| [2022] FWC 923 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Steven James
v
Alconbury Pty Ltd ATF The Woodfield Trust
(U2022/721)
COMMISSIONER PLATT |
ADELAIDE, 22 APRIL 2022 |
Application for an unfair dismissal remedy – request for an extension of time – extension of time not required – application to proceed.
[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2
[2] This decision concerns whether I should exercise my discretion to allow Mr Steven James a further period for his unfair dismissal application (Application) to be made against Alconbury Pty Ltd ATF The Woodfield Trust T/A The Red Lion Hotel (The Red Lion Hotel).
[3] Mr James has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with The Red Lion Hotel which his form F2 Unfair Dismissal Application advised took effect on 23 December 2021.
[4] The Application was lodged on 13 January 2022 by the Applicant.
[5] On 7 March 2022, the Respondent lodged a form F3 Employer Response which indicated that the dismissal occurred on 12 November 2021. The Respondent also lodged a Form F4 Objection accompanying the Form F3. The Form F4 raised a jurisdictional objection on the basis that the application was lodged out of time. It was contended by the Respondent that that Applicant last worked on 12 November 2021 and that the Application was not lodged within the 21 day period after the dismissal took effect. There was no contention that the Applicant was not dismissed.
[6] On 6 April 2022, the parties attended a conciliation conference, by telephone, in front of one of the Commission’s staff conciliators. The matter did not resolve and was allocated to my Chambers to determine the extension of time issue.
[7] On 8 April 2022, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 22 April 2022. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. Given that there was a dispute about when the employment ceased, The Red Lion Hotel was directed to file their material in relation to their objection first, by 13 April 2022. The Applicant was directed to file his materials in relation to the extension of time issue by 20 April 2022.
[8] The Red Lion Hotel failed to file any material in relation to the extension of time issue. My Associate contacted the Respondent to chase the production of their materials on 13, 14, 19, 20 and 21 April 2022. On 21 April 2022, well after the deadline set in the Directions, the Respondent indicated to my Chambers that they wished to rely on their Form F3 and Form F4 in support of their objection. At the Hearing, Mr Damien Stephen, representing the Respondent, advised that the material was not filed due to competing priorities.
[9] The Applicant filed a submission/statement with various attachments on 14 April 2022. Upon my request, the Applicant filed further materials on 20 and 21 April 2022.
[10] A Hearing was conducted by way of telephone conference on 22 April 2022. A sound file record of the telephone conference was kept. Mr James represented himself and Mr Stephen represented The Red Lion Hotel.
[11] The material filed was compiled into a Digital Court Book and a Chronology was prepared by my Chambers and distributed to the parties prior to the Hearing. This material was received at the Hearing.
[12] Mr James gave evidence at the Hearing. His position is summarised as follows:
• On 15 November 2021, the Applicant texted Hotel Manager Mr Darren Ireland noting that he could not attend work due to health concerns.
• His last day of work was 21 November 2021.
• On 23 November 2021, the Applicant texted Mr Ireland requesting to be put back on the work roster.
• Later on 23 November 2021, Mr Ireland advised the Applicant by text message that “the best thing is for us to part ways and you start at a fresh work place”.
• On 24 November 2021, the Applicant emailed the Respondent’s ‘Accounts’ address with an enquiry as to the status of his employment.
• On 25 November 2021, Ms Tanya Mott replied to Applicant, noting that Mr Damien Stephen had been included in the response, and that the company would “take the appropriate action required to address your concerns”.
• On 20 December 2021, the Applicant emailed ‘Accounts’ (with Mr Stephen copied) with further questions regarding the status of his employment.
• On 21 December 2021, the Applicant received an email from Mr Stephen which said that he had not been advised that a petition was the “cause of your termination (if, in fact you were)”. Later that day, the Applicant emailed Mr Stephen stating he would “not go through with contacting Fair Work SA or any other actions due to my termination”.
• On 22 December 2021, the Applicant texted Mr Ireland with questions about status of his employment. The Applicant noted that Mr Stephen had told him that he had no knowledge of him “being sacked….so (he) is in fact still employed at the hotel”.
