Michael Cornell v Action Events Group Pty Ltd

[2021] FWC 2322

[2021] FWC 2322

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Michael Cornell
v
Action Events Group Pty Ltd
(U2021/1200)

DEPUTY PRESIDENT COLMAN MELBOURNE, 28 APRIL 2021

Application for an unfair dismissal remedy – whether employee abandoned employment or was dismissed – whether to extend time under s 394(3) – application dismissed

[1] This decision concerns an application by Michael Cornell made under s 394 of the Fair Work Act 2009 (Act). Mr Cornell contends that he was unfairly dismissed by Action Events Group Pty Ltd (company), where he had been employed as a production manager in the company’s events management business. The company objects to the application on the grounds that Mr Cornell was not dismissed but abandoned his employment, and that his application was in any event lodged outside of the 21-day period prescribed by the Act. I heard the company’s objections on 27 April 2021. Mr Cornell appeared and gave evidence, as did the company’s director, Mr Damian DeJong, and Ms Nicola Irving-DeJong.

[2] Mr DeJong gave evidence that at the start of the COVID-19 pandemic in March 2020, all of the company’s events were cancelled, and he decided to redirect the business to transport and delivery work, using its fleet of small vans. Employees were assigned alternative duties. Mr Cornell said that from March he was asked to do work that went beyond his job description, and that later, during the stage 4 lockdown that applied in Victoria from August to late October 2020, he was required to undertake non-essential work, in contravention of the lockdown rules. He also said that in September he was required to clean a boarding house where there was raw sewerage, and a four-day old body had been found. Mr Cornell said that on 30 October 2020 he had a heated telephone discussion with Mr DeJong, during which he told Mr DeJong that he would no longer be doing transport delivery or cleaning work because it was not essential work, and that this had been causing him stress.

[3] Mr DeJong denied that the company had required employees to work in contravention of the lockdown rules. He said that the company had had to adapt to the circumstances of the pandemic and undertake transport and delivery work because there were no events to service. He said that this work was conducted pursuant to the lockdown exemption for the road transport industry, and that employees were issued permits allowing them to work. In relation to the work at the boarding house, Mr DeJong said that he and Mr Cornell had removed material from the driveway, and that there was no raw sewerage. They were told that a tenant had been found deceased in one of the rooms four days earlier, but they did not enter that room.Mr DeJong said that on the morning of 30 October 2020, Mr Cornell was scheduled meet a client but did not arrive. He called Mr Cornell and asked him where he was. Mr Cornell replied that his car had broken down. There was a heated discussion. Mr Cornell did not come to work that day and did not work again.

[4] On 1 November 2020, Mr Cornell sent the company a medical certificate for the week ending 8 November 2020. On 5 November 2020, Ms Nicola Irving-DeJong sent Mr Cornell a text stating that she was sorry to hear that he was unwell. Mr Cornell replied, stating: ‘Thank you I appreciate it very much just needed some space to get my head around a few things that I’m not coping with.’ He then sent the company a medical certificate for the period 9 to 15 November 2020. On 13 November Mr Cornell sent Ms Irving-DeJong a text stating that he had ‘not given up on Action’, but that he was not mentally or physically ready to come back to work. He said: ‘Please understand it’s not a personal thing, it’s not about you, Damian or Action.’ On 14 November 2020, Ms Irving-DeJong replied to Mr Cornell, stating that when a person is sick or cannot come to work, all the company asked was to be informed. She further stated that ‘unfortunately non communication from you has been a common occurrence for some time and it can be frustrating.’

[5] On 18 November 2020, Mr Cornell sent Ms Irving-DeJong a text stating that he should be back at work the following week. He attached a medical certificate for the period 17 to 24 November 2020. On 19 November 2020 Ms Irving-DeJong texted Mr Cornell, asking on what day he expected to return. Mr Cornell replied that he was seeing the doctor on 23 November and that he would let her know. On the evening of 23 November 2020, Ms Irving-DeJong sent a text to Mr Cornell asking about his visit to the doctor. Mr Cornell did not reply. On 29 November 2020, Mr Cornell forwarded Ms Irving-DeJong a medical certificate for the period 25 November to 9 December 2020. On 3 December 2020, Ms Irving-DeJong advised Mr Cornell that he had only 17 hours of personal leave remaining, and that the balance of his pay would be deducted from his annual leave.

