Mr Paul Kumnick v The Dynamic Engineering Solution Pty Ltd
[2024] FWC 2584
•24 SEPTEMBER 2024
| [2024] FWC 2584 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Paul Kumnick
v
The Dynamic Engineering Solution Pty Ltd
(C2024/3910)
| COMMISSIONER THORNTON | ADELAIDE, 24 SEPTEMBER 2024 |
Application to deal with contraventions involving dismissal – Actual date of termination – Whether application filed outside of statutory time limit – Date of termination is date of resignation – application filed outside of time limit – no exceptional circumstances – extension of time refused
Background
The Applicant, Mr Kumnick, resigned from his employment with the Dynamic Engineering Solution Pty Ltd (the Respondent) by email on 13 May 2024. He then filed a Form F8 General Protections Dismissal application on 10 June 2024. His application was filed 28 days after the termination of his employment and was therefore filed 7 days outside of the statutory time limit. Mr Kumnick has applied for an extension of time to file his general protections application.
In his application Mr Kumnick answered “yes” to the question of whether the form had been lodged within the 21 day timeframe required by section s.366 of the Fair Work Act 2009 (the Act). When the issue of the likely late filing of the application was brought to his attention, Mr Kumnick advised the Commission that he genuinely thought he had filed his application within the statutory timeframe but had in fact miscalculated the date. He then gave evidence in the hearing of the matter that the error could be attributed to his poor state of mind following a long-running pay dispute with the Respondent.
Mr Kumnick alternatively argued that his termination took effect some two weeks after he tended his resignation and consequently, his application was within time. Mr Kumnick submitted that his employer had unlawfully deducted money from his final pay, which had the effect of extending the period of notice given by him. Mr Kumnick submitted that the effective date of his termination was in fact 24 May 2024 with the effect that his application was filed within time.
Mr Kumnick submitted that if I found the date of termination was 13 May 2024 then I should also find that exceptional circumstances exist in his case that warrant the making of an order to extend the time in which he can file his application.
For the reasons set out below, I reject the argument that any withholding of pay (if in fact there was a withholding) had any effect on the date of termination. I find the date of termination was 13 May 2024, the date on which Mr Kumnick provided his resignation to the Respondent “effective end of shift today”[1] and did not return to work.
I also find that there are no exceptional circumstances in this matter that weigh in favour of granting an extension of time.
Mr Kumnick’s application is therefore dismissed.
Background facts
Mr Kumnick commenced work as a Manufacturing Assistant with the Respondent on 16 May 2022.
From approximately May 2023, Mr Kumnick raised a number of issues about his pay with the Respondent including unpaid overtime, penalty rates that he says ought to have been paid when no meal break was taken and a dispute about a pay increase that Mr Kumnick says was promised to him. His pay disputes remained unresolved during his employment with the Respondent. Mr Kumnick raised formal disputes with the Respondent on 29 May 2023[2] and 24 April 2024[3].
The Respondent acknowledges that the disputes were raised and conveyed their interest in resolving the matters with Mr Kumnick that included an offer to discuss the pay disputes after the end of Mr Kumnick’s employment.[4]
Mr Kumnick expressed his dissatisfaction with the responses he had received from the Respondent about his concerns and complained that the Respondent addressed his complaints by offering a number of new contracts of employment that were unacceptable to Mr Kumnick. Mr Kumnick says that the Respondent closed the consideration of his disputes without properly considering them. Mr Kumnick conveyed in his evidence that the pay disputes with the Respondent were lengthy and frustrating, making him feel upset and disenfranchised.[5]
Mr Kumnick said that the disputes ultimately took their toll on his health, however, he elected not to elaborate in his evidence about the nature of those impacts. He had some time away from work in the midst of the disputes concerning his pay and the Respondent required that he attend an independent medical examination to be cleared for duties before returning to work. Mr Kumnick was certified as fit to work by an independent medical examiner selected by the Respondent prior to his resignation.
