1
Fair Work Act 2009
s.394—Unfair dismissal
Brock Mathieson
v
Philip Morris Limited
(U2022/9745)
DEPUTY PRESIDENT MASSON MELBOURNE, 31 JANUARY 2023
Application for an unfair dismissal remedy – jurisdictional objections raised – whether
dismissed within meaning of s 386(1)(b) – whether application made within 21-day statutory
time period – not dismissed within meaning of s 386(1)(b) – in the alternative whether an
extension of time should be granted – no exceptional circumstances – extension of time not
granted - application dismissed.
Introduction
[1] On 4 October 2022, Mr Brock Mathieson (the Applicant) lodged an application pursuant
to s 394 of the Fair Work Act 2009 (the Act) in which he asserts that the termination of his
employment with Philip Morris Limited (the Respondent) on 28 September 2022 was unfair.
The Applicant seeks an order for compensation.
[2] On 26 October 2022, the Respondent filed its Form F3 response to the unfair dismissal
application in which it raised two jurisdictional objections to the application, that being the
Applicant was not dismissed and the application is out of time.
[3] Conciliation of the matter before the Commission failed to achieve a resolution and
consequently the matter was listed for mention/conference before me on 2 December 2022.
After hearing from the parties, I determined to conduct a hearing pursuant to s 399 of the Act.
The matter was listed for hearing on 25 January 2023.
[4] At the hearing, the Applicant appeared on his own behalf and gave evidence. The
Respondent, which was represented by Declan Murphy of Counsel who was granted permission
to appear pursuant to s 596 of the Act, called the following witnesses to give evidence:
Trent Pawsey – Director People & Culture, Phillip Morris Limited
Chandrasegaran Marappen – Security & Market Safety Lead for South Asian Region,
Phillip Morris Limited
Background & evidence
Applicant’s employment and performance
[2023] FWC 243
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 243
2
[5] The Applicant commenced employment with the Respondent on 5 July 2021 in the
position of Security & Market Safety Lead Australia & New Zealand on a total remuneration
package of $141,901.50, which included a base salary of $120,000, superannuation and health
care benefits1. In that role he initially reported to Andrew Chan, Senior Manager Security &
Market Safety East Asia and Australia. Mr Pawsey states that the Applicant was the only staff
member in Australia and New Zealand with access to the Respondent’s security system and
was relied on to deliver on the Respondent’s security policy2.
[6] Ms Pawsey states that from around May to August 2022 several issues arose with the
Applicant’s performance including;
(i) a failure to deliver a security policy document (PML 108) that was up to the standard
required by the Respondent and which failed to meet basic security needs, including
for example the need to restrict site access so that former employees could not use
their site pass to access Respondent sites3;
(ii) a failure to properly manage and report in a timely manner a security incident
involving a fire on site in the server room at the Respondent’s Melbourne
headquarters, despite having been previously advised by Mr Pawsey in January
2022 after an earlier incident that he needed to have a process to manage out of hours
incidents4;
(iii) the Applicant failed to provide requested quarterly reports into use of security cards
by employees and contractors after an initial report was provided in February 20225;
(iv) the Applicant was unaware of where security cameras were located in the
Respondent’s Melbourne headquarters6;
(v) the Applicant was alerted in June 2022 to a potential safety matter involving
allegations of a client sexually harassing an employee of the Respondent at a work
event in another state with the next steps only escalated by the relevant manager to
Mr Pawsey on 22 July 20227;
(vi) during the COVID pandemic period, Mr Pawsey had to inform himself of changing
protocols because the Applicant was not providing timely information which he was
required to do8; and
1 Exhibit R2, Witness Statement of Trent Pawsey, dated 16 December 2022, Attachment TP-4, Employment Agreement
dated 24 June 2021
2 Exhibit R2 at [4]
3 Ibid at [6]
4 Ibid, Exhibit R3, Second Witness Statement of Trent Pawsey, dated 12 January 2023, at [5]b
5 Exhibit R3 at [5]a
6 Ibid
7 Ibid at [6]b
8 Ibid at [6]c
[2023] FWC 243
3
(vii) first aid and vehicle safety training which the Applicant was responsible for
delivering was delivered late which Mr Pawsey alerted the Applicant to9.
[7] Mr Pawsey further states that after the Applicant’s employment ended, WorkSafe
Victoria provided a report on an audit of the Respondent as a self-insurer. He says the audit
identified fifteen non-conformances that related directly to the Applicant’s role and
responsibilities including;
(i) document control was not adequately managed;
(ii) the Respondent’s Environmental, Health, Safety and Security Plan was not adequate
as it did not provide adequate coverage and detail with regards to: response to legal
requirements, identified hazards and system failures, allocation of responsibilities,
targets and how the plan would be monitored;
(iii) the Respondent had not assessed its first aid requirements appropriately for all
workplace locations;
(iv) a health, safety inspection, testing and monitoring program had not been effectively
implemented; and
(v) there was no evidence that incident investigations were undertaken by competent
persons, factors that led to the incident, review of the control measures and
corrective actions were not implemented.10
[8] Mr Pawsey goes on to state that at the time the Applicant’s performance concerns arose,
he was the Applicant’s local manager while the Applicant’s global manager was Cherralina
Wong, Security & Market Lead for South Asia and that both he and Ms Wong had concerns
regarding the Applicant’s performance. He further states that these concerns were shared with
the Applicant through the following;
in July 2022, Ms Wong shared feedback with the Applicant that stakeholders were
expecting more engagement from him and that he should be producing higher quality
work at a faster pace;
on 14 August 2022, the Respondent’s Market Managing Director Hannah Yun sent
feedback to the Applicant that his draft PML 108 Policy was not up to the expected
standard and in providing that feedback outlined numerous issues; and
Ms Wong spoke to the Applicant about his failure to escalate the fire security incident
and in doing so reinforced that it should have been escalated to her11.
9 Ibid at [6]d
10 Ibid at [24]
11 Exhibit R2 at [7]a
[2023] FWC 243
4
[9] The Applicant was taken during cross-examination to a record (the Performance Review
Record)12 extracted from the Respondent’s HR systems which showed Ms Wong’s comments
recorded following her July 2022 performance review with the Applicant. That record included
references to the need for the Applicant to engage more effectively with stakeholders and to
improve the quality and pace of his output. The Applicant stated that he did not recall those
matters being discussed but did agree the matter of the PML 108 policy was discussed. He also
conceded that while he was able to go into the HR system and comment on his Manager’s
comments after the performance review discussion, he did not do so. He rejected that
performance concerns were raised in the meeting with Ms Wong and referred to the discussions
he had with Ms Wong regarding his being considered for her role when she left the organisation.
