Pty Ltd (the Respondent).
The information provided in the application and in the employer response form lodged by the Respondent indicates that the application may have been made out of time.
An application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”.[1] If an application is not made in this time frame, it is out of time and will generally be dismissed. The only exception to this is when the Commission is satisfied that exceptional circumstances exist, and the Commission chooses to exercise its discretion under s.394(3) of the Act to extend the period for the application.
This decision considers whether the application was made out of time, and if so, whether exceptional circumstances exist that warrant the Commission exercising its discretion under s.394(3) to extend the period for application.
Outcome and Preliminary Observations
As will become clear, having assessed all the circumstances of this matter and the relevant statutory considerations and legal principles, I have determined that the effective date of dismissal was 19 October 2023 and therefore the application was not made out of time.
As I have found that the application was made within 21 days after the dismissal took effect, I have not had to consider if there were exceptional circumstances justifying extending the period for application. I note that if I had to consider this, I would be likely not to have found that exceptional circumstances existed.
At the outset I note that Mr Bryn Lynch, Managing Director of the Respondent, was a compelling and believable witness for the Respondent. However, with the exception of matters noted in paragraphs 50 and 51 below, the circumstances that have led to my decision were largely out of the Respondent’s control.
Background
The Applicant commenced employment with the Respondent on 28 June 2022. The Applicant performed work as a truck driver.
On Thursday 28 June 2023 a serious workplace occupational health and safety incident occurred, which the Respondent alleges the Applicant was involved in (the OHS incident). The Applicant denies his involvement in the OHS incident.
On Friday 29 June 2023 the Applicant ceased work and commenced a period of authorised absence due to an injury, currently the subject of a contested workplace injury claim. While absent from work, the Applicant provided the Respondent with Certificates of Capacity (COCs) covering the period 3 July 2023 to 7 October 2023,[2] sent to the email address [email protected]. Ms Jodie Sullivan, office administrator of the Respondent, routinely confirmed receipt of the COCs.[3]
On 4 July 2023 the Respondent commenced an investigation into the OHS incident through an external party, HR Gurus, led by Ms Louise Betts. In addition to investigating the OHS incident, the Respondent asked Ms Betts to consider a complaint made by the Applicant into alleged bullying behaviour against the Applicant (the bullying complaint).
Ms Betts first investigated the bullying complaint. Ms Betts’ investigation found that the bullying complaint was not substantiated. Ms Betts emailed these findings to the Applicant on 1 August 2023.
On 5 August 2023, Ms Betts reported her findings regarding the investigation of the OHS incident to Mr Lynch. The investigation concluded the Applicant was involved in the OHS incident and had engaged in unsafe conduct.
On 18 August 2023, the Applicant sent an email to Ms Betts contesting her findings in relation to the bullying complaint. An extract from this email reads “on advice from my lawyer I have to give you the opportunity to reassess your findings before proceeding further.”[4]
On 5 September 2023 the Applicant sent a second email to Ms Betts, carbon copying his lawyer Ms Vhalos.[5] The email raised concerns with Ms Betts’ findings that the bullying complaint had not been substantiated. Relevantly, this email states:
“… If I don’t receive a reevaluation(sic) of my case, you will leave me no option than to pass this matter to my lawyer who will be contacting you personally, HRgurus and Dig Dig demolition pty ltd (sic) as per the WHS act… It is extremely difficult for me to refrain from taking my pain medication so as to have a clear head to address this matter.”
On 26 September 2023, Mr Lynch sent the Applicant two emails.
The first email is timestamped at 1:52PM and is entitled “Outcome of investigation into complaint against Adam Schutz.”[6] This email confirms that the Respondent accepts Ms Betts findings that the Applicant’s bullying complaint has not been substantiated and attaches a letter with the investigation findings.
The second email is timestamped at 2:00PM and is entitled “Dig Dig Demolition Aus.”[7] This email notifies the Applicant of the investigation findings relating to the OHS incident and invites the Applicant to “raise any additional information about the incident” which “will be taken into consideration in determining what action should be taken as a consequence of your actions.” The email notes that any response should be provided by 4 October 2023.
A “show cause” letter was attached to the second email. The letter details the investigation findings, including findings that the Applicant was involved in the OHS incident, had engaged in unsafe behaviour, and had breached the Respondent’s safety policies. It then states, “I am considering summarily terminating your employment on the grounds of gross misconduct,” and invites the Applicant to attend a show cause meeting on 27 September 2023. Alternatively, it allows the Applicant to respond in writing by 4 October 2023.
Both the above emails were sent by the Respondent’s managing director, Mr Lynch, from his email address [email protected].
All email correspondence from the Respondent to the Applicant prior to the emails sent on 26 September 2023 had been sent from the email [email protected].[8]
The Applicant did not attend the show cause meeting on 27 September 2023 or respond in writing by 4 October 2023.
