Samantha Morgan-French & Nathan Morgan-French v Connected Australia Pty Ltd
[2024] FWC 1393
•24 JULY 2024
| [2024] FWC 1393 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Samantha Morgan-French & Nathan Morgan-French
v
Connected Australia Pty Ltd
(U2024/2251, U2024/2277)
| COMMISSIONER SCHNEIDER | PERTH, 24 JULY 2024 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
Mrs Samantha Morgan-French and Mr Natham Morgan-French (the Applicants) each made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that they had been unfairly dismissed from their employment with Connected Australia Pty Ltd (the Respondent).
The Respondent has raised objections to the applications, namely:
(a) That the Applicants’ Applications are out of time (i.e. lodged more than 21 days after the dismissal took effect); and
(b) (further and in the alternative) the Applicants were not dismissed; and
(c) (further and in the alternative) the Applicants were not employees of the Respondent.
Before considering the merits of the application, the Commission must be satisfied that the applications were not made out of time.
At the hearing on 6 May 2024, the Applicants were self-represented, and the Respondent was represented by Mr Mossman of Wotton Kearny.
Mr Morgan-French gave evidence on behalf of the Applicants.
The Mr Mark Frost (Mr Frost), Manager, gave evidence on behalf of the Respondent.
The Applicants filed submissions in the Commission on 20 April 2024. The Respondent filed submissions in the Commission on 30 April 2024.
When did the dismissal take effect?
It is a matter of record that the applications were made on 29 February 2024.The parties are in dispute about when the dismissal took effect.
The Applicants submit that their dismissal took effect on 8 February 2024.
The Applicants state they sold the business to the Respondent on 15 December 2023 but continued to be employed by and completed work for the organisation after that date.
The Applicants were on a period of leave from 22 December 2023 until 10 January 2024. The Applicants maintain that, despite being on leave, they attended to urgent items that arose during their leave assist the new owners.
The Applicants received payment and a payslip dated 4 January 2024.
The Applicants received a payslip but no payment on 17 January 2024.
The Applicants contacted Mr Frost of the Respondent on 18 January 2024 to query why they had not been paid. The Applicant notes that there were discussions over leave balances allegedly agreed to during the sale.
On 18 January 2024, the Applicants received an email from the Respondent which outlined the below:
·The Respondent claimed that the Applicants had resigned from employment on 20 December 2023.
·The Respondent had disabled the Applicants work email address to allow the Applicants to switch off.
The Applicants submit that they did not believe this was a termination notice.
The Applicants deny that they resigned from employment on 20 December 2023 or at any other time.
The Applicants submit that, upon receipt of an email from the Respondent’s lawyers, on 9 February 2024 they considered themselves terminated as they had not been paid for two pay runs and due to the continued insistence that their engagement had ended from the Respondent.
The Respondent’s position is that the Applicants resigned from their position(s) with the Respondent (if an employment relationship existed after the Settlement of Purchase of the Respondent’s shares) with immediate effect on or about 20 December 2023.
Accordingly, the Respondent’s position is that the Applicants’ employment (if an employment relationship did exist for each respective Applicant) ceased on 20 December 2023 and therefore 11 January 2024 was the final day of the lodgement period.
In the alternative, it is the Respondent’s position that Mr Frost terminated the Applicants in an email dated 18 January 2024. The email reads as follows:
“Regarding your involvement in the business, as we discussed on the 20th of Dec, we agreed that you would finish up immediately. As you’ve seen from that point in time, we have, for the most part everything under control, requiring very little involvement from yourself. My messaging to the team has been that your involvement finished just before Christmas. As we spoke about on several occasions, it’s important to communicate a consistent message to all staff.”
The Respondent is of the position that the revocation of access on 18 January 2024 is a clear inference of the termination of the Applicants’ employment by the Respondent.
Further, the Respondent notes that the Applicants were directed to; delete all company information, not to contact any staff or customers, and to send messages informing relevant persons that they no longer had any involvement with the business.
The Respondent submits that, if the Commission is not satisfied the Applicants were terminated on 20 December 2024, it is the above action by the Respondent that brought any employment relationship to an end and that this was clearly communicated to the Applicant’s on 18 January 2024. Accordingly, the final day for lodgement would be 9 February 2024 and the applications are still out of time.
Findings
On assessment of all that is before me, I am satisfied that the dismissal took effect on 18 January 2024, when such was communicated to the Applicants.
It is apparent that the parties remain in dispute about whether there was ever any employment relationship. What is clear, however, is that the Applicants’ working relationship with the Respondent has come to an end.
There is reference to a discussion held between the Applicants and Mr Frost on 20 December 2024. However, due to the nature of an in-person discussion, the parties’ evidence regarding what occurred during such conversation is at odds. I note the continued involvement of the Applicants, however limited, with the business and their confusion over their payments ceasing following the 20 December 2024 conversation. If this was indeed communicated to the Applicants, I am not satisfied it was done so in a manner that was clear and unambiguous, resulting in the effective dismissal date for the purposes of the calculation under the Act. Due to these factors, I am apprehensive to conclude that the working relationship ended on 20 December 2024, concluding instead that the material before me cannot substantiate such assertion confidently.
