Stephen Brooker v Autolync T/A Autolync

[2017] FWC 3244

[2017] FWC 3244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Stephen Brooker
v
Autolync T/A Autolync
(U2017/921)

COMMISSIONER WILSON MELBOURNE, 15 JUNE 2017

Application for an unfair dismissal remedy.

[1] Following the ending of an employment relationship with his former employer Autolync Pty Ltd, Stephen Brooker has made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to the provisions of Part 3 – 2 of the Fair Work Act 2009 (the Act). This decision deals with the jurisdictional questions of whether Mr Brooker is a person protected from unfair dismissal, and if he is, whether an extension of time for the making of his application should be granted. Mr Brooker’s application to the Commission was made on 30 January 2017.

[2] Three matters are in dispute in this matter;

• whether Mr Brooker was an employee or independent contractor prior to 1 December 2015 (with it being accepted by both parties that he was an employee on and after that date);



• whether his employment ended in November or December 2016 or in January 2017; and



• whether he has completed the minimum employment period and if so whether Mr Brooker is a person protected from unfair dismissal.

[3] It is uncontentious that Autolync is a small business within the meaning of the Act and that Mr Brooker must therefore have completed a minimum employment period of 12 months in order to be a person protected from unfair dismissal. However, Autolync contend that Mr Brooker has not completed 12 months employment for reason of the combination of him only having been an employee from 1 December 2015 and his employment having ended no later than 29 November 2016. In the alternative, if it is found that Mr Brooker has been employed for more than 12 months, Autolync put forward that his application was not made within the 21 day period allowed for by the Act and that no exceptional circumstances exist which would allow the Commission to be satisfied that an extension of time would be warranted for the making of his application.

LEGISLATION

[4] A person is protected from unfair dismissal if they meet the following criteria, set out in s.382 of the Act;

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[5] The definition ascribed to the minimum employment period is provided in s.383;

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[6] Relevant to this decision, and Autolync’s assertion that Mr Brooker has not completed the minimum period of employment, are the terms of s.384 of the Act;

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(a) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.

PERMISSION FOR REPRESENTATION BY A LAWYER

[7] On 6 April 2017 Autolync sought to be legally represented in these proceedings and provided short particulars to the Commission in support of its application. That material disclosed that the Respondent relied upon s.596(2)(a) of the Act to the effect that the matter might be dealt with more efficiently, taking into account its complexity. Autolync’s application for legal representation was provided by the Commission to Mr Brooker on the same day for the purposes of eliciting his views about the application prior to the making of a decision as to representation. Mr Brooker responded, also on 6 April 2017, opposing the application.

[8] On Friday, 7 April 2017, having considered the material provided by each regarding the application for permission for legal representation, I advised the parties that I would grant the application pursuant to s.596(2)(a) and that reasons for doing so would be provided in due course in the Commission’s decision on jurisdiction.

[9] Section 596 of the Act, which regulates when a party may be represented by a lawyer or paid agent in proceedings before the Commission, provides as follows:

596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

(1) The FWC’s permission is not required for a person to be represented by a lawyer or paid agent in making a written submission under Part 2-3 or 2-6 (which deal with modern awards and minimum wages).

(2) For the purposes of this section, a person is taken not to be represented by a lawyer or paid agent if the lawyer or paid agent:

(a) is an employee or officer of the person; or

(b) is an employee or officer of:

(i) an organisation; or

(ii) an association of employersthat is not registered under the Registered Organisations Act; or

(iii) a peak council; or

(iv) a bargaining representative;

that is representing the person; or

(c) is a bargaining representative.

[10] In granting Autolync’s application for permission for representation by a lawyer, I had regard to the proper interpretation of s.596, which was considered by Flick J of the Federal Court in Warrell v Walton 1:

“[24] A decision to grant or refuse “permission” for a party to be represented by “a lawyer” pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party “in a matter before FWA” must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere “formal” act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted “only if” one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., “FWA may grant permission...”. The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting “permission”.” 2

[11] It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission. 3 The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.4

[12] In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused. 5 Sheer volume of documents or the existence of extraneous issues does not equate to complexity.6 While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.7 There may be many grounds for a consideration of “efficiency” and familiarity with the subject matter, the conceptualisation and organisation of argument in the statutory context and marshalling of relevant materials may be matters that assist in the efficient conduct of the hearing of a matter, as may the increased alacrity with which cross-examination may be carried out, as well as familiarity with the Act and authorities in the context of a jurisdictional question.8 The expertise and familiarity with the issues before the Commission of human resource practitioners or in-house counsel may also be relevant.9

[13] The relevant complexity in this particular matter relates to at least two and possibly three aspects of the matter. The first issue of complexity is whether or not a contested period of engagement is properly characterised as one of employment or a contract for services; the second issue relates to the date upon which there was a termination of employment; and depending on the answer to the second issue, the third matter which may arise is whether or not there is a need for the Commission to consider whether there should be an extension of time for the making of an unfair dismissal application.

