Tony Lang v Best Mix Concrete Pty Ltd
[2018] FWC 3837
•15 AUGUST 2018
| [2018] FWC 3837 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Tony Lang
v
Best Mix Concrete Pty Ltd
(U2018/972)
COMMISSIONER LEE | MELBOURNE, 15 AUGUST 2018 |
Application for an unfair dismissal remedy - whether applicant was dismissed or resigned - whether application was made within time - whether extension of time should be granted.
Introduction
[1] This is an application for unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (the Act). Mr Tony Lang (the Applicant) claims he was unfairly dismissed from his employment with Best Mix Concrete Pty Ltd (the Respondent).
[2] The application was heard before me in Hobart on 21 May 2018. The Applicant was represented by Ms Cassidy Guyett of the Transport Workers’ Union of Australia (TWU). The Applicant and his son Mr Cameron Lang gave evidence on behalf of the Applicant. Mr Noel Jackman, Director and Mrs Andrea Jackman, who described her role as ‘Administration’ appeared and gave evidence on behalf of the Respondent. Mr Ralph Craig, a friend to Mr and Mrs Jackman, also gave evidence on behalf of the Respondent. The Respondent also filed a witness statement of Mr George Simonetis, a Contractor for the Respondent, however he did not give evidence at the hearing and I have had no regard to his statement. The matter proceeded by way of determinative conference. Mr Jackman has difficulty hearing and attempts were made to support him with a hearing loop with limited success. In order to provide fairness to all, I allowed a period subsequent to the hearing for the parties to file further submissions with the benefit of transcript.
Background
[3] Many of the factual circumstances in this case are not in contest. However, the matter is far from straightforward given the rather odd sequence of events and associated contested facts. From January 2014, the Applicant was employed by the Respondent as a Manager. 1 The Applicant is clear that he resigned from his employment on Friday, 5 January 2018 but that in doing so he provided a months’ notice.2 The Respondent accepts that the Applicant resigned on that date but disputes that any notice was provided. Accordingly, at the hearing the Respondent asserted that the employment relationship ended in the afternoon on Friday, 5 January 2018.3 However, the Respondent in their Form F3 – Employer Response to Unfair Dismissal Application (Form F3) and in other materials filed has asserted that the Applicant was terminated for serious misconduct on 11 January 2018. In fact, the Respondent sent a letter to the Applicant on Thursday, 11 January 2018 purporting to dismiss him for serious misconduct.
[4] The Applicant submits that he was “under the impression” that his employment was terminated on the Saturday, 6 January 2018. However, the Applicant also claimed during the hearing that he attended work for the Respondent the following week and that his “thoughts were changed” when he received the letter of termination on Thursday, 11 January 2018. 4 The Respondent claims no knowledge of the Applicant performing work for the company in the week commencing 8 January 2018.
[5] I drew to the attention of the parties that if there is a termination at the initiative of the employer as asserted by the Applicant and this termination took place on Saturday, 6 January 2018, the application was not lodged within the statutory period. There are also associated matters such as whether or not the Respondent is a small business employer and whether the Small Business Fair Dismissal Code applies and if so whether the Respondent complied with the Code in dismissing the employee if there was in fact a dismissal.
Law to be applied
[6] Section 394 of the Act provides that a person who has been dismissed may apply to the Fair Work Commission (the Commission) for an order under the Act granting a remedy. The Act provides that an application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows if it is satisfied that there are exceptional circumstances taking into account a number of factors.
[7] As stated above the Applicant submits he was under the impression that his employment had been terminated on 6 January 2018 but that his thoughts were changed when he received the letter of termination advising him that his employment was terminated on the basis of serious misconduct effective 11 January 2018. 5 The Respondent asserts that the Applicant resigned from his employment on 5 January 2018 despite the fact that they sent him a letter purporting to dismiss him for serious misconduct on 11 January 2018. The application was made on 1 February 2018. If the Applicant resigned without notice then there was no termination at the initiative of the employer and consequently the application must fail for want of jurisdiction. If the Applicant was dismissed on 6 January 2018 the application should have been made on or before 29 January 2018 (the next business day following 27 January 2018) and is therefore 3 days out of time. If the Applicant’s employment was terminated on the 11 January 2018 by way of the letter provided by the Respondent, the application was made within time.
[8] Under the Act, a person is protected from unfair dismissal if:
“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 to the person 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.”
[9] The meaning of minimum employment period is defined in s.383 of the Act as follows:
“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.”
[10] With regard to s.382(a) of the Act, the Respondent in their Form F3 asserts that the Applicant commenced employment with the Respondent on 13 January 2014. I am satisfied the Applicant completed the minimum employment period.
[11] With regard to s.382(b) of the Act, the Applicant’s earnings at the time of the dismissal were $83,200 plus the use of the company motor vehicle and a $100 per month allowance for mobile expenses. The relevant high income threshold at the time of the dismissal is $142,000. It is not conceivable and nor was it asserted by the Respondent that the Applicant’s earnings would exceed the high income threshold. For this to be the case the Applicant’s private use of the motor vehicle would have to be valued at over approximately $57,600 per year. I am satisfied that Applicant’s earnings were less than the high income threshold.