[10] As a result of the above-referred performance concerns, Mr Pawsey states that a
performance conversation was arranged with the Applicant for early August 2022 which he
says was likely to have resulted in a Performance Improvement Plan (PIP) designed to assist
the Applicant with his performance. This meeting was however delayed due to the Applicant
being absent due to illness with COVID-19 and Ms Wong’s departure from the organisation at
around the same time. As a consequence, Mr Pawsey says it was decided it would not be
appropriate to commence a process where a PIP was likely to be introduced when the Applicant
would be working under a new manager, Chandrasegaran Marappen who commenced on 15
August 202213.
[11] Mr Marappen states that when he commenced in August 2022 he was made aware of
concerns over the Applicant’s performance by the outgoing Ms Wong and by Mr Pawsey. Mr
Marappen also states that he was not necessarily concerned with the Applicant’s performance
at that stage because he had not been the Applicant’s manager and wanted to understand the
issues for himself and provide the Applicant with an opportunity to discuss it with him. He also
wanted to set expectations with the Applicant regarding the business and stakeholders in
Australia and New Zealand in order for he and the Applicant to work successfully together14.
[12] In relation to the alleged performance issues, the Applicant variously states that;
the Respondent has not provided any evidence of any formal conversations with him
regarding his performance;
in just over 12 months he has had three different direct supervisors and none of the three
discussed any performance issues with him;
at no point between 15 August 2022 when Mr Marappen commenced and 31 August
2022, did Mr Marappen make any contact to raise any concerns with him;
if there were ongoing performance issues he had not been notified or given an
opportunity to respond at any point in the period between May and August 2022 which
is said by the Respondent to be the period in which performance concerns arose; and
12 Exhibit R4, Performance Review Record
13 Ibid at [9]-[11]
14 Exhibit R5, Witness Statement of Chandrasegaran Marappen, dated 13 January 2023, at [5]-[7]
[2023] FWC 243
5
during his scheduled biannual performance review in July 2022, he was informed by
Ms Wong that he was meeting performance targets, was praised for taking on three
different global projects and he also discussed with Ms Wong the possibility of him
taking on her role when she left the employ of the Respondent15.
[13] In dealing with the specific performance concerns raised in the evidence of Mr Pawsey,
the Applicant states as follows. In relation to PML 108, the Applicant says that the policy had
not been reviewed or updated for at least three years prior to his commencement and that at
some point in May 2022 he was provided with the document and asked to review and update it
as the new ‘owner’ of it. He says after unsuccessfully seeking a meeting with the Managing
Director Ms Yun to discuss the document, he provided a draft to Ms Wong and Ms Pawsey
both of whom he says reviewed and approved the amended document and asked that he then
send it to Ms Yun for final approval. He says Ms Yun responded to the draft with corrections
which related to formatting16.
[14] The Applicant was taken in cross-examination to an email from Ms Yun dated 15
August 202217 (the 19 August Email) regarding the draft PML 108 document. Despite the tone
of the email from Ms Yun which indicated she was not happy with the Applicant’s draft PML
108 policy, the Applicant rejected that the email could be described as raising concerns
regarding his performance. He described the process of senior executive review and feedback
which was evident in the document as being business as usual.
[15] The Applicant in responding during cross-examination to the evidence of Mr Pawsey
that he had not arranged first aid or driver training in a timely manner, claimed that conduct of
that training was delayed due to COVID restrictions in Melbourne and that both driver training
and first aid training was arranged in 2022. Mr Pawsey subsequently conceded driver training
was conducted but was unaware of first aid training having been conducted in February 2022
as claimed by the Applicant.
[16] The Applicant then referred in cross-examination to Mr Pawsey’s claim that a WorkSafe
audit had highlighted numerous shortcomings of the Respondent in the course of the self-insurer
audit. The Applicant gave evidence that a similar audit in or about June/July 2022 had not
revealed any issues and it was significant that the audit referred to by Mr Pawsey was
undertaken some two months after the Applicant left the organisation. Mr Pawsey responded
to that evidence by stating that the outcome of the WorkSafe audit cast doubt on the quality of
the less comprehensive earlier audit referred to by the Applicant.
[17] With respect to the fire alarm that was triggered in the Melbourne headquarters server
room, the Applicant states that the incident occurred over a weekend in early August 2022. He
further states that he was not required to be on-call and/or be notified of or respond to incidents
that occurred outside normal business hours. He says he was made aware of the incident on the
Monday morning immediately after the weekend incident and was still awaiting further
information when he advised Ms Wong of the issue during their regular weekly meeting. He
refers to the Employment Agreement in support of his evidence that there was no on-call
15 Exhibit A1 at [8]
16 Ibid at [4]
17 Exhibit R1, Email from Hannah Yun dated 15 August 2022
[2023] FWC 243
6
component to his remuneration. He says he had a subsequent conversation with Mr Pawsey
where both agreed that a process needs to be put in place for managing incidents that occurred
outside of normal business hours18.
[18] Mr Pawsey rejected during cross-examination that he was “unaware” of any
performance issues relating to the Applicant prior to the 31 August 2022 as claimed was stated
by him to the Applicant and restated that he held various informal discussions with the
Applicant over his performance. He did agree however that those discussions were not recorded
in any formal notes and that the only written evidence he could point too was the 19 August
Email from Ms Yun and the Performance Review Record. As regards the Applicant’s
characterisation of Ms Yun’s feedback on the PML 108 Policy as ‘business as usual’ Mr Pawsey
said it was not so much the nature of the feedback from Ms Yun that was the problem from his
perspective but the time taken by the Applicant to finalise the document. He also disagreed with
the Applicant’s downplaying of Ms Yun’s concerns.
Applicant’s ‘resignation’
[19] Mr Pawsey states that following Mr Marappen’s commencement in August 2022, a
meeting was arranged for 31 August 2022 involving himself, Mr Marappen and the Applicant
and was initially planned for the purpose of confirming reporting lines and to allow Mr
Marappen to set out his general expectations of the Applicant’s role. On Tuesday 30 August
2022 Mr Pawsey says he had a discussion with Marappen about the Applicant’s ongoing
performance issues. It was agreed between them that the meeting on 31 August 2022 would be
used to discuss the Applicant’s performance with him and give him an opportunity to respond
before deciding whether any further performance management action, such as a PIP was
required19.
[20] Mr Pawsey states that he conveyed the changed purpose of the meeting to the Applicant
in a phone call at around 8.00am on 31 August 2022. In doing so, he says he advised the
Applicant that the meeting would be different to that which had been proposed and would be
about his performance. Mr Pawsey says the Applicant was advised that he was able to bring a
support person to the meeting. Mr Pawsey also says he asked the Applicant whether he was
comfortable to proceed with the meeting that day which was scheduled for midday in response
to which the Applicant confirmed he was comfortable to proceed. Mr Pawsey further states that
he got the sense during his telephone call with the Applicant that he was concerned that the
meeting might be serious or might result in termination, so he took time to explain to the
Applicant that the purpose of the meeting was to discuss his performance and that it was not a
disciplinary meeting20.
