1
Fair Work Act 2009
s.365—General protections
Ayten Saridas
v
SolGold PLC
(C2022/6665)
DEPUTY PRESIDENT BELL MELBOURNE, 20 MARCH 2023
Application to deal with contraventions involving dismissal – whether period in letter of
resignation is included – application filed out of time – circumstances not exceptional –
application dismissed.
[1] On 30 September 2022, Ms Ayten Saridas (Applicant) applied under s.365 of the Fair
Work Act 2009 (the Act) for the Fair Work Commission (Commission) to deal with a general
protections dispute involving dismissal (the Application).
[2] Section 366(1) requires an application under s.365 to be made within 21 days after the
dismissal took effect. In her application Ms Saridas states that her dismissal took effect on 10
September 2022. In its Form F8A Response to the general protections application filed on 28
October 2022, SolGold PLC (Respondent) raised a jurisdictional objection on the ground that
the application was made outside the 21-day time limit set out in s.366(1). The Respondent
states the dismissal took effect on 10 August 2022, making the application outside the 21-day
timeframe by 30 days.
[3] The matter was listed for conciliation on 24 November 2022 but was unable to be
resolved. The matter was then allocated to me. Following the issuing of directions for the filing
of evidence and submissions, the hearing of the matter took place on 3 February 2023.
[4] After conferring with the parties at a mention hearing, I resolved to conduct the matter
by way of a hearing. I also granted both parties permission to be represented and I record here
that I was assisted by both practitioners in the conduct of the hearing.
[5] There were two key issues in dispute before me. The first was the date of dismissal. On
the Applicant’s case, if the date of dismissal was 10 September 2022, then no extension of time
is required. The second issue – being the extension of time question – arises depending upon
the outcome of my findings regarding the date of dismissal.
[6] I note for completeness that in the Respondent’s Form F8A response, it alleged that the
termination of employment occurred at the Applicant’s initiative, by way of resignation. This
particular contention was amplified in the Respondent’s written submissions. At the hearing
[2023] FWC 289
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 289
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before me, the Respondent frankly acknowledged that the termination of employment was a
“constructive dismissal”. As will become evident, that acknowledgement was plainly correct
and, for that reason, it is not necessary for me to consider whether or not there was a “dismissal”
but, rather, when that dismissal occurred and whether the timing of that dismissal necessitates
an extension of time being granted under s.366(1).
[7] Each party called one witness. Ms Saridas gave evidence for herself. Mr Rufus Sugana-
Gandhi, Group General Counsel and Group Company Secretary for the Respondent, gave
evidence for the Respondent. Each witness was cross-examined. In the conduct of the hearing,
Mr Sugana-Gandhi was referred to as simply ‘Mr Gandhi’ and I will do the same for consistency
in these reasons.
Factual background and findings
[8] The Respondent is a resources company, focussed on the discovery and development of
copper and gold deposits. It appears that (at least in around mid-2022), its primary activities
were focussed on the Andean copper belt in South America and, specifically, Ecuador.
Approximately 99% of its employees are Ecuadorian.
[9] The Respondent is listed on the London Stock Exchange and Toronto Stock Exchange.
Its head office is located in Brisbane, Australia.
[10] On 5 May 2022, the Applicant signed an employment contract for employment with the
Respondent as its Chief Financial Officer. Her employment commenced on 27 June 2022.
[11] Having regard to the nature and seniority of her position, the employment contract is
detailed. It is unnecessary to summarise it, although there was a defined probationary period
and provisions for termination as follows:
“13. PROBATION PERIOD
There will be a probationary period from the commencement date as defined in clause
1.1 for the period specified in Schedule 2 during which time either party may terminate
this Agreement on four weeks' notice.”
[12] There was no dispute the Applicant was within the probationary period at all material
times.
[13] While the Applicant resided in Sydney, she would sometimes fly to Brisbane for the
week before returning home, although she worked in both locations (and the evidence indicates
business travel elsewhere, as well).
[14] On the week beginning Monday, 8 August 2022 the Applicant flew from Sydney to
Brisbane for work. When she went to Brisbane for that week, it was her expectation to be in
Brisbane for the whole week. Those plans soon changed.
[15] It would appear that a key focus of the Applicant’s work had been an important capital
raising, also described as a ‘cash box’ raising by the parties. That capital raising failed or,
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perhaps more accurately, was perceived by the Board of the Respondent as being likely to fail
and, for that reason, was discontinued before (in the Board’s view) reputational damage would
accrue to the Respondent.
