William Maxwell v i2C Architects Brisbane Pty Ltd

[2021] FWC 2321

[2021] FWC 2321

FAIR WORK COMMISSION

DECISION

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

William Maxwell
v
i2C Architects Brisbane Pty Ltd
(U2020/16324)

DEPUTY PRESIDENT ASBURY BRISBANE, 5 MAY 2021

Application for an unfair dismissal remedy – Jurisdictional objection asserting application not filed within required time – Finding in relation to date dismissal took effect – Application filed within time required in s.394(2) – Further period to make application not required – Application to be listed for hearing.

Background

[1] This Decision concerns an application by Mr William Robert Maxwell (the Applicant) under s.394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in respect of his dismissal by i2C Architects Brisbane Pty Ltd (the Respondent). In his Form F2 Application for an unfair dismissal remedy, the Applicant states that he was advised of his dismissal verbally on or about Friday 13 November 2020, and the dismissal took effect 1 December 2020. The Applicant also states in the Form F2 that the application is filed within the 21 day period required in s. 394(2) of the FW Act.

[2] The date the dismissal took effect is disputed by the Respondent and it is asserted that the application was filed outside the 21 day statutory time frame. In its Form F3 – Employer Response, filed on 20 January 2021, the Respondent asserted that the Applicant was notified of his dismissal on 12 November 2020, the dismissal took effect on 13 November 2020 and that the Applicant’s final working day was 17 November 2020. The Respondent also raised a jurisdictional objection on the ground that the application was filed outside the 21day statutory timeframe.

[3] By virtue of s.394(2) of the FW Act, an application under s.394 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). In the present case, there is a dispute as to when the Applicant’s dismissal took effect. If the dismissal took effect on 13 November 2020 or 17 November 2020, the application was required to be made by midnight on 4 December 2020 or 8 December 2020, respectively. If the dismissal took effect on 1 December 2020, the application was required to be made by midnight on 22 December 2020 and was made within the required time. It is therefore necessary to determine the date the dismissal took effect, and in the event the application was made outside the 21 day timeframe, whether a further period should be allowed under s.394(3) for the application to be made.

[4] In light of the objection raised by the Respondent, on 11 February 2021, the Associate to Vice President Catanzariti corresponded with the Applicant requesting that he provide submissions in relation to the date upon which his dismissal took effect. In the alternative the Applicant was requested to provide reasons as to why an extension should be granted, if the application was made out of time, having regard to the matters in s.394(2) of the FW Act. The matter was allocated to me for determination and I issued Directions requiring the parties to file any additional material they sought to rely on in relation to the matters in dispute.

[5] On 30 March 2021 I conducted a hearing by telephone. The Applicant appeared on his own behalf and the Respondent sought permission to be represented by Ms Helen Stevenson of The HR People, in the capacity of paid agent. Permission was refused on the basis that I did not think the matter was of sufficient complexity to warrant a grant of permission and because I was not satisfied that allowing the Respondent to be represented by a paid agent at this stage would result in the matter being dealt with more efficiently. If the matter proceeds to hearing, either party may seek to be represented by a lawyer or paid agent and such application will be dealt with at that time.

Approach to determining when a dismissal took effect

[6] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 1An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).2In certain circumstances which are not relevant in this case, a dismissal can be communicated orally. Where the communication is in writing only, the communication must be received by the employee in order for the dismissal to be effective.3

[7] A notice of termination may still be valid even if it is stated to take effect subject to a condition, such as a future date, provided that:

•  the notice clearly expresses the condition

•  the condition has been satisfied, and

•  the employee is in a position to know that the condition has been satisfied. 4

[8] Where payment in lieu of notice is made the dismissal usually takes effect immediately. 5

[9] The provisions of the FW Act in relation to unfair dismissal are concerned with the ending of the employment relationship. As Deputy President Saunders observed in Nathan Jackson v Mahmoud Hasan Abulamoun: 6

“[40] Because the question of whether an employment relationship continues to exist is a question of fact, it is necessary to consider all the relevant circumstances to determine whether there has been a communication of a dismissal by words or conduct. The range of facts or factors which may need to be examined to answer the question of whether an employment relationship has ceased to exist by reason of the communication of a dismissal by words or conduct will be determined by the circumstances of a particular case, and may include, without limitation, whether the employee is being paid a wage or other benefits or entitlements, whether the employee is attending or performing work for the employer, whether the employee is being rostered to work or offered work, whether, in the case of a business employing casuals, the employer is rostering other employees to do work in the same role as the applicant in a particular case, whether the employer is exercising, or has the ability to exercise, control over the execution of work by the employee, whether either party has communicated to the other party a decision to terminate the relationship, and the terms of the employment contract.

