The attached document replaces the document previously issued with the above code on 4 May 2021.

The following amendments were made to the decision.

• Footnote 38 has been amended to [2016] FWCFB 5500 at [48] and [49].

[2021] FWC 2498

Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - extension of time - application in time - no extension of time required

[1] This decision concerns an application by Mr Alexander Knott under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal. Section 366(1) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

[2] Mr Knott contends that his dismissal took effect on 24 December 2020. The Respondent contends that Mr Knott's dismissal took effect on 23 October 2020. Mr Knott lodged his application on 3 January 2021. Accordingly, if, as contended by Mr Knott his dismissal took effect on 24 December 2020, the application has been lodged within 21 days after the dismissal took effect. If, however, as contended by the Respondent Mr Knott's dismissal took effect on 23 October 2020, the period of 21 days ended at midnight on 13 November 2020 and the application was lodged 51 days out of time.

[3] On 12 February 2021 I issued directions for the parties to file materials. In accordance with those directions, materials were filed by Mr Knott on 26 February 2021 and 16 March 2021 and by the Respondent on 12 March 2021. Notably, the Respondent filed no witness statements.

[4] On 19 March 2021 I conducted the proceeding by way of determinative conference by telephone. At the hearing Mr Knott appeared on his own behalf. Mr Latham, Chief Human Resources Officer, appeared on behalf of the Respondent.

[5] The relevant background to this matter is as follows.

[6] Mr Knott is a university student. He commenced employment with MGH Employment and Training Pty Ltd (MGH) on 3 September 2019. It is undisputed that Mr Knott was engaged by MGH as a casual employee at the Respondent's restaurant, Milano. It is also undisputed that Mr Knott's last worked for MGH on 14 October 2020. Mr Knott's evidence was that prior to COVID -19, which I infer to mean late March 2020, he was working approximately 20-30 hours per week. However, after COVID-19 he was only working one eight hour shift per week.[1]

[7] On 25 September 2020 Mr Knott requested a copy of the collective workplace agreement which applied to his employment with MGH[2] (Agreement). This was provided to Mr Knott by Mr Latham on 9 October 2020.[3] Following provision of the Agreement on 13 October Mr Knott queried his rate of pay and how it had been calculated.[4] Following Mr Knott's queries, MGH undertook an audit of Mr Knott's wages history.[5] On 19 October Mr Latham advised Mr Knott that he had not been paid the correct hourly rate when performing duties that involved liquor dispensing and was owed $2659.29 gross in back pay.[6] On that date Mr Knott also queried of Mr Latham whether he had been correctly classified under the relevant award.[7]

[8] On 23 October 2020 at 8.19 am Mr Knott wrote to Mr Latham via email to advise him that his hourly rate had not been adjusted in his most recent pay slip and also enquired as to whether there was any "update" in relation to his classification.[8] In that email Mr Knott noted that he had "notified Carol and she was going to speak with you". Carol is a reference to Ms Wu, the Venue Manager at Milano.

[9] Mr Knott's evidence is that Ms Wu telephoned him on the morning of 23 October at approximately 10.00 am and before the email referred to in paragraph 10 below. His further uncontested evidence was that in that conversation Ms Wu raised with him the need to focus on his studies.

[10] At 10.00 am Ms Wu emailed Mr Knott as follows:

As discussed this morning, I don't want you to risk your Uni works, and we are very busy for the next couple of weeks with AFL grand final and Queen St Mall Shopping Promotions.

And then we have Melbourne Cup and Wallabies rugby at Suncorp Stadium. I am really struggling with staff who are available and need to hire someone asap.

Please let me know when you are finished studies and I will put you back on the books asap.

Good luck with your exam and assignment."[9] (23 October Email)

[11] At 12.24 pm Mr Latham responded to Mr Knott's email of 8.19 am advising that since the audit of Mr Knott's wages changes had been made to the time and attendance recording system and that if Mr Knott had been incorrectly paid for 14 October 2020 that would be rectified and included the following statement:

"For shifts this week and moving forward, Carol will assign the correct rate of pay for each shift."[10]

[12] Mr Latham also stated that Ms Wu and Mitesh (another employee of MGH) determined whether a change in Mr Knott's classification was required and if this was required they would advise him.

