Mr Daniel Luke Kontominas v Queensland Property Investments Pty Ltd
[2023] FWC 1436
•19 JUNE 2023
| [2023] FWC 1436 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Daniel Luke Kontominas
v
Queensland Property Investments Pty Ltd
(U2023/3673)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 19 JUNE 2023 |
Application for an unfair dismissal remedy - Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
Mr. Daniel Kontominos (the Applicant) has filed an application with the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) alleging that he had been unfairly dismissed from his employment with Queensland Property Investments Pty Ltd (the Respondent).
Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
The Respondent objected to the application on the ground that the application is out of time (the jurisdictional objection).
Before considering the merits of the application for an unfair dismissal remedy, the Commission must be satisfied that the application was not made out of time or alternatively, extend the 21-day time limit provided for in section 394(2)(a).
In accordance with directions issued by the Commission, the Applicant filed submissions on 23 May 2023. The Respondent filed submissions in the Commission on 1 June 2023. After taking into account the views of the parties as to the way in which the Commission should deal with the matter, I considered it appropriate to proceed by way of conference. The conference to determine the jurisdictional objection was held on 5 June 2023.
When did the dismissal take effect?
The originating application filed by the Applicant with the Commission provided that the dismissal took effect on 27 March 2023[1]. On that date, the Applicant attended a meeting involving himself, his union representative and two representatives of the Respondent (the 27 March meeting). At the 27 March meeting he was provided with a letter from the Respondent bearing the same date[2]. The letter was titled “Termination of Employment”. The letter recounted some of the events leading up to the meeting and included the following:
Outcome - Termination of Employment
Daniel, it is with regret that I confirm the decision has now been made to terminate your employment with the Woolworths Group. This decision has been made in the absence of any indication that you are now, or will in the foreseeable future, be fit to return to your role.
Accordingly, your employment will be terminated, effective immediately. You will be paid four (4) weeks’ pay in lieu of notice, in line with your contract of employment.
The letter also thanked the Applicant for his contribution and wished him well with his ‘recovery and future endeavours.’ The terms of the letter indicate that a copy of this correspondence was emailed to the Applicant and forwarded to him via registered post.
At the conference on 5 June, the Applicant did not contend that the dismissal took effect on some date other than the 27 March 2023. He did however contend that on the 27 March 2023, and for some period of time thereafter, he had misapprehended the date that the dismissal took effect. He maintained that this misapprehension arose from what happened at the 27 March meeting. He said his view was reinforced by what he understood to be the advice of a union organiser after the meeting had concluded.
The Applicant further contended that this misapprehension explains, at least in part, the timing of the lodgement of his unfair dismissal application. More will be said about this below.
The Respondent submitted that the dismissal took effect on 27 March 2023, when the Applicant was handed the letter of termination at the 27 March meeting. The Respondent says that the letter was in clear terms and provided for immediate termination as at that date and for the payment of 4 weeks’ pay in lieu of notice.
Whether a dismissal takes effect immediately when payment is made in lieu of notice is a question of fact.[3] Where the employer’s communication is clear and there is no evidence of a contrary intention, termination by payment in lieu of notice will result in immediate termination of the contract of employment when the dismissal is communicated to the employee.[4] In this matter, the terms of the letter dated 27 March 2023 were abundantly clear. The termination was to take immediate effect and payment was to be made in lieu of any notice period. There is no evidence of any contrary intention. I am satisfied that in the circumstances of this case, and notwithstanding any misunderstanding that may have existed on the part of the Applicant, the dismissal took effect on 27 March 2023.
When was the application made?
The application was lodged online on 28 April 2023. Where an application is lodged online, the application is made when it is received electronically by the Commission, provided that the Commission has sent an acknowledgment of the lodgement by email.[5]
It is not in dispute, and I so find, that the application was made on 28 April 2023.
Was the Application made within 21 days after the dismissal took effect?
The 21-day period prescribed by s.394(2) does not include the day on which the dismissal took effect.[6]
Since the dismissal took effect on 27 March 2023, the final day of the 21-day period was therefore 17 April 2023 and ended at midnight on that day.
Since the application was not made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.
Was the application made within such further period as the Commission allows?
Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b)whether the Applicant first became aware of the dismissal after it had taken effect; and
(c)any action taken by the Applicant 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 Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[7] I set out my consideration of each matter below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 17 April 2023. The delay is the period commencing immediately after that time until 28 April 2023, although circumstances arising prior to that delay may be relevant to the reason for the delay.[8]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[9]
An applicant need not necessarily provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[10]
The Applicant submitted that the delay was attributable in part to his misunderstanding of the date the termination took effect, based on events that took place at the 27 March meeting and shortly thereafter. He said that he came away from the meeting under the impression that he had ‘more time to complete (his) application[11]’ because he had understood that the employment relationship would not come to an end until the end of a four-week notice period referred to at the meeting. He said that he had understood that he ‘would be getting paid for four weeks and (I) would not have to come in, basically similar to annual leave but still on the books till the four weeks had elapsed.[12]’ He maintained that this view was reinforced by a conversation he had with a union organiser shortly after the meeting.
It is necessary to recall some of the interactions between the parties to provide some context to the 27 March meeting. The events leading up to the meeting can be briefly summarised.
Background to the 27 March Meeting
The Applicant was originally employed by the Respondent as a storeperson in 2014. On 3 June 2021[13], the Applicant sustained a workplace injury that left him unfit for his normal duties. He did not work again after that until early in 2023.
By letter dated 4 October 2022[14], the Respondent sought information from the Applicant as to the status of his injury, his prognosis and his ability to return to work. The correspondence indicated that the Respondent sought the information to allow it to assess whether “any reasonable workplace adjustments can be made to facilitate (the Applicant’s) return and whether (the Applicant was) at risk of re-injury, aggravation and/or exacerbation, should (he) return to work.”[15] The Respondent sought a response from the Applicant by 21 October.
Further correspondence from the Respondent to the Applicant dated 1 November 2022[16] stated that the Applicant had emailed the Respondent advising that he had passed on the request for information to the Applicant’s treating practitioner asking that the practitioner call or email the Respondent if they had any queries. However, the Respondent’s letter advised the Applicant that the Respondent had not received any of the information requested in their letter of 4 October. The Respondent gave the Applicant until 9 November 2022 to provide the information.
On 16 November 2022, the Respondent sent further correspondence[17] to the Applicant (by email and registered post) indicating that no response had been received. The Respondent’s letter was also stated to serve as a “written warning” to the Applicant for “failure to follow a reasonable management direction” and gave the Applicant until 23 November 2022 to provide the requested information from his medical practitioner. The letter also provided as follows:
Daniel, please be reminded that, as set out in the Second Letter, this is considered to be a reasonable and lawful direction, and failure to follow this direction may result in further disciplinary action being taken, up to and including the termination of your employment. Accordingly, in the absence of a response, we may commence a review of your ongoing employment.
On the same date, the Applicant emailed the Respondent indicating that he had passed on the documents to his medical practitioner.
A further letter dated 6 December 2022 was sent by the Respondent to the Applicant[18]. According to the letter, no response had been received by the Respondent from the Applicant’s medical practitioner, however the Applicant had emailed the Respondent advising that he had provided the request for information to his practitioner. The Respondent’s correspondence also provided as follows:
Daniel, it is your ongoing responsibility to ensure that your treating practitioner(s) completes the report in accordance with our requests. As previously noted in our correspondence to you, we encourage you to follow up with your practitioner or, alternatively, obtain the requested medical information from a different treating practitioner and/or specialist.
The letter dated 6 December 2022 stated that the Respondent would give the Applicant a “final extension of time” to 9 January 2023 to provide the information and indicated that the failure to do so could result in disciplinary action “up to and including the termination of your employment.”
By letter dated 11 January 2023[19] the Respondent indicated to the Applicant that it had not received the information requested. The letter recounted the previous correspondence and indicated that the Respondent was now considering the status of the Applicant’s employment. Amongst other things it said:
Prior to making a decision in relation to the status of your employment, you have the opportunity to provide us with any further or additional information as to why your employment should not be terminated.
The letter stated that the Applicant had until 18 January 2023 to provide this information to the Respondent.
The Applicant emailed the Respondent on 12 January 2023[20] indicating that his rehabilitation had been progressing well and that he would be updating his acting doctor at the next physical meeting that they had.
A further letter from the Respondent to the Applicant dated 10 February 2023[21] made reference to a report, dated 17 January 2023, from a general practitioner, Dr. Lim, that had been provided by the Applicant to the Respondent on 18 January 2023. The letter summarised the information from Dr Lim as being that the Applicant remained unable to return to full pre-injury duties and that Dr Lim could not provide an estimate as to when the Applicant may have been able to do so. The letter included the following and requested further information by 20 February 2023:
As outlined above, the medical evidence obtained by the Woolworths Group supports that you are currently unfit to complete the inherent requirements of your role and are unlikely to do so in the foreseeable future. As such, we are undertaking a review of your ongoing employment and are considering terminating your employment on medical grounds.