[41] The question of whether an employment relationship has ceased to exist does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.”

[10] While Jackson concerned the question of whether there had been a dismissal, the observations are also relevant to matters to be considered in determining when a dismissal took effect.

Approach to deciding whether to grant a further period

[11] The FW Act allows the Commission to grant a further period for a person to make an unfair dismissal application, only if it is satisfied that there are “exceptional circumstances”. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 7 Exceptional circumstances may include a single exceptional factor, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.8

[12] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.

[13] Section 394(3) requires that, in considering whether to grant a further period to make an unfair dismissal application, the Commission must take into account the following:

(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.

[14] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.

Evidence and submissions

[15] The Applicant submitted that the Respondent’s claims the employment relationship ceased prior to 1 December 2020 is a “deliberate attempt at obfuscation of the matter”. The Applicant maintained that the employment relationship came to an end on 1 December 2020, relying on the following evidence:

•  A text message from the Respondent’s Director, Mr Rose received 17 November 2020;

•  Email correspondence from Mrs Rose who provides business services to the Respondent;

•  Employment Separation Certificate dated 08.12.2020 prepared by Mrs Rose;

•  Annual leave approved by Mrs Rose;

•  A payslip evidencing his normal fortnightly pay received on 26 November 2020; and

•  A payslip evidencing final payment made on 1 December 2020.

[16] The Applicant annexed a copy of the 17 November 2020 text message from Mr Rose, which stated:

“William called earlier. I have assumed that you are now finished with the couple of hours to finish Coles Moggill for George. As agreed, to assist with the approval process of your bank refinance you will now be on annual leave from tomorrow for up to 2 weeks. After this your termination will come into effect from COB Tuesday 1 Dec. please call to discuss if this is not clear. RR”

[17] The Applicant submitted that it is clear from Mr Rose’s text message of 17 November 2020 that his dismissal would not come into effect until 1 December 2020. As to the Respondent’s claim that the Applicant’s last day of employment was 13 November 2020, the Applicant agreed that 13 November 2020 was the last day he physically performed work but submitted that following that date he was on a period of approved annual leave, as outlined in the text message above. The Applicant said he had requested that his employment not be terminated until after he had refinanced the mortgage on his house, and that Mr Rose had agreed that two weeks could be taken as annual leave before the termination took effect. The Applicant also attached to his statement email correspondence of 24 November 2020, in which Mrs Debbie Rose confirmed the Applicant was commencing a period of annual leave. Mrs Rose also stated that “Your finish date will now be Tuesday 1 December 2020”.

[18] In response to the Respondent’s claim that the Applicant had requested for his final pay to be broken into two parts, with the second part of his entitlements being paid on 1 December 2020, the Applicant stated that this was “a deliberate lie…disingenuous and a deliberate attempt at obfuscation of the matter”. The Applicant stated that he did not ask for his final pay to be broken into two parts, rather he received his normal fortnightly pay on 26 November 2020 and his final pay on 1 December 2020. In support of this contention, the Applicant annexed copies of pay advices dated 26 November 2020 and 1 December 2020. The Applicant said the only inquiry he made was if tax had to be paid on the final pay-out.

[19] As to any claim by the Respondent that the final day of employment was 17 November 2020, the Applicant’s reply submission was that if the date of termination had been 17 November 2020, the final pay of salary, outstanding leave and other entitlements would have been due to be paid on that date. He said however, he did not receive his final payment until 1 December 2020. The Applicant also tendered email correspondence of 10 December 2020, in which Mrs Rose forwarded him a copy of his Separation Certificate which was signed on 10 December 2020 and stated that the date the Applicant’s employment ceased was “01 12 2020”.

[20] For the above reasons, the Applicant maintained that his dismissal took effect on 1 December 2020 and his application was made on 22 December, within the time required. In the event the Commission finds that the employment relationship came to an end on the earlier date of 13 November 2020, the Applicant also made the following submissions as to exceptional circumstances justifying the grant of a further period.

[21] The Applicant stated that the Commission’s published information does not make a distinction between “when notification of dismissal was made” and when “dismissal comes into force”. The Applicant said he was therefore misled by the Commission’s published information including discussions with the Commission, such that he believed the dismissal came into effect on the day his employment ceased, being 1 December 2020.

