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[74]
[2023] FWC 623
General information, not legal advice.
Fair Work Commission
2023-03-23
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - extension of time application - circumstances not exceptional - application dismissed.
[1] This decision concerns an application by Mr Christopher Janssens (Applicant), a former real estate agent, for an extension of time to make a claim for unfair dismissal outside the 21-day period required by s.394(2) of the Fair Work Act 2009 (the Act). The application was opposed.
[2] On 14 February 2023, Mr Janssens made an application to the Fair Work Commission (Commission) for relief from unfair dismissal. The Applicant alleges he was unfairly dismissed by the employer, Rowan Bustin Pty Ltd (Respondent) on 23 January 2023.
[3] On 22 February 2023, I issued directions shortly after the matter was allocated to me. The Respondent has complained about the continual lateness of Mr Janssens in complying with the directions of the Commission. Notwithstanding the force of the Respondent's complaints, I was not satisfied that there was sufficient prejudice and I was also satisfied that the matter could proceed as listed.
[4] At the Determinative Conference held on 22 March 2023, the Applicant gave evidence on his own behalf and filed a witness statement and various supporting documents. The Respondent called Mr Steven Biggins, an employee of the Respondent. Neither witness was cross-examined.
[5] There is a dispute about the date of dismissal. The Respondent says Mr Janssens resigned on 30 November 2022, although whether the date of dismissal is 30 November 2022 or 23 January 2023, Mr Janssens' application was made outside the 21-day period.
[6] On 30 November 2022, there was a meeting between the directors of the Respondent and Mr Janssens. The meeting had been arranged the day prior by a 'WhatsApp' message from a director.
[7] Neither party gave detailed evidence of that meeting. The Respondent provided no direct evidence, albeit Mr Biggins' statement describes events shortly after (to which I will return). Mr Janssens' evidence included numerous WhatsApp messages following the meeting, which described aspects of discussions occurring on 30 November 2022 and Mr Janssens' views about them.
[8] For the Respondent, I consider that a letter from it dated 23 January 2023 best encapsulates its position. That letter relevantly stated:
"3. Mr Janssens voluntarily resigned from his employment with the company effective 30 November 2022, in front of witnesses, and the resignation was accepted by the company on the same day. As a gesture of good faith, it was agreed he could continue to sell the property listings he was attached to at the time, including attending auctions the following weekend."
[9] Mr Janssens' position is encapsulated with the following statement, contained in a response by him to the above extract. Mr Janssens states:
"... At no point in time was there a mutual decision made that I was resigning, but rather the Directors of RTEGE insisted, repetitively, under intentional pressure that I had to. I never willingly resigned, and have absolutely NOT formerly resigned (nothing in writing) and made it very clear on several occasions including the day after (in writing, records kept) that ''I would not be resigning until I've had legal advice'' and most importantly, have NOT submitted or indicted in anyway, that I have resigned - just as I've continued to work from home, since having my office key taken off me that day and told to work from home, without and reason given."
[10] The reference in the Respondent's letter to the claimed resignation being made in front of "witnesses" is, presumably, at least to Mr Biggins. Mr Biggins' evidence (unchallenged) was to the effect that there was a meeting between Mr Janssens and the directors (which Mr Biggins did not attend) and then Mr Janssens left for about an hour and a half before returning. Upon Mr Janssens' return, Mr Biggins deposed that Mr Janssens then said that he (i.e. Mr Janssens) had had some time to think about the discussions and then he resigned, stating it would be easier on all parties. There was a further discussion about keeping it confidential for the time being, as Mr Janssens said that would make it easier for Mr Janssens to obtain further employment. Mr Janssens then collected his belongings and left.
[11] Mr Janssens produced various WhatsApp messages from early December 2022. It is unnecessary to set them out by they are consistent with his view, as encapsulated above, that he had not voluntarily resigned.
[12] By 6 January 2023, Mr Janssens had engaged a solicitor to act for him. On that date, his solicitor sent a letter to the Respondent. The letter stated that the Respondent told Mr Janssens on 30 November 2022 that it was in his interests to resign and that Mr Janssens disputed resigning. The letter stated there was "no basis" for the Respondent's request for Mr Janssens to resign and invited reasons for why it was made. The letter noted that Mr Janssens had been "prevented" from accessing work email, the Respondent had withheld office keys, and the Respondent was "compelling" Mr Janssens to work from home. The letter demanded immediate reinstatement of work email and office access to be provided.