[14] I was satisfied that in all the circumstances legal representation of Autolync may assist in the more efficient conduct of the matter, taking into account its complexity.

CONSIDERATION

[15] The date on which Mr Brooker first performed work of some description for Autolync is agreed as 1 December 2011. 10 There is also no dispute that from 1 December 2015 Mr Brooker was an employee of Autolync.11 However the status of his engagement in the period between 1 December 2011 and 30 November 2015 is disputed, with Mr Brooker submitting that he was an employee in that period, and with Autolync submitting that in that period Mr Brooker was an independent contractor and not an employee.

[16] Consideration of whether a person is engaged subject to a contract of employment or contract for services requires application of a multifactorial test established by the Courts. In this regard, it has been said that a determination of the nature of the contractual relationship and whether it is properly described as an employment relationship involves an exhaustive consideration of the key aspects of the relationship. 12

[17] The multifactorial test to be applied by the Commission in cases such as this has been summarised by the Full Bench in the matter of Jiang Shen Cai trading as French Accent v Michael Anthony Do Rozario 13(French Accent). That matter also had regard to the earlier Full Bench matter of Abdalla v Viewdaze Pty Ltd t/a Malta Travel.14 The following principles were laid out in French Accent, and have been endorsed as the correct approach in subsequent Full Bench proceedings;15

“[30] The general law approach to distinguishing between employees and independent contractors may be summarised as follows:

(1) In determining whether a worker is an employee or an independent contractor the ultimate question is whether the worker is the servant of another in that other’s business, or whether the worker carries on a trade or business of his or her own behalf: that is, whether, viewed as a practical matter, the putative worker could be said to be conducting a business of his or her own of which the work in question forms part? This question is concerned with the objective character of the relationship. It is answered by considering the terms of the contract and the totality of the relationship.

(2) The nature of the work performed and the manner in which it is performed must always be considered. This will always be relevant to the identification of relevant indicia and the relative weight to be assigned to various indicia and may often be relevant to the construction of ambiguous terms in the contract.

(3) The terms and terminology of the contract are always important. However, the parties cannot alter the true nature of their relationship by putting a different label on it. In particular, an express term that the worker is an independent contractor cannot take effect according to its terms if it contradicts the effect of the terms of the contract as a whole: the parties cannot deem the relationship between themselves to be something it is not. Similarly, subsequent conduct of the parties may demonstrate that relationship has a character contrary to the terms of the contract.

(4) Consideration should then be given to the various indicia identified in Stevens v Brodribb Sawmilling Co Pty Ltd and the other authorities as are relevant in the particular context. For ease of reference the following is a list of indicia identified in the authorities:

Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like.

Control of this sort is indicative of a relationship of employment. The absence of such control or the right to exercise control is indicative of an independent contract. While control of this sort is a significant factor it is not by itself determinative. In particular, the absence of control over the way in which work is performed is not a strong indicator that a worker is an independent contractor where the work involves a high degree of skill and expertise. On the other hand, where there is a high level of control over the way in which work is performed and the worker is presented to the world at large as a representative of the business then this weighs significantly in favour of the worker being an employee.

The question is not whether in practice the work was in fact done subject to a direction and control exercised by an actual supervision or whether an actual supervision was possible but whether ultimate authority over the man in the performance of his work resided in the employer so that he was subject to the latter’s order and directions.” “[B]ut in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another. That was made clear in Queensland Stations Pty. Ltd v Federal Commissioner of Taxation, a case involving a droving contract in which Dixon J observed that the reservation of a right to direct or superintend the performance of the task cannot transform into a contract of service what in essence is an independent contract.

Whether the worker performs work for others (or has a genuine and practical entitlement to do so).

The right to the exclusive services of the person engaged is characteristic of the employment relationship. On the other hand, working for others (or the genuine and practical entitlement to do so) suggests an independent contract.

