Milan Mihajlovic v Berwick City Soccer Club

[2021] FWC 6363

[2021] FWC 6363

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Milan Mihajlovic
v
Berwick City Soccer Club
(U2021/5671)

DEPUTY PRESIDENT MANSINI MELBOURNE, 3 DECEMBER 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application by Mr Milan Mihajlovic alleging that he was unfairly dismissed from his employment with the Berwick City Soccer Club (the Club), made under s.394 of the Fair Work Act 2009 (Cth) (Act).

[2] Each season from 2011 until his alleged dismissal in June 2021, Mr Mihajlovic coached junior soccer teams at the Club. Most recently he was coach of the Under 17 Junior Boys’ National Premier League team and the Under 13A boys’ community team.

[3] The Club contended that Mr Mihajlovic was a volunteer coach and is not a person “protected from unfair dismissal” pursuant to Division 2 of Part 3-2 of the Act because he was not an “employee” as defined. However, even if Mr Mihajlovic could establish that he was an “employee” then the Club contended that the claim was filed late.

[4] I have determined that the application was filed outside the statutory timeframe and am not satisfied that there are “exceptional circumstances” as to justify an extension of the time for filing pursuant to s.394(3). Accordingly, the application is dismissed. The reasons follow.

Was the application filed outside the statutory timeframe?

[5] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3).

[6] In this case, there is a dispute about when Mr Mihajlovic’s alleged dismissal took effect.

[7] A dismissal takes effect when it is communicated to the employee who is being dismissed, thought it may be communicated orally. 1 Subject to any express provision in the contract of employment, the general principle is that an employer must communicate to the employee by plain or unambiguous words or conduct that the contract is terminated.2

[8] Where the communication of the dismissal is in writing, the communication must have been received by the employee in order for the termination to be effective or at the very least there must have been reasonable opportunity for the employee to discover that their employment was terminated. 3 In the case of a termination by email communication, an employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual address.4 In Ayub Trains, a Full Bench held:

There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal – for example when an employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the effect of the dismissal. 5

[9] In this case, the evidence before the Commission that was most pertinent to the question of the effective date of the alleged dismissal included that of:

a) A “zoom” meeting which commenced at around 7pm on 7 June 2021, in which the Club informed Mr Mihajlovic of the outcome of an investigation and that it had decided to stand him down;  6 and

b) An email communication sent at 7.43pm on 7 June 2021, which confirmed the outcome of that meeting. 7

[10] The 7 June 2021 meeting was attended by Mr Mihajlovic, Ms Nicole Woodward (the Club’s President), Mr Ollie Pivac (Assistant Coach), Mr Aaron Healey (Technical Director) and Mr Tony Lettieri (Committee Member). 8

[11] Ms Woodward gave evidence that she took notes during the meeting and typed minutes in the days that followed, with reference to those notes. 9 The minutes were in evidence and I accept this to constitute a relatively contemporaneous record of Ms Woodward’s recollection of the discussion. Mr Mihajlovic did not produce notes but I assessed his evidence of his recollection of that meeting to be frank - it was also consistent with Ms Woodward’s minutes in some important respects.

[12] The minutes of the 7 June 2021 meeting record that there was a discussion about an investigation, that Mr Mihajlovic requested to see video footage which was refused, and that Mr Mihaljovic was advised that the Club had decided to stand him down immediately from coaching the Under 17 and Under 13A teams. 10 The minutes record that Mr Mihajlovic said words to the following effect: “ok so I fucked up with the 17’s but I don’t understand why you have to take the 13’s off me”.11 Mr Mihajlovic accepted in evidence that, at the meeting, it was made clear to him and he understood that he was no longer permitted to coach at the Club. In the context of the decision that he was not permitted to coach anymore, Mr Mihajlovic described his state of emotion during the meeting as not “upset” but rather “distraught” and “devastated”.12

[13] The minutes also record that it was said that the outcome of the meeting was to be confirmed by email. Ms Woodward’s evidence was that she had committed to sending the follow up email straight after the conclusion of the meeting. 13

[14] At 7.43pm on 7 June 2021, Ms Woodward sent an email to Mr Mihajlovic which said:

“Dear Milan,

I would like to thank you for your time tonight. It certainly was not the outcome we were hoping for, however, it is the outcome that was required.

This email is to confirm and finalise the outcomes of tonight's meeting as follows.

