1
Fair Work Act 2009
s.394—Unfair dismissal
Bernarbe Espinoza Muga
v
BIC Services Pty Ltd
(U2022/4603)
DEPUTY PRESIDENT ANDERSON ADELAIDE, 7 JULY 2022
Application for an unfair dismissal remedy – cleaning supervisor – jurisdiction – whether
resigned – dismissal found – date dismissal took effect – application filed within time –
jurisdictional objection dismissed
[1] On 20 April 2022 Bernabe Espinoza Muga (the applicant or Mr Espinoza Muga) applied
to the Commission under s 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal
remedy. Mr Espinoza Muga says he was dismissed on 30 March 2022. At the date of alleged
dismissal, Mr Espinoza Muga was employed as a cleaning supervisor.
[2] Mr Espinoza Muga claims his dismissal was harsh, unjust or unreasonable. He seeks
compensation.
[3] The respondent is BIC Cleaning Services Pty Ltd (BIC, the employer or the respondent).
[4] BIC opposes the application. It raises jurisdictional issues. It contends that Mr Espinoza
Muga resigned and was not dismissed. In the alternative, it says that the application is six or
seven days out of time because a dismissal (if any) took effect on 23 or 24 March 2022. It
opposes an extension of time. In the further alternative and on merit, BIC says that its conduct
was not unfair and no issue of remedy applies.
[5] Mr Espinoza Muga says that his application is not out of time, but if it is, then an
extension of time should be granted.
[6] Conciliation has not been conducted in light of the jurisdictional issues.
[7] I issued directions on 1 June 2022.
[8] In advance of the hearing, I received materials from Mr Espinoza Muga and BIC.
[9] I heard the jurisdictional issues (whether dismissed, whether out of time, whether time
should be extended) by video conference on 27 June 2022.
[2022] FWC 1708
DECISION
AUSTRALIA FairWork Commission
[2022] FWC 1708
2
[10] I granted permission for Mr Espinoza Muga to be legally represented. BIC was
represented by Human Resources Manager, Mr Stone, assisted by Ms Di Bello (General
Manager People and Culture).
[11] This decision deals only with the jurisdictional issues.
Evidence
[12] There are disputed facts.
[13] I heard evidence from Mr Espinoza Muga on a statement filed in his name1.
[14] BIC filed two statements – one from a former Site Manager, Mr Di Ciano, and one from
an Executive Manager, Mr Multani. Each statement was signed and witnessed, though unsworn.
[15] Neither Mr Di Ciano nor Mr Multani were made available to be sworn on their
statements or for cross examination. No prior notice had been given to the Commission or Mr
Espinoza Muga of the non-attendance of these witnesses. No adjournment application was
made.
[16] The statement of Mr Multani was, after consideration by Mr Espinoza Muga’s
representative, admitted by consent.2
[17] However, the statement of Mr Di Ciano was objected to. After hearing the parties, I
refused to admit Mr Di Ciano’s statement into evidence other than to note it for identification
as part of the employer’s materials, given that Mr Espinoza Muga replied to it in his evidence.3
[18] Mr Di Ciano was the only officer of the company who, on the employer’s case, was
present when Mr Espinoza Muga is said to have resigned. In this matter, it would be highly
prejudicial to admit into evidence a contested statement on a matter centrally in dispute without
Mr Di Ciano’s evidence being tested. Whilst the Commission is not bound by the rules of
evidence they are at least a useful guide, and it operates according to the rules of procedural
fairness. Without the statement of Mr Di Ciano sworn in as truthful, and without his evidence
tested, there is no basis on which findings could safely be made in simple reliance on what he
has written.
[19] The state of the evidence, with Mr Multani’s statement not tested and with Mr Di
Ciano’s statement not admitted, adds difficulty to fact-finding. That notwithstanding, the other
documentary material is clear on its face. Further, Mr Espinoza Muga was generally a reliable
witness whose evidence was largely plausible even though I apply a degree of caution where
there is no independent corroboration.
Facts
1 A1
2 R3
3 MFI1
[2022] FWC 1708
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[20] I make the following findings.
[21] The respondent operates a commercial cleaning business with contracts that include
cleaning at Macquarie University.
[22] Mr Espinoza Muga was employed as a full-time cleaning supervisor.
[23] His immediate report was Site Manager Mr Di Ciano. He also reported further to the
General Manager of Operations (Mr Guerreiro) and Mr Multani (Executive Manager).