[12] I find that the Applicant is a person protected from unfair dismissal as he had completed the minimum employment period and his earnings were less than the high income threshold.
[13] Unfair dismissal is governed by Part 3-2 of the Act. Section 385 of the Act sets out what constitutes an unfair dismissal:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[14] Section 386 defines when a person is dismissed for the purpose of Part 3-2 of the Act. Relevantly, s.386(1) provides:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) 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.”
[15] With regard to section 385(a), section 386 sets out the meaning of dismissed and as discussed above, there is a contest as to whether the Applicant was dismissed at the employer’s initiative. It was not asserted by the Applicant that he was forced to resign because of conduct or a course of conduct engaged in by his employer.
[16] With regard to section 385(c), the Respondent asserts that it is a small business employer in accordance with s.23 of the Act, asserting that at the time of dismissal the business including its associated entity (Best Mix Garden Supplies) employed fewer than 15 employees. 6 The Applicant does not dispute that the Respondent was a small business at the relevant time. I am satisfied that the Respondent is a small business within the meaning of the Act. Therefore, if I am satisfied that the Applicant was dismissed, the application of the Small Business Fair Dismissal Code is relevant.
[17] With regard to section 385(d), there is no suggestion that the Applicant’s dismissal is a case of genuine redundancy.
The evidence
[18] Sometime during the afternoon of Friday, 5 January 2018 the Applicant and Mr Jackman had a discussion at Mr and Mrs Jackman’s address in Acton Park. 7 While there is some dispute about exactly what was said by whom, it is sufficient for the purposes of this decision to note that the discussion was about the availability of the required number of concrete trucks to complete the work that was claimed to be scheduled for the following week. The discussion became somewhat heated. The Applicant says that he felt that Mr Jackman was being “smart” with him over the issue.8 He also claimed that Mr Jackman was waving a concrete chute scraper around in his face when he was talking to him.9 Mr Jackman agreed that he had the chute scraper in his hand but disputes that he was waving it in the Applicant’s face.10 The Applicant’s son said that Mr Jackman was waving the chute scraper and pointing it at the Applicant.11
[19] In his witness statement the Applicant claims that during the course of this conversation he said to Mr Jackman “I know how to fix it, I’ll give you a months’ notice, find someone else to run it, stick your job where it don’t fit” and that Mr Jackman replied “Alright, see you”. 12 During the hearing the Applicant claimed that he said “Well, the best thing you can do, Noel, I know how to fix it. You can find somebody else to run the place, I’ll give you a months’ notice and you can stick it where it fits” and that Mr Jackman replied “Fine, go then”.13 The Applicant’s son who was present during the discussion gave evidence that the Applicant said “I have worked too hard to get these customers and I don’t want to lose them so if this is the path you want to go down you better find someone else to run it. I will give you a months’ notice, stick your job up your arse!” and that Mr Jackman said “Fine, go!”.14 During the hearing, the Applicant changed his evidence as to what Mr Jackman said in response to “Fine go then” and “Fine, go”.15 The Applicant also conceded when questioned by me that he “probably” told Mr Jackman to “Stick your job up your arse” but maintained the claim that he gave a months’ notice and told him that he had finished.16 The Applicant does not dispute that in making this statement he intended to resign from his employment on 5 January 2018, but insists that it was a resignation with notice.17
[20] Mr Jackman gave evidence that he and the Applicant discussed the availability of the trucks, though his version of the discussion differs somewhat from the Applicant’s version in that Mr Jackman claims that he raised his concern about the trucks being covered in concrete as a reason for their unavailability. Mr Jackman said that the conversation with the Applicant concluded with the Applicant saying to him “you need to find some decent drivers” to which Mr Jackman responded “who is the manager down there?”. After that, Mr Jackman says that the Applicant “… walked towards his sons Ute mumbling something. Tony [the Applicant] walked back towards me and said he had cut a tyre on the trailer with a rock up at Dysart Quarry…”. 18 Mr Jackman was clear in his evidence that he did not hear the Applicant tell him to stick his job up his arse nor provide four weeks’ notice.19 Mr Jackman said that he was aware the Applicant was saying something as he walked away from him but he did not know what he said.20
[21] Mr Craig, a friend of Mr Jackman was in the yard working on the chutes that day and gave evidence that he heard the conversation. His evidence is consistent that the discussion was focussed on the availability of the concrete trucks. Mr Craig claims that the Applicant said to Mr Jackman “you’re a bloody idiot”. 21 The Applicant disagreed that he said this to Mr Jackman.22 Mr Craig says that Mr Jackman said to the Applicant it was part of his job to look after the trucks and that he then heard the Applicant tell Mr Jackman to shove his job up his arse.23 During the hearing, Mr Craig said that he was standing listening to the conversation and was clear in his evidence that he was stating what he could remember from the conversation which did not include any reference to the Applicant giving a months’ notice.24 Mr Craig said that he was standing only a short distance away and that the Applicant had raised his voice during the discussion and he could hear him clearly.25 The Applicant’s evidence was that Mr Craig was probably 30 metres away from where he was talking to the Applicant.26 Mr Craig was clear in his evidence that it was not possible that the Applicant said more words to Mr Jackman after “stick your job up your arse” because he got in the Ute with his son and they left the area.27