However, prior to making a decision in relation to the status of your employment, you have the opportunity to provide us with any further or additional information as to why your employment should not be terminated.
The Respondent wrote to the Applicant again on 27 February 2023[22]. In that letter the Respondent made reference to the Applicant’s response of 20 February 2023 which included a copy of your WorkCover Certificate of Capacity dated 17 February 2023. The certificate ‘upgraded’ the Applicant’s lifting capacity and increased the hours of work that he was able to undertake. However, the Respondent indicated that they remained unsatisfied that the Applicant was capable of performing the inherent requirements of the Applicant’s substantive role. It requested a further response by 6 March 2023 and provided as follows:
Daniel, in light of the above we regret to advise we are considering terminating your employment on the basis that you are unfit to complete the inherent requirements of your role, now or at a foreseeable time in the future. Based on the information above, we would like to provide you with a further opportunity to respond with any information (supported by medical evidence) for us to consider that demonstrates why your employment should not be terminated.
The Applicant gave evidence that during the period when these requests for information were made by the Respondent he had some difficulty in obtaining the information from his practitioner because the practitioner was not conducting ‘in-person’ consultations during 2022 because of Covid-19. He also tendered four certificates of capacity from medical practitioners dated 17 January, 2 February, 17 February and 31 March 2023 respectively. According to the Applicant, these certificates demonstrated a progressive improvement in his condition and a capacity to take on a greater range of duties over a more extended work period. The last of those certificates, which post-dates the date the termination took effect, indicates a capacity for the applicant to work 8 hours per day over 4 days per week.
This exchange of correspondence indicates that, in spite of any difficulties that the Applicant may have had in obtaining the information requested and notwithstanding the apparent improvement in his physical condition during 2023, the Respondent was escalating the seriousness of the situation. By the time of the meeting on 27 March 2023, the issue was no longer simply about reasonable workplace adjustments to facilitate a return to work. The preparedness of the Respondent to allow for the continuation of the Applicant’s employment was in real doubt. The Applicant would have been aware that termination of his employment was a real possibility at the forthcoming meeting. No doubt in recognition of the seriousness of the situation, the Applicant arranged for a union representative to attend the 27 March meeting with him.
The 27 March Meeting and Beyond – Applicant’s Evidence
The Applicant was unable to provide a detailed account of what was said at the 27 March meeting. He had some recollection of the Respondent’s representatives explaining to him why he was being terminated and those representatives expressing a view that he was unable to continue functioning in his role. He said that it appeared that one company representative was reading from a pre-prepared script but that he did not recall the detail and once it became clear to him that he was being terminated, he ‘shut down’. He said he was handed the termination letter in a sealed envelope but could not recall whether it was the terms of that letter that were read out to him or something else. He described his recollection of the discussion as ‘hazy’ and said he was focused on the fact of his dismissal and the notice period.
The Applicant did not give any evidence of anything that was said by either of the Respondent representatives that indicated that the termination of his employment would take effect at the end of a four-week notice period.
The Applicant also gave evidence about his discussion with his union organiser. The Applicant said he spoke to the organiser on the day of the meeting about lodging an unfair dismissal application. He said the organiser told him he (the Applicant), had four weeks’ pay coming his way and to call him so that an application could be discussed, but that no further discussions were ever held between the two of them about that issue. The Applicant said he spoke to the organiser again one or two days after the meeting and the organiser said that the Applicant had ‘four weeks up (his) sleeve’ and that if he needed work after he gained a clearance, that he should call him. After that, the Applicant maintained that he had no further contact with the organiser despite his repeated attempts to call him.
The Applicant also gave evidence about the impact of his circumstances, including his workplace injury and the potential loss of his employment, on his mental health. He said that this affected his ability to absorb the detail and implications of what was being said at the 27 March meeting. He provided a certificate from his treating psychologist, Mr. Hodzic, indicating that the misunderstanding about the lodgement deadline for his application was “consistent with his clinical presentation over time. That is, Mr. Kontominas has had consistent difficulty with fully comprehending very specific and detailed information while in a heightened state of distressed” (sic).