[24] Conflict over Mr Espinoza Muga’s performance arose between he and Mr Di Ciano. On
18 March 2022 Mr Espinoza Muga was issued a first and final warning following a performance
meeting on 16 March 2022 attended by Mr Espinoza Muga, Mr Di Ciano, Mr Guerreiro, Mr
Multani and Mr Stone.
[25] On 23 March 2022 a discussion occurred between Mr Espinoza Muga and Mr Di Ciano.
It was witnessed by no other person. It was not recorded.
[26] BIC submit that in this discussion Mr Espinoza Muga verbally resigned and that his
resignation was accepted by Mr Di Ciano. Mr Espinoza Muga says that he did not resign. I
make findings on this discussion in the body of this decision.
[27] The following day, 24 March 2022, Mr Espinoza Muga attended work, as rostered.
Upon commencing work, another discussion occurred between Mr Espinoza Muga and Mr Di
Ciano. Mr Espinoza Muga says that he was told by Mr Di Ciano that his employment was
terminated (or words to that effect) and a blank resignation form was put in front of him for
signing. He refused to sign. I make findings on this discussion in the body of this decision.
[28] Mr Di Ciano then asked Mr Espinoza Muga for his keys, work-issued phone and ID
card. Mr Espinoza Muga gave Mr Di Ciano his keys and ID card. Mr Espinoza Muga went to
his car where he removed his personal details from the work issued phone.
[29] On walking back into the office with the phone, Mr Espinoza Muga encountered Mr
Multani. He asked Mr Multani what was going on. Mr Multani told Mr Espinoza Muga that he
(Mr Espinoza Muga) was suspended with pay for the notice period and that “the office will call
you”.4 According to Mr Multani’s statement, which was untested, Mr Multani told Mr Espinoza
Muga that he (Mr Multani) believed that Mr Espinoza Muga had resigned.5
[30] Mr Espinoza Muga then handed Mr Di Ciano the phone and left the business. He did
not return or perform further work for BIC.
[31] On his way home, Mr Espinoza Muga tried to telephone Mr Stone but did not get
through.
4 A1 paragraph 21
5 R3 paragraph 5
[2022] FWC 1708
4
[32] The following day, 25 March 2022, Mr Espinoza Muga spoke to Mr Stone by telephone.
Mr Stone invited Mr Espinoza Muga to a meeting. Mr Espinoza Muga declined, stating that he
was not feeling well.
[33] At 12.34pm on 25 March 2022 Mr Espinoza Muga received, by email, a resignation
letter from BIC. The letter read:6
“24 March 2022
Bernabe Espinoza Muga
RE: YOUR RESIGNATION
This letter is to confirm the meeting held today and BIC acknowledges receipt and
accepts your verbal resignation on 24 March 2022.
B.I.C. Services Pty. Limited (BIC) confirms that your last day of employment was on
Wednesday 23 March 2022.
BIC is willing to waive your notice period and has agreed to pay you $13,084.58 gross,
upon the return of all company property.
A breakdown of your final gross payment upon return of all company property is as
follows:
1) Salary – 76 hours ($3,269.23)
2) Notice Period - 76 hours ($3,269.23)
3) Unused Annual Leave – 152.178 hours ($6,546.12)
We would also like to remind you of your continuing post-employment contractual
obligations to BIC. These obligations relate to, among other items, confidential
information and your post-employment conduct. These obligations continue
notwithstanding the cessation of your employment with BIC.
We would like to thank you for your contribution, and we wish you all the best for the
future.
Yours faithfully,
B.I.C. Services Pty. Limited
Nino Guerreiro
GM – Operations” (emphasis in original)
6 R1; Payout calculations in letter were corrected by revised letter sent at 12.54pm (R3)
[2022] FWC 1708
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[34] Mr Espinoza Muga replied to Mr Stone by email at 2.24pm that day (25 March 2022).
He stated:7
“Hi Shaun
I hope you are well
Thank you for your (sic) letter, I will ask for professional advice first and I will get back
to you”
[35] Mr Espinoza Muga visited his general practitioner. By a medical certificate dated 26
March 2022, he was certified to be unfit for work from 25.3.22 to 8.4.22 and suffering from
“severe anxiety neurosis”. Mr Espinoza Muga says that his doctor told him not to resign or sign
resignation deeds if he did not wish to do so.
[36] On 27 March 2022 Mr Espinoza Muga sent the medical certificate dated 26 March 2022
to BIC.8 Mr Espinoza Muga subsequently obtained two further certificates for the periods
11.4.22 to 15.4.22 and 19.4.22 to 25.4.22.