- Based on all evidence presented, you have been stood down permanently from the U17 NPL and U13A coaching roles at berwick City effective immediately

- Once lockdown ceases, can you please return all equipment and property of Berwick City back to Fox Rd

- This matter is to be kept private and confidential, it is not to be discussed outside of the meeting

- This matter is not to be discussed on social media in any form

- You must remove all groups created that have been used to communicate with both teams, for example Heja. The new coach will set up their preferred methods of communicating

- If parents contact you regarding the matter, please direct them to Aaron or myself

Kind Regards,

Nicky Woodward
President”  14

[15] Mr Mihajlovic said that he did not receive the email until 8 June 2021 because it was sent “after hours” and he does not usually check his emails after hours. 15 However the Club pointed to emails before the Commission which show that Mr Mihajlovic accessed and sent emails “after hours” (including as late as 11.50pm16) and it was not contentious that his coaching roles were always performed outside of standard business hours (from 5.30pm and 7pm, three days each week, and otherwise on weekends).17 With reference to the 7 June 2021 email, Mr Mihajlovic also said that he was “confused by the words used, as I have a reasonable but not a perfect knowledge of English, which is my second language”.18

[16] I accept that the use of the phrase “stand down” or “stood down” as used in the meeting of 7 June 2021 was somewhat clumsy and inapt. I have had regard to the fact that English is Mr Mihajlovic’s second language. However, and particularly in light of the frank admissions of Mr Mihajlovic, there is no question that Mr Mihajlovic was not only given a reasonable opportunity to know of the alleged dismissal in such a way that he could understand but indeed the Club’s decision was clearly conveyed to Mr Mihajlovic during the 7 June 2021 meeting in such a way that he did understand that his engagement as a coach had come to an end. I also consider the evidence supports a finding that Mr Mihajlovic was clear that this decision applied to both teams for which he had coached, including because he expressly asked why he could not continue to coach the Under 13 team. The evidence was, and I accept, that the Club advised that this decision was effectively immediately, and that it would be confirmed in writing, by email, immediately after the conclusion of the meeting.

[17] And that is exactly what Ms Woodward did – just 43 minutes after the commencement of the meeting on 7 June 2021, an email was sent which provided written confirmation that Mr Mihajlovic was “stood down”. Again, that term is inapt. However, on the face of that email and consistent with the earlier meeting, it was also made plain that this outcome was permanent, effective immediately and applied to both teams. The email also set out arrangements for the return of equipment, confidentiality and communications. I consider Mr Mihajlovic’s written evidence that he was “confused” about the words used in that email to be at odds with (and not to be preferred over) his oral evidence to the Commission of his clarity and understanding that he was no longer permitted to coach either team gained from the discussion in the earlier meeting. In this respect, I have had regard to the fact that English is Mr Mihajlovic’s second language. But there is no evidence that Mr Mihajlovic responded to the email to indicate confusion or to seek clarification about what was meant and there is no evidence that he sought to attend the Club to coach either the Under 17 or the Under 13A team after this time.

[18] I am prepared to accept that Mr Mihajlovic, who was feeling “distraught” and “devastated”, may have chosen not to review his emails until the following day. But there was no suggestion of any incapacity or inability to access emails that evening. Indeed the meeting had taken place by zoom, using electronic technology, and the email was sent electronically shortly after its conclusion (at least within less than an hour of its commencement). Mr Mihajlovic had agreed to attend the meeting outside of what might be described as standard business hours, had demonstrated through his prior conduct that he did read and respond to emails at times that were after standard business hours and ordinarily performed his coaching roles for the Club on evenings and weekends.

[19] Having regard to the evidence that is before the Commission, I am satisfied that Mr Mihajlovic knew, or at least had a reasonable chance to find out, that his coaching roles had come to an end on and from 7 June 2021. Accordingly, I find that the alleged dismissal was effective 7 June 2021. For completeness, there was no evidence of notice pay or a final termination pay. In the particular circumstances of this case, I consider the absence of such evidence does not alter the conclusion that the dismissal took effect on 7 June 2021.

[20] The period of 21 days ended at midnight on 28 June 2021. As the application was not then lodged until 4.37pm on 29 June 2021, the application was lodged one day out of time.

Are there ‘exceptional circumstances’?

[21] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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. 19 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.20

[22] The requirement that there be exceptional circumstances before time can be extended under 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.

[23] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person 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 the person and other persons in a similar position.

[24] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.

Reason for the delay

[25] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 21

[26] The only discernible explanation for the delay offered by Mr Mihajlovic was that the email of 7 June 2021 was sent “after hours, when the Applicant is unlikely to read the 7 June email and is unable to obtain legal advice, till the next day”. 22 There was also evidence about Mr Mihajlovic’s state of mind following the 7 June 2021 meeting but it was not contended that there was any, and there was no medical evidence of any, incapacity that might be relevant to this consideration.

