Aaron Giles v Linkforce Engineering Pty Ltd [2024] FWC 1201

1 Fair Work Act 2009 s.394—Unfair dismissal Aaron Giles v Linkforce Engineering Pty Ltd (U2023/12782) COMMISSIONER SCHNEIDER PERTH, 10 MAY 2024 Application for an unfair dismissal remedy [1] Mr Aaron Giles (the Applicant) 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 had been unfairly dismissed from his employment with Linkforce Engineering Pty Ltd (the Respondent). [2] The Respondent objects to the application on the ground that the Applicant was not dismissed or, in the alternative, that the application has been made out of time. Before considering the merits of the application, the Commission must be satisfied that there are no jurisdictional issues. [3] In the usual circumstances, the Commission would not consider an objection that an applicant has not been dismissed until after considering whether the application was lodged within time. However, to do so, it is necessary to ascertain the date that dismissal took effect. The matter currently before the Commission involves significant contention regarding whether the Applicant’s employment ended at the initiative of the Respondent or by way of resignation. As a result, the date on which the Applicant’s employment came to an end is also contested. In the circumstances of this matter, and upon assessment of the materials before the Commission, I have determined the most appropriate course of action is to first consider the issue of whether there is a dismissal. For completeness however, I have also included consideration of the Out of Time issue, concluding that no extension would be granted. [4] A Hearing was held to determine both objections. [5] The Respondent filed submissions in the Commission on 11 March 2024. The Applicant filed submissions in the Commission on 15 March 2024. The Respondent filed submissions in reply with the Commission on 23 March 2024. [6] At the Hearing, the Applicant gave evidence on his own behalf. [2024] FWC 1201 DECISION -- 1 of 13 -- [2024] FWC 1201 2 [7] The following witnesses gave evidence on behalf of the Respondent: • Mr Douglas Seth, Regional Manager (Mr Seth). • Mr Beau French, Operations Electrical Coordinator (Mr French). Legislation – Not Dismissed/Period for Lodgement When can the Commission order a remedy for unfair dismissal? [8] Section 390 of the Act provides that the Commission may order a remedy if: (a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and (b) the Applicant has been unfairly dismissed. [9] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, the matter would proceed. When is a person protected from unfair dismissal? [10] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed: (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. Initial matters [11] Under section 396 of the Act, the Commission is obliged to determine the following matters before considering the merits of the application: (a) whether the application was made within the period required in subsection 394(2); (b) whether the person was protected from unfair dismissal; -- 2 of 13 -- [2024] FWC 1201 3 (c) whether the dismissal was consistent with the Small Business Fair Dismissal Code; (d) whether the dismissal was a case of genuine redundancy. Has the Applicant been dismissed? [12] A threshold issue to be determined is whether the Applicant has been dismissed from their employment. [13] Section 386(1) of the Act provides that the Applicant has been dismissed if: (a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or (b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent. [14] Central to the consideration in this case is the operation of section 386(1) of the Act. [15] Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3- 2 of the Act, which concerns Unfair Dismissals. [16] The word ‘dismissed’ is defined in section 12 of the Act as having adopted the meaning in section 386 of the Act. Section 386(1) of the Act reads: “(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.” [17] This definition contains two elements: • The first concerns termination on the employer’s initiative; • the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct. [18] The two tests were explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli.1 [19] In the current matter, the Applicant does not claim that he (allegedly) resigned as a result of any conduct of the Respondent.2 It is clear that the motivations for the Applicant to send the alleged resignation email were solely of a personal nature, concerning the relationship with his -- 3 of 13 -- [2024] FWC 1201 4 partner. In assessment of the circumstances, I am satisfied the relevant test is that under section 386(1)(a) of the Act. Period for lodgement [20] Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit: “394 Application for unfair dismissal remedy (1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy. … (2) The application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the FWC allows under subsection (3)…” [21] As the Full Bench has stated, in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”3 [22] The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”4 [23] The parties are in dispute about when the (alleged) dismissal took effect. Submissions and Evidence – Not Dismissed/Period for Lodgement [24] The circumstances surrounding the end of the Applicant’s employment are heavily disputed. [25] The Applicant submits that, on 13 October 2023, he emailed the Respondent to explain that he needed an extended period away from work in order to spend time with his family and focus on his relationship. [26] The Applicant submits that the Respondent incorrectly classified his request for an extended period of time off as a resignation. [27] The Applicant confirms that, on 18 October 2023, he received an acceptance of resignation letter from the Respondent. The Applicant states he then tried to contact the Respondent by telephone later