[13] On 23 January 2023, the Respondent replied to the above letter. I have extracted aspects above. The Respondent did not reinstate email access or access to the work office. The letter stated the 21-day deadline for lodging any claim with the Commission had passed. The letter also described conduct that, in the Respondent's view, was inconsistent with being a continuing employee. For commission payments, the letter noted that Mr Janssens was a commission-only employee and "final" commissions were pending in circumstances where two property listings were unsold and one listing sold but not yet settled.
[15] There was considerable material filed in relation to the circumstances and date of dismissal. Much of it is unnecessary to set out beyond the above because, with no disrespect to the parties who were not lawyers or were not legally represented, it was not directed at what constitutes a dismissal and when any dismissal took effect: s.394(2)(a).
[16] As to a dismissal, s.386(1) sets out when a person has been dismissed as follows:
(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] I am satisfied it was the employer who made it clear that Mr Janssens' employment was to be brought to an end. On the Respondent's case, it had good reasons for doing so but it was sufficiently sensitive to the impact on Mr Janssens that it proposed any termination be by resignation (with the assumption that this would be better for Mr Janssens). Consistently, the Respondent's letter dated 23 January 2023 also sets out a number of areas where (in the Respondent's view), Mr Janssens' conduct and capacity were poor. It is clear to me that any dismissal was at the employer's initiative. The employer was very unhappy with the employment relationship and it took steps to bring it to an end.
[18] The timing of that event is less clear. On one view, the decision of the employer on 30 November 2022 itself constituted a termination of the employment relationship, as at that date. This is because, from that time onwards, Mr Janssens was not permitted back in the office nor permitted to take on new clients. In circumstances where Mr Janssens' role was a commission-only salesman, his remaining income would be dictated by the successful settlement of existing sales and transactions under contract. Ordinarily, such an alteration of a role would be considered to be circumstances that would support a finding of a constructive dismissal.
[19] However, I am satisfied that, despite these events, the employment relationship was sufficiently preserved and that Mr Janssens was protesting that he had not resigned. In part, the relationship was expressly preserved because "it was agreed [Mr Janssens] could continue to sell the property listings he was attached to at the time, including attending auctions the following weekend."
[20] There being only two alternative dates proposed by the parties as to the date the termination of employment took effect, I am satisfied that the date the employment relationship ended was 23 January 2023, being the date provided on the Form F2. I am fortified by this view because, in reality, the employment relationship had been all but terminated before that time in any event and that none of Mr Janssens' demands made through his solicitor had been agreed to.
[21] 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.
[22] Under section 394(3) of the Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(f) fairness as between the Applicant and other persons in a similar position.
[24] I set out my consideration of each matter below.
[25] Mr Janssens' application for an unfair dismissal remedy was received by email at 1:49am on 14 February 2023.
[29] Mr Janssens' initial application was an email at 1:49am on 14 February 2023. The body of that email contained a cut and paste of the Commission's Form F2, which Mr Janssens had completed. The following day, Commission staff wrote to Mr Janssens stating that a completed form was required. He subsequently printed and completed a Form F2, which was filed on 17 February 2023. Despite these delays, there is no dispute that the operative date of Mr Janssens' application was 1:49am on 14 February 2023.
[30] In his completed Form F2 application (i.e. as sent on 17 February 2023), there is a question that asks whether the application was made within 21 days of the dismissal taking effect. Mr Janssens candidly indicated 'no' to that question, and included the accompanying explanation:
"Original application made on 13/2/23, but completing the necessary details/questions took me longer (3+ hours) than expected, thus it was submitted at 1.48am on 14/2/23. My application (email) was acknowledged, but I didn't have the resources to print, scan or submit this form as a PDF file. This is my third attempt to re-submit my application (form now printed) so I'm doing it in hand writing, to leave nothing to chance."
[31] While Mr Janssens' Form F2 application refers to an "application made on 13/2/23", there was no such application filed. That reference is due to the fact that Mr Janssens commenced preparing his application on 13 February 2023 and (as his Form F2 indicates) submitted it at 1:48am on 14 February 2023 (and which was received by the Commission at 1:49am).