[21] The Applicant confirmed that he initially received advice on 30 August 2022 from Mr
Pawsey that an introductory meeting would be held the following day with the Applicant’s new
manager Mr Marappen21. He also agreed that he received a phone call from Mr Pawsey at
approximately 8.30am on 31 August 2022 advising that the purpose of the meeting scheduled
18 Exhibit A1 at [6]-[7]
19 Exhibit R2 at [12]-[14]
20 Ibid at [15]
21 Exhibit A1 at [9]
[2023] FWC 243
7
that day would be changed and would be used to discuss performance issues, which he claims
had not been previously raised with him. He says he was working from home that day but was
directed by Mr Pawsey to come in for the 12.00 midday meeting22.
[22] The Applicant states that after his arrival in the office he held a private meeting with Mr
Pawsey between 10 -11am during which he says Mr Pawsey stated words to the effect that;
(i) Mr Marappen had spoken to Mr Pawsey the previous evening and told him there
were performance issues with the Applicant, which Mr Pawsey said he was unaware
of up to that point;
(ii) the likely outcome of the meeting was that of either performance management which
could lead to termination of employment, or immediate termination;
(iii) Mr Pawsey also said “taking off my P&C hat and speaking to you as a friend you
should consider resigning prior to the meeting” and continued in that vein by
mentioning that resigning would be better for his career prospects than being
dismissed; and
(iv) Mr Pawsey also stated, “if you don’t resign and are dismissed, I would be unable to
provide a reference.”23
[23] The Applicant says that he came out of that conversation with Mr Pawsey believing that
he had no choice but to resign immediately to prevent being dismissed and to protect his future
career prospects24. The Applicant further states that with the financial commitments he has, he
had no intention of resigning his employment on 31 August 2022 and only did so because he
was told directly by Mr Pawsey that it would be a better option than being dismissed25.
[24] The Applicant was cross-examined at length on the conversation he held with Mr
Pawsey between 10 -11am on 31 August 2022. He agreed that one of the statements made by
Mr Pawsey was that one of the likely outcomes of the meeting scheduled for midday on 31
August was performance management which could lead to termination. He went on to state that
the other likely outcome communicated to him by Mr Pawsey was that of immediate
termination. While agreeing that Mr Pawsey did not say he would be terminated, the Applicant
says he left that discussion believing he had no choice but to resign as Mr Pawsey had made
clear it would be better for his career if he did so. He also resisted the proposition put to him in
cross-examination that he had reconstructed events of 31 August 2022 in his memory or that he
had misunderstood or misheard Mr Pawsey in their discussion that occurred between 10 – 11am
on 31 August 2022.
[25] The Applicant was also asked to reconcile his concession that he was not told he would
be dismissed with the statement in his letter of 27 September 2022 (the 27 September Letter)
that he had been told he was “going to be dismissed”. He agreed that statement was inaccurate
22 Ibid at [10]
23 Ibid at [11]
24 Ibid at [12]
25 Ibid at [5]
[2023] FWC 243
8
and in conflict with his evidence but attributed that to how he felt at the time as a consequence
of his private discussion with Mr Pawsey. The Applicant also conceded that he drafted the 27
September Letter with the objective of encouraging the Respondent to settle the matter and
avoid the need for a hearing.
[26] Mr Pawsey steadfastly rejects that he told the Applicant during a conversation on the
morning of 31 August 2022 that he was unaware of any performance issues or that he should
resign. He also rejected during cross-examination that he stated words to the effect of “taking
off my P & C hat…” Mr Pawsey was adamant that there was no pre-determined outcome
expected from the meeting with the Applicant at midday on 31 August 2022 or that the intention
was to dismiss the Applicant or force his resignation although he felt a PIP was a likely outcome
of the meeting. Mr Pawsey also referred to the Respondent’s Performance Management
Guidelines26 which provides a formal process for managing underperformance and includes
escalating action where no improvement is achieved against a PIP.
[27] In responding to the Applicant’s claims of what was said by him in their 10-11am
meeting on 31 August 2022, Mr Pawsey states that as Director People & Culture he is acutely
aware of the importance of procedural fairness and also that employees understand and are
aware of employment processes. To that end Mr Pawsey says he explained a typical process
including options people consider along the way and the potential outcome of a performance
management process. Mr Pawsey says he has done this many times in his role and is careful not
to overstep the line between providing clear guidance about what might occur and telling an
employee what they should do. Mr Pawsey says he took the same approach in his discussion
with the Applicant and used words to the following effect;
(i) in denying that he suggested that the Applicant resign, Mr Pawsey did say that one
option people consider during a performance management process is that of
resignation but that is a matter for them;
(ii) in denying that either of the following outcomes would occur or were a likely
outcome in the Applicant’s case, Mr Pawsey did state to the Applicant that
performance management or termination of employment can be an outcome of a
performance process; and
(iii) in response to a question from the Applicant regarding the nature of the planned
conversation at the midday meeting, Mr Pawsey did not wish to pre-empt the midday
meeting and so declined to disclose the performance concerns as they would be
discussed at the midday meeting.27
[28] Mr Pawsey goes on to state that during their private conversation the Applicant advised
him of his resignation, to which Mr Pawsey said words to the effect that he might want to have
a think about it and if he were sure he wanted to resign he should put it in writing so that it
could be discussed at 12.00 midday28. The Applicant then sent an email to Mr Pawsey and Mr
Marappen at 11.46am on 31 August 2022 in the following terms;
26 Exhibit R3, Attachment TP-5, Performance Management Guidelines
27 Exhibit R3 at [13]
28 Ibid at [14]
[2023] FWC 243
9
“Good morning Trent and Chandra,
Please accept my resignation with my last day being 28th September 2022, at the
conclusion of the 4 week notice period.
I would like to thank you for the opportunity over the past 13 months, and I wish you
both and your teams all success in the future.
Kind Regards”29
[29] Mr Pawsey also states that the planned midday meeting with Mr Marappen then
proceeded during which he and Mr Marappen wanted to understand the Applicant’s intentions.