On 7 October 2023, the Applicant’s most recent COC provided to the Respondent expired.[9] The Applicant did not submit further COCs to the Respondent after this date.
On 9 October 2023, Mr Lynch emailed the Applicant a termination letter summarily dismissing the Applicant. The termination letter was sent from the email address [email protected].[10] The letter referred to “Jodie” (presumably Ms Sullivan) making contact to arrange the collection of the factory key and Dig Dig branded uniform items, and to enquire about whether the Applicant wished to be provided with a Separation Certificate. However, no further communication took place.
The Applicant provided witness evidence that the emails dated 26 September 2023 and the email with the letter of termination dated 9 October 2023 went to his junk mail. The Applicant has given evidence that:
On the night of 18 October 2023, the Applicant had a conversation with his wife about the difficulties of keeping track of various emails in his inbox. His wife offered to assist him by organising his emails into separate folders.
· The Applicant took sleeping medication and went to sleep at approximately 10:30 – 11:00PM that night. To his knowledge, his wife accessed his computer afterwards to organise his emails.
· That night, the Applicant’s wife woke him up to inform him of the show cause and termination emails. Upon being woken, the Applicant went to the computer and noted the time was approximately 12:30AM on 19 October 2023.
· The Applicant read the show cause and termination emails at that time.
For reasons set out below I have accepted the Applicant’s evidence in this regard.
At 4:04AM on 19 October 2023, the Applicant emailed Mr Lynch in response to his email dated 9 October 2023.[11] Relevantly, this email states:
“Hi there Bryn, I reject your assessment and outcome… I request more time to finish my recovery and would be happy to defend myself once I am off the heavy medication and able to think clearly… As I have found out you have a history of unfair dismissal with FWA(sic) and I really would not like to take this further… Due to my injury and subject to my recovery I may not be able to commence work with DIGDIG again because of the manual labour involved… I am writing to you between taking my medication in the middle of the night and still don’t feel clear in the head, but this needs to put forward to you.”
The Applicant filed his application for unfair dismissal remedy on 9 November 2023.[12]
As a result of the Applicant’s injury the Applicant has been required to take four different medications.[13] These medications impact on the Applicant’s mental capacity. In a certificate of capacity dated 6 September 2023, the Applicant’s doctor, Dr Jay Yazdian notes “pain medication affects [the Applicant’s] concentration and memory.”[14] In addition the Applicant has suffered a range of psychological injuries as a result of his physical injury. The Applicant provided a psychological report to the Commission dated 16 November 2023 which amongst other things indicated that psychological injuries suffered as a result of the Applicant’s injury include:[15]
“Severe stress.
Sleep disturbance.
Unable to engage in many activities that he had enjoyed prior to [the] … injuries.
Poor motivation.
Poor concentration and attention.
Depression.
Anxiety.
Loss of enjoyment in most activities.
Feeling helpless and hopeless.”
When did the dismissal take effect?
To determine whether an unfair dismissal application is made in time, the Commission must first determine when the dismissal took effect.
A dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware. This was relevantly considered in relation to s.394(2) by the Full Bench of the Commission in Ayub v NSW Trains[16] where at [36] it was held:
“Having regard to the language, purpose and context of s 394(2)(a), we do not consider… that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this.”
Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter.[17]
Noting the Applicant’s evidence that the letter of termination went to his junk mail and that he did not become aware of the dismissal until 19 October 2023, I asked the parties to address me on when the dismissal took effect.
Applicant’s Submissions
The Applicant submitted that the dismissal occurred on 19 October 2023 – the date the Applicant became aware of the letter of termination. In respect of this issue, the Applicant gave evidence that:
The two emails dated 26 September 2023 and the email attaching the termination letter on 9 October 2023, all of which were sent from [email protected], were filtered into his junk email.
The Applicant did not see any of the emails from [email protected] when they were delivered into his junk email.
At the time the show cause and termination letters were sent, the Applicant was not expecting communications from the Respondent other than matters relating to his ongoing WorkCover claim. This was for two reasons. First, he had previously explained to Ms Betts that he was unable to participate in the investigation relating to the OHS incident. Second, because he believed that Mr Lynch was in receipt of the COCs he had been sending and was therefore aware that he was still in a condition where he was unable to attend or participate in any investigation or disciplinary process.
The Applicant became aware of the termination letter at approximately 12:30AM on 19 October 2023, when his wife was organising his emails and discovered the emails from Mr Lynch.
The Applicant further submitted that he did not have a reasonable opportunity to become aware of the termination before 19 October 2023.
