Sumit Aryal v Woolworths Group Limited
[2024] FWC 1217
•9 MAY 2024
| [2024] FWC 1217 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sumit Aryal
v
Woolworths Group Limited
(U2024/3088)
| COMMISSIONER SCHNEIDER | PERTH, 9 MAY 2024 |
Application for an unfair dismissal remedy
Mr Sumit Aryal (the Applicant) has 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 he has been unfairly dismissed from his employment with Woolworths Group Limited (the Respondent).
It appears that the application has been filed outside of the statutory time limit and the Respondent has objected to the application on such grounds. Further, the Respondent objects to the application on the grounds that the Applicant was not dismissed, having resigned voluntarily. The parties have filed materials relating to the Out of Time issue.
This decision deals with the repeated non-compliance of the Applicant in response to the Commission’s directions and the request of the Respondent that the matter be dismissed.
Background – End of the Applicant’s Employment and Late Filing
The parties are in dispute as to how the Applicant’s employment came to an end – the Applicant submits that he was dismissed by the Respondent, the Respondent submits that the Applicant resigned from his employment.
On 9 February 2024, the Applicant sent an email to the Respondent stating:
“Hello Lachy,
Hope this email finds you well.
I have attached my resignation letter in this email.
If you have any questions please let me know.
Regards,
SUMIT”
The letter attached to the Applicant’s email states:
“SUB: Resignation from Woolworths, Grand Central
It is with a mix of relief and disappointment that I announce my resignation from my position as team member at Woolworths, Grand Central effective from 17th Feb 2024. While my time at Woolworths has been an eye-opening journey, it's time to spread my wings to other Woolworths stores.
The decision to leave stems from the realization that my tolerance for workplace absurdity, which you have so generously cultivated, has reached its limit. Your knack for transforming a simple shift into a feat of Herculean proportions, complete with unnecessary pressure and stress, has been truly remarkable – if only it were a circus act.
Nonetheless, I appreciate the opportunity to work under your guidance, albeit with a touch of bemusement. I will cherish the memories of our interactions, though I suspect they'll make for excellent material in my future endeavours.
Rest assured, I will do my utmost to ensure a smooth transition during my remaining time here and will gladly assist in finding and training my replacement.
Thank you for the "memories."”
The Applicant was removed from the roster after 17 February 2024, in accordance with the resignation letter.
The Respondent recorded the Applicant’s end date as 18 February 2024 and a statement of service reflecting that same date was issued to the Applicant.
Despite the disagreement over the nature of the ending of the employment relationship, I am satisfied that the Applicant’s employment came to an end, at the latest, on 18 February 2024.
It is a matter of record that the application was made on 18 March 2024, some 29 days after the dismissal took effect. Accordingly, the application was not made within 21 days after the dismissal took effect.
An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.
The Commission may exercise its discretion to 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 the matters set out at subsection 3 of section 394 of the Act.
The Applicant sought to withdraw his resignation on 4 March 2024 by way of an email to the Respondent. The Applicant provided a copy of the email. The Applicant submits that the delay in filing his application was caused by the Respondent’s failure to respond to that email.
The Applicant claims that he merely attempted to relocate stores and continue his employment with the Respondent.
The Respondent submits that the Applicant did not seek a transfer to another store within the Woolworths Group, rather the Applicant resigned from his employment on 9 February 2024 and his employment ended on 18 February 2024. The Respondent submits that the Applicant’s only action in the 29 days following the ending of his employment and the filing of this application was to send the email on 4 March 2024.
The Respondent submits that the Applicant has failed to provide any substantive evidence that supports a finding of exceptional circumstances that could warrant an extension of time.
The Respondent, supported by the evidence of the Applicant’s manager Mr Lachlan Bauer (Mr Bauer), outlines that the Applicant had been unhappy with undertaking duties outside of the Produce team and had been talking about resigning from his employment for two to three weeks prior to handing in his resignation.
It was the evidence of Mr Bauer that he encouraged the Applicant to remain employed with the Respondent and that he did not want the Applicant to leave. It was also the evidence of Mr Bauer that the Applicant never approached him about a transfer to another store.
Background – Non-Compliance
Correspondence was sent to the parties, on 24 April 2024, outlining that the matter was listed for Hearing on 9 May 2024. The correspondence included Directions for the parties to file materials in relation to the Out of Time issue. This correspondence was sent to the Applicant by email.
The Applicant was directed to file his materials by 30 April 2024. No materials were filed in compliance with the Directions.
The Applicant was issued a Notice of Non-Compliance on 1 May 2024. The Notice of Non-Compliance directed the Applicant to file his materials by 2 May 2024.
The Applicant complied with the Notice of Non-Compliance – filing informal email submissions and attaching his resignation letter alongside a screenshot of his attempt to rescind his resignation.