The Applicant gave further evidence that the 27 March meeting had taken place just prior to the Easter Break. He said that prior to the meeting, a holiday had been booked with his family for the school holiday period and that he did not want to disappoint his children by cancelling the holiday after the meeting had taken place. He said he also thought a holiday would allow him to ‘clear his mental state’ and allow him to ‘return with a sound mind’ before coming to the Commission with his case. His evidence was that he left for this holiday on or shortly after 18 April and returned on or about 28 April 2023.
Respondent’s Evidence and Submissions
In relation to the reason for the delay, the Respondent submitted that the letter of termination was clear and the Applicant could have been under no misunderstanding as to its effect.
Further, the Respondent provided a copy of email correspondence from the Applicant to a representative of the Respondent, Mr. Stennard, dated 18 April 2023[23]. The email provided in part:
My name is Daniel Kontominas and my pin was (X) and my payroll number was (Y). On the 27th March 2023 I was terminated based on the fact that Woolworths SRDC deemed me unable to perform my inherit (sic) requirements of my role….
…If need be and you choose not to explain in detail to me why this has happened, I will have no choice but to take this to the commission for them to hear my case,….
The Respondent submitted that this email from the Applicant showed that, at least by the 18 April 2023, the Applicant understood the date of effect of his termination to be 27 March and that he knew that he could, and was actively contemplating, making an application to the Commission. Instead, the Applicant elected to go away on a holiday for 10 days and do nothing further about making an application until after his return. The Respondent submitted that it would have been open to the Applicant to lodge an application online while he was on holidays, but again, he chose not to do so.
The Respondent maintained that the evidence in relation to the Applicant’s mental health was insufficient to adequately explain the delay or support a conclusion that there were ‘exceptional circumstances.’ The Respondent submitted that the certificate from the treating psychologist was of a generalised nature only, related to his ability to understand detailed information and did not speak to the Applicant’s incapacity or otherwise to file an application during the period from his dismissal until the lodgement of the application.
Having regard to the above, whilst I consider it conceivable that the Applicant may have, at some point, misunderstood the date his dismissal took effect and that this in turn may have contributed in some measure to the delay in filing the application, I am not satisfied that this provides a complete or satisfactory explanation for the delay.
No doubt the period leading up to the 27 March meeting and the meeting itself would have been a stressful time for the Applicant. It is likely that most people in that meeting situation would not absorb every detail of what was being conveyed. However, the wording of the termination letter that was provided to the Applicant on 27 March is clear. The dismissal was to take effect immediately. There was to be a payment of four weeks’ pay in lieu of a notice period. Whilst the Applicant had been regularly performing some limited duties in the months leading up to the 27 March meeting, he did not perform any work after that date.
The Applicant indicated that his recollection of the events at the 27 March meeting was not clear. However, a termination letter had been provided to him at the meeting. It was open to the Applicant to seek clarification about his status after the meeting.
The Applicant was represented at the meeting. Given the Applicant’s limited recollection of events at the 27 March meeting and the evidence that he gave, I am unable to conclude that the union organiser gave the Applicant plainly inaccurate advice about the date his dismissal had taken effect at the meeting, or at the discussion that occurred days afterwards. Whilst the Applicant gave evidence about his unsuccessful efforts to get further advice from his union organiser in the days following the meeting, there was no evidence of other steps being taken to seek advice elsewhere or ascertain the date by which an application had to be lodged. Eventually the Applicant’s wife spoke to a union delegate after the family returned from holidays and shortly before the application was filed. It was this conversation that prompted the Applicant to ‘hit up’ the Commission website to obtain more information.
The medical certificate supplied by the Applicant goes some way to explaining the difficulty he may have had in originally comprehending the terms of his dismissal. However, it does not indicate that the Applicant lacked the capacity to take any other steps.
For virtually the entire period of the delay, namely from 18 to 28 April, the Applicant’s evidence was that he was away on holidays with his family. There was no evidence that the Applicant took any steps at all in relation to his dismissal during that time. The Applicant waited until the holiday period was over before he progressed the matter any further. This does not weigh favourably for the Applicant.
Did the Applicant first become aware of the dismissal after it had taken effect?
On the basis of the evidence relating to the 27 March meeting, I find that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.
What action was taken by the Applicant to dispute the dismissal?
The Applicant’s evidence was that he made efforts to contact his union representative by phone after the 27 March meeting to obtain further advice about his circumstances. These attempts proved to be unsuccessful. As referred to above, the Applicant also emailed the Respondent on 18 April disputing his dismissal and indicating his intention to take the matter to the Commission. He accepted that he had no further contact with the Respondent after that.
