Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - whether application made outside of statutory timeframe - application made outside statutory timeframe - application for extension of time dismissed because there are no exceptional circumstances

• [1] Rhidian Lloyd Cody (the Applicant) lodged an application with the Fair Work Commission (the Commission) for the Commission to deal with a general protections dispute in relation to the termination of his employment by Stratacache Australia Pty Ltd (the Respondent).

• [2] There is a dispute between the parties regarding when the Applicant's employment with the Respondent ended. The Respondent asserts that the Applicant was dismissed on 28 September 2021, effective immediately, whereas the Applicant claims he was dismissed on 5 October 2021 when he was provided written notice of the termination. The Applicant lodged the present application on 26 October 2021. Should the Applicant be found to be terminated on 28 September 2021, as asserted by the Respondent, the application would therefore have been filed 28 days after the dismissal, being seven days outside the statutory time limit prescribed by s.366(1) of the Fair Work Act 2009 (Cth) (the Act). It is therefore necessary to determine the date of which the dismissal took effect, and if required, whether a further period should be allowed under s.366(2) of the Act for the application to be made.

• [3] Directions were issued and material filed by each party regarding the question of whether the Applicant should be granted the extension. A hearing was held before me via Microsoft Teams on 4 March 2022, at which the Applicant appeared on his own behalf and Ayesha Kumar (Head - People, Performance & Culture - APAC), appeared for the Respondent.

• [4] The Applicant submits he was not dismissed until 5 October 2021 on the basis that an initial call was held on 28 September 2021 in which the Applicant was informed of an "impending dismissal", however, he says it was not clear that his employment was terminated during that call. That is particularly so given the Applicant's employment contract stipulated that "the agreement may be terminated... by giving written notice". That written notice was not provided to the Applicant until 5 October 2021.

• [5] The Applicant submits that s.117(1) of the Act provides that a notice of termination is to be delivered in writing and that none of the exceptions to this provision are applicable to him. On that basis, the Applicant asserts that his termination was not effective until he was given written notice on 5 October 2021.

• [6] Section 117(2)(b) of the Act provides that an employer must not terminate an employee's employment without notice unless payment in lieu of notice has been made. The Applicant asserts he has not received any information regarding a payment in lieu of notice until 8 October 2021 and later was paid only some of the calculated total on 15 October 2021. The remainder of this payment remains outstanding.

• [7] Following the Applicant's call on 28 September 2021, the Applicant submits he was given a time during which the Respondent had indicated he could opt to resign instead of being dismissed. He also continued in his duties, which included attending client meetings in addition to awaiting a response to an email he had sent following the discussion disputing many of the accusations made against him. The Applicant states that he did not stop performing his duties until 5 October 2021 when he received the termination letter.

• [8] On 5 October 2021, the Applicant says he received the letter of termination via email. The reasons for the dismissal were not included and the letter was backdated to 28 September 2021, despite the PDF's file properties showing the export date from Microsoft Word as 5 October 2021 along with the time in Singapore local time (being the location of Stratacache APAC's headquarters).

• [9] In light of the above, the Applicant submits that the earliest date which could be considered the effective termination date is 5 October 2021. That being so, given the Applicant's application to the Commission was lodged on 24 October 2021, it was within the 21-day statutory timeframe.

• [10] The Applicant further submits that should it be found that he was terminated on 28 September 2021, an extension ought to be granted because exceptional circumstances exist. Namely, that the effective date of the termination was not clearly communicated on 28 September 2021 during the conference call.

• [11] The Respondent submits that the jurisdictional objection should be upheld on the basis that the Applicant's application was made out of time and no exceptional circumstances exist warranting an extension.

• [12] The Respondent asserts that the Applicant was terminated on 28 September 2021 when the Applicant attended a video call with the Managing Director (Mr Kumar) and HR Head (Ms Kumar) who informed him of management's decision to terminate his employment, effective immediately. They also communicated the reasons for the decision and told him that the human resource department would issue a termination letter immediately after the call. The Applicant was also informed that he would receive four weeks' pay in lieu of notice. This, the Respondent submits, was documented in the termination letter dated the same day (albeit not sent until 5 October 2021).