Whether the worker has a separate place of work and or advertises his or her services to the world at large.

Whether the worker provides and maintains significant tools or equipment.

Where the worker’s investment in capital equipment is substantial and a substantial degree of skill or training is required to use or operate that equipment the worker will be an independent contractor in the absence of overwhelming indications to the contrary.

Whether the work can be delegated or subcontracted.

If the worker is contractually entitled to delegate the work to others (without reference to the putative employer) then this is a strong indicator that the worker is an independent contractor. This is because a contract of service (as distinct from a contract for services) is personal in nature: it is a contract for the supply of the services of the worker personally.

Whether the putative employer has the right to suspend or dismiss the person engaged.

Whether the putative employer presents the worker to the world at large as an emanation of the business.

Typically, this will arise because the worker is required to wear the livery of the putative employer.

Whether income tax is deducted from remuneration paid to the worker.

Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.

Employees tend to be paid a periodic wage or salary. Independent contractors tend to be paid by reference to completion of tasks. Obviously, in the modern economy this distinction has reduced relevance.

Whether the worker is provided with paid holidays or sick leave.

Whether the work involves a profession, trade or distinct calling on the part of the person engaged.

Such persons tend to be engaged as independent contractors rather than as employees.

Whether the worker creates goodwill or saleable assets in the course of his or her work.

Whether the worker spends a significant portion of his remuneration on business expenses.

It should be borne in mind that no list of indicia is to be regarded as comprehensive or exhaustive and the weight to be given to particular indicia will vary according to the circumstances. Features of the relationship in a particular case which do not appear in this list may nevertheless be relevant to a determination of the ultimate question.

(5) Where a consideration of the indicia (in the context of the nature of the work performed and the terms of the contract) points one way or overwhelmingly one way so as to yield a clear result, the determination should be in accordance with that result. However, a consideration of the indicia is not a mechanical exercise of running through items on a check list to see whether they are present in, or absent from, a given situation. The object of the exercise is to paint a picture of the relationship from the accumulation of detail. The overall effect can only be appreciated by standing back from the detailed picture which has been painted, by viewing it from a distance and by making an informed, considered, qualitative appreciation of the whole. It is a matter of the overall effect of the detail, which is not necessarily the same as the sum total of the individual details. Not all details are of equal weight or importance in any given situation. The details may also vary in importance from one situation to another. The ultimate question remains as stated in (1) above. If, having approached the matter in that way, the relationship remains ambiguous, such that the ultimate question cannot be answered with satisfaction one way or the other, then the parties can remove that ambiguity a term that declares the relationship to have one character or the other.

(6) If the result is still uncertain then the determination should be guided by “matters which are expressive of the fundamental concerns underlying the doctrine of vicarious liability” including the “notions” referred to in paragraphs [41] and [42] of Hollis v Vabu.” 16 (references omitted)

[18] I turn to consideration of each of each of the indicia.

Whether the putative employer exercises, or has the right to exercise, control over the manner in which work is performed, place or work, hours of work and the like.

[19] The Respondent’s evidence, undisputed on this point by Mr Brooker, is that his initial engagement with Autolync from 1 December 2011 included him providing IT services associated with improving management of Autolync’s GPS data and its migration to an in-house system, described as the Original Project. 17 The Respondent’s evidence is that during that time Mr Brooker also performed work, as an employee, for another, unrelated organisation.18

[20] By June 2012, additional technical capability was needed by Autolync 19 and he was engaged on another project, and ultimately further projects.

[21] During the period between December 2011 and November 2015, Mr Brooker was engaged as an independent contractor, holding an ABN and paid by Autolync upon presentation of an invoice. That situation changed when he “showed a desire in or around early 2015 to move into a role as a permanent employee, 20 which eventually led to an offer of employment as an employee in October 2015.21 Terms of employment were discussed and agreed and he commenced as an employee from 1 December 2015, however it seems little else changed in the way Mr Brooker undertook work for Autolync.

[22] His work was performed at the company’s premises, although the company did not require Mr Brooker to work on any specific day. 22 Kasie Smith gave evidence that:

“Stephen often changed the days that he performed work or the number of hours over which he performed that work. This is evidenced by the variation in hours claimed between invoices provided to Autolync for payment.” 23

[23] Those contentions are disputed by Mr Brooker, whose evidence was that “I was required to attend the office Monday to Friday, 9am to 6pm”. 24

[24] In performing this work he did so with a team of other IT professionals he submits he managed. He continued to be subject to directions about the projects in which he worked.