[22] After the discussion ended, the Applicant got back into the work Ute with his son and immediately drove to Mr and Mrs Jackman’s home. His son stayed in the car while the Applicant entered the house and spoke to Mrs Jackman. 28 Mrs Jackman described her role on forms filed with the Commission as ‘Administration’ for the Respondent. The Applicant gave evidence that he took direction from Ms Jackman as his “senior”.29 The Applicant’s evidence was that he told Mrs Jackman that “I am finished and I had told Noel to stick his job and I gave a months’ notice because he won’t give me any trucks”. The Applicant claims Mrs Jackman responded by saying “That can’t be right, it will be sorted, we will have a meeting on Sunday”.30 Mrs Jackman said that when the Applicant entered the house he “said to me that Noel got into him about the trucks not being maintained properly and Tony told me that he told Noel to shove his job up his arse”.31 Mrs Jackman was adamant in her evidence that the Applicant made no reference to giving a months’ notice.32 Mrs Jackman said she told the Applicant that he should come up to the house on the Sunday to discuss the matter and that the Applicant then left the house.33
[23] When Mr Jackman returned home from work that evening, Mrs Jackman told him about the conversation that she had with the Applicant. Mr Jackman’s evidence is that this was the first time that he had heard of the Applicant’s resignation. His evidence was that he recalls Mrs Jackman was clear about telling him that the Applicant had resigned but did not make any mention of a notice period being provided. 34 The reaction of Mr Jackman was to accept the resignation as it had been communicated to him via his wife.35 Mr Jackman’s evidence was that on the Friday he did not think there had been any serious misconduct.36 Mr Jackman on two occasions during the hearing stated that he did not think the Applicant had resigned.37 However, Mr Jackman ultimately clarified that he understood the words used by the Applicant to shove his job up his arse ended the employment relationship that Friday, 5 January 2018. As Mr Jackman put it “He’s finished”.38
[24] On the Saturday, 6 January 2018 a series of SMS messages were exchanged. The first was sent by Mrs Jackman and according to her was sent at the direction of Mr Jackman. 39 Mr Jackman was described by Mrs Jackman as the decision maker in the business stating during the hearing that “he makes the bullets and I fire them”.40 Mr Jackman asked the message be sent because he was under the impression that the Applicant had resigned and his employment had finished.41
[25] The first SMS message from Mrs Jackman to the Applicant was as follows:
“Hi Tony, if you are not going to be home tomorrow please leave the keys and Ute and keys to the plant in your letter box as Noel is coming to get them”. 42
[26] Upon receiving the SMS message, the Applicant rang both Mr and Mrs Jackman at various times and they did not answer or return the calls. 43 Mr Jackman’s evidence as to why the calls were not answered was to the effect there was no point in doing so given the Applicant had told him to stick his job.44
[27] The Applicant then replied with an SMS message and a further exchange of SMS messages followed:
“The Applicant: ‘… Hi Andrea the ute is ready to go, the keys & my uniform are inside with my fuel card & the bank deposit books. Obviously Noel did not accept my months’ notice so I presume my employment has been terminated effective immediately so when my full entitlements are in my bank your ute & possessions will be returned. Because my employment has been terminated effective immediately I am entitled to two weeks’ pay in lieu on top of my accrued annual leave pay. Regards Tony.’
Mrs Jackman: ‘Hi Tony you were the one that told Noel to stick his job up his arse! So don’t go threatening us because you’ve done this to the wrong people!
‘Don’t forget the $26,000 you owe us plus 3% monthly compounding interest over the six month we lent it to you’
The Applicant: ‘I never told him to stick his job up his arse I said if I can’t have trucks to do the work we will lose customers and he said I don’t care. I have worked too hard to get clients to let them down Noel might not care but I do. So I said to Noel he may need to find someone else to do the job if this is the case he then said, “fine go”. So in no way am I threatening you I’m sorry you feel that way this is just what I require to do until my full entitlements are paid’
‘It was $24,900 and you said that was a bonus for the work I had put in because I was on a really low income for the hours I was putting in and also to compensate the monthly metre rate I had never received ?’
Mrs Jackman: ‘Tony you told ME in the kitchen that you told him to stick his job up his arse he didn’t hear you say that, I told him and you never gave him a months notice as you said, Tony it is our business of course we care so don’t say that we don’t. You know as well as I do that when your told to stick your job up your arse your entitled to nothing it’s like walking away Tony. I did not say anything of the sort you are a liar. If the money was a bonus why did Noel keep asking you for the letter from the bank for security and why did you keep saying how are you going to fix the tax.’