The Respondent submitted, and I accept, that there was no evidence that the Applicant made any effort to contact registry staff to assist him with the lodgment of an application by email or phone. They submitted that this should weigh against granting an extension.
Having regard to the matters I have referred to above, I am satisfied that the Applicant took at least some action to dispute the dismissal. He did actively, though unsuccessfully, seek industrial advice from his union during the 21-day period after his dismissal. Although he was unsuccessful in making contact, he did not seek advice elsewhere or take any further steps. The Applicant also contacted the Respondent on 18 April asking for an explanation for his termination and indicating he had evidence supporting his capacity to undertake his duties. The Respondent was therefore on notice that the termination was actively challenged, albeit after the 21-day period had elapsed, and that the matter might ultimately end up in the Commission. In my view, the steps that were taken are factors that weigh, to some very limited degree, in the Applicant’s favour.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent conceded that in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice to the Respondent is not a sufficient basis to grant an extension of time.[24]
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application were set out in the filed materials. The Applicant also gave oral evidence at the hearing going to the merits. Much of the factual material as to the merits was uncontentious.
The Applicant submitted that the termination of his employment was unfair in the circumstances because he had provided the Respondent with medical evidence of the progressive improvement in his physical capacity to undertake his full range of duties. He relied on the fact that he had returned to work in the first quarter of 2023 and, prior to his dismissal, had been able to increase his range of duties and his working hours. In these circumstances he submitted that the Respondent’s decision to terminate his employment rather than permit him to continue in his employment and ultimately return to his pre-injury role, was unfair.
The Respondent submitted that the Commission should have particular regard to the following matters in its consideration of the merits of the application:
(i) The Applicant was dismissed on the basis that he is unable to perform the inherent requirements of his position. To date, he continues to provide medical certificates indicating he is unfit to complete the full inherent requirements of his role.
(ii) The Applicant’s Application provides:
(a) only that his dismissal was unfair due to financial reasons, being he was not able to receive redundancy and the dismissal impacted his ability to provide for his family.
(b) does not provide any clear indication of the timeframe within which he says he will be able to perform the inherent requirements of his position; and
(c) does not raise any alleged defects in procedural fairness in support of his unfair dismissal application (and the Respondent says there were no such defects).
The present task is not to finally dispose of the proceeding based on the merits of the matter, but rather to weigh the merits of the application in assessing whether the Commission can be satisfied of the existence of exceptional circumstances that would support an extension of the time limit for the filing of an application. The merits assessment is an essential step in a broader inquiry. I have weighed all the material before me and considered the various countervailing arguments. On the available evidence I am satisfied that the Respondent took reasonable steps to accord the Applicant procedural fairness in the period leading up to the termination of employment. However, taking into account all the circumstances, including the Applicant’s improving health situation, his return to work and his length of service, I have concluded that, at its highest, the Applicant’s case is arguable.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration. I find that there is nothing for me to weigh under this heading in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
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.[25] 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. [26]
Having regard to all of the circumstances of this case and the matters in s.394(3), and my conclusions in relation to those matters set out above, I am not satisfied that there are exceptional circumstances to warrant an extension of time.
Conclusion
The Applicant’s application for an unfair dismissal remedy is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
Mr Daniel Luke Kontominas, for the Applicant.
Mr Christopher Devine, for the Respondent.
Hearing details:
Heard by Video using Microsoft Teams, 2:00pm (AEST) on Monday 5 June 2023.
[1] F2 Application page 2.
[2] Exhibit A1.
[3] Siagian v Sanel Pty Ltd (1994) 54 IR 185.
[4] Siagian v Sanel Pty Ltd (1994) 54 IR 185.
[5] Fair Work Commission Rules 2013 (Cth) r 15(2).
[6] 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.
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[8] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[11] Exhibit A3.
[12] Correspondence 16 May 2023.
[13] F2 Application page 3. Respondent’s Written Submissions 3.1(b).
[14] Exhibit R1.
[15] Ibid page 1.
[16] Exhibit R2.
[17]
[18] Exhibit R3
[19] Exhibit R6.
[20] Exhibit A3.
[21] Exhibit R7
[22] Exhibit R8.
[23] Exhibit R1
[24] Brodie-Hanns v. MTV Publishing Ltd (1995) IR 298 at 300.
[25] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[26] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13]. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.
Printed by authority of the Commonwealth Government Printer
<PR763176>
0
6
0