Sam Warren v SoftwareONE

[2020] FWC 3038

[2020] FWC 3038

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sam Warren
v
SoftwareONE
(U2020/6847)

DEPUTY PRESIDENT DEAN SYDNEY, 15 JUNE 2020

Unfair dismissal application – effective date of dismissal - extension of time - application dismissed.

[1] This decision concerns an application by Sam Warren (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009. The Applicant had been employed by SoftwareONE (the Respondent) as a Business Development Manager.

[2] The Applicant gave notice of his resignation on 17 April 2020, which he claims was forced by the Respondent. He gave four weeks’ notice in accordance with his employment contract, and worked the first of the four week period. He said he understood that because he gave four weeks’ notice, his employment ended on 15 May 2020, being the end of that four week period. The last day he performed work was 24 April 2020.

[3] The Respondent says the date his employment ended was 24 April 2020, when it paid him in lieu of the remaining three weeks’ of his notice period.

[4] The Applicant now submits that his employment ended on 30 April 2020 which is the date he returned the company property still in his possession.

[5] The application was listed for hearing on 10 June 2020 to determine two matters. First, the date the dismissal took effect. Second, subject to the date the dismissal took effect, whether the application was lodged within the statutory 21 day time limit, and if not, whether an extension of time should be granted.

[6] At the hearing, the Applicant appeared on his own behalf. Ms M Bowe of Colin Biggers & Paisley Lawyers appeared with permission for the Respondent.

When did the dismissal take effect?

[7] The term ‘dismissed’ for the purposes of the unfair dismissal jurisdiction is defined in s.386 of the Act. Section 386 provides that a person is dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative, or 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.¹

[8] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed 2  and can be communicated orally. 3

[9] Where payment in lieu of notice is made, the dismissal usually takes effect on the last day worked unless the employer specifies a different date of dismissal. 4

The case for the Applicant

[10] From the Applicant’s perspective, the dispute as to the date the dismissal took effect arises primarily as a result of the Respondent paying him in lieu of notice for the period between 24 April 2020 and 15 May 2020, and further that he had been requested to be ‘on hand’ after 24 April 2020 to perform any additional handover work that may be required.

[11] The Applicant gave evidence that he was unaware that he had been paid in lieu of notice, which had the effect of bringing forward the end of employment to a date earlier than what he anticipated (i.e. 15 May 2020).

[12] The Applicant gave evidence that Mr Howard, the Sales Director, had required him to be ‘on hand’ to perform work between 24 April and 30 April 2020, that being the date that he returned the company property in his possession to the Respondent. He said that he had full access to his work email account until 30 April 2020, thereby supporting his contention of an ongoing requirement to be available to perform work. He also gave evidence that Mr Howard had requested that he retain the company property until 30 April for the purpose of performing work if necessary.

The case for the Respondent

[13] The Respondent relied on a series of emails between the Applicant and various clients and colleagues in which reference was made to the Applicant’s last day being 24 April 2020.

[14] Mr Howard gave evidence that at the time the Respondent accepted the Applicant’s resignation, it was unclear as to the exact length of time that would be necessary to complete a handover of the Applicant’s duties. Accordingly, Mr Howard had advised staff in an email that the Applicant’s last day was likely to be 24 April 2020. Mr Howard also gave evidence that he had a final meeting with the Applicant on the afternoon of 24 April 2020 in which he confirmed that the handover had been completed and nothing further was required of the Applicant. At this final meeting, discussion was had as to the return of company property, as the Applicant was working from home due to COVID-19. Mr Howard says it was agreed that the company property would be returned on 30 April 2020, as this was the date another director would be attending the office, and therefore available to take collection of the company property. Mr Howard denied ever informing the Applicant that he was required to retain the company property so that he could remain on-call to answer work-related enquiries, and further denied directing the Applicant that he was required to remain available to be contacted by the Respondent after 24 April 2020.

[15] Mr Howard’s evidence was that on Sunday, 26 April 2020, he submitted a request to the Respondent’s IT department to close off the Applicant’s IT access, including access to his email account.

[16] In support of its contention that 24 April 2020 was the Applicant’s last day of employment, the Respondent also relied upon a series of emails between the Applicant and Ms Yeo, its Senior Accountant. In the first email on 30 April 2020, the Applicant requested Ms Yeo to provide him with details of his final pay, including the date he would receive the payment. Ms Yeo’s response on the same day attached a copy of his March and April payslips and confirmed that his final pay had been processed with the April payroll. The Applicant replied querying certain aspects of his payment. Ms Yeo’s email outlined that his final payment had comprised ‘normal hours’ from 1 to 24 April 2020, and ‘pay in lieu’ for the period 27 April to 15 May 2020. In reply on the same day, the Applicant wrote: “Can I ask why my payment in lieu of notice is 15 days? Contractually the notice period is four weeks which is 20 days. Therefore I believe I am missing one week’s wages”. Ms Yeo replied on 4 May 2020 explaining the basis for the calculation to demonstrate that the correct period of notice had been provided.