Mr Pawsey says that in explaining his resignation decision the Applicant came across as calm
and collected in his demeanour and was able to articulate his reasons for resigning. He says that
the Applicant stated that;
(i) he had commenced an external recruitment process to look for work elsewhere and
repeatedly stated words to the effect that he saw his role with the Respondent as
temporary and did not see a career with the Respondent; and
(ii) very clearly stated that he did not want to work under performance management at
all.30
[30] The Applicant says he was able to compose himself prior to the 12.00 midday meeting,
that he did not know Mr Marappen personally or have a relationship with him and consequently
did not feel comfortable sharing his emotions during that meeting. He further states he did his
best to remain claim and appear unaffected by the dismissal, that at no point during the meeting
did Mr Pawsey or Mr Marappen suggest he reconsider his decision to resign and both men
reinforced with him that resigning will be the best for his future career31. During cross-
examination, the Applicant agreed that he had stated he had commenced an external recruitment
process and that he did not see a long term career with the Respondent. He now says those
particular statements he made during the meeting were false.
[31] The Applicant conceded in cross-examination that notwithstanding his belief that he had
been forced to resign, he did not refer to that in his resignation letter which was in fact a polite
note that thanked the Respondent for the opportunity he had in working for it. He also agreed
that he had not raised in the midday meeting with Mr Marappen and Mr Pawsey the pressure
he believes was placed on him by Mr Pawsey’s earlier comments that he should resign. He also
conceded that he did raise those concerns with any of his colleagues. He attributed his silence
on the matter of his ‘forced’ resignation to not knowing Mr Marappen and embarrassment at
disclosing such information to colleagues.
29 Exhibit R2, Attachment TP-1, Email from Applicant titled “Resignation”, dated 31 August 2022
30 Exhibit R2 at [21]
31 Exhibit A1 at [13]
[2023] FWC 243
10
[32] Mr Pawsey rejects that he and Mr Marappen failed to suggest to the Applicant that he
reconsider his resignation. He specifically recalls Mr Marappen saying words to the effect of
whether resigning was the outcome the Applicant was seeking. Mr Pawsey says the Applicant
responded by saying he felt it was time to leave the Respondent. Mr Pawsey also denies that he
and/or Mr Marappen stated to the Applicant during the midday meeting that resigning would
be the best thing for the Applicant32.
[33] Confirmation of the Respondent’s acceptance of the resignation was sent by Mr
Marappen to the Applicant at 12.51pm on 31 August 2022 in the following terms;
“Hi Brock
In reference to your email below and our conversation just now together with Trent, I
am acknowledging your resignation.
I wish you all the best on your future.
………..”33
[34] The Applicant and Mr Pawsey then attended a meeting of Mr Pawsey’s team, which
was the team the Applicant worked most closely with. The Applicant announced in that meeting
that he was resigning and that it was effective immediately. Shortly after the meeting the
Applicant handed in his security pass and left the site. He did not perform any further work for
the Respondent and processing of his final pay was initiated on 31 August 2022, such final pay
including pay in lieu of notice which the Respondent elected to pay in accordance with the
Employment Agreement34. According to Mr Pawsey, the processing of the Applicant’s final
pay which commenced on 31 August 2022 would have resulted in the Applicant receiving his
final pay on or about 5 September 2022.
[35] Mr Pawsey also states that two days prior to the 31 August 2022 meeting as they were
leaving an internal meeting, the Applicant had advised him that he was considering other
employment, that he was in a process with his previous employer Metro Trains and asked Mr
Pawsey if he could use him as a referee35. This evidence was not challenged by the Applicant.
[36] In relation to his resignation, the Applicant states that he believes it took effect on 28
September 2022 as was stated in his resignation email which he notes was not contradicted in
Mr Marappen’s reply. In support of his contention that his resignation took effect on 28
September 2022, the Applicant also refers to an email he received on 17 October 2022 from the
Respondent’s People and Culture Team confirming that his effective end date of private health
insurance cover provided by the Respondent was 28 September 2022 and not 1 September 2022
as had been initially and mistakenly communicated by the Respondent to the healthcare
provider36.
32 Exhibit R3 at [16]-[17]
33 Ibid, Attachment TP-2, Email to Applicant titled “Re: Resignation” dated 31 August 2022
34 Exhibit R2 at [24]-[25], Attachment TP-3, Payslip for pay period ending 30 August 2022, Attachment TP-4
35 Exhibit R2 at [22]
36 Exhibit A1, Attachment 1, Email to Applicant titled “Re: End Date”, dated 17 October 2022
[2023] FWC 243
11
[37] In cross-examination the Applicant maintained his belief that his termination date was
28 September 2022. He did however make a number of concessions, those being that;
he agreed that he did not perform work or attend any of the Respondent’s sites after 31
August 2022;
he handed in his security pass before leaving the Respondent’s head office in Melbourne
on 31 August 2022
his email and access to the Respondent’s intranet was cut off on 31 August 2022;
he said goodbye to staff in a meeting on 31 August 2022 and confirmed he was finishing
that day;
he did not submit any medical certificates in relation to treatment he received from a
general practitioner in the period between 31 August – 28 September 2022;
while unable to recall the date he received his final pay he agreed that the payment was
greater than his normal pay and he understood it to be his termination pay;
agreed that his final pay was made at least by 15 September 2022 as if it had not been
paid by that date he would have contacted the Respondent;
acknowledged he was aware that the Respondent was able to pay out his notice period
in accordance with his Employment Agreement; and
agreed that he was not advised that he was on gardening leave during September 2022.
[38] The Applicant maintained in cross-examination that the Respondent had not clarified or
contradicted his resignation email statement that his last day would be 28 September 2022.
When pressed, he stated that he believed the period from 31 August – 28 September 2022 was
a period of gardening leave. He also conceded however that his letter of 27 September 202237
used language referring to his departure from the Respondent in the past tense notwithstanding
he claims not to have ended his employment until 28 September 2022.
[39] While conceding in cross-examination that the Applicant’s resignation email did refer
to his final day of employment as being 28 September 2022, Mr Pawsey confirmed that the
Applicant was told during the meeting with himself and Mr Marappen at midday on 31 August
2022 that the Respondent would pay the Applicant in lieu of notice and that his termination
would take effect immediately. This Mr Pawsey said triggered the processing of the Applicant’s
final pay. In relation to the email sent from the Respondent’s P & C team on 17 October 2022,
Mr Pawsey further stated that it is ordinary practice for the Respondent to extend health
insurance cover up to the notional end of the notice period provided by an employee even where
the Respondent has elected to make a payment in lieu of notice as occurred in the Applicant’s
case38. He rejected in cross-examination that the email from the HR team confirmed that the
Applicant’s termination date was as claimed by the Applicant, that of 28 September 2022.