I cannot accept the Applicants’ submission that it was not until the letter of 9 February 2024 that they became cognizant of their termination. The correspondence which enlivened the Applicants’ awareness of their engagement ceasing does little more than restate the Respondent’s position which had been previously communicated to the Applicants. The Respondent’s email of 18 January 2024, alongside the Applicants not being paid for that time period, is a clear and materially supported indication that the working relationship had ceased. I highlight the following passage from Mr Frost’s email on 18 January 2024:
“I request that going forward you refrain from reaching out to any staff or customers. Please also ensure that you remove any company data from your laptop, as well as any other copies you may have saved elsewhere.”
Mr Frost’s email, despite the Applicants’ reluctance to accept the working relationship had ended, clearly conveys that the Respondent has cut ties with the Applicants.
Regarding the matters I referred to above, I find that the dismissal took effect by 18 January 2024. Accordingly, the applications have been lodged outside of the required 21-day period.
When was the application made?
It is not in dispute, and I so find, that the application was made on 29 February 2024.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
As I found above, the dismissal took effect on 18 January 2024. The final day of the 21 day period was therefore 8 February 2024 and ended at midnight on that day. As I found above, the application was made on 29 February 2024.
The application having not been 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.[2]
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 8 February 2024. The delay is the period commencing immediately after that time until 29 February 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]
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.[4]
An applicant does not need to 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.[5]
Submissions & Evidence
The Applicants’ primary reasons for delay are their confusion over their dismissal and their attempts to resolve their disputes directly with the Respondent.
In relation to the reason for the delay, the Respondent submits that the delay was clearly caused by the Applicant’s desire to settle the leave balance dispute directly. The Respondent is of the position that such a reason does not support a finding of exceptional circumstances.
Did the Applicant first become aware of the dismissal after it had taken effect?
The Applicants allege that they first became aware of the dismissal after it had taken effect. The parties’ submissions regarding the effective date of dismissal and the communication of such is detailed earlier in this decision. I am not persuaded that the Applicants only became aware of the relationship ending on 9 February 2024, upon receipt of correspondence that seems to reiterate assertions the Respondent had made to the Applicants in previous correspondence.
As found earlier, I am satisfied that the Applicants should have been well aware that their engagement with the Respondent had ceased by 18 January 2024.
What action was taken by the Applicant to dispute the dismissal?
It is clear from the evidence submitted by the parties that the Applicants have been in contention with the Respondent following the end of their engagement over a number of items.
The Applicants corresponded, negotiated, and sought legal advice regarding action to be taken against the Respondent in the period leading up to the lodgement.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent submits that it would suffer a prejudice if an extension were granted due to the delay in the applications being filed. I am not satisfied that the length of the delay in filing the application would be such that it would cause material prejudice to the Respondent if an extension of time were to be granted.
What are the merits of the application?
The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.
Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[6] and the same applies to s.394(3)(e).
However, the Respondent’s remaining objections should be noted. Due to the history between the parties, noting that the Applicants were owners of the Respondent and sold to the current management, it appears that the objection has been raised upon genuine and substantial grounds. The issue of whether the Applicants were employees of the Respondent is a notable one and will be a significant hurdle if the applicant were to proceed.
In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding the criteria under the Act.
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.[7] 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.[8]
As noted earlier in the decision, I am not convinced that the Applicants only became aware of their dismissal on 9 February 2024, a date which would conveniently render the applications within time. Review of the materials submitted by parties reflects that there had been a process of handover and the end of the Applicants’ engagement with the Respondent for some time prior to 9 February 2024.
I accept that the Applicants wished to settle their grievances following the sale of the business and the end of their involvement with the organisation directly with the Respondent. It is understandable that some applicants seek to pursue such a dispute resolution process rather than immediately pursuing formal legal action.
However, the delay caused by waiting in the hopes of settling their disputes was a choice that the Applicants’ elected to pursue at the expense of a timely application lodgment. Such a choice was unnecessary and is not a reasonable excuse for a delay in lodgment outside of the prescribed window. I am not satisfied the reasons put forth by the Applicants are particularly supportive of a finding of exceptional circumstances.
It is clear that the sale of the business has been a catalyst for a myriad of legal disputes between the parties. The Applicants had been perusing their options for action and sought to attempt to settle items directly with the Respondent prior to pursuing formal action. It is unfortunate that the parties have been unable to resolve their issues informally, however the circumstances of this matter do not indicate the presence of exceptional circumstances that would give rise to an extension being granted.
Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order to that effect will be issued separately.[9]
COMMISSIONER
Appearances:
N Morgan-French on behalf of the Applicants.
C Mossman of Wotton + Kearney for the Respondent.
Hearing details:
2024.
Perth (by video):
May 6.
[1] 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.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[9] [PR775418].
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