The Respondent complied with the original Directions to file its materials in relation to the Out of Time issue. In its submissions the Respondent sought that the application be dismissed pursuant to section 399A of the Act or, in the alternative, section 587(3) of the Act.
The matter was listed at 9:30AM on 9 May 2024, by video, using Microsoft Teams. The parties were provided with a link to join the conference and were instructed to join 10 minutes prior to the commencement time, on the Notice of Listing sent on 24 April 2024.
The Applicant did not join the Hearing in the lead up to the commencement time.
Subsequently, my associate emailed the Applicant requesting they urgently join the Hearing. My associate then called the Applicant’s mobile number twice, the Applicant did not answer or return these calls.
Finally, I instructed my associate to allow 10 minutes from the intended commencement time of the Hearing to pass to facilitate the Applicant’s attendance. My associate confirmed my instructions, by email, to the Applicant and noted that non-attendance may result in the Hearing being adjourned and the matter determined on the papers.
The Applicant did not attend the Hearing, despite the additional time afforded, and did not contact my Chambers in response to the repeated attempts to reach out. Shortly after 9:40AM on 9 March 2024, the Hearing was adjourned, and the Respondent reiterated the request for the matter to be dismissed under section 399A of the Act.
As of the date and time of this Decision, no further communication from the Applicant has been received.
Relevant Law
Section 399A of the Act states as follows:
“399A Dismissing applications
(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:
(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or
(b) failed to comply with a direction or order of the FWC relating to the application; or
(c) failed to discontinue the application after a settlement agreement has been concluded.
Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.
Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).
(2) The FWC may exercise its power under subsection (1) on application by the employer.
(3) This section does not limit when the FWC may dismiss an application.”
Section 577 of the Act obliges the Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.
Further, section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the Commission must take into account the objects of the relevant Part of the Act.
A section 394 application falls under Part 3-2 Unfair Dismissal of the Act.
The Objects of Part 3-2 Unfair Dismissal are prescribed in section 381 of the Act. These Objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible, and informal and address the needs of employers and employees and involve procedures and remedies that ensure a “fair go all around” is accorded to both the employer and employee concerned.
Section 587(3) of the Act empowers the Commission to dismiss an application on its own initiative.
Section 587(3) of the Act reads as follows:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application: (a) on its own initiative; or (b) on application.”
Consideration
In this case, the Applicant has failed to comply with the Commission’s directions and has been notified that non-compliance would be grounds for the application to be dismissed or the matter to be determined in their absence.
The Applicant has been provided several opportunities to comply and has been repeatedly reminded of the requirement to comply and the risks to the application if they did not. The Applicant has not attempted to contact my Chambers or comply with the request to attend.
The Commission has afforded the Applicant several opportunities to advance their application, despite the repeated non-compliance. The Applicant has repeatedly failed to comply with the directions of the Commission. The Applicant never sought or requested an extension from the Commission nor provided reasonable explanation for the continued non-compliance.
I am satisfied that the application for an unfair dismissal remedy should now be dismissed on the initiative of the Commission under section 587(3) of the Act. However, for completeness, I will summarise my conclusions on the other issues raised against the application.
In the event that the matter had not been dismissed under section 587 of the Act, the section 399A dismissal application from the Respondent would have been programmed and potentially concluded the matter in a similar manner.
Even in absence of the issues of non-compliance, I have assessed the parties’ materials regarding the extension of time issue. I have formed the opinion that there are not exceptional circumstances in this matter which would have given rise to the consideration of whether an extension could be granted. Having regard to all of the matters to be considered under the Act in determining whether there are exceptional circumstances, I am not satisfied that there are any. The circumstances in the matter before me are not out of the ordinary course, unusual, special, or uncommon.
Having considered the evidence and submissions of the parties, I am inclined to prefer the position that the Applicant resigned from his employment and did so without undue influence or pressure from the Respondent. From the submissions and evidence provided, it appears Applicant made a decision to resign of his own free will and later sought to withdraw his resignation after his employment had already come to an end.
I find that, even on the most generous view of the Applicant’s submissions, The application faces significant difficulty at the next jurisdictional hurdle and, on the materials currently before me, this hurdle would likely prove fatal to the application. Noting there has been no Hearing or programming specifically concerning the merits or the further objection, I have not made final conclusions on these items. However, on assessment of the matter and the materials submitted to date, I am inclined to conclude that the application lacks merit.
Conclusion
Consequently, my decision is that this application for an unfair dismissal remedy should now be dismissed on the initiative of the Commission under section 587(3) of the Act. An Order to this effect will be issued in conjunction with this decision. [1]
COMMISSIONER
Determined on the papers.
[1] [PR774688].
Printed by authority of the Commonwealth Government Printer
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