The Applicant: ‘This is going no where Andrea sorry it has come to this I will be talking to the union & my solicitor on Monday if this is not resolve before’.” 45
[28] The Applicant acknowledged on a number of occasions that he was of the understanding that his employment had been terminated, effective immediately on 6 January 2018. 46 Therefore, the Applicant decided not to attend the house on the Sunday for the discussion Mrs Jackman had sought on the Friday as he saw no point in doing so.47
[29] Despite this, the Applicant claims that he attended work on the following Monday and Tuesday, being 8 and 9 January 2018. 48 The Respondent was unaware of the claim that he did so until the day of the hearing.49 I note the Applicant made no mention of allegedly attending the workplace in his witness statement. The only evidence on the point prior to the hearing was an email from the Applicant’s wife to the Commission dated 9 May 2018 which stated, among other things, the following:
“…Due to no response to phone calls or message left on Saturday 6th January 2018 he [the Applicant] was of the understanding that his employment had been terminated effective immediately, therefore did not turn up at their house on Sunday 7th January 2018 for a meeting or turned up for work the following days....”
[30] At the hearing, when asked by me why he attended the workplace he referred to personal relationships he had formed with customers and others and that he had been called by employees at the plant asking for advice. 50 As to why his evidence on this was inconsistent with the email sent to the Commission from his wife, he asserted that his wife leaves the house early and would not know whether or not he had gone to work or not.51 I make some observations on the credibility of this evidence later in the decision.
[31] On 11 January 2018 there was an exchange of emails between the Applicant and Mrs Jackman. The Applicant wrote to Mrs Jackman in the following terms:
“Hi Andrea
I gave Noel and yourself 4 weeks notice on 05/01/2018 the two pay slips you sent me are not correct I have been speaking to the union on Monday and again today so we will be making a claim for my entitlements with the commission.
Tony” 52
[27] Mrs Jackman responded to the Applicant via email attaching a letter of termination from the Respondent for serious misconduct, effective 11 January 2018 and wage sheets. The email from Mrs Jackman was in the following terms:
“Tony
You do what you need to!
But! All of Best Mix Concrete Pty Ltd assets that you have in your possession are to be delivered to [address supplied] by 5pm today the 11/01/2018
Kind Regards,
Andrea Jackman” 53
[32] Mrs Jackman gave evidence that she sent the letter advising the Applicant that he had been dismissed for serious misconduct after making inquiries of “Fair Work” and ultimately the firm Employsure. Mrs Jackman said that she sought advice on Monday 8 January 2018 as to how to deal with an employee who had resigned without notice. Her evidence was to the effect that her request for this advice ultimately led to “Nate” from Employsure advising her to write the letter of dismissal sent on 11 January 2018. 54 Nevertheless, Mrs Jackman maintained at the hearing that the Applicant resigned on 5 January 2018 and that the date 11 January 2018 was put in the letter on the basis of advice from Employsure.55
[33] On 12 January 2018, there was a further exchange via email. At 12:14pm Mrs Jackman wrote to the Applicant in the following terms:
“Hi Tony,
Best Mix Concrete have processed your entitlements and paid into your account.
I have emailed you and asked for the return of all possessions of Best Mix Concrete you have, this will be the third time I have requested these.
Up until now 12.09pm the 12th of January 2018 you have refused too.
I have contacted the police and they advised me to ask you again.
If all is not returned by 3pm today you will be hearing from the police.
Kind Regards,
Andrea Jackman” 56
[34] The Applicant replied at 12:21pm in the following terms:
“Hi
Andrea you have paid what you want to but have not paid all my entitlements that are due. Any further contact please address it to Leroy Doble at the TWU.
Regards
Tony” 57
[35] At 12:43pm that same day, Mrs Jackman then sent an SMS to the Applicant in the following terms:
“Hi Tony, Best Mix Concrete have processed you entitlements and paid into your bank account.
I have emailed you and messaged you and asked you to return of all possessions of Best Mix Concrete you have, this will be the third time I have requested these.
Up until now 12.41pm the 12th of January 2018 you have refused too.
I have contacted the police and they advised me to ask you again.
If all is not returned by 3pm today you will be hearing from the police.
Andrea” 58
[36] There was a number of further SMS messages exchanged on 12 January 2018 where arrangements were made for the Respondent to get access to the Ute and other items that belonged to the Respondent.
[37] On 25 January 2018 at 9:41am, the Applicant emailed the Respondent in the following terms:
“Hi Noel/Andrea
This is my final request for my accrued entitlements to be paid by this pay run (today), as follows:
• 114 hours annual leave including leave loading
• 1 weeks’ pay for being over 45 years of age – owed due to position being terminated after I provided 4 weeks’ notice
• 4 weeks’ pay for position being terminated immediately after I had previously given 4 weeks’ notice
• Superannuation – needs to be paid on $1,868.19, which is hours worked at ordinary time due on annual leave paid 11/11/17, this is to be paid at my normal rate
Please refer to the attached documents:
• Fair Work Ombudsman website – “How to give notice” & “Can notice be paid out instead of worked?”
• Fair Work Centre – Termination for Serious Misconduct
You have not followed any of the required steps regarding termination for serious misconduct and I am still to find out how I actually engaged in serious misconduct.
