Peter Clark v The Trustee for Pausco Trust
[2025] FWC 901
•31 MARCH 2025
| [2025] FWC 901 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Peter Clark
v
The Trustee For Pausco Trust
(U2025/383)
| COMMISSIONER ALLISON | MELBOURNE, 31 MARCH 2025 |
Application for an unfair dismissal remedy – date of dismissal – is application made within time – is an extension of time application required
This decision relates to an unfair dismissal application made by Mr Peter Clark against The Trustee for Pausco Trust (Pausco Trust).
At 7:39PM on Friday 20 December 2024, Pausco Trust emailed Mr Clark notifying him that his employment had been terminated effective from that day. Mr Clark did not see the email until the following day, Saturday 21 December 2024. Mr Clark filed an unfair dismissal application on 11 January 2025.
An application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect.”[1] If an application is not made in this timeframe, it is out of time and will generally be dismissed. The only exception to this is when the Commission is satisfied that exceptional circumstances exist,[2] and the Commission chooses to exercise its discretion under s.394(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the period for the application.
If Mr Clark’s dismissal took effect from Friday 20 December 2024, his unfair dismissal application is one day out of time. On the other hand, if Mr Clark’s dismissal took effect from Saturday 21 December 2024, his application is made within time.
This decision considers whether Mr Clark’s unfair dismissal application against Pausco Trust was made within time, and if not, whether exceptional circumstances exist that warrant the Commission extending the period for Mr Clark’s unfair dismissal application.[3]
Relevant Background
For the purposes of providing background and context to this decision I have included a summary of key events based on uncontested evidence, unless otherwise stated. Where findings of contested points are required, they will be made later in the decision.
Mr Clark is a truck driver who has been working in the transport industry since 1983.[4]
Mr Clark was engaged by Pausco Trust on 8 January 2024.
On 9 July 2024 Mr Clark was directed to wash trucks. The parties are in dispute regarding whether Mr Clark performed this duty or not, and whether there were occupational health and safety issues relating to the washing of trucks.
On 10 July 2024 Mr Clark was required to attend a disciplinary meeting regarding his alleged failure to wash trucks. Before attending the meeting Mr Clark went off on sick leave.
,
Mr Clark remained on sick leave until December 2024. In early December, Mr Clark provided Pausco Trust with a medical certificate clearing him for duties from 10 December 2024.
On 17 December 2024 Mr Paul Scott, Director Pausco Trust wrote an email to Mr Clark[5] that relevantly included the following information:
-Based on the medical clearance, Pausco Trust was prepared to allow Mr Clark to return to work.
-Mr Clark was required to return to work at 7:00AM on Thursday 19 December 2024, at the company’s new premises in Dandenong South.
-On the day Mr Clark returned to work, he would be required to attend the disciplinary meeting “that was to be held on 10 July 2024.”
-Mr Clark could bring a support person to the meeting.
-Pasco Trust would pay Mr Clark from 10 December 2024, noting: “The company’s decision to pay you from this date, and to continue paying you, is conditional upon your co-operation with the process set out in this email, including your attendance at work on 19 December 2024”.
On Thursday 19 December 2024, Mr Clark attended work at 7:00AM and immediately attended a disciplinary meeting with Mr Scott. The meeting took place outside – standing in front of the worksite. At this meeting Mr Clark was asked to respond to the allegation that he had engaged in misconduct by failing to follow management instructions to wash trucks on 9 July 2024. At the end of the meeting, Mr Scott said that he would have a “good think” about the matter and would notify Mr Clark of the outcome. Mr Scott did not give Mr Clark a time or date that he would respond by. Mr Clark was then sent home.
On the evening of 20 December 2024, Mr Scott emailed Mr Clark a termination letter. Initially the parties were in dispute about the time the letter was sent – Mr Clark claimed the letter was received in his inbox at 7:39PM, while Mr Scott claimed the email was sent at 6:39PM. At the hearing I asked Mr Scott to check his emails and forward the email to my Chambers. This email had a time stamp 7:39PM, and Mr Scott accepted that this must have been the time the email was sent. The termination letter relevantly stated:
“At that meeting you were advised that ,… the company is considering taking disciplinary action against you which may include a decision to terminate your employment.
…
In the circumstances, and for the reasons as outlined above, the company has decided that it is appropriate that your employment should be terminated with immediate effect, as of 20 December 2024.”
At the time of termination Mr Clark was being paid dayshift rates.
On 11 January 2025, Mr Clark lodged an unfair dismissal application.
What was the date of termination?
In determining whether the unfair dismissal application was made within time, I need to first determine what date the termination took effect.