[13] At 5.23 pm Mr Knott emailed Ms Wu as follows:

As I also mentioned in our conversation this morning, I am happy to be rostered back on from Sunday the 1st of November. My availability includes: Sunday, Monday and Wednesday all weeks following unless other arrangements are made.

[14] At 8.12 am on 2 November 2020, being the day after Mr Knott had advised he was available for shifts, Mr Knott sent Ms Wu a message on Whatsapp which commenced by saying "Hey la, am I on this weeks roster?" to which Ms Wu replied "not this week... terry said you came to see me?"[12]

[15] Mr Knott's unchallenged evidence is that on 10 December 2020 he discovered that on 4 December 2020 he had been removed from the Respondent's staff management group chat and HumanForce (the shift management software used by the Respondent). On 10 December 2020 Mr Knott sent an email to Ms Wu at 9.16 pm[13] (10 December Email). That email refers to a telephone conversation between Mr Knott and Ms Wu and "reiterate[s] what was discussed." In that email Mr Knott says that he contacted Ms Wu at 6.30 pm that evening and advised her he was ready to return to Milano after his final examination. Ms Wu advised him there was no availability as she had hired and transferred new staff. The email says that Mr Knott then telephoned Ms Wu again at 7.00 pm and expressed his disappointment at the "handling of the situation" and particularly his removal from the staff group chat saying:

"At 7 pm, I called you again. I expressed my disappointment in the handling of the situation; in particular, you removing me from the staff group chat without my knowledge or any indication of why (4/12/2020). As a result, it would seem I have no position to return to,..."

[16] In the 10 December Email Mr Knott also says that "Since I had challenged issues around my legal pay entitlements, my work opportunities at Milano have dried up."

[17] On 14 December 2020at 9.02 am Ms Wu wrote to Mr Knott in the following terms:

Your email to me last week came as a shock to be honest. My views on prioritising your study and exams over casual work (1 shift per week) was genuine and sincere. And I stand by it. It's the approach I have taken with other junior staff who are also students.

That aside, I needed to have more staff available particularly through November and December. That's how the venue operates in the lead up to the Christmas season every year. And that's why I have recruited more staff since we last spoke. Thanks for letting me know that you are ready to re-start work again but, as I mentioned earlier, there are no shifts currently available for you. It is as simple as that, and not something under-handed like you have insinuated (which I absolutely deny). I will certainly let you know when future shifts come available.

I have spoken with the payroll team about the other issue you raised. The summary is:

1. I confirm that all wages owed to you have now been paid. There are no other outstanding wages payable. To be clear about your Level, you are not employed in Milano at Level 2. I employed you at Introductory Level.

2. Superannuation amounts are paid quarterly, and the next payment date is 28.01.2021. The amount to be paid to you on this date will be based on wages that have now been paid.

3. Future shifts and wages that you earn will be included in the next scheduled quarterly Superannuation payment after those shifts.

Alex, if you want to discuss anything at all please give me a call. I will be sure to contact you about future shifts available too.

[18] Mr Knott replied at 12.27 pm as follows:

Could you please explain why I am removed from the Milano staff group chat and my Humanforce employee profile has been terminated?

[19] Ms Wu responded at 9.46 pm as follows:

The reason I removed you from the group is because we had so much change and updates occur over the past few months that I did not want to confuse you when you returned. You are not the only person that this applies to; it has happened in our kitchen group chat as well. Staff that return to work will be added to the group again.

As for humanforce, I did not know this happened since you mentioned it. I cannot delete staff from the system under my access permissions at venue level. There is an updated version of humanforce being implemented across the business, but I am not sure is it because of this. I will find out."[16]

[20] Mr Knott responded at 10.02 pm as follows:

That doesn't make any sense to me. If you intent on having an employee back at your venue, why keep them out of the loop? Why wouldn't you want the[sic] to have all updated information. Could you please add me back to the group so I can be updated on everything?