[22] The Applicant further stated that he has been subject to “deliberate abuse” from the Respondent and its staff, which has caused him to suffer a chronic depressive illness and Complex Post Traumatic Stress Syndrome (CPTSD), for which he is receiving medically supervised treatment including counselling. He submitted that these chronic mental health conditions make it difficult for him to deal with “more than just the minimum of day to day living requirements”.

[23] The Respondent provided submissions in response to my Directions, as follows. The Respondent referred to the termination letter dated 13 November 2020, which stated that the Applicant’s employment was terminated with immediate effect on 13 November 2020. The Respondent submitted that its intention was that the Applicant would finish on that date, however it notes that the termination was amicable at that time and it was negotiated that the Applicant would do a brief handover of his jobs from home for which he was therefore paid for a few extra days work. On this basis, the Respondent stated that the Applicant’s last day of employment was the last day he worked from home, which was 17 November 2020.

[24] The Respondent submitted that the Applicant returned all of his company items on his notice of termination on 13 November 2020, including his key, swipe access, and that he cleaned out his desk on that date. The Respondent said that once the Applicant completed the handover period on 17 November 2020, his login profiles were removed from the Respondent’s system. The Respondent considers 17 November 2020 to be the Applicant’s last day of employment.

[25] The Respondent confirmed that after the final handover with the Applicant, the Applicant asked for a “delay” on his termination to enable him to finalise refinancing his home loan. The Respondent stated that this was “not an option” due to the Applicant’s behaviour and the reasons for his dismissal, however it suggested the Applicant take two weeks’ annual leave. The Respondent stated that it paid the balance of the Applicant’s entitlements at the conclusion of the two weeks, “which effectively split his final payment”.

[26] The Respondent also submitted that the Applicant’s annual leave period ended on 1 December 2020, and that the balance of the Applicant’s entitlements were paid on that date which it notes the Applicant considers to be his termination date. The Respondent maintained that the final date of employment was the final day on which Applicant worked and provided a handover which was 17 November 2020. Therefore, the Respondent submitted that the application was made 35 days after the Applicant’s final day of work.

[27] In response to the Applicant’s evidence, the Respondent maintained its position that as at 17 November 2020, no more work was being performed by the Applicant. The Respondent stated that the annual leave was merely a formality in relation to the final pay and that as at 17 November 2020 the Applicant was no longer an employee and no longer accruing any entitlements. The Respondent also stated that, “the final pay including his accrued annual entitlements was simply split and being dragged out as per [the parties’] agreement…and per the text message from [the Respondent]”.

[28] In relation to the text message from Mr Rose stating that: “After this your termination will come into effect from COB Tuesday 1 Dec”, the Respondent submitted that this wording was an attempt to explain and make it clear to the Applicant that there would be no further payments after this date.

[29] As to the date of the Separation Certificate, the Respondent submitted that Mrs Rose stated that the Applicant’s employment ceased on 1 December 2020 in line with the final pay that was processed at the Applicant’s request. The Respondent stated that the “official finish date was confused and muddied by the fact that William had in fact AGREED for his final pay to be split”, and maintained that the official termination date was 17 November 2020, being the Applicant’s last day of paid work.

[30] In summary the Respondent submitted that there was no dispute between the parties that:

•  The Applicant was notified of his termination and given his termination letter on 13th November 2020

•  The termination letter stated that the Applicant’s employment ended on 13 November 2020

•  The Applicant did end up doing a handover and was paid a few extra days of work which took his final day of work to 17th November 2020

•  The Applicant AGREED to delay his final pay due to refinance of his mortgage (the actual details of this request have been disputed but both parties agree a request from the Applicant was made)

•  Had the Applicant not asked for a change in his final pay, the final pay would have been finalised on the 17th November 2020 or within a day or so after.

Consideration

The date the dismissal took effect

[31] On the basis of the evidence before me, I find that the Respondent having decided to dismiss the Applicant with effect from 13 November 2020, agreed that the Applicant would work up until 17 November 2020 completing a handover. Subsequently, at the request of the Applicant, the Respondent agreed to allow the Applicant to take a period of annual leave after which his termination would come into effect on 1 December 2020.

[32] I do not accept the Applicant’s submission that the Respondent raised the issue of the effective date of dismissal to obfuscate or that the Respondent or its representative were untruthful. The submission on behalf of the Respondent is simply misconceived rather than dishonest. In this regard, I accept Mr Rose’s evidence that his agreement to the Applicant taking two weeks of annual leave was based on his belief that he was assisting the Applicant with his financial affairs. I also accept Mr Rose’s evidence that at the point he agreed to the Applicant’s request, he believed that the termination of the Applicant’s employment would be amicable. Mr Rose was mistaken about this and the termination of the Applicant’s employment has resulted in a situation which is anything but amicable.