Relevant Full Bench Authority
The effective date of dismissal for the purpose of s.394(2) was considered extensively by the Full Bench of the Commission in Ayub v NSW Trains[6] (Ayub). In Ayub the Full Bench held at [36]:
“Having regard to the language, purpose and context of s 394(2)(a), we do not consider… that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this.”
(emphasis added)
The Full Bench went on to say at [42]:
“We …consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document. That is, we do not consider that s.394(2)(a) requires the strict application of a “postal delivery rule” where the employee has a legitimate explanation for not being able to read the document immediately upon delivery. The circumstances in which this may be the case are undoubtedly manifold, but for example if an employee is on an approved period of annual leave and is holidaying away from home when a dismissal letter is delivered, there is no reason to conclude that the date of dismissal is the date of delivery and not when the employee returns home and first has a reasonable opportunity to read the letter.”
In relation to an employee being informed by email that he or she is dismissed, the Full Bench in Ayub made the following pertinent points at [50]:
-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 email address.
-There are 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 not operate to delay the date of effect of the dismissal.
In Foyster v Bunnings Group Ltd, another Full Bench summarised the key findings in Ayub, and confirmed that there may be a range of circumstances where an employee has a legitimate explanation for not reading a letter or email communicating a dismissal immediately upon delivery. Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter.[7]
Clark’s Submissions and Evidence – date of termination
Mr Clark stated in his submissions that he first became aware of the dismissal at approximately 4:00PM on Saturday 21 December 2024.
Mr Clark provided evidence that on the evening of 20 December 2024, he was supporting his RSL club by having dinner there and buying raffle tickets, and he did not think to check his emails. It was only the next day when he was checking his emails on the computer at home that he saw the termination letter. Mr Clark provided evidence that he was not in the habit of checking his email outside of business hours. Mr Clark provided evidence that while he had access to emails on his phone, at the time he was not in the habit of checking emails on his phone and he did not have email alerts on his phone. Mr Clark noted that more recently he has started regularly checking emails on his phone because he is applying for jobs.
Mr Clark contended that it was unreasonable to expect that he would have had the opportunity to become aware of his termination at 7:39PM on a Friday night. Mr Clark argued he was only receiving dayshift rates so he could not be expected to check for work emails at night.
Mr Clark noted that he was aware of the 21-day time period for lodgement but that he marked the wrong date on his desk calendar, interpreting his termination ‘as in the day [he] was made aware of it’. [8]
Pausco Trust’s Submissions and Evidence - date of termination
Pausco Trust relied on the Full Bench comments in Ayub that an employee will typically be taken to have had a reasonable opportunity to know of their dismissal when a termination email is received in the employee’s regular inbox. Accordingly, Pausco Trust contended Mr Clark should be regarded as having had a reasonable opportunity to know of his dismissal at the time the termination email was delivered to his inbox at 7:39PM on Friday evening.[9]
Pausco Trust argued that Mr Clark had not provided any compelling evidence or submissions on why he did not have a reasonable opportunity to become aware of his dismissal when he received the dismissal email. Pausco Trust argued that Mr Clark’s position seemed more like a “refusal” to read the email.
Pausco Trust drew the Commission’s attention to Luca v Tass Three Pty Ltd[10] (Luca) - a case where the applicant had been sent a termination notice via email at 5:38pm on a Friday night, and the applicant claimed the dismissal did not take effect until the following day when she read her emails. In Luca, Commissioner Lim determined that the Applicant had a reasonable opportunity to become aware of the email and the dismissal therefore took effect from the Friday.
In addition, Mr Scott for Pausco Trust provided evidence that Pausco Trust had no standard working hours – work could be rostered anytime of the day – so 7:39PM was “within” working hours.
Pausco Trust further argued that Mr Clark recorded 20 December 2024 as the termination date on his application, so he cannot be taken to have misunderstood the date of termination.
Consideration – Date of termination
As noted above a dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware. As confirmed in Foyster v Bunnings Group Ltd, there may be a range of circumstances where an employee has a legitimate explanation for not reading an email communicating a dismissal immediately upon delivery. Whether or not an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter.[11]
Having considered the circumstances and all the material before me, I do not think Mr Clark had a reasonable opportunity to become aware of his termination on Friday 20 December 2024. I make this finding with reference to a combination of the following three matters:
The termination email was sent at 7:39PM on a Friday night, outside of work hours.
While I accept that Pausco Trust has a very broad range of working hours, at the time of termination, Mr Clark was being paid dayshift rates (after a long period of unpaid leave). Accordingly, the time the termination letter was emailed was not only outside regular “office” working hours, it was also a considerable time after the end of Mr Clark’s dayshift working hours.