[21] At 10.06 am the following day, 15 December 2020 Ms Wu replied saying:

I hear your request but it is declined. I determine how staff are managed within the venue and in this online group.

In which case, do I still have a job? Considering I'm no longer a member of the staff group chat and my humanforce employee login has been terminated.

[23] No response was received to the 15 December Email.

[24] On 21 December 2020 Mr Knott wrote a lengthy email to Mr Latham raising a number of issues including alleged underpayments, misclassification, his failure to be rostered again after 1 November 2020 and the "unavailability" of shifts for him, his removal from the group chat and HumanForce with loss of his historical pay records and the failure to respond to his email of 15 December 2020.[20]

[25] On 24 December 2020 at 9.09 am Mr Latham responded to Mr Knott stating, amongst other things, that the telephone call to Ms Wu on 10 December 2020 had caused her significant distress and harm and that Mr Knott was to "cease and desist contacting the management team and Milano venue staff for any reason."[21]

[26] Mr Knott responded to that email shortly thereafter refuting that, inter alia, he had caused any distress to Ms Wu and also saying, relevantly, "Based on my interpretation of your cease and desist directive, I have been dismissed by MGH as of 24/12/2020. As such, I will now be pursuing an adverse action application involving unfair dismissal."[22]

[27] The Respondent submits that Mr Knott's dismissal took effect on 23 October 2020.[23] It says that Mr Knott was advised on 23 October 2020 via the 23 October Email that his work with the Respondent would cease and he should focus on his studies.[24] It relies upon its payroll records and a Separation Certificate.[25] It also submits that as a casual employee Mr Knott had no guaranteed hours or days of work and was never guaranteed or promised ongoing employment.[26] It further submits that it was obvious that Mr Knott's employment had ended and that Mr Knott would have reasonably known this given he did not work again between October and December 2020.[27] It submits that when Mr Knott telephoned Ms Wu after his studies had completed he was told that there were no shifts currently available but the Respondent would consider arranging for him to be re-employed once there were shifts available.[28] It submits that Mr Kott's statements in the 10 December Email confirm that he understood that his employment had ended.[29] Finally, it submits nothing arises from Mr Knott's participation in the group chat. It says that the group chat is not the medium for formal correspondence with employees.[30]

[28] Mr Knott submits that the Respondent dismissed him on 24 December 2020 by the "cease and desist" directive contained in its email of that date.[31] He submits that at no time was he notified that his employment had ended[32] nor did he receive any formal dismissal notice.[33] He submits that the reference in the 23 October Email to being "put back on the books" after his studies is to be read in the context of Ms Wu encouraging him to focus on his studies and completing semester assignments before resuming further shifts. He says that in this context this statement simply means that he was temporarily off the books or temporarily unavailable.[34] He submits that his use of and access to the group chat until 4 December 2020 is supportive of his contention that he was not dismissed on 23 October 2020 and says further that Group Chat was used purely for updates and information regarding the venue.[35]

[29] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[36] Further, the general principle is that an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated.[37] In Ayub v NSW Trains[38], a Full Bench of the Commission held that where a dismissal occurs without notice the dismissal cannot not take effect until an employee knows, or at least has a reasonable opportunity to find out, that they have been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.[39] Although the Full Bench's comments in Ayub were in the context of when a dismissal takes effect under section 394(2)(a), I consider them to be equally applicable to consideration of when a dismissal takes effect under section 366(1)(a).

[30] As Deputy President Gooley observed in Andrew Kim v. ORC International Pty Ltd[40] it is often difficult to determine when a casual employee's employment is in fact terminated. In the present circumstances I do not accept on the evidence that Knott was dismissed on 23 October 2020 by the 23 October Email.

[31] Firstly, it is clear that the 23 October Email does not in its express terms state that Mr Knott is dismissed or that his employment is terminated or has ceased.