Should this request be ignored/rejected I will have no option but to take further action with Fair Work Australia which will incur further costs.
Regards
Tony Lang” 59
[38] Mrs Jackman responded to the email that day advising that the matter was in the hands of their solicitor. The Applicant responded advising that a claim would be lodged with the Commission that day to which Mr and Mrs Jackman responded “Go for it!”. 60
Consideration
Did the Applicant provide notice of one month when he resigned on 5 January 2018?
[39] The Applicant is of the view that his statement to Mr Jackman and Mrs Jackman had the effect that he resigned from his employment on 5 January 2018. However, whether he provided a period of one months’ notice at the time is clearly in dispute. The Applicant was strident in his claim that he provided notice. His son, who I am satisfied was close enough to hear the discussion between the Applicant and Mr Jackman claims that he heard his father say he was providing a months’ notice. However, in contrast Mr Craig, who I also accept was close enough to hear the conversation, claimed that while he heard the Applicant tell Mr Jackman to stick his job up his arse, he did not hear him make any reference to a period of notice. Mr Jackman was consistent in his claim that he heard neither the resignation nor a reference to a notice period. In the subsequent conversation with Mrs Jackman, she is clear that the Applicant told her that he had told Mr Jackman to shove his job up his arse, however, was adamant that he said nothing of a period of notice.
[40] First some observations on the witnesses. The Applicant was inconsistent in his recollections of key events. He claimed in the text exchange with Mrs Jackman cited above that he never told Mr Jackman to stick his job up his arse . However, in his witness statement he claimed he told Mr Jackman to “stick your job where it don’t fit”. Ultimately, during the hearing the Applicant conceded that he “probably” said Mr Jackman to “stick your job up your arse”. It is clear the Applicant’s own evidence directly conflicts with his claim to Mrs Jackman during the SMS message exchange that he said no such thing. A further inconsistency is that the Applicant claimed in his witness statement that after being told to stick his job Mr Jackman said “Alright, see you”. This changed in the hearing to be “Fine, go then” and “Fine, go” which I note more closely aligned with the Applicant’s sons evidence that Mr Jackman said “Fine go!”. The Applicant’s evidence at the hearing that he attended work on the Monday and Tuesday was not credible. The claim was not made until the day of the hearing and was inconsistent with the email the Applicant’s wife had sent to the Commission. Moreover it is inconsistent with his own evidence that he thought he was dismissed on the Saturday, 6 January 2018. I accept the Applicant may have gone to see clients of the Respondent on those days however in doing so he was hardly performing work for the Respondent.
[41] The Applicant’s son has given evidence that he heard his father refer to the giving of one months’ notice. The Applicant’s son seemed a most pleasant and credible young man.
[42] Mr Jackman struck me as a rather belligerent personality, his outburst at the conclusion of the hearing (belatedly retracted) that he would go to jail rather than pay any compensation awarded to the Applicant reinforces me in that view. Nevertheless, Mr Jackman was generally consistent in his evidence.
[43] Mrs Jackman on the other hand was a most impressive witness. For example, she provided clear and detailed recollections of the conversations that she had with the Applicant, in particular on the afternoon of Friday, 5 January 2018 when the Applicant came to the house after the discussion with Mr Jackman. She was a credible witness throughout the proceedings and to the extent that there is a conflict in the evidence given, particularly on the key issue as to whether a period of notice was given in the conversation between her and the Applicant, I prefer her evidence to that of the Applicant.
[44] Mr Craig seemed a reliable enough witness. He was clear and consistent in his evidence during the hearing about what happened and what was said by the Applicant and Mr Jackman during their discussion on 5 January 2018. He made clear that he was only giving evidence about what he could remember and not what he thought he could remember about the discussion. 61
[45] Having considered the evidence as to what was said during the discussion between the Applicant and Mr Jackman, I am not satisfied that the Applicant indicated that he was providing a months’ notice or any other period of notice. The Applicant maintains that he did so but I do not believe his evidence on that point. The Applicant’s son was clear that he heard his father give a months’ notice. I accept that the Applicant’s son honestly believes he heard his father give notice but having regard to all the circumstances, I think he is mistaken in that belief. Mr Craig heard the conversation and did not hear any reference to a notice period and I am inclined to accept his evidence on the point. However, even if I am wrong about the Applicant having provided a period of notice, I am satisfied that Mr Jackman did not hear what was said by the Applicant. Mr Jackman was very consistent in his evidence about the conversation that took place and I accept that he did not hear the words of resignation. If Mr Jackman had heard the Applicant tell him to stick his job up his arse, I think it most unlikely he would have reacted by saying “Alright, see you” as initially claimed by the Applicant or the alternate version of “fine, go then”.