• [13] The Respondent acknowledges that at the end of the call on 28 September 2021, the Applicant requested time to tender his resignation instead of being terminated. The Respondent agreed to a period of 24 hours to provide the Applicant to tender his resignation effective 28 September 2021.

• [14] No communication was received at the end of the 24-hour period, thereby necessitating a follow up email dated 29 September 2021 from Ms Kumar to the Applicant, which read (relevantly):

"Following on from the meeting yesterday, could you please share what is your decision so we can process the paperwork accordingly.

Please respond to this email at the earliest as the timeframe given was 24 hours."

• [15] A second follow up email was sent to the Applicant on 2 October 2021. In this email, the Applicant was clearly informed that if the Respondent did not receive a resignation within four hours, it would have no option but to proceed with the termination process. That email read (relevantly):

"This is now my second email following on from our discussion which happened on 28th September 2021.

We have been very accommodating as per your request of a 24 hour time period to tender your resignation. I have still not heard anything from you.

The team and I have been very patient and accommodating in our approach.

If we do not hear back from you in the next 4 hours, we will have to follow the organisation's termination process.

• [16] The Applicant responded to the email the following day, stating clearly that he had decided to acquiesce to the termination (rather than resign). The Applicant also clearly acknowledged in his email that "it has been made very clear to [him] in the virtual meeting on September 28, 2021, that the management decision to terminate him was final".

• [17] Following the Applicant's email, the termination letter dated 28 September 2021 was issued to the Applicant on 5 October 2021. The Respondent submits that the termination letter clearly states that the Applicant had a call with the Managing Director and Human Resources on 28 September 2021 in which the Applicant was informed of the decision to terminate the Applicant's employment with immediate effect.

• [18] In light of the above, the Respondent submits that the Applicant was fully aware that his employment with the Respondent had been terminated with effect from 28 September 2021. The Respondent refrained from issuing the written termination notice until 5 October 2021 to accommodate the Applicant's request for time to tender his resignation. The Respondent argues that it cannot be penalised for accommodating in good faith the Applicant's request to provide him time to tender his resignation instead of being terminated.

• [19] The Respondent further notes that it had paid the Applicant payment in lieu of notice, the calculations of which were provided to the Applicant as early as 8 October 2021. The email issued to the Applicant on that day by the Respondent's Accounting Department states that his four weeks of pay in lieu of notice would be paid as part of the payroll the following week. Payment was made to the Applicant on 15 October 2021. The Respondent explains that certain company assets remain in the Applicant's custody, so the Respondent has been unable to complete the full and final settlement of accounts with the Applicant.

• [20] The Respondent further advises that the Respondent ceased to have access to his official email on 28 September 2021 as is clearly evidenced by the fact that the follow up emails issued to the Applicant on 29 September and 2 October were directed to an alternative email address. The Respondent asserts that the Applicant did not carry out any jobs or duties for the Respondent after 28 September 2021 and any averments contrary to this made by the Applicant are incorrect and false.

• [21] The Respondent seeks that no extension be made to the Applicant as this would be prejudicial to the Respondent. The Respondent submits that the Applicant was fully aware that his employment with the Respondent was terminated with effect from 28 September 2021 and therefore his general protections application involving dismissal on 26 October 2021 is beyond the 21 day period specified under s.366(1)(a) of the Act. The Respondent further submits that there are no exceptional circumstances in the present case which warrants the Commission to allow a further period beyond the statutory time limit.

• [22] I accept the Applicant was notified of his dismissal on 28 September 2021.

• [23] The Respondent attested that at the virtual meeting on 28 September 2021 - at which the Applicant, Ms Kumar and Mr Kumar attended - it was made clear to the Applicant that the Respondent had made the decision to terminate his employment effective immediately. The evidence of Mr Kumar was that he terminated the Applicant after performance concerns were raised and he had not been present for work. He gave one example of an important meeting of global attendees organised by the Applicant that the Applicant did not attend. After a series of performance concerns were raised, Mr Kumar decided to dismiss the Applicant.