On 13 May 2024, at the end of his usual shift, Mr Kumnick sent an email to his supervisor, Mr Ramalingam, including the words: “I tender my resignation effective end of shift today Monday, 13 May 2024. I appreciate your efforts to keep me on board and to support me in my role, however my decision to leave is based on the way I have been treated by your superiors.”[6] Mr Kumnick agreed in his evidence that he was due to work the following day and did not return to work again after he sent the email. He also agreed that he did not provide the Respondent with a notice period.
Following Mr Kumnick’s resignation, the Respondent offered to meet with Mr Kumnick to discuss the issues he had raised about his pay. When the Respondent would only meet Mr Kumnick in a public place and not at the work site, Mr Kumnick decided not to proceed with a meeting.
Mr Kumnick then filed his general protections dismissal claim on 10 June 2024.
Date of Dismissal
Mr Kumnick argued that the termination of his employment did not take effect until 24 May 2024, or two weeks after his notice was given with immediate effect. He submitted that his employer had failed to pay him at the correct rate for 0.4 hours of overtime worked in his final week and had therefore deducted an amount from his wages for his failure to give a notice period in accordance with the Manufacturing and Associated Industries and Occupations Award 2020 (the Award) that covered his employment.[7]
Mr Kumnick argued that, consistent with clause 45.1(e) of the Award, it was unlawful for the Respondent to deduct the amount on account of his failure to give notice of his resignation because they had accepted a shorter period of notice when they confirmed in writing their acceptance of his resignation.[8] Mr Kumnick further argued that because the Respondent in fact withheld wages from him, it negated their acceptance of his immediate resignation as the deduction was contrary to the Award. Mr Kumnick submitted that as the Respondent had voided the shorter notice period they had purported to accept with their deduction from his pay, Mr Kumnick ought to be found to have given two weeks’ notice, rather than immediate notice. Mr Kumnick submitted that the effective date of dismissal was therefore 24 May 2024.
Clauses 45.1(d) and (e) of the Award provide:
(d) If an employee who is at least 18 years old does not give the period of notice required under clause 45.1(b), then the employer may deduct from wages due to the employee under this award an amount that is no more than one week’s wages for the employee.
(e) If the employer has agreed to a shorter period of notice than that required under clause 45.1(b), then no deduction can be made under clause 45.1(d).
There is a dispute between the parties as to whether there was in fact any deduction from Mr Kumnick’s final pay.
Mr Kumnick set out that he worked 4 days in the relevant pay period (before he resigned and left the workplace), being 8 hours on Wednesday, Thursday and Monday of the pay period, and 6 hours on the Friday, equating to 30 hours of ordinary time in the pay period. Mr Kumnick’s payslip showed payment for 30.4 hours of ordinary time. Mr Kumnick argued that the additional 0.4 hours in his pay slip could only be overtime but he was not paid penalty rates for that time. The failure to pay a penalty rate for the 0.4 hours was the deduction from his pay. Mr Kumnick did not identify in his evidence when in the pay period he worked any overtime.
Mr Russo, the Chief Financial Officer of the Respondent, explained in his evidence that the Respondent pays each employee for 7.6 hours each working day. He said that the Respondent’s employees had previously agreed to work 8 hours Monday to Thursday in order to work a shorter day on a Friday when they finish work two and a half hours earlier. The additional 0.4 hours of work performed over each of the four working days worked by the employees, contributes to the two and a half hours they do not perform work on Friday afternoons.
Consequently, the Respondent says that Mr Kumnick received pay for four days of ordinary time in the pay period, being four days of 7.6 hours reaching a total of 30.4 hours. The Respondent maintains that Mr Kumnick worked only ordinary hours and there was no overtime worked in the pay period. The Respondent argues that no additional penalty rates were payable to or withheld from Mr Kumnick.
There is also no evidence that the Respondent intended to deduct any money for the failure of Mr Kumnick to offer a notice period on his resignation. In fact, they submit they decided not to withhold any money from Mr Kumnick despite his deficient notice period.