In this regard the Applicant submitted his circumstances could be distinguished from those in Foyster v Bunnings Group Limited[18]. In Foyster a Full Bench of the Commission found that an employee who had corresponded with his employer via email, had failed to avail himself of the reasonable opportunity to become aware of the fact of his dismissal, by not opening emails from his employer delivered to his inbox. The Applicant submitted in this case, unlike Foyster, the relevant emails had gone to junk mail. As the Applicant had been receiving correspondence from the Respondent regarding his Workcover claim in his regular inbox, there was no reason for the Applicant to expect other emails from the Respondent to go to junk mail.
In addition, the Applicant submitted that stress and other mental health conditions arising from his physical injury, as well as the effects of the medication he was taking, were factors contributing to him not regularly checking his junk folder.
Respondent’s Submissions
The Respondent submitted that the termination took effect when it was emailed to the Applicant on 9 October 2023.
The Respondent submitted that the Applicant’s evidence that he was unaware of the dismissal until 19 October 2023 should be rejected. In this regard the Respondent argued that the Applicant must have been aware of the termination on 9 October because the Applicant ceased sending in COCs to cover the period after 7 October 2023. The Respondent submitted:
“[It] is too much of a coincidence that the Applicant simply ceased his pattern of supplying CoCs immediately after the Respondent sent the letter of termination on 9 October 2023 for an unconnected reason.” [19]
In addition the Respondent argued the Applicant had not provided adequate evidence on how he became aware of the dismissal and had failed to explain why the Applicant was not monitoring his emails. The Respondent also submitted that as the Applicant had received other emails from the Respondent into his inbox from the domain name “digdigdemolition.com”, it was unlikely that emails from [email protected] which has the same domain name, would go into junk mail.
In the alternative, the Respondent submitted the Applicant had a reasonable opportunity to become aware of his dismissal before 19 October 2023. In this regard the Respondent argued that given the Applicant was aware that he was under investigation for serious misconduct, had been in contact with the investigator regarding the investigation, and had made complaints about the investigator’s conduct in the investigation, he reasonably ought to have been monitoring his email inboxes at least once a week for any emails from the Respondent.
The Respondent relied on the decision in Kamau v OC Connections.[20] In this decision, Commissioner Bissett held that the delivery of a notice of termination of employment to junk email, where the Applicant was aware that emails from the Respondent regularly go to junk mail, did not provide a reasonable explanation for delay in making an application to the Commission.
Consideration
When did the Applicant become aware of the Dismissal?
On the balance of probabilities, I accept the Applicant’s evidence that he did not become aware of the dismissal until 19 October 2023. I accept the Applicant’s evidence that the notice to show cause letter and termination letter went to his junk email and he did not become aware of the emails until his wife alerted him at 12.30am on 19 October 2023. I have come to this conclusion noting the following factors.
As noted above, the show cause letter and termination letter were emailed to the Applicant from the email address [email protected]. In the past, email correspondence sent by the Respondent to the Applicant was sent from [email protected]. While I note the Respondent’s contention that an email with the same domain is unlikely to go to junk mail, there was no substantial evidence put before me regarding this.
Because the Applicant had previously received emails from the Respondent from the email [email protected] I accept he was not looking for correspondence from the Respondent from a different email address.
The show cause letter proposed the Applicant attend a meeting on the 27 September 2023 or respond in writing by 4 October 2023. The Applicant did neither. On the balance of probabilities it seems more likely than not that if the Applicant had been aware of the show cause letter he would have made some response before termination. I have determined this noting that the Applicant did make efforts to object to Ms Betts’ investigation findings in relation to the bullying complaint on 18 August and 5 September 2023, and also noting that the Applicant appears to have been receiving some legal assistance from 18 August 2023.
I note the Respondent’s argument that the fact the Applicant stopped submitting COCs from 7 October 2023 indicates that the Applicant knew he was terminated. In cross-examination, the Applicant gave further evidence to the effect that:
Due to financial issues at the time of termination, he was unable to contact his doctor immediately to arrange for a new COC.
He had a phone consultation with his doctor on 19 October 2023, and acquired a COC for the period 8 October 2023 to 5 November 2023 following that consultation.[21]
This consultation occurred after he had sent the email to Mr Lynch at 4:04AM.
Notwithstanding that the last COC provided to the Respondent expired on 7 October 2023, he had more COCs provided from his doctor which confirmed he did not have capacity to work to the current date.
While it does seem an unusual coincidence that the Applicant stopped providing COCs after 7 October 2023, ultimately this is circumstantial evidence and on balance I am satisfied with the Applicant’s explanation for the delay given in witness evidence as outlined at paragraph [43] above.
Did the Applicant have a reasonable opportunity to become aware of the dismissal prior to this date?
Having found that the Applicant did not become aware of the dismissal until 19 October 2023, I now turn to whether the Applicant had a reasonable opportunity to become aware of the dismissal prior to 19 October 2023.