• [24] Once Mr Kumar had delivered his decision, he handed the meeting over to Ms Kumar. It was at this point that the Applicant indicated that he wanted to reflect on what had happened and at that point the Applicant was told that if he wished to resign that he could do so in the next 24 hours and the Respondent would process the termination as a resignation.

• [25] The Applicant did not respond within the 24-hour period and so the termination was processed as a dismissal effective as discussed on 28 September 2021. The Applicant contends that as the letter was not received until 5 October that that should be the date for the termination in which case his application would be in time. The Respondent was clear that they dismissed him but were prepared to wait to execute the termination if the Applicant wanted to avail himself of the opportunity to resign. The Applicant seeks to paint the picture that he undertook some work during the period of 28 September 2021 until 5 September 2021 which the Respondent denies. The Respondent further states that the Applicant was removed from the email and other systems following the termination discussion on 28 September 2021. The Respondent points to all communication going through the Applicant's personal email and he was removed off other IT systems in the following days as the US parent company implemented Ms Kumar's instructions following the termination meeting.

• [26] Whilst the Applicant painted a picture that there was confusion on the date of the effective termination and stated that he performed work after 28 September 2021 it was clear that there had been an offer from the employer to offer a 24 hour period where they would hold the termination in abeyance if he wished to avail himself of the opportunity to resign. He did not do that and so the termination was processed with the date the employer determined.

• [27] I am satisfied that the Applicant's termination was effective on 28 September 2021. In light of this finding, it follows that the application was made out of time.

• [28] Section 366(2) of the Act provides that the Commission may allow a further period if it is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay;

(b) any action taken by the person to dispute the dismissal;

(c) prejudice to the employer (including prejudice caused by the delay);

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

• [29] The test of "exceptional circumstances" establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR), the Full Bench of Fair Work Australia stated that:

"In summary, the expression 'exceptional circumstances' has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe 'exceptional circumstances"' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."[2]

• [30] I turn now to each of the factors set out in s.366(2) of the Act.

• [31] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable,[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

"The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each."[5]

• [32] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application had expired and ending on the day on which an application is ultimately lodged. That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]

• [33] The Applicant stated that he was shocked and wanted to collect the evidentiary material to make the application. He also says he did not appreciate that his termination was effective as at 28 September 2021. Had he done so, he says he would have lodged the application earlier and within time. However, based on the evidence before me, I do not accept that was a reasonable position to take. He was told on 28 September 2021 that his employment would not continue. He accepts that. He was offered an opportunity to provide his resignation but ultimately decided not to do so. The Respondent began communicating with him via his personal email because they had begun to terminate access to his work account. It may be that he hoped that the Respondent would change its mind but based on the unequivocal nature of the conversation on 28 September 2021, I do not accept that was a reasonable view to hold. Consequently, I do not accept that the Applicant could have been in doubt about the termination of his employment. I am not satisfied that any exceptional circumstances have been evidenced.

• [34] He did not dispute the dismissal apart from an email dated 3 October 2021 in which he asserted his view of his performance and offered explanations for the issues that had been raised by the Respondent. However, this communication came after the deadline for his response that had been mandated by the Respondent. In any event, given the nature of the conversation on 28 September 2021, the only real response the Applicant was invited to provide was whether his employment would terminate by way of dismissal or resignation. He was not invited to make submissions regarding whether his employment should be terminated. That much had already been decided by the Respondent.

• [35] In Kornicki v Telstra-Network Technology Group, the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Commission said:

"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."[7]

• [36] The Applicant did not make out his general protections claim in any detail, so I am not in a position to evaluate the merits of his application. Accordingly, this factor is neutral.

Prejudice to the employer & Fairness between the person and others in a like position

• [37] Neither party made submissions nor gave evidence in respect of these factor. I consider them to be neutral.

• [38] I am not satisfied that exceptional circumstances exist to warrant the granting of an extension of time.

• [39] Accordingly, I order that the application is dismissed.

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901 [14].

[2] [2019] FWC 25.

[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975 [9].

[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64 [16].

[5] [2018] FWCFB 901 [39].

[6] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty

Ltd [2014] FWCFB 2149, [31] - [33]; and Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[7] Kornicki v Telstra-Network Technology Group Print P3168, 22 July 1997.

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