It is likely that the Respondent is correct that they paid Mr Kumnick ordinary time at 7.6 hours per day and he was correctly paid ordinary time of 30.4 hours in his last pay period. It is not necessary that I make factual findings about what Mr Kumnick ought to have been paid to address his argument that any withholding or deduction has an effect on the date of the termination of his employment.
Section 386 of the Act defines when a person has been dismissed.[9] It provides:
Meaning of dismissed
(1) A person has been dismissed if:
(a)the person's employment with his or her employer has been terminated on the employer's initiative; or
(b)the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a)the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b)the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c)the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.
The date of termination in this matter is the date when Mr Kumnick’s employment was terminated, being the date he resigned (whether he was forced to or not by his employer’s conduct).
There is nothing in the words of clauses 45.1(d) and (e) of the Award, even if there was a deduction from wages owing, that has the effect of changing or extending the date of a termination of employment or otherwise creating a notice period when no notice was actually given.
Clauses 45.1(d) and (e) of the Award allow an employer to withhold up to one week’s wages from any owing if an employee does not give the employer the required period of notice when terminating their employment. In the event there is agreement between the employer and employee that an employee does not have to give the required period of notice then the employer cannot withhold monies owing for a failure to give the required notice.
Mr Kumnick resigned on 13 May 2024. That is the date of termination. The withholding or failure to pay wages or entitlements has no bearing on the date of termination of employment.
As I have found that the date of termination is 13 May 2024, Mr Kumnick’s application was filed outside of the statutory time limit. He seeks a finding that exceptional circumstances exist such that discretion should be exercised to extend the date for filing of the application.
Consideration – Extension of time
The Act requires that each of the criteria in section 366(2) must be taken into account when determining whether exceptional circumstances exist.
Section 366(2) provides:
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
Reason for the delay
Mr Kumnick conceded that should the Commission find the termination occurred on 13 May 2024, that his case in support of an extension of time is “weak”[10]. Mr Kumnick said in his written statement that he was:
“embarrassed that he miscalculated 3 weeks from what he considered immediate dismissal on 13 May 2024 to be 10 June 2024. Of clear head presently, it is immediately and obviously apparent that 10 June is approximately 28 days or 4 weeks away from 13 May. It speaks to how burnt out I was from discussing the merits of my pay dispute and having to argue with the Respondent to hear the dispute, having to literally argue the merits of the case, just to be allowed to exercise the right under the Award to lodge a pay dispute.”[11]
Mr Kumnick reiterated his embarrassment in his oral evidence that he had miscalculated the date he had to file his general protections claim in order for it to be within the statutory timeframe.[12]
The relevant legal test applying to a finding of exceptional circumstances is set out in the matter of Nulty v Blue Star Group Pty Ltd[13]:
“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”[14]
Miscalculating the date by which it is necessary to file a claim to be within the statutory time limit is not out of the ordinary course, unusual, special or uncommon.
Mr Kumnick also submitted, as referenced above, that he was “burnt out” from his dispute with the Respondent. However, he made clear in his oral submissions that he did not intend to bring evidence about how his health was affected by his dealings with the Respondent, and therefore did not rely on his health as a reason for the delay.[15]
The reason for the delay in filing the application does not weigh in favour of finding exceptional circumstances exist in this matter.
Any Action taken by the person to dispute the dismissal
Both witnesses gave evidence about their efforts to meet to resolve the outstanding pay dispute. There was an offer by the Respondent to meet at a café either near the Applicant’s residence or elsewhere, but the Applicant did not agree to meet at a public place, preferring to meet at the workplace. As no venue was agreed between the parties, as at the date of hearing, no meeting had taken place.
The Applicant set out in his written submissions that the discussions about meeting after his resignation were actions taken to dispute the dismissal. He submitted that the meeting did not occur because the Respondent was unreasonable in refusing to allow the meeting to take place at the workplace.
The meeting offered by the Respondent in their correspondence to the Applicant accepting his resignation on 15 May 2024 appears to concern the pay dispute. Mr Kumnick acknowledges in his written submissions, “Whilst the Respondent has offered to discuss a pay dispute at a time and place of my choice this is not an entire representation of the situation.”[16] Mr Kumnick goes on to say that he exercised his choice to meet at the workplace, but the Respondent insisted on a meeting in a public place.