[37] On 28 March 2022 at 6.17pm Mr Espinoza Muga was sent a ‘Deed of Release’ by Mr
Guerreiro. The deed was sent at the request of Ms Di Bello, General Manager People and
Culture. The deed was unsigned. It was dated 24 March 2022. It stated:9
“The Employee’s employment ceased by reason of resignation on 23 March 2022 (“the
Termination”).”
[38] The deed proposed payment of a settlement sum. The covering email from Mr Guerreiro
read:10
“Hi Ben
Please read and sign and send back to me tomorrow as this includes everything we have
discuss please. If you have any further questions please do not hesitate to contact me
directly thank you.
Kind regards,”
[39] Mr Espinoza Muga did not sign the deed nor return it to Mr Guerreiro.
[40] Mr Espinoza Muga replied within the hour. At 6.54pm on 28 March 2022 Mr
Espinoza Muga emailed Mr Guerreiro in the following terms:11
7 R2
8 A1 Attachment C
9 R1 Attachment D Recital B
10 A1 Attachment D
11 A1 paragraph 33
[2022] FWC 1708
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“Hi Nino
Just to clarify I haven’t resigned, Robert De Canio advised termination on-site at
Macquarie university 24/03/2022 who took my id and phone, on the 23/03/2022 I made
a comment to Robert De Canio due the recent lack staff resource to fulfill the contractual
obligations and that I was feeling unwell.
I have received a written warning for lack of training of cleaners which i don’t believe
this is reflecting the circumstance.
Below is a letter from my gp to support my sick leave which has already been provide
Shawn stone HR manager yesterday morning.
Can you clarify if the letter attached in your previous email is a termination letter that
BIC is letting me go as I will need to seek out advice on how to proceed.
Do take into consideration that my gp has advised to take time off and further testing
may be required.
Thanks”
[41] No response was received.
[42] On 30 March 2022 Mr Espinoza Muga received a pay slip from the employer and final
payment was deposited into his bank account. Mr Espinoza Muga was paid two weeks in arrears
and two weeks in lieu of notice. The payslip stated “Termination Date 23-Mar-2022”.12
[43] Mr Espinoza Muga sought legal advice on or about 8 April 2022. An appointment was
scheduled with his solicitor on 13 April 2022.
[44] Mr Espinoza Muga provided instructions to file an unfair dismissal claim. It was filed
by Mr Espinoza Muga’s solicitor on 20 April 2022. It was filed on that day because the solicitor
calculated twenty-one days from 30 March 2022.
[45] Both Mr Espinoza Muga and his solicitor believed he filed on the twenty-first day after
his dismissal took effect.
Submissions
Mr Espinoza Muga
[46] Mr Espinoza Muga submits that he was dismissed when told by Mr Di Ciano on 24
March 2022 that his employment was terminated and when he was required to return his keys,
ID card and work issued phone. He says his dismissal took effect when he received his final
payment on 30 March 2022.13
12 A1 Attachment F
13 Confusingly however, Mr Espinoza Muga’s F2 application states that he was notified of dismissal on 30 March 2022 with
dismissal taking effect 23 March 2022
[2022] FWC 1708
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[47] Mr Espinoza Muga submits that he did not resign verbally or in writing, and that he
specifically declined to complete a blank resignation form or agree to a resignation letter or sign
a deed of release, each of which had been drafted by his employer.
[48] Mr Espinoza Muga says that if it is found that he resigned then he was forced to resign
by the conduct of the employer and that this constitutes a dismissal within the meaning of s
386(1)(b) of the FW Act. He claims that his resignation was set up by the employer.
[49] Mr Espinoza Muga says that his application is within time. In the alternative, he says
that an extension of time should be granted because he placed the matter in the hands of his
solicitor and expected the application to be filed within time.
BIC
[50] BIC submit that Mr Espinoza Muga resigned on 23 March 2022 in discussion with Mr
Di Ciano.
[51] BIC submit that Mr Espinoza Muga’s action in returning his keys, phone and ID card
on 24 March 2022, and leaving the workplace and not working since, provide evidence that his
employment had ceased. BIC says this conduct is consistent with Mr Espinoza Muga having
resigned the day prior.
[52] In the alternative, BIC says that the application is six or seven days out of time because
a dismissal (if one occurred) took effect on 23 or 24 March 2022. It opposes an extension of
time.