[40] The Applicant states that he met with Mr Pawsey at a café at South Wharf on 9
September 2022 for Mr Pawsey to share industry contacts with the Applicant and to provide
Mr Pawsey with advice on an upcoming safety audit that he was seeking. The Applicant further
claims that he advised Mr Pawsey during their meeting that he was making an unfair dismissal
application to the Fair Work Commission to which Mr Pawsey responded, “In my position I
37 Exhibit A2, Form F2 and attached letter
38 Exhibit R3 at [19]-[20]
[2023] FWC 243
12
can not really comment on that but you need to do what you think is best.” The Applicant further
states that Mr Pawsey also cautioned him about the potential consequences for his career
prospects of an unfair dismissal application being on the public record39. While agreeing he had
met with the Applicant for coffee on 9 September 2022, Mr Pawsey denied warning the
Applicant against making an unfair dismissal application40.
[41] Mr Pawsey also referred to 27 September Letter, in which the Applicant wrote “I have
no doubt that shows like A Current Affair would be very interested to hear how Phillip Morris
treats employees with such disregard”. Mr Pawsey says he perceived this comment as a threat
that the Applicant would approach the media about the matter which Mr Pawsey says reveals
the breakdown in the relationship between the Applicant and Respondent41. Mr Pawsey further
states that had the Applicant not resigned, the Respondent would have discussed the
performance issues and clarified its expectations with respect to performance standards and that
in Mr Pawsey’s opinion a PIP was a likely outcome42.
Has the Applicant been dismissed?
[42] A threshold issue to be determined in this matter is whether the Applicant has been
dismissed from his employment. The circumstances in which a person is taken to be
“dismissed” are set out in s 386 of the Act. Section 386(1) relevantly provides as follows:
(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.
[43] Section 386(2) of the Act sets out circumstances where an employee has not been
dismissed, none of which are presently relevant.
[44] The authorities in respect of the meaning of the term ‘dismissed’ are well traversed and
it is useful to detail some of them at this point. In a decision made prior to the passage of the
Act, the Full Court of the Industrial Relations Court of Australia Mohazab v Dick Smith
Electronics Pty Ltd43 (Mohazab) was considering whether an employee had been forced to
resign in circumstances where the employee signed a letter of resignation drafted by the
employer shortly after being interviewed in relation to allegations of dishonesty. After setting
out the findings of fact the Full Court said the following when considering the meaning of
‘termination at the initiative of the employer;’
39 Exhibit A1 at [17]
40 Exhibit R3 at [23]
41 Ibid at [26]
42 Ibid at [25]
43 [1995] IRCA 625; 62 IR 200.
[2023] FWC 243
13
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an
exhaustive description of what is termination at the initiative of the employer but plainly
an important feature is that the act of the employer results directly or consequentially in
the termination of the employment and the employment relationship is not voluntarily
left by the employee. That is, had the employer not taken the action it did, the employee
would have remained in the employment relationship. This issue was addressed by
Wilcox CJ in APESMA v David Graphics Pty Ltd ("David Graphics"), Industrial
Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ.
His Honour, at 3, referred to the situation an employee who resigned because "he felt he
had no other option". His Honour described those circumstances as:-
“... a termination of employment at the instance [of] the employer rather than of
the employee.”
and at 5:-
“I agree with the proposition that termination may involve more than one action.
But I think it is necessary to ask oneself what was the critical action, or what
were the critical actions, that constituted a termination of the employment.’” (our
emphasis added)”
[45] In a more recent Full Bench decision in Bupa Aged Care Australia Pty Ltd t/a Bupa
Aged Care Mosman v Shahin Tavassoli44 (Bupa), the Full Bench was dealing with an appeal of
a decision in which the member at first instance found that the dismissal was within the meaning
of s.386(1) and that the dismissal was unfair. The Full Bench in Bupa was concerned with a
‘forced’ resignation and how the passage of the FW Act impacted prior authorities when it
stated as follows;
“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW
Act, that a “forced” resignation could constitute a termination of employment at the
initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way
that retained the “termination at the initiative of the employer” formulation but
separately provided for forced resignation. This was discussed in the Explanatory
Memorandum for the Fair Work Bill as follows:
“1528. This clause sets out the circumstances in which a person is taken to be
dismissed. A person is dismissed if the person's employment with his or her
employer was terminated on the employer's initiative. This is intended to capture
case law relating to the meaning of 'termination at the initiative of the employer'
(see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they
resigned from their employment but were forced to do so because of conduct, or a
course of conduct, engaged in by their employer. Conduct includes both an act and
a failure to act (see the definition in clause 12).
44 [2017] FWCFB 3941.
[2023] FWC 243
14
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of
constructive dismissal, and allow for a finding that an employee was dismissed in
the following situations;
where the employee is effectively instructed to resign by the employer in the
face of a threatened or impending dismissal; or
where the employee quits their job in response to conduct by the employer which
gives them no reasonable choice but to resign.”
[46] Having identified there were two elements to s.386(1) and after extensively considering
the authorities, the Full Bench then said;
“[47] Having regard to the above authorities and the bifurcation in the definition of
“dismissal” established in s.386(1) of the FW Act, we consider that the position under
the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a)
where, although the employee has given an ostensible communication of a
resignation, the resignation is not legally effective because it was expressed
in the “heat of the moment” or when the employee was in a state of emotional
stress or mental confusion such that the employee could not reasonably be
understood to be conveying a real intention to resign. Although “jostling” by
the employer may contribute to the resignation being legally ineffective,
employer conduct is not a necessary element. In this situation if the employer
simply treats the ostensible resignation as terminating the employment rather
than clarifying or confirming with the employee after a reasonable time that
the employee genuinely intended to resign, this may be characterised as a
termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part
of the employer will be a dismissal within the second limb of the definition
in s.386(1)(b). The test to be applied here is whether the employer engaged
in the conduct with the intention of bringing the employment to an end or
whether termination of the employment was the probable result of the
employer’s conduct such that the employee had no effective or real choice
but to resign. Unlike the situation in (1), the requisite employer conduct is the
essential element.” (my emphasis added)
[47] In the present matter the Applicant articulated in the proceedings that he had been
dismissed within the meaning of the second limb of s. 386(1) that being he had resigned from
his employment with the Respondent, but was forced to do so because of conduct, or a course
of conduct, engaged in by his Respondent.
Consideration
Whether Respondent’s conduct or course of conduct forced the resignation of the Applicant (s.
386(1)(b))
[2023] FWC 243
15
[48] In considering whether the Applicant was dismissed within the meaning of s 386(1)(b)
of the Act, it is necessary for me to make some evidentiary findings. There is a factual contest
over a number of matters, most significantly in relation to the substance of the conversation
between the Applicant and Mr Pawsey during their meeting which took place between 10-11am
on 31 August 2022, following which the Applicant tendered his resignation.
[49] It is uncontroversial that the Applicant commenced employment with the Respondent
on 5 July 2021 as Security and Market Safety Lead for Australia & New Zealand. He initially
reported to Andrew Chan, then Cherralina Wong before briefly reporting to Chandrasegaran
Marappen who each held the role of Security & Market Safety Lead for the South Asian Region
at various times during the Applicant’s employment with the Respondent.