The meeting was not initiated by the Applicant to dispute the circumstances surrounding the termination of his employment. There is no other evidence of the Applicant disputing the termination.
Mr Kumnick resigned from his employment but asserts he was forced to do so because of the conduct of his employer. He has not appeared to take any actions after his resignation to dispute or address the circumstances that he says forced him to tender his resignation from employment.
Consideration of this criteria does not weigh in favour of a finding that exceptional circumstances exist in this matter.
Prejudice to the employer (including prejudice caused by the delay)
The Respondent has submitted that prejudice to them should be a neutral factor in the decision.[17] There was no prejudice arising from the delay that emerged from the evidence of Mr Russo.
This factor does not have a bearing on my decision.
Merits of the application
The consideration of this factor is only a preliminary one and based on the information before me. I have not had the benefit of hearing the evidence and submissions of the parties with respect to the merits or other jurisdictional issue that arises in this matter.
Mr Kumnick resigned his employment by sending an email to his supervisor at the conclusion of his shift on 13 May 2024. He claims that he was forced to do so, and his termination was therefore at the initiative of the Respondent. In his application, Mr Kumnick noted that his “Letter of Resignation … stands as notification of constructive dismissal.”[18] In his letter of resignation Mr Kumnick referenced the adverse effects that his pay dispute had had on his mental health and that he had decided that the Respondent “was not a suitable environment to sustain [his] mental health in.”[19]
The bar for establishing that an applicant was forced to resign, had no real choice but to resign[20], did not resign voluntarily[21] or the employer forced the resignation[22] is a high bar.
In the leading case of Mohazab v Dick Smith Electronics Pty Ltd (No 2)[23] the Full Court of the Industrial Relations Court of Australia said:“[W]hen an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee’s initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee”.
The Respondent in their submissions referred to cases in which the Commission had not found employees were forced to resign as a result of dispute regarding pay between them and their employer. Each matter will turn on its own facts, however, a matter akin to that of Mr Kumnick is the matter of Bruce v Fingal Glen Pty Ltd (in liquidation).[24] In that matter the Senior Deputy President observed:
“I do not consider that Fingal Glen’s non-payment of superannuation to Ms Bruce, even when considered in concert with the late wage payments, requires a conclusion that Ms Bruce was forced to resign. … The Full Bench in ABB Engineering observed that the distinction between an employer’s behaviour that leaves an employee with no choice apart from resignation, as distinct from other options, is often a very narrow distinction. That narrow distinction is relevant to this situation. Here, I am not persuaded that resignation was the only option open to Ms Bruce.”[25] (footnotes omitted).
It is also unlikely that if I were determining a further jurisdictional objection that there was no dismissal, necessary as a jurisdictional fact in an application of this kind, that I would be persuaded that Mr Kumnick had no option other than to resign. He could have continued to persist with resolving the dispute directly with his employer, made a complaint to the Fair Work Ombudsman or otherwise pursued an underpayment of wages claim in a relevant Court.
I agree with the Respondent’s submission that Mr Kumnick’s case lacks merit.[26] On the face of it, Mr Kumnick appeared to offer his resignation voluntarily. I accept that he was frustrated and stressed by the long running pay disputes with the Respondent and those disputes had an adverse effect on his mental health. However, it is unlikely that he had no other option but to resign. I accept that the Respondent was continuing in their efforts to resolve the disputes, but perhaps not in the most efficient way and not to Mr Kumnick’s satisfaction.
I find it unlikely that Mr Kumnick would be able to persuade the Commission that his resignation was forced. Therefore, in my view Mr Kumnick’s claim would not clear the next jurisdictional hurdle in establishing he had been dismissed for the purposes of his claim under section 365 of the Act.
In light of my comments that I consider it unlikely Mr Kumnick’s employment was terminated at the initiative of his employer, it is not necessary that I comment further on the merits of the substantive general protections claim.