[25] During the period of the disputed engagement, Mr Brooker also became entitled to a shareholding of sorts, being entitled to convert shares held in Autolync into shares in another company controlled by Courtney Smith.

[26] The evidence in favour of finding that Mr Brooker was subject to Autolync’s control is substantially the same as the evidence against such a finding; namely that he was part of the collaborative team of IT professionals which, in managing the team, was tasked with producing the results dictated by Autolync.

[27] On balance the finding that Mr Brooker was not subject to the company must be made.

[28] Collaborative production of a predetermined result within a predetermined timeframe, of itself and in the context of this matter, would be insufficient for a finding that Mr Brooker was subject to Autolync’ s control.

[29] Consideration of this factor resolves in favour of Autolync.

Whether the worker performs work for others (or has a genuine and practical entitlement to do so).

[30] Mr Brooker was not engaged exclusively by Autolync. At the start of the relationship with Autolync he performed work for others, four days a week. Although the balance of external work had shifted over the years, Mr Brooker’s evidence is that he continued to perform work for another organisation during the disputed engagement period but that his employment with the other organisation ended at the end of November 2011. 25

[31] Consideration of this factor involves an analysis not of whether work was performed for others but whether there was a genuine and practical entitlement to do so. Accordingly the evidence leads to this factor resolving in favour of Autolync.

Whether the worker has a separate place of work and or advertises his or her services to the world at large.

[32] Mr Brooker performed his work largely, or wholly, at Autolync’s premises and so this factor resolves in favour of Mr Brooker.

Whether the worker provides and maintains significant tools or equipment.

[33] While the parties dispute the extent of any equipment brought by Mr Brooker to the contract, the highest point of the contentions about the equipment that may have been brought to the contract suggests it was minor – a laptop and a mobile phone. 26

[34] Mr Brooker had no substantial investment in capital equipment and, save and except for skills as a professional, the equipment he brought to the contract do not require a substantial degree of skill to use.

[35] Consideration of this factor also resolves in favour of Mr Brooker being considered an employee.

Whether the work can be delegated or subcontracted.

[36] While no evidence is pointed to that would suggest a finding Mr Brooker was entitled to delegate or subcontract his work, Autolync submits that he could have done so.

[37] This factor is a neutral consideration in the overall assessment.

Whether the putative employer has the right to suspend or dismiss the person engaged.

[38] No evidence was provided by either party in relation to this factor and it is a neutral factor in my consideration.

Whether the putative employer presents the worker to the world at large as an emanation of the business.

[39] No evidence was provided by either party in relation to this factor and it is a neutral factor in my consideration.

Whether income tax is deducted from remuneration paid to the worker.

[40] Mr Brooker concedes that he had applied for an ABN and that he was responsible for his own taxation without Autolync making income tax deductions. Accordingly, consideration of this factor resolves in favour of Autolync.

Whether the worker is remunerated by periodic wage or salary or by reference to completion of tasks.

[41] Mr Brooker’s evidence is that he was paid on a regular basis, with the evidence showing that this was done after presentation by him to Autolync of an invoice. 27 Consideration of this factor resolves in favour of the Respondent.

Whether the worker is provided with paid holidays or sick leave.

[42] Mr Brooker did not receive any paid leave. 28 Consideration of this factor also resolves in favour of Autolync.

Whether the work involves a profession, trade or distinct calling on the part of the person engaged.

[43] No evidence was provided by either party in relation to this factor and it is a neutral factor in my consideration.

Whether the worker creates goodwill or saleable assets in the course of his or her work.

[44] No evidence was provided by either party in relation to this factor and it is a neutral factor in my consideration.

Whether the worker spends a significant portion of his remuneration on business expenses.

[45] Evidence provided by Mr Brooker in response to an order from the Commission to produce documents include Business Activity Statements filed by Mr Brooker with the Australian Taxation Office in the period 1 July 2012 to 30 June 2015. Since those documents are the subject of a confidentiality order made by me, I record that I have had regard to the information in them and make the finding that Mr Brooker did not spend a significant portion of his remuneration on business expenses.

[46] After consideration of each of the factors relevant to the multifactorial test, those factors which favour a finding that Mr Brooker was an independent contractor in the disputed period include the matter of control; his capacity to perform work for others; his income tax arrangements; arrangements for payments; and his leave arrangements. Those factors which would support a finding that Mr Brooker was an employee in the period in question include the factors relating to his place of work; his investment in tools and equipment; and the amounts spent by him on business expenses.