[16] The cause of the capital raising being unsuccessful (to adopt a more neutral term) is a
matter in contest between the parties, although it is not necessary for me to resolve it.
[17] It is undisputed, however, that the Board attributed some significant responsibility for
the unsuccessful capital raising to the Applicant. In her evidence (which is unchallenged on this
aspect and I accept it), she recalls the following conversation with the (then) Chief Executive
Officer, Mr Cuzzubbo, on 9 August 2022:
“Cuzzubbo: Ayten I am sorry, but you will have to leave the company. I offered the
Board my resignation after the failed cash box raising but they do not
want me to resign. It is best that you to resign.
Me: Darryl you know as well as I do that the only reason the capital raising
failed is the Board did not follow the advice of management and the
external advisors.
Cuzzubbo: I know Ayten, but they want you to resign. I think it is your best
interests is to resign.
Me: This is most unfair. I am being made a scapegoat for the failed capital
raising and my criticisms of the Board. I will need some time to take
advice before I decide whether to resign.
Cuzzubbo: The Board and the shareholders want you to go. It is much easier if you
will agree to resign. I understand you will need some time to take
advice.
Me: Yes. I will let you know about the resignation. I am going back to my
hotel to clear my head and will come in tomorrow.
Cuzzubbo: As there is no need for you to come back to the office, you can leave
your computer here.”
[18] Mr Gandhi gave evidence of a conversation between the Applicant and Mr Cuzzubbo
on that day. His evidence was entirely based on what Mr Cuzzubbo had told him, however, and
the Applicant’s counsel objected to its tender. I accepted the evidence, albeit only as to explain
Mr Gandhi’s state of mind about whether the Applicant had resigned, but not as to the accuracy
of Mr Cuzzubbo’s conversation with the Applicant that day.
[19] Notwithstanding those hearsay objections, Mr Gandhi was cross-examined about that
evidence and asked to confirm (which Mr Gandhi agreed) that, what he had been told by Mr
Cuzzubbo on 9 August 2022, was to the following effect:
“'Ayten has been asked to leave because the board has lost faith in her capability. During
the conversation with the board, I had offered my own resignation. Someone had to
resign. The members of the board were embarrassed by the capital raising.' And then
there were discussions about a deed later.”
[20] On the same day following that meeting, the Applicant exchanged text messages with
Mr Cuzzubbo. One of those messages stated she had “gone back to the hotel” and “won’t be in
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the office for the rest of the day”. Mr Cuzzubbo’s message said he understood and then said “I
feel incredibly sorry for bring u into this”. The Applicant then stated:
“I won't allow the Board to use me as a way to defend their actions. I'm happy to stand
up to their bullying and am not afraid. If anyone needs to resign it's not going to be me.”
[21] On 10 August 2022, the Applicant attended the office. She attended a meeting with Mr
Cuzzubbo and Ms Tania Cashman. Ms Cashman was the Head of People for the Respondent.
The Applicant states in her evidence (and I accept) the conversation included the following:
“Me: You will get your resignation. I still have to make a few phone calls
before I send it.
Cuzzubbo: That is fine Ayten.
Cashman: Are you ok?
Me: Yes. I am heading back to Sydney today.”
[22] It would appear that this conversation possibly covered more ground but neither party
gave details of it in chief. Under examination, the Applicant confirmed, with apparent reference
to events occurring on 10 August 2022, that:
“I was told by [Mr Cuzzubbo] that my meetings that week, he would cancel them. I asked
him, the work that I was working on, what he wanted me to do with them, and he said,
'Just leave it, it's okay, we'll take care of it.'”
[23] The Applicant asked me to draw an inference that a failure to call Mr Cuzzubbo or Ms
Cashman was because their evidence would not have assisted the Respondent’s case. It appears
that both Mr Cuzzubbo and Ms Cashman were in Australia and potentially available to give
evidence, but the Respondent had not spoken to them. While I would be prepared to draw that
inference if there was any relevant matter to which it applied, I do not consider that the rule in
Jones v Dunkel was engaged having regard to the evidence led by the parties and their
submissions about it. Aside from the limited witness evidence described above from the
Applicant (which the Respondent did not seek to challenge), the evidence was largely
documentary.
[24] While the exact sequence in the chronology is not entirely clear, the Applicant’s
evidence included various text messages with Ms Cashman. A number of those appear to have
been sent between 12.35pm and 10.49pm on 10 August 2022, with the final of those messages
referring to her not getting “home” until late.