Sending a termination letter outside of standard work hours does not automatically mean there will be no reasonable opportunity for an employee to become aware of a dismissal. However, while in general, an employer may be reasonably sure their communication will be received and read by an employee during working hours, outside of work hours is quite a different proposition. The right to disconnect provisions in the Fair Work Act 2009, though not directly relevant to this matter, make clear that an employer should not assume that correspondence sent to an employee after hours will be monitored or read.[12] In addition, an employee may be (and is entitled to be) engaged in a whole range of activities outside of work hours that may limit their opportunity to become reasonably aware of an emailed notice of termination.
In this matter I accept Mr Clark’s evidence that he was at the local RSL for dinner on Friday night and he did not think to check, and indeed did not check, his emails. In my view it was reasonable for Mr Clark to assume he was not required to check work correspondence significantly after dayshift hours, including checking for a termination notice.
Mr Clark was given no prior notice that a decision would be made Friday.
There may be some instances where it is reasonable for an employee to be monitoring their email for a termination letter outside of work hours. For example, in the event an employee was explicitly told they would be notified about a company’s decision on a particular day, it may be reasonable (depending on the circumstances) for the employee to be monitoring their email. However, in this case Mr Scott did not indicate to Mr Clark when he should expect an outcome to the meeting on Friday. Furthermore, Mr Clark had no reason to believe the decision would be made urgently as other decisions relating to his employment had not occurred urgently. In this regard I note Mr Clark had been off work for a period of over five months at the time of termination. Despite providing a medical clearance from 9 December 2025, Mr Clark was not required to return to work until 19 December 2025.
Mr Clark was not in the habit of checking his phone for emails.
There may also be some instances where it is considered an employee had a reasonable opportunity to receive a termination email outside of work hours where there is evidence that an employee regularly checks their phone for emails. In this case, I accept Mr Clark’s evidence that at the time of termination he was not in the habit of regularly checking his phone for emails, and only saw the termination notice the next day on his home computer.
Finally, I note this matter can be distinguished from the factual circumstances in Luca. In Luca, the Applicant was put on notice that the employer would notify her of the outcome that particular day; the actual email was sent at 5:38PM - only marginally outside of standard working hours and there was evidence that the Applicant was in the habit of using her phone for emails. Furthermore, the Applicant in Luca failed to lead any evidence to support her position that she had no reasonable opportunity to become aware of the termination.
For the reasons given above I find that Mr Clark did not become aware, and did not have a reasonable opportunity to become aware, of the dismissal notification on Friday 20 December 2024. Accordingly, the termination only came into effect when Mr Clark became aware of the notice of termination on Saturday 21 December 2024.
Conclusion
Having found that the termination took effect on 21 December 2024, the application (which was made on 11 January 2025) was made within the 21-day timeframe.
Accordingly, I do not need to consider whether an extension of time should be granted. For completeness however, I note that it is likely I would have found exceptional circumstances existed warranting an extension of time. This is because I am likely to have found s 394(3)(a) (being reason for delay relating to Mr Clark calculating the 21 days from Saturday 21 December 2024) and s 394(3)(b) (Mr Clark becoming aware of the termination on Saturday 21 December 2024) were matters that weighed in favour of exceptional circumstances, with all other matters in s394(3) (c) – (f) neither weighing for, nor against, a finding of exceptional circumstances.
Accordingly, the application will proceed, I will shortly list this matter for a case management conference to issue directions for a merits hearing.
COMMISSIONER
Appearances:
P Clark, Applicant
P Scott for the Respondent
Hearing details:
20 March 2025
Melbourne
[1] Fair Work Act 2009 (Cth) s.394(2) (‘the Act’).
[2] With reference to matters set out in s.394(3) of the Act.
[3] Fair Work Act 2009 (Cth) s394(2) and (3)
[4] Exhibit A2, [6]
[5] Exhibit A2, Attachment 1
[6] [2016] FWCFB 5500.
[7] Foyster v Bunnings Group Ltd [2017] FWCFB 3923 at [17]
[8] Exhibit A2, Witness Statement of Clark at [7]
[9] Respondent Written Submissions at [8]
[10] Denae Luca v Tass Three Pty Ltd Trading As the Dispensary Mount Lawley [2024] FWC 2500
[11] Foyster v Bunnings Group Ltd [2017] FWCFB 3923 at [17]
[12] Section 333M(1) provides: “ An employee may refuse to monitor, read or respond to contact, or attempted contact, from an employer outside of the employee's working hours unless the refusal is unreasonable.”
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