[6] Mr Cornell produced to the Commission a copy of a medical certificate for the period 9 to 24 December 2020 and referred to this in his submissions. However, at the hearing, Mr Cornell said that he no longer wished to rely upon it, because he was not sure that he had submitted the certificate to the company. This was indeed the case. Ms Irving-DeJong then gave evidence that when she saw the certificate in Mr Cornell’s documents, she was suspicious about its authenticity and sent it to the doctor’s surgery, asking for confirmation that it was genuine. Ms Irving-DeJong produced an email from the surgery stating that this was not the certificate that had been issued to Mr Cornell.

[7] Mr Cornell did not contact the company in December 2020, other than to send a brief thankyou message in response to a text from Ms Irving-DeJong wishing him a happy birthday on 9 December. Mr DeJong said that on 29 December 2020, he sent to Mr Cornell’s personal email address a letter noting that he had been absent from work without approval since 9 December 2020 and stating that unless he made contact by close of business on 30 December 2020, the company would consider him to have abandoned his employment ‘and your employment will be terminated effective immediately.’ Mr Cornell said that he did not receive this email, and that it may have diverted to ‘junk’, and later been deleted. He said that correspondence with the company was usually by text. Mr DeJong said that payslips were sent to Mr Cornell by email, and Mr Cornell did not dispute this.

[8] Mr Cornell said that in early February 2021, having not heard from the company since December, he decided to resign. He said that he felt forced to resign because the company had previously required him to work in contravention of the lock down rules and there was no indication that it had changed its stance about the work it would require him to perform. On 8 February 2021 Mr Cornell sent a text message and email to the company stating that he resigned, the text of which stated:

“Dear Niki & Damian due to unforeseen circumstances and past events I cannot see myself continuing employment with Action Events. This is my formal notice of resignation as an employee of action events. As I'm not sure to (sic) the entitlements I'm due I have engaged the services of fair work to assure (sic) I'm paid correctly for my years of service to action events. If you could please forward a letter of separation would be much appreciated.”

[9] I make the following findings. First, I find that Mr DeJong sent Mr Cornell the letter of 29 December 2020 to his personal email address. A copy of the email was submitted in evidence. I accept Mr DeJong’s evidence that it was sent. Secondly, I accept Mr Cornell’s evidence that he did not see the company’s letter of 29 December 2020. Thirdly, because Mr Cornell did not rely on the final medical certificate, I make no finding as to whether it was authentic, however I find that he did not contact the company during this period and was absent without authorisation. Fourthly, I find that the company’s conduct did not force Mr Cornell to purport to resign on 8 February 2021. There were no circumstances of compulsion. In particular, the stage 4 lockdown in Victoria had long since ended. It does not make sense, and I do not accept, that Mr Cornell was forced to resign in February because of concerns about working in contravention of lockdown rules, or because of any other reason. He had had no contact with the company for two months. There had been no recent animosity. And his resignation letter referred only to ‘unforeseen circumstances’ and very generally to ‘past events’. Indeed, the resignation letter conveys no sentiment of forced resignation whatsoever.

Consideration

[10] I consider that Mr Cornell abandoned his employment. He had been told that the company expected to be notified if he was not able to come to work. He ignored this requirement. Mr Cornell did not make any contact with the company after the expiry of the last submitted medicate certificate on 9 December 2020. I consider that Mr Cornell should reasonably have known that, if he did not make contact with the company, it would soon consider him to have abandoned his employment. Mr Cornell sought to explain his silence over the Christmas period by the fact that he had been told by some other employees that the company would be closing for three weeks over Christmas. But he did not explain why he did not verify this with the company, or why he did not contact the company after this time. Whether a person has abandoned employment is to be considered objectively, in light of all the circumstances. By his conduct, Mr Cornell conveyed to the company a decision to end his employment following the expiry of his last certificate on 9 December 2020.

[11] I note that the letter of 29 December 2020 used the language both of abandonment of employment and dismissal. It said that if Mr Cornell did not contact the company before 30 December 2020, his employment would ‘be terminated effective immediately.’ But these words follow immediately upon a statement that the company would consider Mr Cornell to have abandoned his employment. In my view, it was objectively apparent from the letter that if Mr Cornell did not contact the company by the next day, it would consider his employment to have terminated by reason of abandonment. Mr Cornell did not see the letter. But that does not matter. Mr Cornell’s conduct manifested a decision to abandon employment. The company confirmed that it regarded the employment to have ended for this reason. Because Mr Cornell abandoned his employment, his employment was not terminated ‘on the employer’s initiative’, and he was therefore not dismissed within the meaning of s 386. The company’s first objection is upheld, and the unfair dismissal application must therefore be dismissed.