[27] In the circumstances and with regard to the above findings to the extent relevant to this consideration, I do not consider there to be an acceptable, reasonable or credible explanation for the delay. This weighs against a conclusion that there were exceptional circumstances in this case.

Whether the person first became aware of the dismissal after it had taken effect

[28] Having regard to the above findings, I am satisfied that Mr Mihajlovic was aware of the alleged dismissal as of 7 June 2021.

[29] This factor weighs against a finding of exceptional circumstances because Mr Mihajlovic had the benefit of the full 21 day period to lodge an application.

Action taken to dispute the dismissal

[30] The Commission will consider any action taken to put the employer on notice that the issues in contest had not reached finality and would be contested in the near future. 23 The Commission may also have regard to whether such action constitutes a genuine effort to resolve the dispute.24

[31] There is no evidence of any steps taken to dispute the alleged dismissal prior to the filing of this application. In the circumstances, I consider this to be a neutral consideration.

Prejudice to the employer

[32] I cannot identify any particular prejudice that would accrue to the Club if an extension of time were to be granted.

[33] The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. This is a neutral consideration.

Merits of the application

[34] The Act requires me to take into account the merits of the application in considering whether to extend the time for filing.

[35] As earlier identified, the Club also contends that Mr Mihajlovic was not an “employee” and therefore not a person “protected from unfair dismissal” for the purposes of the Act. That contention was strongly opposed by Mr Mihajlovic.

[36] In any event, the merits of the substantive application would need to be tested if the jurisdictional issues were determined in favour of Mr Mihajlovic and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits.

[37] I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[38] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[39] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

Conclusion

[40] The statutory time limitation applicable to the exercise of a person’s right to make an unfair dismissal remedy application is an expression of the Parliament’s intention that rights must be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are ‘exceptional circumstances’.

[41] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by Mr Mihajlovic, I am not satisfied that there are exceptional circumstances. The absence of an acceptable or reasonable explanation and Mr Mihajlovic’s immediate awareness of the alleged dismissal taking effect respectively weigh against, and all other factors weigh at best neutrally towards, a finding of exceptional circumstances in this case. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time.

[42] I decline to grant an extension of time under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

[43] For completeness, having reached the above conclusion, there is no utility in determining the question of whether Mr Mihajlovic was an “employee” or a “volunteer” and I decline to do so.

DEPUTY PRESIDENT

Appearances:

Mr J. Levine for the Applicant.
Ms C. Dowling for the Respondent.

Hearing details:

2021.
Melbourne (by Video).
15 September.

Final written submissions:

Respondent on 30 September 2021.
Applicant on 7 October 2021.

Printed by authority of the Commonwealth Government Printer

<PR735849>

 1   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24] and Plaksa v Rail Corporation NSW [2007] AIRC 333 (Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne Print Q9605 (AIRC, Whelan C, 10 December 1998).

 2   Mohammed Ayub v NSW Trains[2016] FWCFB 5500 (Ayub Trains) at [17].

 3   Ibid at [17] and [46].

 4 Ibid at [50].

 5 Ibid at [50].

 6   Witness Statement of Milan Mihajlovic at 11.

 7   Witness Statement of Milan Mihajlovic at annexure MM-7.

 8   Witness Statement of Nicole Andrea Woodward at annexure NW-5.

 9   Transcript of Hearing at PN413-414.

 10   Witness Statement of Nicole Andrea Woodward at annexure NW-5.

 11   Witness Statement of Nicole Andrea Woodward at annexure NW-5.

 12   Transcript of Hearing at PN152-154.

 13   Transcript of Hearing at PN420.

 14   Witness Statement of Milan Mihajlovic at annexure MM-7.

 15   Witness Statement of Milan Mihajlovic at 12.

 16   Witness Statement of Milan Mihajlovic at annexure MM-1.

 17   Witness Statement of Milan Mihajlovic at 6; Transcript of Hearing at PN329.

 18   Witness Statement of Milan Mihajlovic at 12.

 19   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].

 20   Ibid.

 21   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 22   Applicant’s Outline of Submissions filed 2 August 2021 at 13.

 23   Wilson v Woolworths[2010] FWA 2480 at [19]-[21].

 24   Butterly v Boldstate Corporation T/A Kalamunda Patisserie[2014] FWCFB 7474.