[47] In the overall situation, the matter is somewhat finely balanced, with certain of the indicia supporting a finding that Mr Brooker was an independent contractor and others supporting a finding that he was an employee between December 2011 and December 2015.

[48] Overall, I consider that in this period Mr Brooker was an independent contractor and make this finding for several reasons. Firstly, there was a sufficient extent of control of the work by him to support a finding that his engagement was consistent with that of a contractor. Secondly, he was not engaged exclusively by Autolync. Lastly I take into account that not only in the period in question but throughout the entirety of the relationship, both parties characterised the relationship as being an independent contractor arrangement. It is only with the commencement of these proceedings that one of the parties, namely Mr Brooker, have questioned the actual nature of the relationship.

[49] Taking all of these factors together I consider that, although finely balanced, the finding must be made in favour of the arrangement being what the parties considered and represented it to be, which was an independent contractor arrangement.

[50] As a result of this finding, Mr Brooker’s employment with Autolync dates from 1 December 2015. For the reason that at the time Mr Brooker’s employment with Autolync ended it only employed seven people, including Mr Brooker, the minimum employment period to be considered in this decision is a period of 12 months.

[51] Mr Brooker’s unfair dismissal application contends that he was notified of his dismissal on 13 December 2016, with the date upon which the dismissal took effect being 29 November 2016. The application itself was made to the Commission on 30 January 2017.

[52] A somewhat different construct emerges from Mr Brooker’s submissions and evidence in respect of the argument mounted by the Respondent that, with the application being made on 30 January 2017, an extension of time for the making of his application would be required. Mr Brooker submits the following in a short witness statement on the subject of the extension of time;

“1. I did not resign from Autolync but was directed to cease work due to stress from Nov 2016 – Jan 2017.

2. I was not formally or officially dismissed or notified of dismissal, clarification of employment status was sought while contesting the alleged resignation until January 29th 2017 leading to the application for Unfair Dismissal January 30st.” 29

[53] An examination of the overall circumstances between Mr Brooker and Autolync and how he came to leave employment indicates the following;

• On 22 November 2016 there was a telephone call between Mr Brooker and Courtney Smith. The precursor to this telephone call appears to have been a disagreement between the two about some work that Mr Brooker was called upon to do. Mr Smith gave evidence about this conversation which included that Mr Brooker had resigned in the course of a discussion;

“25. Stephen tendered his resignation verbally over the telephone to me on 22 November 2016. This occurred over the phone because I was working from home that day.

26. This discussion arose in the context of a telephone call that was made from Stephen to myself where I confirmed my position on concerns Stephen had about the management structure of Autolync. I confirmed, to Stephen's displeasure, that he would continue to report to Kasie.

27. Stephen reacted in anger telling me words to the effect of, "I'm too old for this shit. I resign".

28. In response, I said words to the effect of, "If that's the feeling that you've got, then that’s unfortunate but I am not going to change my position on this. You're obviously unhappy".

29. Stephen again said words to the effect of, "I don't need this. I resign".

30. I told Stephen I accepted his resignation. I said words to the effect of, "If that's the case, I have no reason but to accept your position".

31. I then called Kasie to tell her what had taken place. Kasie responded with words to the effect of, "Really?"” 30

• Mr Smith says that he accepted Mr Brooker’s resignation in the course of the telephone conversation.



• Following the phone call, also on 22 November 2016 at 10:48 AM, Mr Smith sent Mr Brooker an email referring to Mr Brooker’s resignation;

“Stephen,

Based on our conversation just now, I have discussed the impact of your resignation with Kasie directly given her involvement in these discussions. We don’t want to be protracted in any way if your heart and head are not aligned to our company objectives and requests.

Obviously we believe this will have a big impact on our business, but I stand by my request that you work with Kasie and her determined needs within your department. Kasie was disappointed by your response and there is no question the team will be shocked by this outcome.

Its clear we need to maintain continuity and your staff will need to be duly informed once we receive your formal resignation officially. I respect your statements that we do not want this to be personal and as such Kasie and I will work with you to make sure any exit is maintained professionally.

As stated the investment is separate your employment. I will provide a statement regarding your investment is weak aligned to the discussions we have had. Those conversation stand so I will provide more formal response accordingly.