[25] The first of the messages in evidence was sent at 12.35pm. It was a message from the
Applicant to Ms Cashman that stated:
“Anyway let's get the paperwork done so I can move on. I'll send the formal resignation
when I get home. Wish you the best and if you are in Sydney come over because we still
need to have that bottle of wine together x”
[26] There was further discussion by text message to the effect of a proposed non-disclosure
deed, which could potentially be accompanied by an additional four weeks’ payout. The
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Applicant did not consider the deed would actually protect her and rejected that idea. There was
some discussion from the Applicant regarding how “the market” would interpret her departure.
The Applicant also stated:
“What I would appreciate though is reviewing the announcement before it goes out. I
want it benign and nothing explicit other than I resigned after x weeks.”
[27] The Applicant’s evidence is that, following the meeting on 10 August 2022 with Mr
Cuzzubbo and Ms Cashman described above, she sent an email to the team who reported to her.
The Applicant’s witness statement states she did so as she had been “told by Mr Cuzzubbo that
I was not wanted in the business”. The email (10 August email), included in the Respondent’s
material, was as follows:
“Team,
I didn’t want to be sending you this email but with a heavy heart I advise that I will be
resigning and leaving today. I’m sad because I was looking forward to working with
you and making the changes that is needed. But my role is not tenable and I wish you
all the best of luck.
I have included my personal email address above.
Take care and hopefully our paths will cross again.
… ”
[28] As the 10 August email indicated, the Applicant had copied her personal email address.
The subject heading for the email was “Resignation”.
[29] Shortly after sending the 10 August email, the Applicant left the Brisbane office. Before
she left, she gave her access pass to Ms Cashman. She collected a small number of personal
belongings in her office. Consistent with the Applicant’s statement to Mr Cuzzubbo and Ms
Cashman earlier that day, the Applicant then returned to Sydney.
[30] On 11 August 2022, Mr Gandhi caused a statement (Market Announcement) to be
published on the Respondent’s website. Mr Gandhi’s purpose was “to announce to the market
that the Applicant had resigned from her role as Group Chief Financial Officer”. He did so on
the basis that (in his view) the Applicant had resigned, she had communicated that fact to her
team, had returned company property and left the office.
[31] The Market Announcement relevant stated:
“MANAGEMENT CHANGE
SolGold announces that Ayten Saridas, Group Chief Financial Officer ("CFO"), has
resigned effective immediately. The Company has appointed Keith Pollocks as Interim
CFO until a permanent replacement is appointed.
[2023] FWC 289
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Mr Pollocks has extensive international experience leading global finance functions for
a range of public and private multinational companies predominantly across banking,
infrastructure, resources, and mining. Throughout his career, Mr Pollocks has held
various senior finance and commercial management roles in Australia, Europe, US, and
Asia and specialised in capital raising, mergers and acquisitions, financial risk
management, investor relations and strategic transformation. Mr Pollocks started his
career with Shell International and has recently held CFO roles at Victory Offices
(ASX:VOL), Kasbah Resources Limited (ASX: KAS) and Newcastle Coal
Infrastructure Group. He holds a Bachelor of Business, Master of Commerce and is a
Chartered Corporate Treasurer and Certified Practising Accountant.”
[32] The Market Announcement also described a separate resignation from the board of a
director, as well as another employee. For the statement about the director, the Market
Announcement stated he resigned “effective from 12th August 2022” but he would be remaining
as advisor to the company’s technical committee for a period afterwards.
[33] The Applicant evidently saw, or had her attention drawn to, the Market Announcement.
By text message on 11 August 2022, she complained to Mr Cuzzubbo in the following terms:
“Darryl, I noticed that an announcement has already been made to the market that I have
resigned. I have not in fact yet resigned. I've been working with my lawyer today to craft
a response but now that it's been announced we will need to change that. I don't know
what the rush was but this is not proper process and you have mislead the market by
announcing something that has not yet happened. I'm very disappointed and will respond
accordingly.”
[34] Mr Cuzzubbo’s response was:
“Ayten, I saw your note to your team stating that had resigned on top of you verbally
telling me. I acted on that which I believe I had to. I'm honestly sorry that you feel that
way.”
[35] The Applicant then replied:
“Despite my email to the team you had not yet formally received my resignation Darryl.