[50] While the Applicant is correct to say that he was not subject to formal performance
management during his employment with the Respondent, I do accept that there were some
concerns regarding his performance. These were identified by Mr Pawsey in his evidence and
were not fully or effectively rebutted by the Applicant. While the Applicant downplays the
significance of Ms Yun’s feedback on the PML 108 policy review, it is clear enough on reading
her feedback that she was not happy with the quality of the Applicant’s work, which I do not
accept can be simply put down to the ‘business as usual’ process of policy review. As regards
the Applicant’s evidence that his level of engagement with stakeholders and the quality and
pace of his work was not discussed during his July 2022 performance review discussion with
Ms Wong, I find that unconvincing. That is because of the record of that discussion and the fact
that the Applicant had not checked or sought to add his comments to the review discussion
record, even though he was aware he was able to.
[51] While I accept that there were concerns regarding the Applicant’s performance, those
concerns had not, prior to 31 August 2022, escalated to the point of being addressed in a formal
performance management discussion or PIP. While Mr Pawsey states a performance discussion
was originally planned in early August 2022, it did not proceed due to the Applicant’s absence
due to illness and Ms Wong’s departure in August and replacement by Mr Marappen on 15
August 2022. The fact that no formal performance management process had been initiated at
the point Mr Marappen commenced in mid-August 2022 and taking into account Mr
Marappen’s unchallenged evidence that he wanted to form his own view about the Applicant’s
performance, strongly indicates that the performance concerns were not so serious as to place
the Applicant at imminent risk of termination of employment.
[52] It is against the above background of concerns over the Applicant’s performance that
various discussions took place on 31 August 2022 involving the Applicant, Mr Pawsey and Mr
Marappen. As set out above in the evidence, and I accept that, a meeting had been previously
arranged for midday on 31 August 2022 involving the Applicant, Mr Pawsey and Mr Marappen
as a means of Mr Marappen introducing himself to the Applicant and setting out role
expectations. The purpose of the meeting then changed as a consequence of a discussion
between Mr Pawsey and Mr Marappen on the evening of 30 August 2022 when they agreed
that as a consequence of their concerns over the Applicant’s performance, the meeting would
be used to discuss those performance concerns and give the Applicant an opportunity to respond
on those issues. Mr Pawsey and Mr Marappen were both adamant and were not challenged on
[2023] FWC 243
16
their evidence that the revised purpose of the meeting was not to dismiss the Applicant but to
engage with him over their performance concerns.
[53] The evidence reveals that Mr Pawsey telephoned the Applicant at approximately 8.00am
on the morning of 31 August 2022 to advise him that the purpose of the midday meeting had
changed and would now focus on his performance. Mr Pawsey gave unchallenged evidence
that he also asked the Applicant whether he was comfortable in proceeding with the meeting,
advised him that he was able to be accompanied by a support person and assured him that the
meeting was not a disciplinary meeting. The Applicant then attended the workplace for the
midday meeting as requested by Mr Pawsey.
[54] A private meeting then took place between the Applicant and Mr Pawsey at some time
between 10-11am on 31 August 2022. It is during this meeting that the Applicant says Mr
Pawsey stated to him that the likely options arising from the midday meeting were that of either
performance management which could lead to termination of employment or immediate
termination of employment. He also claims Mr Pawsey encouraged him to resign because of
the impact on his career prospects if he were dismissed, although he did concede that he was
not told by Mr Pawsey that he was going to be dismissed at the midday meeting. For his part,
Mr Pawsey flatly rejected the Applicant’s evidence and says he provided an explanation of the
generic performance management process to the Applicant to ensure he understood that process
prior to the midday meeting. Both the Applicant and Mr Pawsey were equally resolute in their
conflicting versions of the private conversation they held. However, for the reasons that follow
I prefer the evidence of Mr Pawsey.
[55] Firstly, the Applicant’s version of events did change over time. In the 27 September
Letter, the Applicant stated that he was told he was “going to be dismissed” a statement he
reluctantly conceded in cross-examination was inaccurate and was made in the context of a
letter prepared and sent to the Respondent on 27 September 2022 with the primary purpose of
encouraging settlement discussions. The version given in evidence was also different to that
provided by the Applicant in his Form F2 where he stated that Mr Pawsey called him on the
morning of 31 August 2022 and informed him that he was “likely to be dismissed” at a meeting
scheduled that day. The differences between the Applicant’s evidence in the hearing and the
version set out in the 27 September 2022 and Form F2 causes me to approach with caution his
evidence as to what was actually said to him by Mr Pawsey in their private meeting.
[56] Secondly, the prospect of the Applicant’s immediate termination claimed to have been
outlined by Mr Pawsey as one of the likely outcomes of the midday meeting on 31 August 2022
cannot be reconciled with the absence of any formal performance management being in place
at that point. Further, such a statement was contrary to the Respondent’s Performance
Management Guideline which provides for an escalating approach to performance
management. As set out above, the nature of the performance concerns held by the Respondent
regarding the Applicant were not so serious as to have placed the Applicant at imminent risk of
termination of employment. This was readily conceded by Mr Pawsey. To have suggested
otherwise would have been unsustainable where serious misconduct was not alleged and where
there were no formal warnings in place the Respondent could have relied on. It is inherently
unlikely in these circumstances that Mr Pawsey as an experienced HR professional would have
foreshadowed the potential for immediate termination.
[2023] FWC 243
17
[57] Thirdly, at no point on the 31 August 2022 following his private discussion with Mr
Pawsey did the Applicant raise the pressure to resign that he says flowed from his meeting with
Mr Pawsey. He did not raise it (the pressure to resign) in the midday meeting with Mr Marappen
nor in his resignation email or in discussions with his colleagues. It was only in the 27
September 2022 Letter that the allegation was raised that he had been pressured to resign.
[58] Fourthly, the evidence of Mr Pawsey was forthright and consistent. He set out in his
evidence the information that he provided to the Applicant in their private meeting. He agreed
that he explained to the Applicant that a potential consequence of performance management
could be termination of employment and that some employees elected to resign during the
process of performance management. I found Mr Pawsey to be a credible witness and accept
that he made clear to the Applicant that a decision to resign was a matter for an individual
undergoing a performance management process and that he had not encouraged the Applicant
to do so.