Sincerely

Courtney” 31

• Also on 22 November 2016, after the initial morning phone call, Mr Smith rang Ms Smith and told her about the telephone call and that he had accepted Mr Brooker’s resignation. 32

Following the report to Ms Smith she “called Stephen and asked him to leave the office in accordance with Autolync's practice for responding to resignations”. 33

• Later on 22 November 2016 Mr Brooker emailed both Mr Smith and Ms Smith, and Mr Smith took the correspondence to be Mr Brooker “backtracking on his resignation, which I had already accepted”. 34 The email which caused Mr Smith to form that view was in the following terms, which refers merely to a “possible resignation”, followed by his absence from work for illness;

“Kasie/Courtney

Courtney we discussed my possible resignation this morning. Since that conversation, I have received a further email from yourself this morning.

Also I have received a call on my mobile from Kasie asking me to leave the office and not return until Monday. Subsequently I am no longer at my desk.

I have briefed my senior staff Aaron and Ben on critical infrastructure tasks requiring action.

Regards Stephen” 35

• On 28 November 2016 there was a meeting between Mr and Ms Smith and Mr Brooker. Mr Smith gave evidence that “during the meeting I confirmed that Autolync accepted his resignation.” 36



• Mr Smith also does not recall Mr Brooker “disputing the fact that he had resigned”. 37 On 28 November 2016, following the above meeting, Ms Smith sent Mr Brooker a text message which read;

“Hi Stephen, again im truly sorry we got to todays outcome. We need to finalise a few things, wages owing, payslips etc Can you please send an email address I can use? As part of the policy you set up we have deactivated your accounts today. Take care Kasie” 38

• On 29 November 2016 Mr Brooker responded with two texts;  39



• At 9:04 AM “Hi Kasie. I should have been more proactive with our working relationship, I am very sorry about that. It’s [email address]”;



• At 9:16 AM “Courtney/Kasie, I can do a Q&A session with Aaron and Ben Friday or next week (CS, KS optional). They should prepare a document this week with a decent list, e.g. Telstra, Azure, Network, etc, etc. if not needed no problem”



• Also on 29 November 2016 Ms Smith instructed final employment payments to be prepared and made and for a letter confirming Mr Brooker’s resignation to be prepared and sent to him. The payments were made on 30 November 2016, including payment of 66 hours of wages, superannuation and accrued annual leave. The letter to Mr Brooker is dated 30 November 2016 and was sent in the week ending 4 December 2016. 40

On 7 December 2016 Mr Smith received a further email from Mr Brooker. The email is lengthy and sets out substantial advice to Mr Smith about a number of matters including the way the business is run, but also putting forward that “I never resigned from the company and needed to get away from the harassment. I talked to you about this that Tuesday morning and feeling like giving up because of it.”  41

On 12 December 2016 Mr Smith responded to Mr Brooker’s correspondence reiterating that he had accepted Mr Brooker’s resignation. 42

Mr Brooker responded to the email a short time later reiterating that he did not believe he had resigned as well as providing a medical certificate. 43

Also on 12 December 2016 there was a further response from Mr Smith to Mr Brooker, again making the point that he considered Mr Brooker to have resigned. Mr Brooker made a further response on 16 December, which began by contesting that subject. There is further current correspondence between the two on the same subject and with the same contentions on 19 December 2016 (from Mr Smith) and 22 December 2016 (from Mr Brooker), with Mr Smith not seeing the last correspondence until he returned from leave on 11 January 2017. 44

• On 18 January 2017, Mr Brooker and his wife, Janine Brooker, sent Mr Smith an email inquiring about the conversion of Autolync shares they held into a shareholding with another company apparently controlled by Mr Smith.

[54] As set out above, the evidence in this matter includes that from Mr Smith that Mr Brooker said to him on 22 November 2016 words to the effect that he would resign from Autolync’s employment.

[55] For his part Mr Brooker believed that he was still employed until 29 January 2017. Mr Brooker says that it was only towards the end of January 2017 that he became aware he was not going to return to the workplace. The trigger for him forming that belief was that he had got no response to his last correspondence and that there had been no contact with him from Autolync’ s senior personnel in the New Year. He also puts forward that in relation to the meeting on 22 November 2016 that the words he used to Mr Smith were more nuanced than those recorded in Mr Smith’s witness statement, being “I do not need this. I resign”, and instead puts forward that his words were something to the effect of “I feel like resigning”, being a reaction to what he felt had been unreasonable conduct on the part of the company toward him.