[32] Secondly, I consider that the phrase "I will put you back on the books asap" in the 23 October Email is ambiguous and could not be said to have plainly or unambiguously communicated to Mr Knott that his employment had ended. Further, the statement is in the context of a discussion regarding Mr Knott's need to focus on his studies and the resumption of shifts after his studies for the semester are completed. In those circumstances I consider that being put "back on the books" is to be understood as an acknowledgement that Mr Knott is temporarily unavailable for shifts, rather than indicating that his employment had ended.

[33] Thirdly, I do not consider that Mr Knott's engagement as a casual employee affects that conclusion. The general contractual characteristic of casual employment is that a person who works over an extended period of time as a casual employee is engaged under a series of separate contracts of employment on each occasion the person undertakes work.[41] There are some, albeit rare, cases where a casual employee has been found to have been engaged under a single continuing contract of employment,[42] but the accepted orthodoxy of casual employment is that each engagement is under a separate contract, rather than a continuing contract of employment. Accordingly, on each occasion that Mr Knott worked a shift as a casual employee for the Respondent, there was a separate contract of employment entered into between the parties. It is uncontested that the last shift worked by Mr Knott was on 14 October 2020. I therefore accept that there was no employment contract on foot between the parties following the completion of Mr Knott's last shift on 14 October 2020. However, a dismissal takes effect when the employment relationship has ended.[43] The termination of the employment relationship is a different concept from the termination of an employment contract.[44]

[34] I consider the contention that Ms Wu dismissed Mr Knott in the 23 October Email and that the employment relationship between the parties came to an end at that time is, in addition to not being expressly articulated in the 23 October Email, inconsistent with, and unsupported by, the vast majority of the subsequent communications between the parties. At no point in those subsequent communications in which Mr Knott, amongst other things, enquires as to whether he is rostered and whether he still has a job, and which span a period of almost two months, did either Mr Latham or Ms Wu state that Mr Knott's employment had ended. Those communications at various times refer to "future shifts and wages", speak of "when [Mr Knott] returned", thank him for letting the Respondent know that he is "ready to re-start work again", refers to him as "staff" and says that "you are not employed in Milano at Level 2." I do not consider this language consistent with the contention that Mr Knott was dismissed on 23 October 2020 or that the employment relationship had ended. In particular, I note the correspondence between Ms Wu and Mr Knott on 14 December 2020 and the explanation she provides in that correspondence for Mr Knott's removal from the group chat and HumanForce. In her email Ms Wu states that the removal from the group chat was due to changes and updates and to ensure that Mr Knott was not confused when he returned to work. As to Mr Knott's removal from HumanForce, Ms Wu says she is unaware of the reason for this and refers to updates as the possible reason, although she says that she is not "sure is it because of this." Had Ms Wu dismissed Mr Knott on 23 October 2020, I consider Ms Wu would have provided a different response to these queries. Further, Mr Latham's evidence at hearing was that only Ms Wu had the authority to dismiss Mr Knott. In those circumstances, Ms Wu's lack of knowledge as to the reasons for Mr Knott's removal from HumanForce are not, in my view, consistent with her having terminated Mr Knott's employment on 23 October 2020 and the employment relationship between the parties having ended at that time. I also consider Ms Wu's failure to respond to Mr Knott's email of 15 December 2020, in which he directly enquired as to his employment status, saying "In which case, do I still have a job?", to be of considerable relevance. Had Ms Wu terminated Mr Knott's employment on 23 October 2020 as contended and the employment relationship between the parties ended at that time, I consider it implausible that she did not reply to Mr Knott stating that.

[35] Fourthly, I consider that Mr Knott's access to the group chat until 4 December 2020 is consistent with the employment relationship still being on foot. Whilst it may be, as submitted by the Respondent, that the group chat is not a method for formal communications with employees, it is clear from the evidence before the Commission that it was used by the Respondent to communicate information to employees relevant to their duties and the performance of their role. Further, Mr Knott's evidence, which I accept, is that all staff rosters, special and messages from middle management were shared though this chat. The sharing of such information with Mr Knott after 23 October 2020 is, in my view, inconsistent with his employment having been terminated on that date.