that same day. The Applicant states he called the Respondent again on 20 October 2023. With the issue seemingly still unresolved, the Applicant submits he then emailed the Respondent on 23 October 2023, querying the letter. [28] The Respondent submits that the Applicant was aware of the process and procedure for accepting and declining work assignments. The Respondent contends that, if Applicant only -- 4 of 13 -- [2024] FWC 1201 5 required an extended period away from work, he need only enter his leave request information into the relevant system. [29] The Respondent submits that the email sent by the Applicant, on 13 October 2023, was clearly a resignation from his employment. [30] The Respondent also provided the evidence of Mr French. Mr French explained that he spoke to the Applicant, on 13 October 2023, and from their conversation it was his understanding that the Applicant was resigning from his employment with the Respondent as he no longer wanted to complete FIFO work in WA away from his home interstate. Mr French forwarded the Applicant’s subsequent email to Mr Seth who responded to the Applicant that same day, confirming that his correspondence had been forwarded to HR to process the resignation. [31] The Respondent submits that, at the latest, the Applicant would have been aware of the cessation of his employment by 23 October 2023 – noting his email to the Respondent on that day which acknowledges the acceptance of resignation letter. Consideration – Not Dismissed/Period for Lodgement [32] The parties are in dispute about the content of the conversations between the Applicant and representatives of the Respondent on 13 October 2023. Having considered the testimony given at Hearing, I find that the evidence of Mr Seth and Mr French is more credible than that of the Applicant. The evidence provided by Mr Seth and Mr French was consistent with the documentary evidence and, overall, more logical in the circumstances of the events discussed. [33] I also see no motivation as to why either Mr Seth or Mr French would have wanted the Applicant to depart the employment of the Respondent. This is reflected in their repeated attempts to roster or reach out to the Applicant to assign him work, despite apparent difficulty doing so in the period leading up to the employment ending, alongside their repeated attempts to contact him in order to discuss the resignation issue. [34] On assessment of the materials before me, I am satisfied that the Applicant’s email of 13 October 2024 constituted a resignation. [35] Although the email does not expressly state “resignation”, the Applicant is clear in stating he cannot return to work for personal reasons. Relevantly, the email concludes with: “Again, I am sorry to have to do this. This has not been an easy decision.” [36] It is questionable as to why an employee would use such definitive wording if they were merely making a leave request. It is more probable, in my assessment, that such wording would be utilised by an employee who is tendering a resignation. [37] Further, I am satisfied that the circumstances surrounding the tendering of the resignation did not give rise to any further obligation for the Respondent to make further enquiries or to allow for time to pass before confirming the Applicant’s intention. -- 5 of 13 -- [2024] FWC 1201 6 [38] Even if there was such obligation, it is clear that the Applicant had several opportunities to explain his alleged intention to not resign with the Respondent further in attempt to resolve the issue. [39] However, it is clear from the evidence that the Applicant did not reply to the Respondent’s initial response confirming his resignation would be processed. [40] Further, the Applicant did not prioritise any attempts to return the Respondent’s requests for contact, instead opting to go on holiday and responding after more than a month had passed since he was notified the resignation had been accepted. [41] If the Applicant truly was concerned with the Respondent accepting his email as a resignation, it would follow that need to rectify such a critical misunderstanding would foster a considerable sense of urgency. On the contrary, the Applicant’s attempts to rescind his resignation do not appear to be driven by any significant motivation to actually change the status of his employment. [42] Upon consideration of all the material before the Commission and in the circumstances of this matter, I am satisfied that the Applicant was not dismissed for the purposes of the Act. The Applicant’s employment ended as a result of his resignation and not at the initiative of the Respondent. [43] However, in the event I have erred, and the employment did end at the Respondent’s initiative – For completeness, I will now consider whether there are exceptional circumstances that would give rise to an extension of time. [44] Having considered the submissions and the evidence of the parties regarding the end of the Applicant’s employment with the Respondent, it is clear that the Applicant’s employment ceased and that he should have been aware of this by a date that, even with the most favourable selection of such date, would render the application out of time. [45] Putting aside the alleged resignation email itself, the first indication that the Applicant’s employment had ceased would have been the email response of Mr Seth on 13 October 2023. Following this, the Applicant was sent an acceptance of resignation letter on 18 October 2023. [46] The Applicant was clearly in receipt of and aware of the nature of the 18 October 2023 letter, evidenced by his attempts to contest it in the following days. [47] On assessment of the materials before the Commission, I am inclined to conclude that the purported dismissal of the Applicant’s employment occurred on 18 October 2023 as the end of his employment was clearly communicated to him on that day. [48] In selecting this