Consideration
[53] I am satisfied that Mr Espinoza Muga was a person protected from unfair dismissal
within the meaning of s 382 of the FW Act. He served the required minimum employment
period (s 382(a)). His annual rate of earnings did not exceed the high-income threshold (s
382(b)(iii)). His employer was a “national system employer” within the meaning of s 14 of the
FW Act.
[54] BIC is not a “small business” for the purposes of the unfair dismissal provisions of the
FW Act.
[55] Three issues require determination:
1. Was Mr Espinoza Muga dismissed within the meaning of the FW Act?
2. If Mr Espinoza Muga was dismissed, on what date did his dismissal take effect?
3. If (but only if) Mr Espinoza Muga’s application is out of time, should an extension
be granted?
Was Mr Espinoza Muga dismissed?
[2022] FWC 1708
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[56] I now consider whether Mr Espinoza Muga was dismissed.
[57] Section 386 of the FW Act provides:
“386 Meaning of dismissed
(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.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified
period of time, for a specified task, or for the duration of a specified season, and
the employment has terminated at the end of the period, on completion of the
task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any
reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her
remuneration or duties; and
(ii) he or she remains employed with the employer that effected the
demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind
referred to in paragraph (2)(a) if a substantial purpose of the employment of the person
under a contract of that kind is, or was at the time of the person’s employment, to avoid
the employer’s obligations under this Part.”
[58] Whether Mr Espinoza Muga was dismissed requires an objective finding of fact. The
test is not whether BIC believed Mr Espinoza Muga had freely resigned nor whether Mr
Espinoza Muga believed that he had been dismissed. Whilst the belief of a party (stated or
unstated) is a relevant evidentiary consideration, it is not determinative.
[2022] FWC 1708
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[59] There is no doubt that Mr Espinoza Muga’s employment relationship with BIC came to
an end. How so and when is the issue.
[60] There is no written resignation or acknowledgement of resignation authored or signed
by Mr Espinoza Muga.
[61] There is no written letter of dismissal by BIC and no evidence of a considered decision
to dismiss.
[62] BIC submit that Mr Espinoza Muga’s resignation was verbally made in a one-on-one
discussion with Mr Di Ciano on 23 March 2022. Under cross examination and in answer to
questions from the Commission, Mr Espinoza Muga’s evidence was that he said words to Mr
Di Ciano to the effect:14
“I will resign if I have another job to go to”.
[63] On the balance of probabilities, I find this is what Mr Espinoza Muga said in response
to Mr Di Ciano raising further criticism of Mr Espinoza Muga’s performance as a supervisor. I
find that resignation was mentioned by Mr Espinoza Muga but in this qualified manner only.
As Mr Espinoza Muga did not have another job to go to, he did not follow through and resign,
even if Mr Di Ciano wanted his resignation or took what was said as a resignation. What Mr
Espinoza Muga said to Mr Di Ciano was not a resignation. It matters not that Mr Di Ciano
subsequently told Mr Multani or others that Mr Espinoza Muga had resigned.15 That did not
make it so. What matters is what was said by Mr Espinoza Muga and the conduct of the parties
in subsequent dealings.
[64] The subsequent conduct of the parties is consistent with this finding. In particular:
On 24 March 2022 Mr Espinoza Muga attended work intending to perform his usual
rostered shift;
On 24 March 2022 Mr Espinoza Muga refused to complete a blank resignation form;
On 25 March 2022, in response to an unsolicited resignation letter authored and sent
to him by the employer, Mr Espinoza Muga told BIC that he intended to take advice
on the matter;
On 28 March 2022 Mr Espinoza Muga refused to sign an unsolicited Deed of Release
authored and sent to him by the employer that stated he had resigned; and
On 28 March 2022, in response, Mr Espinoza Muga explicitly told the employer he
had not resigned.
[65] Even were I to have found that Mr Espinoza Muga had resigned, it is more than tolerably
arguable that Mr Espinoza Muga’s resignation was “forced” within the meaning of s 386(1)(b)
14 Recording of hearing at 55:55-56:12; 57:01-57:48
15 R3 paragraph 4
[2022] FWC 1708
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of the FW Act in that he was forced to do so because of conduct, or a course of conduct, engaged
in by his or her employer. In support of this conclusion is that:
Mr Espinoza Muga was under heat of the moment pressure in his discussion with Mr
Di Ciano on 23 March 2022, having been criticised again by his immediate manager
about his performance one week after receiving a first and final warning; and
Mr Espinoza Muga had no other job to go to, although he had started looking, as a
result of his employer’s loss of trust in his performance evidenced by the warning the
week prior.