I will have something to you tomorrow now that a resignation seems irrelevant”
[36] On 12 August 2022, the Applicant sent the Respondent a letter titled “Letter of
Resignation” (the Letter of Resignation). The letter begins:
“I acknowledge the verbal advice provided to me by Darryl Cuzzubbo on 9 August 2022
that the Board of SolGold PLC have directed me to resign from my role as Chief
Financial Officer.
By this letter I give the written notice required of termination of my Employment
Agreement dated 5 May 2022.
Please be on notice that:
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1. My resignation is being forced on me by the actions of the Board of SolGold PLC;
and
2. Darryl Cuzzubbo advised me that:
a. this was not an outcome he wanted; and
b. the Board hold me responsible for the failed capital raising; and
c. he offered his resignation to the Board of SolGold instead; and
d. the Board rejected Mr. Cuzzubbo’s offer of his resignation in favour of my
resignation; and
e. if I did not resign, I would be terminated by the Board; and
f. the Board informed him that the Board and shareholders had lost faith in me
for me to continue in the role.
3. I reject the suggestion shareholders have lost faith and dispute that shareholders have
been provided with an honest and balanced record of the decision to carry out a Cash
Box offering against any other forms of capital raising.
4. I am wrongly being made a “scapegoat” and/or being identified by the Board of
SolGold and/or its management (as directed by the Board of SolGold) as the cause of
the failed capital raise to shareholders.
[37] The letter is five pages in length and would appear to have been drafted with the
assistance of legal representation. It is not necessary to set it out in full. Much of the letter that
follows the extract above relates to the Applicant’s position concerning the circumstances of
the failed capital raising and a whistleblowing complaint she made, neither of which are matters
I need to address for the current application. In the conclusionary parts of the letter, the
Applicant states:
“As I remain an employee of the Company until the end of my notice period, I make this
whistleblowing complaint to Tania Cashman – Chief People Officer.”
[38] In the following period, it was accepted by the Respondent that the Applicant was not
paid her four week notice period at this time or at all. The Applicant also states that she had not
been paid her annual leave entitlement – I accept her evidence, noting that nothing was
advanced to contradict it in the Respondent’s evidence in chief.
[39] It is unclear why the Applicant’s notice and leave entitlements were not paid, although
the Applicant included an email chain from September 2022, in which the Applicant states her
disappointment that “you have linked the payment of what is a relatively minor statutory
entitlement under my employment contract conditional on me signing a Deed.” The reference
to the deed was to a “Deed of Settlement” sent to her by the Respondent on 6 September 2022,
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although that document was not in evidence. The Applicant stated in her email that, upon legal
advice, she would not be signing the proposed deed. If there was a basis to withhold these
amounts, I am not aware of it.
[40] According to the Applicant’s Form F8, the date the dismissal took effect was 10
September 2022. This accords with the final day of the four week period from the date of her
Letter of Resignation. The Applicant filed her an application under s.365 of the Act on 30
September 2022, which would make her application within 20 days of 10 September 2022.
When did the dismissal occur?
[41] The Respondent’s case is that the Applicant resigned on 10 August 2022. It says she did
so by her email to her team of that date.
[42] The Applicant’s case is that she did not resign by any conversation or conduct on 9 or
10 August 2022. Rather, she says she foreshadowed her intention to resign and, on 12 August
2022, she gave notice of her resignation.
[43] In support of those contentions, the Applicant relies on future-looking language of
various key statements or conversations. For example (my emphasis):
• On 9 August 2022, she told Mr Cuzzubbo “I will let you know about the resignation”.
Allied to this statement was a contemporaneous text message where she stated to Mr
Cuzzubbo “If anyone needs to resign it's not going to be me”.
• On 10 August 2022, she told Mr Cuzzubbo and Ms Cashman “You will get your
resignation.” That was further qualified by her following statement “I still have to
make a few phone calls before I send it.” Allied to this statement was a
contemporaneous text message that day where she stated to Ms Cashman “I’ll send
the formal resignation when I get home” and, at the end of that day, “Will send
resignation in writing tomorrow to formalise everything”.
[44] Similarly, in relation to the 10 August email relied upon by the Respondent, the
Applicant states that it was referring to a resignation in the future, as her email stated “ … with
a heavy heart I advise that I will be resigning and leaving today”.
[45] Taking these statements together (and similar statements following on 11 August 2022)
the Applicant contends she did not resign prior to her Letter of Resignation on 12 August 2022.