date, I note that Mr Seth’s email of 13 October 2023 refers to the resignation being “processed” and was not expressly acknowledged by the Applicant. [49] It is a matter of record that the application was made on 20 December 2023. -- 6 of 13 -- [2024] FWC 1201 7 [50] As noted above, the Applicant’s employment ended on 18 October 2023. The final day of the 21-day period was therefore 8 November 2023 and ended at midnight on that day. [51] The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows. Extension of time Relevant law [52] Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made. [53] The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised. [54] Section 394(3) of the Act lists the considerations the Commission must take into account: “394 Application for unfair dismissal remedy …. (3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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] The issue before me is whether the circumstances are exceptional and whether it is fair and equitable for an extension to be granted in the given circumstances. [56] Each of the above matters must be considered in assessing whether there are exceptional circumstances.5 [57] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. -- 7 of 13 -- [2024] FWC 1201 8 [58] The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.6 [59] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.7 [60] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.8 [61] An applicant does not need to provide a reason for the entire period of the delay. [62] Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.9 [63] The determination of whether exceptional circumstances exist requires the consideration and assessment of all relevant circumstances.10 [64] This decision contemplates the relevant considerations in section 394(3) of the Act in the context of the current application. Consideration of Criteria Reason for the delay [65] The Applicant put forth the following reasons as contributing to the delay: • The Applicant submits that the Respondent wrongly took his email for an extended period of leave to be a resignation. • The Applicant states he was not aware of the 21-day time period and did not see how this could apply in the circumstances where he had never resigned from his employment. • The Applicant submits that he attempted to resolve the dispute directly with the Respondent by seeking to have his employment reinstated. The Applicant states that, sometime after the Respondent stopped replying to his emails (with the last being sent on 5 December 2023), he eventually accepted his employment with the Respondent was over. • The Applicant states that he was struggling with his mental health in period leading up to lodgment. [66] In relation to the reason for the delay, the Respondent submits that the Applicant has failed to establish a credible reason for the whole period of the delay. -- 8 of 13 -- [2024] FWC 1201 9 [67] The Respondent submits that the Applicant has not provided any evidence to sufficiently establish any form of exceptional circumstances that would justify an extension of time being granted by the Commission. [68] Having regard to the above, I find that the reasons for the delay are in part understandable, however I am not satisfied the reasons put forth are exceptional in isolation and must be considered alongside my findings in the following criteria. Did the Applicant first become aware of the dismissal after it had taken effect? [69] Clearly, noting the earlier discussion regarding the circumstances surrounding the cessation of the Applicant’s employment, the parties are in significant disagreement about when the Applicant became aware of his alleged dismissal. [70] The Applicant is of the position that it was not clear to him his employment had ended until 5 December 2023. The Respondent opines that the Applicant resigned effective 13 October 2023 or, in the event the Applicant was dismissed, the Respondent submits he should have been aware that his employment had ended by, at the latest, 23 October 2023. [71] The Applicant asserts the end of his employment became apparent to him after 5 December 2023 due to the absence of communication from the Respondent. [72] I am not satisfied that the Applicant, in spite of the Respondent’s communication to the contrary, did not comprehend that his employment had ceased until after 5 December 2023, which would conveniently render the lodgement compliant with the timeframe. [73] Consistent with my earlier conclusion, I am satisfied the Applicant was aware of the end of his employment by at least 18 October 2023 when the acceptance of his alleged resignation was communicated to him in a clear and unambiguous way. [74] In all the circumstances, I am not satisfied that the Applicant only first became aware of his employment ending after that came to effect. What action was taken by the Applicant to dispute the dismissal? [75] The Applicant submits that he took the following actions to dispute the dismissal: • 23 October 2023 – emailed the Respondent’s HR department stating, “the email I sent Beau was not my resignation but an email to say I need some time at home with my family.” • 27 October 2023 – the Applicant sent a text to Mr Seth of the Respondent stating, “Hi mate I’ll give you a call later, been at the misses family farm and had no reception”. • 29 November 2023 – the Applicant sent an email to the Respondent’s HR department stating, “I have been away for the last few weeks on holiday and only just noticed this email. Can I please have the contact information to claim the rest -- 9 of 13 -- [2024] FWC 1201 10 of my flights. I’m not sure why I needed to contact Doug about my job when I informed HR and IT that it wasn’t a resignation. Thought that would have cleared it all up”. • 11 December 2023 – the Applicant sent an email to the Respondent’s HR department stating, “Is that my original email? I