[46] I note that while it is of course possible for an employee to on the one hand resign in what I consider to be quite an offensive manner and then at the same time indicate an intention to work out a notice period, it would seem to be at the very least a rather unusual and unlikely combination of statements. Having considered all of the evidence on the point, I find that, on the balance of probabilities, the Applicant did not provide any indication to Mr Jackman that he intended to provide notice of one month. I am satisfied that the Applicant sought to resign by telling Mr Jackman to stick his job up his arse. Further, I am also satisfied on the balance of probabilities that Mr Jackman did not hear the words of resignation nor any notice period allegedly given. If I am wrong and a notice period was given by the Applicant, I am satisfied that Mr Jackman did not hear that either. In that sense, it matters little that, on the evidence, the only people who heard the Applicant giving a period of notice were the Applicant and his son. His words of resignation and notice, if given, were simply not communicated to the employer at that time as Mr Jackman was unaware of that part of the conversation. A notice of termination should be clear and unambiguous as to when employment is to cease. 62 In this case there was no clear notice provided by the Applicant during his discussion with Mr Jackman.
[47] It is in the discussion with Mrs Jackman immediately following the exchange between the Applicant and Mr Jackman that the clear words of resignation are communicated by the Applicant. In that conversation, the Applicant makes clear to Mrs Jackman that he has advised Mr Jackman of his resignation. I have competing views on whether he referred to giving one months’ notice to Mrs Jackman. I prefer the evidence of Mrs Jackman that he did not do so. Ultimately, given the rather shambolic manner of the Applicant’s resignation, I accept that Mr Jackman first heard of the resignation on the Friday evening from Mrs Jackman. I accept Mr Jackman’s evidence that his wife made no reference to one months’ notice being worked by the Applicant when she advised him of the Applicant’s resignation. Mr Jackman’s reaction was to tell his wife to ask the Applicant to return the keys and Ute and keys to the plant because as far as he was concerned the Applicant’s employment had ended. The conversation the Applicant had with Mrs Jackman was in crystal clear terms, he advised her that he had told Mr Jackman to shove his job up his arse just prior to coming to the house and she duly passed on that information to him.
[48] I prefer and accept Mrs Jackman’s evidence over the Applicants that it was only the resignation that was communicated to her and not any purported notice period. I also accept that what was communicated to Mr Jackman by his wife was that the Applicant had told him to shove his job up his arse. Mr Jackman has responsibility for managing the business and so it was at that moment that the notice of resignation was received by the person to whom it was directed. 63 It was clear from Mr Jackman’s evidence that he consequently had no interest in meeting the Applicant on Sunday, 7 January 2018 and acted on the Applicant’s resignation without notice that had been communicated to him by his wife. An employer is generally able to treat a clear and unambiguous resignation as a resignation.64 There could hardly be clearer words in the Australian vernacular for resignation than to tell an employer to shove or stick their job up their arse. I am satisfied on the evidence that the employment relationship came to an end when Mr Jackman was informed by his wife of the resignation and accepted the resignation that was given by the Applicant on 5 January 2018.
[49] I consider this is so notwithstanding the letter of termination dated 11 January 2018 for purported serious misconduct on the part of the Applicant. I accept the reason it was sent was grounded in Mrs Jackman’s attempt to obtain advice on how the business could withhold monies owing to the Applicant on the basis that he had not provided notice. However, when the letter was sent by the Respondent, the Applicant had already resigned from his employment and his resignation without notice had been accepted. To that extent the 11 January 2018 letter that purported to dismiss the Applicant was erroneous. The employment relationship had already ended as a result of the actions of the Applicant. The person’s employment has not been terminated on the employer’s initiative. Therefore, the Applicant has not been dismissed within the meaning of s.386 of the Act. Accordingly the Commission has no jurisdiction to determine the unfair dismissal application. The application must therefore be dismissed.
If there was a dismissal as asserted by the Applicant should an extension of time be granted?
[50] If I am wrong in my finding that there was a resignation without notice, it became clear from the Applicant’s own evidence that the application has been clearly made out of time.
[51] I note in final written submissions, the Applicant’s representative claims that:
“The Applicant was under the impression that his employment had been terminated pursuant to the text message he sent the Respondent on 6 January 2018 attempting to confirm whether his resignation with notice had been accepted, or whether he was being terminated effective immediately. His thoughts were changed when he received a letter of termination advising him that his employment was terminated on the basis of serious misconduct effective 11 January 2018, and that on that basis notice would not be paid.” 65
[52] This submission is inconsistent with the Applicants own evidence. If there was a dismissal, the Applicant became aware of the dismissal on Saturday, 6 January 2018. Indeed, it is the Applicant’s own evidence that he was dismissed on 6 January 2018 when he received the SMS message asking for the keys to the Ute and other property belonging to the Respondent. The Applicant confirmed this numerous times during the hearing. 66 Therefore, the application should have been lodged on 29 January 2018 (the next available business day after 27 January 2018). The application was lodged on 1 February 2018 and is therefore 3 days out of time and could only proceed if an extension of time is granted. This matter was raised with the parties at the hearing as it seemed to have escaped the attention of both parties.67 As mentioned above, subsequent to the hearing I allowed the parties to submit further written submissions. The Applicant’s representative submitted that if the application was out of time, an extension of time should be granted and made submissions on the point as follows:
“a. Time to lodge the application should be extended on the grounds of exceptional circumstances under s.394(3) of the Fair Work Act 2009.