She then contends that, by the Letter of Resignation, she gave notice of her resignation, whose
notice period then ran for a further four weeks. As her employment contract required her to
report to Mr Cuzzubbo, she says there is no indication she did anything to the contrary, as she
says she was following the direction given by Mr Cuzzubbo to no longer attend work.
[46] In her written submissions, the Applicant also attacks the effect or character of the 10
August email. She states:
“The respondent’s jurisdictional objection is reliant on a finding by the Commission that:
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(a) the email from the applicant dated 10 August 2022 to the members of her team who
reported to her was a notice of termination within the meaning of the Employment
Agreement; and
(b) the team members who reported to the applicant were authorised to receive a notice
of termination; and
(c) the applicant’s leaving her computer and returning to Sydney was not authorised by
Mr. Cuzzubbo, the Chief Executive Officer of the respondent (Cuzzubbo); and
(d) the actions of the applicant in paragraph was repudiatory conduct by the applicant;
and
(e) the silence of the respondent after receiving the applicant’s letter of resignation on
12 August 2022 is of no relevance; and
(f) the applicant abandoned her employment on 10 August 2022; and
(g) the notice and availability offered by the applicant to undertake work at the direction
of the respondent contained in the 12 August 2022 letter was not genuine.”
[47] It is tolerably clear to me that the Applicant’s employment relationship was terminated
on 10 August 2022 or, at the latest, on 11 August 2022.
[48] The Applicant was a very highly-paid executive, working in a publicly listing mining
and exploration company. The company was in the process of attempting a capital raising. That
capital raising was assessed, at least by the board, as likely to fail. Rather than failure, the board
cancelled the proposed capital raising. Rightly or wrongly, the board blamed the Applicant.
[49] In somewhat stark terms, the Applicant was given a choice to jump ship or be pushed.
That decision was communicated on 9 August 2022. The Applicant was plainly displeased with
the board’s decision and, in the Applicant’s view, being made a scapegoat. But as might be
expected by someone of her seniority, she was under little illusion that she was being asked to
leave.
[50] Further discussions ensued on 10 August 2022, with the CEO and the Head of People.
The Applicant’s evidence of that conversation was her saying “You will get your resignation. I
still have to make a few phone calls before I send it ” and then also stating “I am heading back
to Sydney today.” What occurs shortly after was sending the email titled “Resignation” to her
team.
[51] She then returns her pass and computer, collects her possessions, and leaves to Sydney.
She was otherwise originally planning to remain in Brisbane for the week. Together with the
sending of the 10 August email, I am satisfied that the Applicant’s employment relationship
was terminated on 10 August 2022 by those events.
[52] Contrary to the Applicant’s submissions, I do not accept the use of the future tense –
“will” - in her conversation on 10 August 2022 and the 10 August email that followed alter that
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conclusion. The 10 August email states that “… with a heavy heart I advise that I will be
resigning and leaving today.” So far as that statement conveys future events, it was to two
events occurring that day – her “resigning” and “leaving”. She did both. Objectively, it is
difficult to see how such an email, from someone as senior as the Applicant, to her team would
be construed otherwise, not just in relation to the immediate recipients but to anyone else in the
company to whom it might have been forwarded. There were no restrictions to her team on how
the email should be used or to whom it might have been sent.
[53] The act of returning her pass, collecting her possessions, saying goodbye to her team
and leaving to Sydney cannot be objectively1 construed as anything other than the employment
relationship coming to an end. While I accept that some of the Applicant’s statements
demonstrated an intent to resign in the future, those statements were made in less formal
contexts and were superseded by the events of 10 August 2022. I am satisfied that the events of
10 August 2022 evince an objective intention of a resignation occurring on 10 August 2022,
culminating with the Applicant leaving “today”. She did leave and, under protest, she did resign.
[54] I do not accept the Applicant’s written submission that I must find that the Applicant’s
team members were “authorised” to receive a notice of termination. That proposition misstates
what the team members were authorised to do. They were clearly authorised to receive emails
from the Applicant and they were also authorised to pass them on. As the team members were
just told by their direct manager that she was leaving “today”, it would also be expected that
those employees would promptly ask the Applicant’s manager (the CEO) or others about who
they would be reporting to next. If nothing else, it would be expected there would be some
discussion of that event. This is clearly what occurred given Mr Gandhi’s contemporaneous
awareness of the email that (with other events) formed the basis of his decision to issue a
statement to the market.