[59] Finally, the Applicant did not rebut Mr Pawsey’s evidence that in a conversation two
days prior to the meeting on 31 August 2022, he had confided to Mr Pawsey that he was
pursuing roles externally including with a former employer and requested that Mr Pawsey act
as a referee. Nor did the Applicant challenge the evidence of Mr Pawsey and Mr Marappen that
during the midday meeting on 31 August 2022 he had stated to them that he did not see a long
term career with the Respondent, had commenced an external recruitment process and did not
want to work under a performance management process. The Applicant walked back from those
statements during cross-examination and agreed that while he accepted he made statements to
that effect during the midday meeting, he now says they were not true.
[60] It follows from the above that I prefer the evidence of Mr Pawsey where there is a
conflict with that of the Applicant. I am satisfied that in the private meeting held with the
Applicant between 10-11am on 31 August 2022, Mr Pawsey explained to the Applicant the
performance management process in generic terms which included highlighting that in some
circumstances it could lead to termination of employment. He further stated that some
employees elected to resign rather than move through such a process. I am not however
persuaded that Mr Pawsey stated to the Applicant that one of the likely outcomes of the midday
meeting on 31 August 2022 was that of the Applicant’s termination of employment. Nor do I
accept that Mr Pawsey, by his comments to the Applicant, encouraged him to resign. In these
circumstances I am inclined to the view that the Applicant’s recollection of the discussion may
be inaccurate as the alternative is that he has deliberately misrepresented the content of the
discussion to best advantage his case in these proceedings.
[61] Shortly after his private meeting with Mr Pawsey and prior to the midday meeting, the
Applicant prepared and sent his resignation to Mr Pawsey and Mr Marappen. The midday
meeting followed shortly after during which the Applicant’s intentions were discussed.
Throughout the meeting the Applicant maintained a calm demeanour, which he now says was
a façade. That may be the case, but the impression obtained by both Mr Marappen and Mr
Pawsey was that he was calm and relaxed about his decision to resign, that view being
reinforced by comments the Applicant made regarding pursuing external options and not seeing
a long term career with the Respondent. The Applicant also refers to mental health impacts of
his dismissal but has led no evidence, medical or otherwise, in support of that claim.
Notwithstanding the Applicant’s claims to the contrary in these proceedings, there was no
[2023] FWC 243
18
indication in his demeanour or comments made during meetings on 31 August 2022 that he felt
pressured to resign. Mr Pawsey and Marappen treated his resignation as genuine and accepted
it shortly after the midday meeting.
[62] It follows from the above that I am satisfied that the Respondent did not engage in
conduct on 31 August 2022 or before that date that had the intention of bringing the Applicant’s
employment to an end. Nor do I accept that the probable result of the Respondent scheduling a
meeting to discuss performance concerns with the Applicant, prior to which Mr Pawsey
outlined generic performance management processes, was that the employment would be
brought to end. Furthermore, I do not accept the Applicant had no effective or real choice but
to resign. He could have engaged in the midday discussion, put his views to his new manager
Mr Marappen regarding the performance concerns held, and if a PIP were implemented, he
could have worked to address any performance gaps. That the Applicant chose to resign rather
than participate in a process that may have resulted in a PIP does not meet the high hurdle
necessary to establish he had no real or effective choice.
[63] I am not satisfied that the Applicant’s resignation was due to the conduct or course of
conduct engaged in by the Respondent such that he was dismissed within the meaning of s.
386(1)(b) of the Act. On the basis of my finding that the Applicant was not dismissed within
the meaning of s 386(1)(b) and as 386(1)(a) was not contended as being relevant, it is
unnecessary for me to deal with the second jurisdictional objection.
[64] However, if I am wrong in my conclusion that the Applicant was not dismissed within
the meaning of section 386(1) of the Act, it is appropriate for me to deal with the second
jurisdictional objection that the application was made out of time. For the reasons set out below
I would also decline to grant an extension of time for the application to be made.
Should an extension of time be granted for the filing of the unfair dismissal application?
[65] As earlier stated, the Applicant filed his application for an unfair dismissal remedy on 4
October 2022. Section 394(2) of the Act states that an application for an unfair dismissal remedy
must be made ‘within 21 days after the dismissal took effect’, or within such further period as
the Fair Work Commission (the Commission) allows pursuant to s.394(2). The Applicant states
that the dismissal took effect on 28 September 2022 although this is disputed by the Respondent
who states the termination of employment took effect on 31 August 2022. The contest over the
termination date must be resolved as the period of 21 days will have ended at midnight on either
the 19 October 2022 if it is established that the date of termination was 28 September 2022 or
21 September 2022 if it is established that the date of termination was 31 August 2022.
[66] If the dismissal took effect on 28 September 2022 the application will have been filed
within the 21-day period as it was filed on 4 October 2022. If, however the dismissal took effect
on 31 August 2022 as contended by the Respondent, it will be necessary to consider whether to
grant a further period within which the application may be made under s.394(3) of the Act. I
turn firstly to determine the date of the Applicant’s termination of employment.
[67] The Applicant contends that his employment ended on 28 September 2022 and relies
primarily on his resignation email which states that his last day would be 28 September 2022,
which was said to be the conclusion of his 4 week notice period. The Applicant also relies on
[2023] FWC 243
19
the failure of Mr Marappen to clarify in his responsive email on 31 August 2022 accepting the
Applicant’s resignation that his dismissal would take effect immediately. The Applicant also
points to the email he received from HR on 17 October 2022 regarding his health insurance
coverage which was extended to 28 September 2022.
[68] I do not accept that the date of termination was 28 September 2022. I am satisfied the
Respondent accepted the resignation and elected to pay out the notice period as it was able to
under the Employment Agreement. This was, on the unchallenged evidence of Mr Pawsey,
communicated to the Applicant during the midday meeting on 31 August 2022. What then
followed was entirely consistent with the Respondent electing to end the employment
relationship on 31 August 2022. This can be readily seen by the relevant facts conceded by the
Applicant set out at [37]. The Applicant ceased work that day, handed in his security card, said
goodbye to colleagues, stated to those colleagues that he was finishing immediately,
immediately lost access to the Respondent’s IT systems, did not undertake any further work for
the Respondent after 31 August 2022 and his final pay was processed shortly after 31 August
2022. All of these actions clearly point to the Applicant’s dismissal taking effect on 31 August
2022.
[69] As regards the 17 September 2022 email from HR, Mr Pawsey explained the process
followed by the Respondent in extending the period of health insurance. This does not support
a conclusion that the date of dismissal was 28 September 2022. As regards the Applicant’s
statement that be believed he was on gardening leave, he conceded that he was not advised by
the Respondent that he was on gardening leave. His belief that he was on gardening leave has
no reasonable basis.
[70] The foregoing leads me to conclude that the Applicant’s dismissal took effect on 31
August 2022. Having reached this conclusion, it is necessary for me to now consider whether
an extension of time for the filing of the application should be granted.