[36] Finally, Ms Wu was not called to give evidence at the hearing. This was so despite Mr Latham confirming that Ms Wu was still employed by the Respondent. Further, no explanation was given for the failure to call Ms Wu. Given the critical nature of Ms Wu's evidence and the reliance by the Respondent on the 23 October Email, I consider the failure to call Ms Wu to be of considerable relevance. Accordingly, in light of all of the above, I do not consider that the evidence supports a conclusion that Ms Wu terminated Mr Knott's employment in the 23 October Email.

[37] As to the Respondent's reliance on the Separation Certificate, I accept that that document is dated 24 October 2020 and records that Mr Knott's employment ceased on 23 October 2020. However, Mr Latham's evidence was that he did not create or prepare the Separation Certificate and, further, he did not know when the document was created. Mr Latham's further evidence was that the document was created by Ms Li. Mr Latham confirmed at the hearing that Ms Li was still employed by the Respondent, however Ms Li was not called to give evidence as to the Separation Certificate and again, no explanation for the failure by the Respondent to call Ms Li was given. Finally, Mr Knott's evidence, which was not challenged and which I accept, was that he was at no stage provided with the Separation Certificate. I do not accept in these circumstances that the Separation Certificate may be relied upon to determinatively establish that Mr Knott was dismissed on 23 October 2020 as contended by the Respondent.

Was there a dismissal and what was its effective date?

[38] As set out above, Mr Knott submits that the Respondent dismissed him on 24 December 2020 by the "cease and desist" directive contained in its email of that date. The Respondent submits that the correspondence of 24 December 2020 was to require Mr Knott to cease contacting Ms Wu and not to terminate his employment.[45]

[39] I consider that the email of 24 December 2020 did, as contended by Mr Knott, bring about an end to the employment relationship and thereby Mr Knott's dismissal. In that email Mr Knott is required to cease and desist contacting the management team and Milano venue staff for any reason. Accordingly, through its correspondence of that date the Respondent has required that Mr Knott have no contact with personnel within the Respondent. In those circumstances, Mr Knott cannot participate in employment with the Respondent and I consider that no other conclusion can be reached than that the correspondence has brought the employment relationship between the parties to an end. Further, I consider it is at this point in time Mr Knott knows, or had a reasonable opportunity to find out, that he has been dismissed. Accordingly, I consider that the email of 24 December 2020 brought about the termination of the employment relationship between the parties and Mr Knott's employment was thereby terminated. That termination was on the Respondents initiative.[46] I therefore find that Mr Knott was dismissed by the Respondent[47] and that the effective date of that dismissal was 24 December 2020.

[40] In finding that the effective date of Mr Knott's dismissal was 24 December 2020 I have considered the 10 December Email and Mr Knott's statements within it. I accept that in isolation the 10 December Email may be considered to lend support for the Respondent's contention that Mr Knott knew that his employment had ended. However, I consider that the 10 December Email needs to be read in the context of the subsequent communications between the parties. Ms Wu's email of 14 December 2020 at 9.02 am in response to the 10 December Email speaks of her "prioritising" Mr Knott's study and exams over casual work. It does not advise or confirm that Mr Knott's employment has ended, refers to him being ready to "re-start work again" and confirms that he will be contacted about future available shifts. Ms Wu's further email at 9.46 am that day provides her explanation for Mr Knott's removal from the group chat and HumanForce. I refer to and repeat my comments set out in paragraph 34 above in relation to that email. Subsequently, Mr Knott sent the 15 December Email in which he expressly enquires as to whether he still had a job. Such an enquiry is entirely inconsistent with Mr Knott knowing that his employment had ended (but does indicate that he had concerns regarding his employment status). The Respondent could have provided a response to that email confirming that Mr Knott's employment had ended if that was the case, but it did not. Accordingly, I reject the contention that Mr Knott knew on 10 December 2020 that his employment had ended. For these reasons, I also reject the contention that Mr Knot had a reasonable opportunity to find out that his employment had ended at any time before 24 December 2020.