[12] I propose to determine also the company’s second, alternative objection to Mr Cornell’s unfair dismissal application. If I had concluded that Mr Cornell had been dismissed by the company, it would have been necessary to determine whether the application was lodged within the 21-day time limit. Plainly it was not. Any dismissal of Mr Cornell by the company could only have occurred on 30 December 2020, when, according to Mr DeJong’s letter of the previous day, the deadline for Mr Cornell contacting the company expired. Mr Cornell did not check his emails, but he ought reasonably to have done so. Contrary to Mr Cornell’s contention, the date of dismissal was not 8 February 2021, because his employment had already ended, and because Mr Cornell’s resignation cannot be considered to have been forced by the company. There simply was no dismissal on 8 February 2021. The 21-day period for lodging the application ended on 20 January 2021. The application was lodged only on 15 February 2021.

[13] The Act allows the Commission to extend the period within which to lodge an unfair dismissal application only if it is satisfied that there are ‘exceptional circumstances’. I adopt the broad approach to this expression expounded by the Full Bench in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975. I note that the requirement for exceptional circumstances in s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is fair to do so.

[14] Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section, namely: the reason for the delay; whether the person first became aware of the dismissal after it had taken effect; any action taken by the person to dispute the dismissal; prejudice to the employer (including prejudice caused by the delay); the merits of the application; and fairness as between the person and other persons in a similar position.

[15] The Act does not specify what reasons for delay (s 394(3)(a)) tell in favour of granting an extension of time however decisions of the Commission have referred to an ‘acceptable’ or ‘reasonable’ explanation. Mr Cornell submitted that the reason for the delay in lodging his application was that he was not aware that he had been dismissed. I accept that he did not see the letter of 29 December 2020. The fact that a person was unaware of a dismissal for a particular period will usually provide a good explanation for not lodging an unfair dismissal application during that period. But in this case, Mr Cornell had been absent from work for several months, and had made no effort to contact the company after the expiry of his last medical certificate on 9 December 2020. He ought reasonably to have contacted the company to advise that he was available for work, and to have checked his emails. Further, the final payment of Mr Cornell’s accrued annual and long service leave was made on 14 January 2021. At least from 28 January 2021, which was the next pay date, Mr Cornell must have been aware that his employment had ended, because he had now ceased to be paid. But such was his lack of interest in the company that he failed to contact the company even at this point. It was not until 15 February 2021 that Mr Cornell lodged his unfair dismissal application. In my view, the simple truth is that Mr Cornell had abandoned his employment, and then sought to formalise the end of his employment with a resignation. Mr Cornell also said at the hearing that he was not in good mental health over this period, but he provided no details of this, and no medical evidence. I am not persuaded that Mr Cornell has a reasonable explanation for the delay in lodging his application. This weighs against an extension of time.

[16] In light of my observations above, I consider the fact that Mr Cornell did not become aware of the notional dismissal until after it had taken effect (s 394(3)(b)) to be a neutral consideration in this case. I also note that Mr Cornell did not take any action to dispute the dismissal aside from lodging his application (s 394(3)(c)); there is no evidence of prejudice to the employer (s394(3)(d)); and I am not aware of any persons or circumstances that are relevant to the question of fairness as between Mr Cornell and other persons (s 394(3)(f)). I consider these matters to be neutral considerations.

[17] As to the merits of the application (s 394(3)(e)), Mr Cornell said that his dismissal was connected to the fact that he had declined to undertake work that did not comply with government regulations in place during the pandemic, because it was not essential work and could not be undertaken during the stage four lockdown, and that he had suffered stress in this connection. I reject Mr Cornell’s evidence about these matters. The stage 4 lockdown ended in late October 2020, well before Mr Cornell’s purported resignation. Neither Mr Cornell’s text correspondence with the company nor his resignation make mention of these matters. I consider that Mr Cornell has a weak case. This weighs against an extension of time.

[18] Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances. There is therefore no basis to extend time, and I would decline to do so. Consequently, even if I had concluded that the company had dismissed Mr Cornell, I would have dismissed his unfair dismissal application on this basis.

Conclusion

[19] Mr Cornell’s application is dismissed.

DEPUTY PRESIDENT

Appearances:

M. Cornell for himself

D. DeJong for Action Events Pty Ltd

Hearing details:

2021

Melbourne

27 April

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