[56] Against this construct, there is Mr Smith’s email to Mr Brooker on the same day as the conversation, 22 November 2016 at 10:48 AM in which Mr Smith says “I have discussed the impact of your resignation with Kasie”, with Mr Brooker responding later that day saying “Courtney we discussed my possible resignation this morning”. 45

[57] The consistency of the evidence before the Commission is that, in the course of the telephone call between Mr Brooker and Mr Smith on 22 November 2016, Mr Brooker indicated an intention to resign from employment with Autolync. The correspondence between the two later that day leaves little doubt that a resignation had been discussed in actual terms in the telephone call. While Mr Brooker’s later email of the same date refers to it being a “possible resignation”, there is no ambiguity within Mr Smith’s earlier email to Mr Brooker. At best Mr Brooker’s 1:35 PM email referring to the situation being a “possible resignation” is an endeavour to retrieve something he perhaps did not intend to do. Nonetheless the finding is open to the Commission to make that a resignation was offered and accepted in the course of the telephone call on 22 November 2016.

[58] The question arises as to whether this is to be characterised as a “heat of the moment” resignation which, having been given and accepted, an employee thought better of and then actively sought to have set aside. The Commission accepts that there may be special circumstances in which it may be unreasonable for an employer to assume a resignation and to immediately accept one. The path which may be taken by the Commission in such circumstances is to accept that a reasonable period of time should be allowed to elapse between the point of the purported resignation and acceptance in order for the employer to see whether the resignation was really intended. 46

[59] Firstly I accept the evidence of Mr Smith that in the course of the telephone conversation between the two on 22 November 2016 that Mr Brooker “said words to the effect of, “I don't need this. I resign””. 47 I accept Mr Smith as a witness of truth who has a more accurate recollection of the events about which he gave evidence than Mr Brooker. I also accept, on the basis of Mr Brooker’s later conduct, it to be more likely than not than in the telephone call on that day the words “I resign” were spoken with Mr Smith responding that he would accept what he saw as a resignation.

[60] While it was clear to Mr Smith by at least late the same day that Mr Brooker was endeavouring to backtrack on the resignation, at all times Autolync maintained to Mr Brooker that it had accepted his resignation.

[61] The evidence does not refer to there being any specific conduct on the part of Mr Brooker to say that he never meant to have said those words or that he had been misconstrued. Instead, the best which arises for his case is that he refers on 22 November 2016 to it being a “possible resignation”. The text messages between Ms Smith and Mr Brooker late on 28 November 2016 and early on 29 November 2016 could have been an opportunity on Mr Brooker’s part to say that he never intended to resign, but that opportunity was not taken. Instead the text from Mr Brooker on 29 November 2016 at 9:04 AM, being after the meeting between he and Mr and Ms Smith on 28 November, refers to the employment relationship in the past tense: “Hi Kasie. I should have been more productive with our working relationship, I am very sorry about that”. 48

[62] However, Mr Brooker’s later conduct and correspondence began to say, somewhat more assertively with each passing communication, that he had not resigned;

• 7 December 2016 – to Mr Smith, “I never resigned from the company and needed to get away from the harassment”; 49


• 12 December 2016 – to Mr Smith, “I have not resigned from my position at Autolync”; 50
• 16 December 2016 – to Mr Smith, “I again reiterate my situation”; 51
• 22 December 2016 – to Mr Smith, “I respectfully suggest you reconsider your position”. 52

[63] I have taken into account that Mr Brooker proceeded on what he characterises as sick leave due to stress following the last meeting between all concerned on 28 November 2016.

[64] While the foregoing are matters of fact, the first occasion on which Mr Brooker unambiguously put forward to Autolync that he had not resigned was 7 December 2016, which is some time after the final payments from Autolync were made, on 30 November 2016, and a few days after company’s termination of employment letter was provided to him, in the week of 4 December 2016. The termination letter referred to Autolync accepting his verbal resignation, with his employment being “from December 1, 2015 to November 29 2016 when the business met with you to advise acceptance of your resignation after a week of consideration”. 53

[65] In all the circumstances I am not able to find that this was a “heat of the moment” resignation attempted to be retrieved by the employee as soon as was reasonably possible. By the time the termination letter had been sent to Mr Brooker at some stage in the week of 4 December 2016, Autolync had already allowed a reasonable period of time to elapse. It was only after the sending of that letter and after the final employment payments had been paid to him that Mr Brooker began to actively say he had not resigned.