[41] I have found that Mr Knott was dismissed by the Respondent on 24 December 2020. Mr Knott lodged the application on 3 January 2021. Accordingly, the application was lodged within 21 days after the dismissal took effect and no extension of time is required.

[1] Witness Statement of Alexander Knott, pg.2

[2] Witness Statement of Alexander Knott, Attachment 1, CB pg.39

[3] Witness Statement of Alexander Knott, Attachment 2, CB pg.47

[4] Witness Statement of Alexander Knott, Attachment 2, CB pg.41

[5] Witness Statement of Alexander Knott, Attachment 3, CB pg.52

[6] Witness Statement of Alexander Knott, Attachment 3, CB pg.52

[7] Witness Statement of Alexander Knott, Attachment 3, CB pg.52

[8] Witness Statement of Alexander Knott, Attachment 3, CB pg.51

[9] Witness Statement of Alexander Knott, Attachment 4, CB pg.54

[10] Witness Statement of Alexander Knott, Attachment 3, CB pg.50

[11] Witness Statement of Alexander Knott, Attachment 4, CB pg.54

[12] Witness Statement of Alexander Knott, Information to Accompany Evidence Appendix, Photo 1, CB pg.37

[13] Witness Statement of Alexander Knott, Attachment 5, CB pg.58-59

[14] Witness Statement of Alexander Knott, Attachment 5, CB pg.57-58

[15] Witness Statement of Alexander Knott, Attachment 5, CB pg.57

[16] Witness Statement of Alexander Knott, Attachment 5, CB pg.56-57

[17] Witness Statement of Alexander Knott, Attachment 5, CB pg.56

[18] Witness Statement of Alexander Knott, Attachment 5, CB pg.56

[19] Witness Statement of Alexander Knott, Attachment 5, CB pg.56

[20] Witness Statement of Alexander Knott, Attachment 6, CB pg.62-64

[21] Witness Statement of Alexander Knott, Attachment 6, CB pg.61-62

[22] Witness Statement of Alexander Knott, Attachment 6, CB pg.61

[23] Respondent's Outline of Argument, Q.1c, Form F8A at [2.4]

[25] Respondent's Outline of Argument, Q.1c

[27] Respondent's Outline of Argument, Q.1a

[29] Respondent's Outline of Argument, Q.1e

[30] Respondent's Outline of Argument, Q.1c

[31] Applicant's Outline of Argument, Q.1c

[32] Applicant's Outline of Argument, Q.1a

[33] Applicant's Outline of Argument, Q.1i

[34] Witness Statement of Alexander Knott, CB pg.34

[35] Witness Statement of Alexander Knott, CB pg.34

[36] Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24]; Ayub v NSW Trains [2016] FWCFB 5500 (Hatcher VP, Wells DP, Johns C, 30 September 2016)

[37] Plaksa v Rail Corporation NSW [2007] AIRC 333 (Cartwright SDP, 26 April 2007) at para. 8; citing Barolo v Centra Hotel Melbourne, Print Q9605 (AIRC, Whelan C, 10 December 1998); Mohammed Ayub v NSW Trains [2016] FWCFB 5500 (Ayub) at [17], [48] and [49]

[38] [2016] FWCFB 5500 at [48] and [49]

[40] [2016] FWC 1029 at [49]

[41] Predl v DMC Plastering Pty Ltd [2014] FCCA 1060

[42] See AJ Mills & Sons Pty Ltd v Transport Workers' Union of New South Wales [2009] NWSIRComm 135; [2009] NSWIRComm 135; (2009) 187 IR 56, which involved a casual engagement requiring a racing steward to attend throughout the year

[43] Siagian v Sanel Pty Ltd [1994] IRCA 2; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]

[44] Visscher v Guidice and Others [2009] HCA 34; (2009) 258 ALR 651 at [53] to [5] per Heydon, Crennan, Keifel and Bell JJ; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]- [22]; Khayam v Navitas English Pty Ltd [2017] FECFB 5162 at [31]-[50]

[45] Respondent's Outline of Argument, Q.1f

[46] See Fair Work Act 2009, section 386

[47] As defined in the Fair Work Act 2009, section 386

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