[71] The Act allows the Commission to extend the period within which an unfair dismissal
application must be made only if it is satisfied that there are ‘exceptional circumstances.’
Briefly, exceptional circumstances are circumstances that are out of the ordinary course,
unusual, special, or uncommon but the circumstances themselves do not need to be unique nor
unprecedented, nor even very rare.45 Exceptional circumstances may 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 can be
considered exceptional.46
[72] The requirement that there be exceptional circumstances before time can be extended
under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3)
to extend the 14-day period within which an enterprise agreement must be lodged, which is
exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
[73] Section 394(3) requires that, in considering whether to grant an extension of time, the
Commission must take into account the following:
45 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].
46 Ibid.
[2023] FWC 243
20
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[74] The requirement that these matters be taken into account means that each matter must
be considered and given appropriate weight in assessing whether there are exceptional
circumstances. I now turn to consider these matters in the context of the Application.
Reason for the delay
[75] For the application to have been made within 21 days after the dismissal took effect on
31 August 2022, it needed to have been made by midnight on 21 September 2022. The delay is
the period commencing immediately after that time until 4 October 2022, although
circumstances arising prior to that day may be relevant to the reason for the delay.
[76] The reason for the delay is not in itself required to be an exceptional circumstance. It is
one of the factors that must be weighed in assessing whether, overall, there are exceptional
circumstances.47 An applicant does not need to provide a reason for the entire period of the
delay although the absence of any explanation for any part of the delay will usually weigh
against an applicant in the assessment of whether there are exceptional circumstances, and a
credible explanation for the entirety of the delay will usually weigh in the applicant’s favour,
however all of the circumstances must be considered. Depending on all the circumstances, an
extension of time may still be granted where the applicant has not provided any reason for any
part of the delay48.
[77] The Applicant’s contention may be shortly summarised. He believed his termination
date was the 28 September 2022 and states that the delay in the filing of his application arose
from his misunderstanding of the effective date of his termination of employment which I have
found to be 31 August 2022. This he submits explains the reason for the delay in filing his
application.
[78] I find the Applicant’s explanation of his belief that the termination took effect on 28
September 2022 as the reason for the delay in filing his application to be unconvincing. As
already set out above, the Respondent elected to pay out the Applicant’s notice period as it was
entitled to under the Employment Agreement, which right the Applicant acknowledged he was
aware of. Furthermore, the subsequent actions of the parties on the 31 August 2022 after the
47 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].
48 Ibid at [40].
[2023] FWC 243
21
midday meeting cannot be easily reconciled with the Applicant’s belief that he remained
employed up to 28 September. These matters are set out above at [37] and ought reasonably
have left the Applicant in no doubt that his employment had ended with immediate effect on
that day. Moreover, Mr Pawsey also states and was not challenged on this evidence, that the
Applicant was told on 31 August 2022 that the Respondent would pay out his notice period and
the termination would take immediate effect. While this is not reflected in Mr Marappen’s email
to the Applicant following the midday meeting, I accept that such a statement was made to the
Applicant given the other actions taken by the Respondent that are consistent with the
employment being brought to an end immediately on 31 August 2022.
[79] In the above circumstances I am satisfied that the Applicant ought reasonably have been
aware of the immediate effect of termination of his employment. His claimed misunderstanding
of the effective date of his dismissal may be argued to be ignorance on his part but such
ignorance is not in my view unusual or out of the ordinary. I am not satisfied in the
circumstances that the claimed misunderstanding of the effective date of dismissal provides an
acceptable reason for the delay in the filing of the application. This weighs against a finding of
exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[80] I have found that the Applicant’s employment ceased on 31 August 2022 and while he
claims to have believed his termination of employment took effect on 28 September 2022 I
have already concluded that the Applicant ought reasonably have understood his termination
took effect on 31 August 2022. He therefore had the benefit of the full period of 21 days within
which to lodge his unfair dismissal application. This weighs against a finding of exceptional
circumstances.
Action taken to dispute dismissal
[81] While the Applicant wrote to the Respondent on 27 September 2022 with the objective
of encouraging a settlement of the matter before he filed an application in the Commission, that
action does not constitute action taken to dispute the dismissal. I am satisfied that the Applicant
did not take any action to contest his dismissal after it took effect on 31 August 2022, other than
by lodging his unfair dismissal application. This circumstance does not weigh in favour of a
conclusion that there are exceptional circumstances.
Prejudice to the employer
[82] The application was filed 13 days outside of the 21-day period. While such a delay is
not insignificant, there is no material before me to suggest that such delay would cause
significant prejudice to the employer. This factor weighs neutrally in my consideration.
Merits of the application
[83] The Act requires me to take into account the merits of the application in considering
whether to extend time. The Applicant refers in his evidence to a lack of formal performance
management undertaken by the Respondent prior to his termination of employment which the
Respondent readily concedes.
[2023] FWC 243
22
[84] While the merits of the Application turn on contested points of fact which would need
to be tested if an extension of time were granted, it is not apparent on the basis of the material
before me that a valid reason for the Applicant’s dismissal has been established. In these
circumstances, I do consider that the merits of the present case tell in favour of an extension of
time.
Fairness as between the person and other persons in a similar position
[85] This consideration may relate to matters currently before the Commission or to matters
previously decided by the Commission. It may also relate to the position of various employees
of an employer responding to an unfair dismissal application. However, cases of this kind will
generally turn on their own facts.
[86] 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.
Summary on extension of time
[87] Having regard to the matters I am required to take into account under s.394(3), and all
of the matters raised by the Applicant and outlined above, I am not satisfied that there are
exceptional circumstances in this case, either when the various circumstances are considered
individually or together.
[88] Because I am not satisfied that there are exceptional circumstances, there is no basis for
me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the
Act.
Conclusion
[89] The Applicant did not contend that he was dismissed within the meaning of s 386(1)(a)
and I have found that the applicant has not been dismissed within the meaning of s. 386(1)(b)
of the Act as contended by him. Accordingly, at the time the Applicant made the s 394
application, he was not a person who has been dismissed for the purposes of s 394 of the Act.
[90] I have further found that if I am wrong in my conclusion that the Applicant was not
dismissed within the meaning of s 386(1) of the Act, I would decline to grant an extension of
time for the filing of the application. The Respondent’s jurisdictional objections are therefore
upheld.
[91] The application is therefore dismissed. An order giving effect to this decision will be
separately issued.
WORK OF THE FAIR WORK THE AUSTRALIA O. MISSION THE SEAL
[2023] FWC 243
23
DEPUTY PRESIDENT
Appearances:
B Mathieson, Applicant.
D Murphy for the Respondent.
Hearing details:
2023.
Melbourne.
January 25.
Printed by authority of the Commonwealth Government Printer
PR750028