[66] BIC’s conduct following the alleged resignation supports a conclusion that it (BIC)
sought out Mr Espinoza Muga’s resignation in writing. On 24 March 2022 the employer placed
a blank resignation form in front of Mr Espinoza Muga for completion; that same day it told
Mr Espinoza Muga to return his keys, ID card and work issued phone; that same day it told Mr
Espinoza Muga he was not required to attend future shifts until “contacted by the office”; a day
later the employer authored a resignation letter; and three days later it sent Mr Espinoza Muga
a deed of release stating that he had resigned.
[67] I take into account that this conduct by the employer is also consistent with Mr Espinoza
Muga having verbally resigned on 23 March 2022 and the employer then wanting his
resignation confirmed in writing. However, absent evidence from Mr Di Ciano, and accepting
the evidence of Mr Espinoza Muga, I do not make that finding.
[68] I have also considered the possibility that Mr Espinoza Muga may have verbally
resigned in the heat of the moment on 23 March 2022 but shortly thereafter regretted doing so
and that he, in the days following, avoided confirming a resignation which by then he regretted.
However, this is mere conjecture. It is not a finding open to be made given that I consider
credible the plausible denials by Mr Espinoza Muga that he resigned in an unqualified manner.
[69] If Mr Espinoza Muga did not resign, how then did the employment relationship come
to an end?
[70] I find that Mr Di Ciano told Mr Espinoza Muga on 24 March 2022 that he was
terminated (or words to that effect) and that he should complete a resignation form. I find that
Mr Espinoza Muga was told not to continue working that day. I find that Mr Espinoza Muga
was told to return his company keys, phone and ID card. I find that Mr Espinoza Muga was not
required to work future shifts.
[71] These findings are consistent with Mr Espinoza Muga having been notified of
termination that day.
[72] I make this finding recognising that Mr Di Ciano and other managers and executives
such as Mr Stone, Mr Multani, Mr Guerrerio and Ms Di Bello may have been led to believe by
Mr Di Ciano that Mr Espinoza Muga had resigned.
[73] I have considered the possibility that Mr Di Ciano may have used the phrase “you are
terminated” on the morning of 24 March 2022 in a colloquial sense to mean “your employment
[2022] FWC 1708
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has ended” (due to resignation) rather than it being the product of a decision to dismiss.
However, not having heard from Mr Di Ciano that is mere conjecture.
[74] BIC submit that Mr Di Ciano did not have authority to dismiss without reference to
others. This was a proposition advanced by submission, not evidence. In any event, this does
not mean that Mr Di Ciano did not have ostensible authority to dismiss if in fact, as I have
found, he was Mr Espinoza Muga’s immediate report and had told Mr Espinoza Muga that his
employment was terminated.
[75] I find that Mr Espinoza Muga was notified of the termination of his employment on 24
March 2022 when Mr Di Ciano said “you are terminated” or words to that effect and then
required Mr Espinoza Muga to return company keys, phone and ID card and not work future
shifts. It was conduct on the employer’s initiative and thus a dismissal within the meaning of s
386(1)(a) of the FW Act.
On what day did Mr Espinoza Muga’s dismissal take effect?
[76] Mr Espinoza Muga submits that his dismissal took effect on 30 March 2022 when he
received his final payslip and when his final payment was deposited into his bank account.
[77] BIC submit that Mr Espinoza Muga’s dismissal (if dismissed) took effect on 23 or 24
March 2022, as his payslip describes his “termination date” as 24 March 2022 and this was the
day he left the workplace not to return.
[78] Subject to any contrary indication, an employment relationship ends when an employee
becomes aware of the employer’s decision to end it or has a reasonable opportunity to become
aware of that fact.16
[79] There is superficial attraction to the employer’s submission that the date Mr Espinoza
Muga’s dismissal took effect was 24 March 2022 because that was the day Mr Espinoza Muga
returned the employer’s property and after which he did not subsequently work.
[80] However, it does not necessarily follow that was the date dismissal took effect if the
circumstances suggest otherwise. Being notified of dismissal does not necessarily equate to the
dismissal taking effect on the day of notification.