b. The applicant had a genuine belief that the dismissal occurred on 11 January 2018, as per his letter of termination.
c. The Applicant only discovered he was being terminated for reasons of serious misconduct upon receiving the letter on 11 January 2018.
d. After the dismissal occurred, the Applicant contacted both the Commission and the Fair Work Ombudsman to question the application process, and lodged his application within 21 days as per their instructions.
e. There would be no prejudice to the employer if an extension of time was granted, given they are also of the belief that the dismissal occurred on 11 January 2018, as per the F3 response form and their written submissions in this matter.
f. The Application for unfair dismissal remedy has merit and is not without prospect of success, as evidenced in the Applicant’s Outline of Submissions and the Witness Statements of Mr Tony Lang and Mr Cameron Lang.
g. It would be unfair for the Commission to punish Mr Lang in these circumstances where it did not come to light that the date of dismissal referenced in the termination letter was incorrect until the Commission had the opportunity to hear the merits of the case.” 68
[53] I have taken into account these submissions and the evidence in this case in considering the factors in s.394(3) of the Act as to whether an extension of time should be granted.
[54] Sections 394(2) and (3) of the Act permit the Commission to exercise a discretion to allow an application to be made within a further period, that is a further period beyond the 21 days after dismissal took effect, if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person 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 person and other persons in a similar position.
[55] In dealing with these matters the consideration is whether or not there are exceptional circumstances within the meaning of the Act. The term “exceptional circumstances” was considered by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty)69 where the Full Bench stated that:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
...
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”70
[56] While Nulty v Blue Star Group Pty Ltd considered the term exceptional circumstances in relation to section 365 of the Act, the discussion is applicable to the term in section 394. I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.
[57] I will deal with each criterion of section 394(3) of the Act in turn.
(a) the reason for the delay
[58] As to the reason for the delay, there is no acceptable reason for the delay in evidence. The only factor to consider is the fact of the letter sent on 11 January 2018 purporting to dismiss the Applicant. However, the Applicant was clear in his evidence that he knew he was dismissed from his employment on 6 January 2018. 71 In the circumstances receipt of the letter may well have been confusing for the Applicant but its existence does not provide an acceptable reason for the delay. This weighs against a finding of exceptional circumstances.
(b) whether the person first became aware of the dismissal after it had taken effect
[59] It is clear from the evidence detailed above that the Applicant was aware of the dismissal on 6 January 2018. However, I accept that the receipt of the letter purporting to dismiss the Applicant for serious misconduct created some confusion on the point and should be taken into account. This weighs slightly in favour of a finding of exceptional circumstances.
(c) any action taken by the person to dispute the dismissal
[60] As to any action taken to dispute the dismissal, the Applicant clearly took no action beyond lodging this application. It is apparent the actions the Applicant took subsequent to the dismissal were directed to securing his claimed entitlements. This is a neutral consideration.
d) prejudice to the employer (including prejudice caused by the delay)
[61] As to prejudice to the employer, none is asserted. However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.72 This is a neutral consideration.
(e) the merits of the application
[62] As to the merits of the application, the application lacks merit. While detailed evidence is rarely called at an extension of time hearing 73 this is one such rare case where as a result of the confused manner of the ending of the employment relationship, the merits hearing yielded the true position of the parties as to the date of dismissal, if there was a dismissal. In this matter the Applicant has resigned from his employment without notice in what I have already stated was an offensive manner. The Applicant’s representative conceded during the hearing that this action could be characterised as misconduct.74 The Respondent has a strong argument that in the circumstances they were entitled to dismiss the employee for misconduct. Whether summary dismissal was disproportionate in the circumstances is certainly arguable. The Applicant has not been employed for a particularly long period and he gained employment four weeks or so after he ceased working for the Respondent. If the conduct of the Applicant did not warrant summary dismissal, there would be likely to have been a lack of due process in effecting the dismissal. In all of the circumstances, the Applicant’s case is not particularly strong. At best this is a neutral consideration.
(f) fairness as between the person and other persons in a similar position.
[63] As to the factor in s.394(f) there is no particular considerations that are relevant to this point. This is a neutral factor.
[64] Taking into account all of the factors, only one weights slightly in favour of a finding of exceptional circumstances. The other factors either way against a finding of exceptional circumstances or are neutral considerations. Taking into account all of the factors, I am not satisfied that there are exceptional circumstances. I refuse to allow a further period for the application to be made. The application is dismissed.
[65] Notwithstanding all of the above, even if there was a finding that the Applicant was dismissed unfairly and there was no jurisdictional bar to the application, the Applicant’s representative correctly conceded that the Applicant would have been entitled to no more than four weeks’ pay, the outer period that the Applicant would have likely been employed were it not for the dismissal. 75 It was also conceded that the act of telling the Respondent to shove their job up their arse was misconduct and that I would be entitled to make deductions from any compensation at my discretion for that misconduct.76 I agree with those submissions from the Applicant’s representative. What the Applicant said to his employer, Mr Jackman and then repeated to Mrs Jackman was an extremely offensive remark and is most certainly an act of misconduct. In my view a deduction of four weeks’ pay from the maximum compensation that could be awarded in the circumstances would be appropriate. As a result I would not award the Applicant any compensation.