The merits of this case, considering the further jurisdictional issue, do not weigh in favour of a finding that exceptional circumstances exist in Mr Kumnick’s matter.
Fairness as between the person and other persons in a like position
The Applicant submitted that it is a matter of “absolute” rather than “relative” fairness that should inform the Commission’s decision[27] as Mr Kumnick could not identify previous cases with similar facts.
The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[28] considered this criterion and said:
“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”[29]
Mr Kumnick made a mistake when calculating the date of the termination of his employment. Mistakes made by applicants that result in filing applications on a date outside of the statutory time limit have been considered by the Commission in other matters. In the recent matter of Brown v Busy Bees Australia Employer Pty Ltd[30], the Commission found that the applicant held an incorrect belief that he was obliged to follow the dispute procedure in the relevant award before he could lodge his general protections application in the Commission. The Commission held that the applicant’s mistake as the reason for delay did not weigh in favour of a finding of exceptional circumstances. This finding was not overturned on appeal.[31]
It would not be fair to applicants who take steps to avoid mistakes and file their applications within the statutory time limit to find that exceptional circumstances exist in this matter. Likewise, it would create unfairness to applicants who have been refused an extension of time on the basis of their error.
Conclusion
The majority of the factors necessary to be considered pursuant to section 366(2) of the Act do not weigh in favour of a finding that exceptional circumstances exist in this matter. I have weighed the factors and find that there are no exceptional circumstances. In the absence of exceptional circumstances, no extension of time to file the application can be granted.
I order that Mr Kumnick’s application be dismissed.
COMMISSIONER
Appearances:
P Kumnick, Applicant on his own behalf.
T Birss of Workplace Law with permission, with S Russo on behalf of the Respondent.
Hearing details:
Adelaide (Video via MS Teams)
2024
7 August.
[1] Email of Applicant to Mr Ramalingam of the Respondent dated 13 May 2024, annexure 17 to the Applicant’s Form F8.
[2] Email of Applicant to Respondent dated 29 May 2023, annexure 7 to the Applicant’s Form F8.
[3] Email of Applicant to Respondent dated 24 April 2024, annexure 7a to the Applicant’s Form F8.
[4] Letter of Respondent to Applicant dated 15 May 2024, annexure SR2 to Witness Statement of Mr Russo.
[5] Transcript – at 43:48.
[6] Email of Applicant to Mr Ramalingam of the Respondent dated 13 May 2024, annexure 17 to the Applicant’s Form F8.
[7] See the Award at clause 45.1(d).
[8] Letter of Respondent to Applicant dated 15 May 2024, annexure SR2 to Witness Statement of Mr Russo.
[9] See Varichak v COG Regional Team Pty Ltd[2022] FWCFB 37 at [30] where it is noted ‘the provisions of s.386 have been applied by the Courts to s.365 General Protections matters’.
[10] Transcript – at 6:12.
[11] Submissions and Statement of the Applicant at “Direction 2.2 – Reason(s) for the Delay.”
[12] Transcript – at 43:10.
[13] [2011] FWCFB 975.
[14] Ibid at [13].
[15] Transcript – at 6:58.
[16] Submissions and Statement of the Applicant at “Direction 2.3 – Any action taken to dispute the dismissal”.
[17] Respondent’s submissions at paragraph 11.
[18] Form F8 at paragraph 3.1.
[19] Email of Applicant to Mr Ramalingam of the Respondent dated 13 May 2024, annexure 17 to the Applicant’s Form F8.
[20] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625 (‘Mohazab v Dick Smith’).
[21] Australian Hearing v Peary [2009] AIRCFB 680 at [30].
[22] Ibid.
[23] Mohazab v Dick Smith.
[24] [2013] FWC 3941.
[25] Ibid at [25] and [26].
[26] Respondent’s submissions at paragraph 12.
[27] Submissions and Statement of the Applicant at “Direction 2.6 – Fairness between the Applicant and others in a similar position”.
[28] [2016] FWCFB 6963 at [41].
[29] Ibid at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd [2023] 750.
[30] [2024] FWC 972 at [46].
[31] [2024] FWCFB 278.
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