• On 23 December 2021, the Applicant called head office, who told him that he no longer had a job.
[13] The Respondent did not file any evidence and relied solely on its Form F3 and Form F4. The Respondent’s failure to appropriately engage in this manner has adversely impacted on the conduct of this matter, however the decision not to prioritise this matter was the Respondent’s choice.
[14] Mr Stephen gave evidence at the Hearing. The Respondent’s position varied during the Hearing but is summarised as follows:
• The Applicant last worked on 12 November 2021 and thus the employment ceased at that time. During the Hearing, Mr Stephen conceded that the Applicant had last worked on 21 November 2021.
• Mr Stephen contended that the Applicant resigned by way of a text message. No message was produced that was capable of being characterised as a resignation.
• Mr Stephen contended that the employment was concluded on 23 November 2021 by Mr Darren Ireland’s text message to the Applicant, which contained the statement “the best thing is for us to part ways and you start at a fresh work place.”
• Mr Stephen received an enquiry from the Applicant as to the status of his employment dated 24 November 2021 and responded on 21 December 2021. Mr Stephen’s response stated:
“Hi Steve,
Apologies for not getting back to you earlier
I’m not aware of any petition in relation the Red Lion Hotel, nor did Darren advise me that this was the cause of your termination (if, in fact you were).
Given you have indicated an intention to contact ‘FairWork SA’ it would now be inappropriate for me to respond.”
• Mr Stephen rejected the suggestion that the above email was equivocal as to the Applicant’s employment status.
• Mr Stephen contended that the Applicant’s employment had ceased more than 21 days prior to the lodgement of the Application.
The Law
[15] A dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware. 3
[16] Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter. 4
[17] Section 394(2) of the Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Consideration
[18] There was no dispute that the Applicant was employed by the Respondent at The Red Lion Hotel in the service and supply of alcohol. His supervisor was Mr Darren Ireland.
[19] I make the following findings in relation to the evidence.
[20] It appears that the Applicant was involved at an incident at the hotel on or about 21 November 2021 and accessed personal leave afterwards.
[21] On or about 23 November 2021, the Applicant asked to be rostered for shifts. On the same day, Mr Ireland sent him a text message which included the phrase “the best thing is for us to part ways and you start at a fresh work place”. In my view, that statement does not amount to a cessation of employment (either unilaterally or by agreement).
[22] The Applicant appears to have been concerned by Mr Ireland’s statement and sought assurances from Mr Ireland’s superiors as to his employment status (recognising that he had not been rostered to work post 21 November 2021).
[23] His email communication of 23 November 2021 was referred to Mr Stephen. The Applicant followed up on the request on 20 December 2021.
[24] Mr Stephen replied on 21 December 2021. His email is equivocal as to whether the Applicant’s employment had been terminated (or not).
[25] It was not until the Applicant contacted the Respondent’s Head Office on 23 December 2021 that he was clearly told that he was no longer employed.
[26] Based on the facts in this matter, I find that Applicant did not have a reasonable opportunity to become aware that he was dismissed until 23 December 2021.
[27] The Application was lodged with the Commission on 13 January 2022, 21 days after the cessation of employment
[28] I have found that the Applicant’s employment ceased on 23 December 2021. The Applicant lodged his application on 13 January 2022, which is 21 days after the dismissal took effect.
[29] I find that the application has been made in accordance with s.394(2) and no extension of time is required. Had the application not been made in time, I would have extended the time on the basis that the Applicant was not aware of his dismissal until 23 December 2021.
[30] At the conclusion of the Jurisdictional Hearing, I issued Directions for the filing of materials in respect of the merits of the application.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR740565>
Appearances (by telephone):
Mr S James, the Applicant.
Mr D Stephen on behalf of the Respondent.
Hearing (Conference) details:
2022.
Adelaide:
April 22.
1 Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)
2 Section 394(3) of the Act
3 Ayub v NSW Trains [2016] FWCFB 5500, [36]
4 Foyster v Bunnings Group Ltd [2017] FWCFB 3923, [17].