[55] I also do not accept the Applicant’s submissions that she was “authorised” by the CEO
to leave her computer and to return to Sydney from 10 August 2022 onwards. This submission
has an air of unreality, as it is suggesting that the Applicant was being placed on a form of
gardening leave. It is unclear where the factual basis for the assertion lies, as the Applicant’s
witness statement does not disclose a basis for it.2
[56] The conversation with the CEO and Head of People on 10 August 2022 disclosed no
evidence to support the contention that she had been directed to some form of gardening leave
to serve out her notice period. So far as the Applicant explains why she left to Sydney, her
witness statement points in the opposite direction, as it states she left because “I was told by
Cuzzubbo that I was not wanted in the business.” I do not consider that the text messages with
Mr Cuzzubbo on 9 August 2022 disclose any such “authorisation” and neither do the text
messages the next day with Ms Cashman (which are, in any case, after the event).
[57] There is no question the Applicant was directed to leave on 10 August 2022, but to
describe that as a form of “authorised” employment for the period that followed cannot be
sustained.
[58] Even if a different view might be held of the events of 10 August 2022, I am left in no
doubt at all that the employment relationship was terminated on 11 August 2022 following the
release of the Market Announcement. That announcement, directed at shareholders and the
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market generally, described the Applicant’s resignation “effective immediately”. The Applicant
became aware of the announcement on 11 August 2022. I note Mr Gandhi’s evidence (which I
accept) was to the effect that he issued that notice because of his belief that the Applicant had
resigned. But even if Mr Gandhi’s belief was misplaced, it is difficult to envisage a more
objectively destructive act to the employment relationship of a person in the Applicant’s
seniority than a market announcement describing the immediate end of the Applicant’s
employment and the appointment of an Interim CFO. The Market Announcement was never
retracted nor corrected.
[59] Aspects of the Applicant’s written submissions are directed at the Respondent’s
submissions, the latter of which contended some form of “abandonment” of employment. I
accept the Applicant’s submissions that there was no abandonment of employment, but it does
not follow that her absence was therefore due to an “authorised” absence. I noted above that the
Respondent acknowledges there was a constructive dismissal. The termination of the
employment relationship, assessed objectively, was at the initiative of the employer. The
concept of “abandonment” in the circumstances before me has no role.
[60] The heart of the Applicant’s submissions appear to rest on a contention that the notice
of resignation provided in the Letter of Resignation had the effect of preserving both the
employment contract and the employment relationship for the four week notice period that
followed. I do not accept that the Letter of Resignation had that effect. I consider that the
Applicant’s own assessment the day before was more accurate, which in her own words on 11
August 2022 when complaining to Mr Cuzzubbo about the Market Announcement, was that a
“resignation seems irrelevant”.
[61] Similar to the circumstances in Visscher v Giudice (2009) 239 CLR 361 (Visscher) at
[53], the Applicant’s submissions elide the established difference between the termination of
the employment relationship and termination of the employment contract. The majority in
Visscher cited the following proposition from Byrne v Australian Airlines Ltd (1995) 185 CLR
410 at 427 per Brennan CJ, Dawson and Toohey JJ:
“It does not appear to have been doubted in this country that a wrongful dismissal
terminates the employment relationship notwithstanding that the contract of
employment may continue until the employee accepts the repudiation constituted by the
wrongful dismissal and puts an end to the contract. That was accepted by both the
majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson …”
[62] More recently in Broadlex Services Pty Ltd v United Workers’ Union [2020] FCA 867
(a case considering circumstances relevant to a demotion), Katzmann J stated:
“In both Visscher (at [53]) and Byrne (at 427) reference was made to the statements of
Latham CJ in Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 454
that “[a]n employer terminates the employment of a servant when he dismisses him …”
and Dixon J in the same case at 469 that “[t]here is nothing in the general law preventing
the wrongful dismissal of a servant operating to discharge him from service,
notwithstanding that he declines to accept the dismissal as absolving him from further
performance but keeps the contract open and remains ready and willing to serve”. In
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Visscher (at [54]) reference was also made to the statement by Latham CJ in Automatic
Fire Sprinklers Pty Ltd v Watson at 451 that:
[T]he wrongful dismissal determines the relationship of master and servant
created by the contract, even though the servant may not have accepted his
dismissal as entitling him to regard the contract as discharged.”
[63] Even if it was accepted that the Applicant had affirmed her employment contract in the
face of the Respondent’s repudiation (i.e. wrongful or constructive dismissal), the employment
relationship had already been terminated. As set out above, I am satisfied that the employment
relationship was terminated at the employer’s initiative on 10 August 2022 or, by no later than
11 August 2022.
[64] It follows that I find that the Applicant was dismissed and the “dismissal took effect”
for the purpose of s.366 of the Act on 10 August 2022 and by no later than 11 August 2022.