Conclusion
[66] I have found there is no termination of employment at the initiative of the employer, and accordingly the Commission has no jurisdiction to determine the unfair dismissal application. I have also determined that if there was a dismissal as asserted by the Applicant that the application was made outside of the statutory time period and I am not satisfied there are exceptional circumstances and I refuse to allow a further period for an application to be made.
[67] On either basis, the application must therefore be dismissed. An order to that effect will be issued concurrently with this decision.
COMMISSIONER
Appearances:
C Guyett on behalf of the Applicant
A Jackman and N Jackman on behalf of the Respondent
Hearing details:
2018
Hobart:
21 May.
Final written submissions:
12 June 2018
1 Exhibit A1, Witness Statement of Tony Lang at [1]
2 Exhibit A1, Witness Statement of Tony Lang at [4] – [5]
3 PN1193 – PN1194
4 Written closing submissions of the Applicant, filed 12 June 2018 at [19]
5 Written closing submissions of the Applicant, filed 12 June 2018 at [19]
6 PN610 – PN616
7 Exhibit A1, Witness Statement of Tony Lang at [4]
8 PN163
9 PN164
10 PN964 – PN965
11 Exhibit A2, Witness Statement of Cameron Lang at [3]
12 Exhibit A1, Witness Statement of Tony Lang at [4]
13 PN164
14 Exhibit A2, Witness Statement of Cameron Lang at [2]
15 PN164 – PN165
16 PN165
17 PN161 – PN165, PN94 – PN95 and Written closing submissions of the Applicant, filed 12 June 2018 at [2]
18 Exhibit R4, Witness Statement of Noel Jackman
19 PN809 – PN811, PN956 and Exhibit R4, Witness Statement of Noel Jackman
20 PN958 – PN959
21 Exhibit A5, Witness Statement of Ralph Craig and PN1001 – PN1003
22 PN107
23 Exhibit A5, Witness Statement of Ralph Craig and PN1006
24 PN998, PN1003 – PN1008
25 PN994, PN1016
26 PN108
27 PN1008
28 PN117 – PN119, Exhibit A2, Witness Statement of Cameron Lang at [4]
29 PN296
30 Exhibit A1, Witness Statement of Tony Lang at [5]
31 Exhibit R2, Respondent’s Outline of Argument: Objections at Q.3e
32 PN742 – PN745
33 PN744
34 PN816 – PN821
35 PN824 – PN826
36 PN827
37 PN884, PN925
38 PN927 - PN933
39 PN573 – PN575
40 PN544
41 PN714, PN821 – PN826 and PN917 – PN918
42 Exhibit A1, Witness Statement of Tony Lang at Exhibit TL1
43 PN127
44 PN909
45 Exhibit A1, Witness Statement of Tony Lang at Exhibits TL2 – TL10
46 PN173, PN183 - PN184, PN263 and PN369 - PN371
47 PN173 - PN174
48 PN88 – PN91
49 PN595
50 PN181 – PN183
51 PN177
52 Exhibit A1, Witness Statement of Tony Lang at Exhibit TL6
53 Exhibit A1, Witness Statement of Tony Lang at Exhibit TL7
54 PN459 – PN476 and PN586 – PN590
55 PN550, PN585 –PN586 and PN735 – PN737
56 Exhibit A1, Witness Statement of Tony Lang at Exhibit TL11
57 Exhibit A1, Witness Statement of Tony Lang at Exhibit TL12
58 Exhibit A1, Witness Statement of Tony Lang at Exhibit TL13
59 Exhibit A1, Witness Statement of Tony Lang at Exhibit TL21
60 Exhibit A1, Witness Statement of Tony Lang at Exhibits TL22 – TL24
61 PN1007
62 GJ McCarry, Termination of Employment Contracts by Notice, (1986) 60 ALJR 78 at 85
63 GJ McCarry, Termination of Employment Contracts by Notice, (1986) 60 ALJR 78 at 85
64 Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at para. 12, [(1999) 94 IR 375]; citing Minato v Palmer Corporation Ltd [1995] IRCA 315 (30 June 1995), [(1995) 63 IR 357 at pp. 361‒362]; citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115, 116 (May LJ)
65 Written closing submissions of the Applicant, filed 12 June 2018 at [19]
66 PN173, PN183 - PN184, PN263 and PN369 - PN371
67 PN1098 – PN1125
68 Written closing submissions of the Applicant, filed 12 June 2018 at [27]
69 Nulty v Blue Star Group (2011) 203 IR 1
70 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [13], [15]
71 PN173, PN183 - PN184, PN263 and PN369 – PN371
72 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
73 Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at [14]
74 PN1131 – PN1132 and PN1170 – PN1172
75 PN1166 – PN1169
76 PN1131 – PN1132 and PN1170 – PN1173
Printed by authority of the Commonwealth Government Printer
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