[32] Mr Janssens' evidence does not take what was stated above in his Form F2 much further, although I note his oral submission at the hearing, which was to the effect that it has been pretty hard for him working with limited resources and that over the period of time between 23 January to 14 February 2023 he had been trying to obtain commission payments and generally deal with his circumstances. Mr Janssens also candidly acknowledged he was under significant financial stress and that nothing like this had previously occurred to him.
[33] While I accept that the personal circumstances of Mr Janssens indicated a difficult period between late January 2023 and mid-February 2023, I am not satisfied they rise to such a level as to explain the delay in commencing an unfair dismissal application. The reason for the delay primarily appears due to the fact that Mr Janssens commenced preparing his application late on 13 February 2023 and that, combined with some technical challenges, the application took much longer to prepare - "3+ hours" - than he anticipated.
[34] I do not consider that these reasons, of themselves, point to exceptional circumstances and for this reason, the reasons for delay are not factors that assists Mr Janssens' application.
Did the Applicant first become aware of the dismissal after it had taken effect?
[35] The notification of the dismissal was, in part, bound up in the parties' differing contentions as to the date of dismissal.
[36] By the Respondent's letter dated 23 January 2023, that correspondence did not in clear terms state that the dismissal took effect that day. The reason it did not do so was because of the Respondent's mistaken interpretation of the circumstances on 30 November 2022 that Mr Janssens had already "resigned". Notwithstanding, the same correspondence expressed the view that, not only had Mr Janssens resigned by that date, but that the time to lodge a challenge with the Commission had also expired. If there was any doubt as to the continuing employment relationship having continued to this point, I am satisfied it was now extinguished.
[37] Mr Janssens referred in his oral submissions to having spoken with his solicitor about the letter of 23 January 2023, who advised (correctly in my view) that the best view was to treat that day as the date of dismissal. That is what Mr Janssens did and, in those circumstances, I am satisfied that Mr Janssens became aware of the dismissal shortly after it took effect. In substance, he had the full benefit of the 21 day period to make an application for unfair dismissal. I consider that this factor is neutral between the parties.
What action was taken by the Applicant to dispute the dismissal?
[39] While neither party specifically addressed me on this matter, I note that before and after the dismissal took effect, Mr Janssens was challenging the fairness of the Respondent's conduct toward him, and not just in relation to alleged commission entitlements. I consider this factor is neutral between the parties.
What is the prejudice to the employer (including prejudice caused by the delay)?
[40] 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.
[41] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials, although at a relatively high level.
[43] 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 that he was forced to resign. The reasons for being asked to resign are matters that would be tested by evidence, to which the Respondent has an apparent defence.
[44] In the circumstances, I find that it is not possible to make an assessment of the merits of the application. I treat this factor neutrally.
Fairness as between the Applicant and other persons in a similar position
[45] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. 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?
[46] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
[48] The stress that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances.
[51] The delay in the present case is not lengthy- slightly under two hours. The reasons for delay are in large part due to the Applicant's delay in beginning his application, coupled with underestimating the (relatively modest) time that would be required to prepare it and the general stress that he was experiencing. However, I am not satisfied that the reasons for delay, on their own or in combination with any other supportive matter establish exceptional circumstances.
[52] I acknowledge that there is no prejudice to the Respondent, a matter which is at least neutral if not in the Applicant's favour. The merits of the application and the fairness between the Applicant and other persons in a similar position neither add nor detract from my consideration. The Applicant has taken some steps to broadly challenge the circumstances he was in, although it does not rise to a level that otherwise affects my assessment.
[53] While I acknowledge the genuine challenges and difficulties that Mr Janssens has faced since late November 2022 and continuing, when having regard to all of the matters listed at s.394(3) of the Act, I am not satisfied that there are exceptional circumstances of the kind required by the statute.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].
[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].
[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].
[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].
[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23].
[11] Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [22].
[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
Printed by authority of the Commonwealth Government Printer
Christopher Louis Janssens
Rowan Bustin Pty Ltd [2023] FWC 623
(1995) 67 IR 298