Extension of time
[65] On this basis the application should have been filed by 31 August 2022 or 1 September
2022 and was, in the circumstances, approximately 30 days’ late. In my reasons that follow,
nothing turns on whether the date the dismissal took effect was 10 or 11 August 2022.
Was the application made within such further period as the Commission allows?
[66] Under section 366(2) of the FW Act, the Commission may allow a further period for a
dismissal dispute application to be made if the Commission is satisfied that there are exceptional
circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
[67] Each of the above matters must be considered in assessing whether there are exceptional
circumstances.3 I set out my consideration of each matter below.
Section 366(2)(a) - Reason for the delay
[68] In her witness statement, the Applicant’s evidence touching on the reasons for delay is:
“10. On 12 August 2022, I sent a letter of resignation dated 12 August 2022 which is
Annexed and marked D.
[2023] FWC 289
13
11. Since 12 August 2022 I have communicated directly with Cashman and Cuzzubbo
regarding executing a Deed of Release regarding the termination of my Employment
Agreement. At no stage since 12 August 2022 have either Cashman or Cuzzubbo
communicated with me that my letter of resignation dated 12 August 2022 was not
accepted by the respondent as notice of termination in accordance with my Employment
Agreement.”
[69] I note that the Letter of Termination states (my emphasis) “As I remain an employee of
the Company until the end of my notice period, I make this whistleblowing complaint to Tania
Cashman – Chief People Officer.”
[70] The Applicant refers to further emails between 6 and 19 September 2022 between
herself and the Respondent. By the email of 6 September 2022, Mr Gandhi sent a proposed
deed of settlement. No response was received to that until 19 September 2022, following a
prompt from Ms Cashman on 19 September 2022. The Applicant’s reply on 19 September 2022
is that “following legal advice”, she would not be signing the deed. There is nothing else in the
evidence to relevantly explain the delay.
[71] The Applicant’s submissions state:
“8. If the Commissioner finds the General Protections Application was out of time, there
are exceptional circumstances where the applicant acted in reliance on her letter of
resignation dated 12 August 2022 and the respondent did not act to inform the applicant
that they considered her employment terminated immediately because of her email to
her team on 10 August 2022 and the leaving her computer in the office (something she
did when every she returned to Sydney).
9. There is no reasonable basis for the respondent to claim:
a. the email sent by the applicant to her team on 10 August 2022 was a written
notice of termination; or
b. the letter of resignation of 12 August 2022 was not the formal contractual
notice of resignation requested by Cuzzubbo and Cashman.”
[72] The Applicant’s evidence for the reasons for delay is, impliedly, because she believed
that she was within time and there was no “reasonable basis” to assume otherwise. I say
“impliedly” because the Applicant does not positively depose that this was her belief.
[73] Nonetheless, a factor in the Applicant’s favour was that she had not been paid notice or
entitlements, which ought to have occurred promptly. The Respondent’s failure to pay those
amounts was unexplained.
[74] The highest that I consider the evidence allows me to be satisfied regarding the reasons
for delay is that the Applicant was labouring under a belief that the Letter of Resignation was
effective in preserving the employment relationship until 10 September 2022 and, therefore,
she was within time. Despite the obvious involvement of legal practitioners, I note there was
no evidence to the effect that she had been given legal advice in terms to that effect. That is not
[2023] FWC 289
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to suggest that there was legal advice given, but the point is that the Applicant had legal
resources available if required.
[75] As to the Respondent’s alleged failure to disavow the Applicant of her alleged belief
that the employment was continuing in accordance with the Letter of Resignation, I do not
consider this adds much. In part, I consider that the continuation of the employment relationship
had a degree of unreality, largely for the reasons I have already stated. As best as I can discern,
the Respondent did not disavow itself of the Applicant’s other complaints (c.f. the
whistleblowing allegation) but this does not suggest that the Respondent in any way accepted
those allegations.
[76] In short, the reasons for the delay may be distilled to a belief that the Applicant was
within her notice period, because of the Letter of Resignation, and that her belief was fortified
(in her view) by the absence of a statement of correction by the Respondent.
[77] I do not consider these reasons point in favour of exceptional circumstances.