[33] However, the effect of the agreement between the Applicant and Mr Rose, was that the date the Applicant’s dismissal took effect was 1 December 2020. This is apparent from Mr Rose’s text message to the Applicant of 17 November 2020 which states: “your termination will come into effect from COB Tuesday 1 Dec. please call to discuss if this is not clear.” Unsurprisingly, the Applicant did not call as the text message is clear.

[34] Further evidence that the dismissal did not take effect until 1 December 2020 is found in the fact that the Applicant was on paid leave for the period until 1 December 2020. The payslips tendered by the Applicant evidence that on 26 November 2020 he was paid for the period from 11 November 2020 to 24 November 2020 at his ordinary hourly rate for 36 hours and for annual leave amounting to 44 hours. On 1 December 2020 the Applicant was paid for the period from 25 November 2020 to 8 December 2020 the amount of 40 hours of annual leave, the remaining 17.2514 hours of annual leave, accrued long service leave and payment in lieu of notice.

[35] Contrary to the Respondent’s position, the payslips do not evidence that the Applicant’s final pay was split. Rather, they evidence that the Applicant was taking paid annual leave until 1 December 2020 and that his employment ended on that date, with his accrued entitlements and notice being paid at that point. The annual leave was approved by Mrs Rose, evidenced by documents tendered by the Applicant. Finally, the Employment Separation Certificate provided to the Applicant by the Respondent states that his employment ended on 1 December 2020.

Whether a further period should be granted for the application to be made

[36] Even if I had found that the dismissal took effect on 17 November 2020, I would have granted a further period in which to make the application for the following reasons. In relation to s. 394(2)(a) of the FW Act, the Applicant has a reasonable explanation for the whole of the delay in making the application, given that he had made an agreement, confirmed by text message, that he would be on leave until 1 December 2020 and his employment would end on that date. This weighs in favour of the grant of a further period.

[37] In relation to s. 394(2)(b), if the dismissal had taken effect on 17 November 2020, it would have been the case that the Applicant was not aware of this because of the agreement he had reached with Mr Rose. This would also weigh in favour of a further period being granted. The Applicant took no action to dispute the dismissal other than by filing his unfair dismissal application. The consideration in s. 394(2)(c) is therefore neutral. There is no evidence of any prejudice to the Respondent arising from the grant of a further period. The delay is not extensive and the consideration in s. 394(3)(d) is a neutral factor.

[38] In relation to s. 394(3)(d) which relates to the merits of the application, as a Full Bench of the Commission observed in Kornicki v Telstra-Network Technology Group: 9

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[39] After considering the material filed by the parties, in the Form F2 Application and the Form F3 Response it is clear that there are disputed issues of fact and that these can only be determined at hearing. The application is not so obviously meritorious that this consideration weighs in favour of the grant of a further period and neither is it without merit. Accordingly, merit is a neutral consideration.

[40] Section 394(3)(f) is concerned with fairness as between the person making the application and other persons in a similar position. A Full Bench in of the Commission in Perry v Rio Tinto Shipping Pty Ltd 10 considered this criterion and said (at [41]):

“Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”

[41] There is no evidence of other employees of the Respondent being in the same position as the Applicant. Generally, there are many cases where a person who is dismissed and has reasonable grounds to be confused about the effective date of the dismissal, is considered to have provided a reasonable explanation for delay in making an unfair dismissal application. Accordingly, this is a neutral consideration in the present case.

Conclusion

[42] I find that the application was made within the time required in s. 394(2) of the Act and I dismiss the jurisdictional objection of the Respondent in relation to the application being out of time. Directions will now issue for the hearing and determination of the merits of the application.

DEPUTY PRESIDENT

Appearances:

The Applicant on his own behalf.

Mr R Rose for the Respondent.

Hearing details:

30 March.

2021.

By telephone.

Printed by authority of the Commonwealth Government Printer

<PR728990>

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

 2   Fair Work Act 2009 Section 117(1)

 3   Ayub v NSW Trainsy [2016] FWCFB 5500 at [17].

 4 Ibid at [18].

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

 6   [2020] FWC 4056.

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

 8   Ibid.

 9   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

 10   [2016] FWCFB 6963.