Given the evidence in front of me, I am satisfied the Applicant did not have a reasonable opportunity to become aware of the dismissal prior to 19 October 2023. In this regard I have considered the matters set out in the following paragraphs.
As regular communication from the Respondent went to the Applicant’s inbox, there was no reason for the Applicant to expect that communication from the Respondent would go to his junk folder. In this regard, this matter can be distinguished from Kamau v OC Connections[22], as the Applicant in that matter was aware that correspondence from the Respondent regularly went to the junk folder.
I note the Respondent’s contention that the Applicant should have been expecting correspondence from the Respondent regarding the investigation, and therefore it was reasonable for the Applicant to be checking all of his email inboxes once a week. I reject this submission on the following grounds:
The Applicant was receiving correspondence from the Respondent from another email address and had no reason to believe correspondence from the Respondent would go to his junk mail.
The Applicant provided uncontested evidence that he was not expecting correspondence regarding the investigation as he had communicated to Ms Betts he was unable to participate further in the investigation relating to the OHS incident.
The Applicant was off work for an injury and on medication which impacted his mental capacity. The Respondent was aware of this given the Applicant had consistently provided the Respondent with COCs.
The Applicant checked his junk box within 10 days of the termination. In the circumstances I am of the view this was reasonable.
Given the Applicant was away from work for an injury, in my view, once the Applicant had failed to show up for the show cause meeting or respond in writing, it was incumbent on the Respondent to take steps – such as phoning the Applicant – to ensure he had received the show cause letter, before terminating him by email correspondence. If the Applicant had been alerted to the show cause letter by a phone call, even if the termination letter had gone to the junk folder, it is unlikely he would be able to sustain an argument that he had no reasonable opportunity to become aware of the termination. However, this did not occur in this case.
I also note that despite the termination letter stating that “Jodie” would be in contact with the Applicant to make further arrangements to effect the termination, there is no evidence before me that such contact occurred. If a follow-up communication had been made with the Applicant following the termination letter, it is likely that the Applicant’s argument of having no reasonable opportunity to become aware of the termination would be limited to the date of that follow-up communication.
Accordingly for the reasons set out above I find the dismissal took effect on 19 October 2023.
5. Was the Application made within 21 days after the dismissal took effect?
The 21-day period prescribed in s.394(2) does not include the day on which the dismissal took effect.[23]
As I found above, the dismissal took effect on 19 October 2023. The final day of the 21-day period was therefore 9 November 2023 and ended at midnight on that day. The Applicant made his application on 9 November 2023 and accordingly made his application in time.
Conclusion
As I have found that the application was made within 21 days of the date on which the dismissal took effect, there is no need for me to consider if there were exceptional circumstances warranting an extension of time with reference to the matters listed under s.394(3). If I had to determine this matter it is likely I would have determined that there were not exceptional circumstances. This is primarily because on the evidence it appears clear that the Applicant had some form of legal assistance from at least 5 September and was aware of unfair dismissal remedy.
I will issue directions for the next step in this matter to proceed to hearing on the merits. I note the Respondent has raised a further jurisdictional objection on the basis that the Respondent is a small business and that the dismissal complied with the Small Business Fair Dismissal Code. This jurisdictional objection will be heard simultaneously with the merits of the application.
COMMISSIONER
Appearances:
B Shaw of Counsel, with permission on behalf of the Applicant.
B Lynch for the Respondent
Hearing details:
2023
13 December
Melbourne
20 December
Video via Microsoft Teams, Melbourne
Final supplementary written submissions:
Applicant Submissions 18 December 2023
Respondent Submissions 19 December 2023
[1] Section 394(2) of the Act
[2] Exhibit MM-7.
[3] Annexure BL-12, Hearing Book page 105.
[4] Annexure BL-4, Hearing Book page 85.
[5] Annexure BL-4, Hearing Book page 85.
[6] Annexure BL-6, Hearing Book page 89.
[7] Annexure BL-8, Hearing Book page 92.
[8] See Annexure BL-12 and Annexure BL-13, Hearing Book pages 105-106.
[9] Exhibit MM-7, Hearing Book page 51.
[10] Annexure BL-14, Hearing Book page 107.
[11] Exhibit MM-3.
[12] Form F2, Hearing Book page 7.
[13] Exhibit MM-1.
[14] Exhibit MM-7.
[15] Exhibit MM-2.
[16] [2016] FWCFB 5500.
[17] Foyster v Bunnings Group Ltd [2017] FWCFB 3923 at [17]
[18] Foyster v Bunnings Group Ltd [2017] FWCFB 3923.
[19] Respondent’s Supplementary Submissions Opposing the Extension of Time at [4]
[20] [2020] FWC 4641
[21] MM-5 and MM-6.
[22] [2020] FWC 4631.
[23] 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.
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