Section 366(2)(b) - action was taken by the Applicant to dispute the dismissal
[78] Where an Applicant takes action to contest a termination, it will put the employer on
notice that its decision to terminate the applicant’s employment is actively contested and may,
depending on all the circumstances, favour the granting of an extension of time.4
[79] I am prepared to accept that the Letter of Resignation was action taken to dispute the
dismissal, at least in the broader sense that she was challenging the basis for why her
employment was terminated.
Section 366(2)(c) - the prejudice to the employer (including prejudice caused by the delay)
[80] In all the circumstances, I do not find that any material prejudice would be suffered by
the Respondent if an extension of time were granted.
Section 366(2)(d) - the merits of the application
[81] The competing contentions of the parties in relation to the merits of the application are
set out in the filed materials, although at a relatively high level.
[82] Having examined these materials, it is evident to me that the merits of the application
turn on contested points of fact, evidence in respect of which would be heard and weighed in a
hearing of the merits of this matter, if an extension of time were granted. It is well established
that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the
ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”5.
[83] I consider that there are aspects of the Applicant’s claim that would appear to face
difficulties, such as her “whistleblowing” complaint. On the material before me, this complaint
did not arise until after she had been asked to resign. Indeed, as far I can discern from the
Applicant’s ‘Form F8’ application, the best that might be said of it was that the Respondent had
a private (undisclosed) belief that the Applicant might at some point in the future be making a
[2023] FWC 289
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whistleblowing complaint and, while that complaint was not articulated before 12 August 2022,
that explains why she was asked to resign on 9 August 2022.
[84] Despite my reservations, and in the absence of a hearing of the evidence, it is not
possible to make any firm or detailed assessment of the merits.
Section 366(2)(e) - fairness as between the Applicant and other persons in a similar position
[85] Neither party brought to my attention any relevant matter concerning this consideration
and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is
nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the
matters above?
[86] I must now consider whether I am satisfied that there are exceptional circumstances,
taking into account my findings above.
[87] 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.6 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.7
[88] Where an applicant takes action to contest a termination, it will put the employer on
notice that its decision to terminate the applicant’s employment is actively contested and may,
depending on all the circumstances, favour the granting of an extension of time.8
[89] Mere ignorance of the statutory time limit is not an exceptional circumstance.9 I would
make the same observation as to ignorance regarding the timing of the dismissal itself,
particularly where (as here) the Applicant was legally represented.
[90] The delay in the present case is significant – around 30 days. The reasons for delay are
in part ignorance about the timing for making her claim due to the perceived effect of the Letter
of Resignation. I am not satisfied that the reasons for dismissal, on their own or in combination
with any other supportive matter establish exceptional circumstances. While I acknowledge that
it might be confusing for persons to appreciate the difference between the termination of an
employment contract and the termination of the employment relationship, that it is not of itself
“exceptional”.
[91] The Applicant took some steps to challenge her dismissal prior to her application. It is
a factor that I consider assists her.
[92] I am unable to form a concluded view about the merits of the application and, perhaps
generously in the Applicant’s favour, I am prepared to treat this factor neutrally. The factor
regarding the fairness between the Applicant and other persons in a similar position neither
adds nor detracts from my consideration.
[2023] FWC 289
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[93] When having regard to all of the matters listed at s.366(2) of the Act, I am not satisfied
that there are exceptional circumstances of the kind required by the statute.
Conclusion
[94] Not being satisfied that there are exceptional circumstances, there is no basis to allow
an extension of time. The Applicant’s application for the Commission to deal with a dismissal
dispute is therefore dismissed. An Order10 to this effect will be issued in conjunction with this
decision.
DEPUTY PRESIDENT
Appearances:
I Latham of Counsel for the Applicant
N Le Mare of Corrs Chambers Westgarth for the Respondent
Hearing details:
2023.
Melbourne (by video and Telephone):
February 3.
Printed by authority of the Commonwealth Government Printer
PR750189
1 Cf NSW Trains v Mr Todd James [2022] FWCFB 55 at [100] in the cited extract from City of Sydney RSL & Community
Club Limited v Balgowan (2018) 273 IR 126, [2018] FWCFB 5.
2 This is not a matter where any Jones v Dunkel inference might assist. Rather, the Applicant’s own evidence provides no
basis for the alleged authorisation.
3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
4 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
5 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].
6 Ibid [13].
7 Ibid.
8 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
9 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472,
[23].
10 PR750190.
OF THE WORK C MMISSION THE SEAL
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb975.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb975.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb5472.htm
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr750190.pdf