[17] Further emails were exchanged between the Applicant, Ms Yeo, and Ms Burgess (HR Manager of the Respondent), and on 16 May 2020 the Applicant sent the following email to Ms Burgess:

“I need to understand how SWO has recorded my final day of employment. In my resignation letter I was very clear that my final day of employment was the 15th of May inline with the 4 week notice period.

I am on a 482 sponsored visa and I have 60 days to find a sponsor or I have to leave the country. Hence I need to understand if you have reduced my notice period via payment in lieu of notice. If you have this has shortened the time I have to find another employer by 1/4.

As I didn’t ask for payment in lieu of notice, and SWO provided this without communicating it with me I am hoping my final recorded day of employment is still the 15th of May.”

[18] Ms Burgess’s reply was in the following terms:

“We did only require you to work out 1 week, of your 4 week notice period. Due to this it is recorded as 24 April as the final date of employment. That is how it is always recorded in these circumstances i.e. when any notice period is not worked and paid out.”

Date of Dismissal

[19] Having considered the evidence and submissions made by the parties, I am satisfied and find that the Applicant’s employment ended on 24 April 2020, based on the following:

a. There were multiple emails from the Applicant to clients and colleagues confirming his last date was 24 April 2020;

b. I prefer the evidence of Mr Howard that the Applicant was told on 24 April 2020 that he was not required to perform work after that day. There is also evidence that Mr Howard had made a request to the Respondent’s IT department on Sunday 26 April 2020 to cancel the Applicant’s IT access.

c. I accept that the reason for not returning the company property until 30 April 2020 was a result of minimal staff in the office being available to take possession of the property due to COVID-19.

[20] Given my finding, Mr Warren’s application filed on 18 May 2020 was made three days outside the statutory timeframe. I now turn to consider whether an extension of time should be granted.

Extension of time

[21] 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).

[22] 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. 5 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.6

[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;

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

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(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 the 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. 7

[26] The Applicant contended that his application was not late because he did not become aware of it until 30 April 2020. In circumstances where the Applicant had resigned and for the reasons set out earlier, I do not accept that the dismissal took effect on this date. In any event, the Applicant had two weeks from 30 April to lodge this application within time.

[27] There were no other reasons as to the delay advanced by the Applicant. This weighs against a conclusion that there are exceptional circumstances.

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

[28] The Applicant resigned, a fact he was aware of. As outlined above, he contended he was unaware that 24 April 2020 was his last date of employment. While I do not accept this for the reasons outlined above, I will treat this as a neutral consideration.

Action taken to dispute the dismissal

[29] The Applicant did not take any other action other than this application to dispute his dismissal. This weighs against conclusion of exceptional circumstances.

Prejudice to the employer

[30] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

Merits of the application

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

[32] There is no dispute that the Applicant resigned, giving four weeks’ notice, of which he worked the first of those four weeks. During the hearing, the Applicant was cross-examined as to a meeting that took place between the Applicant and representatives of the Respondent on 17 April 2020. The Applicant had given evidence that his resignation was forced because the Respondent had removed his ability to do his job by taking clients from him. He contended that as a result he would not be able to meet his sales targets in the future and anticipated this would lead to a performance management process which would result in his dismissal.

[33] Mr Howard gave evidence there was no concerns raised with the Applicant regarding his performance as such, and that the purpose of the meeting from Mr Howard’s perspective was to ascertain the cause of the change in behaviour of the Applicant. The change in the Applicant’s behaviour was said to be that he was regularly unavailable during working hours, and at times had been non-responsive to clients.

[34] Following the meeting, the Applicant tendered his resignation.

[35] The cross examination of the Applicant confirmed the matters that were discussed, and accepted that he was not advised during the meeting that his employment was in jeopardy.

[36] While the Commission would not normally embark on a detailed consideration of the merits when determining whether to extend time, it appears on the material that the Respondent did not force the Applicant to resign. In the circumstances, I consider the merits of the Applicant’s case to be weak. Consequently, this is a matter that weighs against a conclusion that there are exceptional circumstances.

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

[37] 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

[38] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

DEPUTY PRESIDENT

Appearances:

S Warren on his own behalf.
M Bowe for SoftwareONE.

Hearing details:

Sydney (By telephone).
2020:
June 10.

Printed by authority of the Commonwealth Government Printer

<PR720076>

1 Section 386 of the Act.

 2   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at para. 24.

 3   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at para. 24.

, Whelan C, 10 December 1998).

 4 Siagian v Sanel Pty Limited [1994] IRCA 2 (27 May 1994), [(1994) 122 ALR 333 at p. 355].

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

 6   Ibid.

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