[81] In this matter, more compelling is that Mr Espinoza Muga in the days following 24
March 2022 sent the employer medical certificates for future periods of absence. On 25 March
2022 Mr Espinoza Muga also told the employer that he was seeking advice on a resignation
letter authored by the employer. On 25 and 28 March 2022 the employer sent Mr Espinoza
Muga documents about his employment in an endeavour to confirm a resignation or negotiate
the terms of his employment ending. On 28 March 2022 Mr Espinoza Muga expressly posed a
question to employer as to their intent:17
16 Mihajlovic v Lifeline Macarthur [2013] FWC 9804; Ayub v NSW Trains [2016] FWCFB 5500; Foyster v Bunnings Group
Limited [2017] FWCFB 3923
17 A1 paragraph 33 referencing email 6.54pm 28 March 2022 paragraph 4
[2022] FWC 1708
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“Can you clarify if the letter attached in your previous email is a termination letter that
BIC is letting me go as I will need to seek out advice on how to proceed.”
[82] He received no response.
[83] The conduct by Mr Espinoza Muga and the employer in the period 24 to 30 March 2022
is consistent with termination having already been notified but not yet given effect.
[84] This is not a matter where, in the period 24 to 30 March 2022 Mr Espinoza Muga was
absent due to having been paid in lieu of notice. Were that to have been the case, it is clear that,
absent contrary conduct, termination would have taken effect from 24 March 2022.18 In this
matter, the period of notice paid out in lieu was the two weeks following (not prior to) 30 March
2022. The sum paid on 30 March 2022 for the period prior to 30 March 2022 was in part for
work which had been performed and not paid and in part for authorised absence (24 to 30 March
2022) with pay. The sum paid for the period after 30 March 2022 was a payment of two weeks
in lieu of notice.
[85] The evidence of Mr Multani (and Mr Espinoza Muga) that he told Mr Espinoza Muga
on 24 March 2022 that he was “suspended” adds little. Treating this untested evidence with
caution, I cannot safely conclude what was meant. Noting that Mr Multani believed a
resignation had occurred, Mr Multani could have been referring to Mr Espinoza Muga still
being employed but not required to work until termination arrangements (whether by
resignation or dismissal) were finalised or alternatively Mr Multani could have meant that Mr
Espinoza Muga was still employed but stood down until a future decision on his employment
was made. Either way, the reference by Mr Multani to “suspension” is not inconsistent with a
finding that Mr Espinoza Muga remained an employee in the days that immediately followed
24 March 2022.
[86] Notwithstanding the somewhat unsatisfactory state of the evidence, it is more probable
than not that Mr Di Ciano, for whatever reason, incorrectly informed Mr Multani and other
officers of the employer that Mr Espinoza Muga had verbally resigned on 23 March 2022 and
from that a cascading series of events took place in which company officers drafted material
for a resignation to be formalised in writing and in parallel were content to not require Mr
Espinoza Muga to work future shifts until his termination was formalised or a final payment
was made, and that in the absence of a written resignation the company proceeded with the
termination.
[87] For these reasons, I conclude that Mr Espinoza Muga’s dismissal took effect on 30
March 2022. That was the date final payment of wages and future pay in lieu was made, and in
that sense, it was the final communication between employer and employee. Mr Espinoza Muga
had no control over when the payment was made. It was received on 30 March 2022. On and
from that date the employer had given effect to the termination and brought the employment
relationship to an end.
18 Siagian v SANEL Pty Limited [1994] IRCA 2; Georgiou v Transurban Ltd [2022] FWC 1240 at [26]; Patrone v Unique
Muscle Pty Ltd [2022] FWC 319 at [8]
[2022] FWC 1708
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Conclusion
[88] As Mr Espinoza Muga was notified of his dismissal on 24 March 2022, and as his
dismissal took effect on 30 March 2022, and as his application was filed on 20 April 2022, it is
within time. No issue of extension of time arises.
[89] For the sake of completeness, I observe that, were this not the case, there would be
strong grounds to conclude that the overall circumstances giving rise to delay, characterised as
they are by imprecision and assumption on the part of the employer, are exceptional and would
favour the exercise of discretion extending time.
Disposition
[90] BIC’s jurisdictional objections are dismissed.
[91] Mr Espinoza Muga’s application is referred to conciliation and, if not resolved,
determination of the merits.
[92] The application will be remitted to the regional co-ordinator for further allocation and
directions.
DEPUTY PRESIDENT
Appearances:
Mr A Pope, on behalf of Mr Espinoza Muga
Mr S Stone with Ms C Di Bello, of and on behalf of BIC Services Pty Ltd
Hearing details:
2022
Adelaide (by video)
27 June
LIRE FRA WORKIE MMISSION THE SEA
[2022] FWC 1708
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