[66] The fact that the acceptance of his resignation was not actively disputed by Mr Brooker until 7 December 2016 leads to a finding that he did not do everything he reasonably could have, earlier to that time, to dispute or withdraw that which had taken place. This is not a situation which there are special circumstances in which it would be unreasonable for an employer to assume a resignation and to accept it forthwith. Instead Autolync allowed a reasonable time to elapse, being the period between the telephone conversation on 22 November 2016 and the meeting between Mr Brooker, Ms Smith and Mr Smith on 28 November 2016. There was no endeavour in that meeting by Mr Brooker to actively dispute the fact of a resignation and its acceptance or to put forward reasons why Autolync should not act upon it.

[67] Because of the circumstances, I am satisfied that there was a resignation by Mr Brooker from his employment with Autolync which he communicated to them on 22 November 2016 with his resignation being accepted by the company by no later than 29 November 2016.

[68] As a result I find that Mr Brooker had not completed the minimum period of employment at the time of the termination of his employment. It is therefore unnecessary to consider the question of whether an extension of time should be granted for the making of Mr Brooker’s application.

[69] Accordingly Mr Brooker’s application for unfair dismissal is without jurisdiction and must be dismissed. An order to that effect is issued at the same time as this decision.

COMMISSIONER

Appearances:

Mr P Clark, support person, with Mr S Brooker on his own behalf.

Ms R French, solicitor, for the Respondent.

Hearing details:

2017.

Melbourne:

10 April.

 1 [2013] FCA 291.

 2   Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.

 3   Appellant v Respondents[2014] FWCFB 4297; Emily Oratis v Melbourne Business School[2014] FWCFB 3869 [5].

 4   Asciano Services Pty Ltd v Hadfield[2015] FWCFB 2618 [19].

 5   King v Patrick Projects Pty Ltd[2015] FWCFB 2679 [15].

 6 Ibid [17].

 7   Singh v Metro Trains Melbourne[2015] FWCFB 3502 [16].

 8   Smith v James Cook University[2016] FWC 6010 [6]–[7].

 9 Ibid [18].

 10   Form F2 – Unfair Dismissal Application, item 1.1; Exhibit R5, Respondent's Outline of Submissions, [3].

 11   Exhibit R4, Witness Statement of Kasie Smith, [25].

 12   JG King Homes v Tyler[2016] FWCFB 140 [14].

 13   [2011] FWAFB 8307.

 14 (2003) 121 IR 215.

 15   See, for example, Kimber v Western Auger Drilling Pty Ltd[2015] FWCFB 3704.

 16   [2011] FWAFB 8307, (2011) 215 IR 235, at [30].

 17   Exhibit R2, Witness Statement of Courtney Smith, [12].

 18 Ibid [17].

 19   Ibid [19]-[21].

 20 Ibid [22].

 21 Ibid [23].

 22 Exhibit R4 [12].

 23 Ibid [13].

 24   Exhibit A3, Response Witness Statement of Stephen Brooker, [13].

 25   Ibid [17]

 26   Exhibit R4 [10]–[11].

 27   Exhibit A1, Applicant’s Submission, [8]; Exhibit R4 [15], Attachment 2.

 28 Exhibit A1 [9].

 29 Exhibit A2, Applicant’s Submissions on Extension of Time, [1]-[2].

 30   Exhibit R2 [25]-[31].

 31   Ibid Attachment 4.

 32 Exhibit R4 [28].

 33 Ibid [29].

 34   Exhibit R2 [34]

 35   Ibid Attachment 5.

 36 Ibid [35].

 37 Ibid [35].

 38   Exhibit R4 Attachment 7.

 39   Ibid Attachment 7.

 40   Ibid [33]–[35], Attachment 8.

 41   Exhibit R2 Attachment 6.

 42   Ibid Attachment 8.

 43   Ibid Attachment 8.

 44 Exhibit R3, Further Witness Statement of Courtney Smith, [9]–[14].

 45   Exhibit R2 Attachment’s 4 and 5.

 46   See for example, Ngo v Link Printing Pty Ltd (1999) 94 IR 375 [12]; with reference to Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183, 191.

 47 Exhibit R2 [29].

 48   Exhibit R4 Attachment 7.

 49   Exhibit R2 Attachment 6.

 50   Ibid Attachment 8.

 51   Exhibit R3 Attachment 2.

 52   Ibid Attachment 4

 53   Exhibit R4 Attachment 9.

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