can’t see them anymore as it was from my work email address. Can I please ask who also decided that was my resignation email? Thank you, I will send the rest of my flights through”. [76] The Respondent made the following submissions in relation to the Applicant’s efforts to dispute his dismissal. • The Applicant at no time called any person at the Respondent to discuss his resignation after it had been processed by the Respondent. • The Applicant did not follow up on the calls from Mr Seth of the Respondent to discuss the Applicant’s resignation. • The Applicant did not provide an expected end date for his time away from the Respondent. • The Applicant did not indicate that he was available to return to work in any capacity at any stage during the period in question. [77] It is clear the Applicant took the above action, corresponding with the Respondent in attempt to be rehired, and such action reflects he contested the cessation of his employment. [78] However, I note and agree with the Respondent’s submission, that the Applicant seemingly did not prioritise any action to dispute the alleged dismissal by repeatedly ignoring or not returning the Respondent’s attempts to contact him. What is the prejudice to the employer (including prejudice caused by the delay)? [79] The Respondent submits that it would suffer prejudice if an extension of time were granted. [80] Specifically, the Respondent submits that, if an extension of time were granted, it would suffer a prejudice given the extended delay in the Applicant filing his application before the Commission. [81] The Respondent did not provide any detailed reasoning, rather the prejudice is more of an assumed prejudice given the delay. [82] In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted. What are the merits of the application? -- 10 of 13 -- [2024] FWC 1201 11 [83] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. [84] It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”11 and the same applies to section 394(3)(e) of the Act. [85] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. [86] In the circumstances, I find that it is not possible to make an assessment of the merits of the application. Fairness as between the Applicant and other persons in a similar position [87] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. [88] In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances. Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above? [89] I will now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above. [90] Briefly, to reiterate, 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.12 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.13 [91] The Applicant was clearly suffering from some personal hardships in the final few months of 2023. [92] On assessment of the materials provided, it is clear that the Applicant’s relationship was suffering as a result of him working away from home on a FIFO basis. [93] I therefore accept the submissions of the Applicant, that his mental health was likely impacted during this period. -- 11 of 13 -- [2024] FWC 1201 12 [94] However, the Applicant has not provided any notable evidence in support of such submission that would satisfy me that the condition of his mental health substantially impacted his to file. [95] I acknowledge that the Applicant did take steps to resolve the matter directly with the Respondent, this has weighed favorably in my consideration. [96] However, as noted earlier, I am not satisfied that the Applicant took any significant steps nor did he expend any meaningful effort in attempt to dispute the alleged dismissal directly with the Respondent, instead regularly ignoring the Respondent’s contact attempts. [97] While I accept that the Applicant wanted to resolve his dissatisfaction with his employment ending directly with the Respondent, the decision to delay lodgment in the hopes of being rehired was the Applicant’s choice and an unnecessary one at that. [98] The decision to delay lodgment was solely the Applicant’s choice and not driven by any promises or misdirection from the Respondent. [99] It is understandable that individuals may prefer to resolve their termination informally without the intervention of the Commission. However, the timeframe for lodgment under the Act is clear and cannot be disregarded in these circumstances. [100] From the information provided, it is reasonable to conclude that the Applicant was not aware of the 21-day filing period for his application. The Commission has a well-established precedent that ignorance of the 21-day period is not usually supportive of exceptional circumstances. [101] Having regard to all of the matters at section 394(3) of the Act, I would not be satisfied that there are exceptional circumstances. [102] Not being satisfied that there are exceptional circumstances, there would be no basis for the Commission to allow an extension of time. Conclusion [103] As I concluded earlier in this decision, I am satisfied that the Applicant has not been dismissed in the meaning of the Act and the application must be dismissed. In the alternative, if the Applicant was dismissed within the meaning of the Act, I would not be satisfied there are exceptional circumstances giving rise to an extension being granted. [104] In conclusion, the Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.14 -- 12 of 13 -- [2024] FWC 1201 13 COMMISSIONER Printed by authority of the Commonwealth Government Printer <PR774655> 1 [2017] FWCFB 3941. 2 Noting here that the Applicant does not contend he resigned at all instead proffering the alleged resignation was a leave request. 3 [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A. 4 Ibid; [2015] FWCFB 1877. 5 [2018] FWCFB 901, [39]. 6 [2011] FWAFB 975, [13]. 7 Ibid. 8 [2018] FWCFB 901, [39]. 9 Ibid, [40]. 10 Ibid, [17]. 11 [2011] FWAFB 975, [36]. 12 [2011] FWAFB 975, [13]. 13 Ibid. 14 [PR774656]. -- 13 of 13 --