1
Fair Work Act 2009
s.394—Unfair dismissal
Manpreet Banga
v
Threadneedle Street Brokers Pty Ltd T/A Hartley Financial
(U2022/10186)
COMMISSIONER P RYAN SYDNEY, 3 MARCH 2023
Application for an unfair dismissal remedy – jurisdictional objection – whether application
filed prematurely – application made in accordance with s.394(1)
Introduction
[1] Mr Manpreet Banga (Applicant) has made an application to the Fair Work Commission
(Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging
that he had been unfairly dismissed from his employment with Threadneedle Street Brokers Pty
Ltd (Respondent).
[2] The Form F2 Application (Application) was filed on 19 October 2022 and records the
date the dismissal took effect as 18 October 2022.
[3] The Form F3 Response (Response) was filed on 14 November 2022 and records the
date the dismissal took effect as 18 October 2022. The Response also raised a jurisdictional
objection that the Applicant was not dismissed. Rather, the Respondent contends that the
cessation of the employment relationship occurred by way of a mutual separation agreement.
[4] The Response stated that the mutual separation agreement provided that from 18
October 2022, the Applicant would not perform any further work for the Respondent to allow
the Applicant the opportunity to devote his time to seeking and obtaining alternative
employment. Further, the Respondent would pay to the Applicant four weeks’ notice on a
weekly basis. The Response stated that the Respondent made payments to the Applicant on a
weekly basis and accrued annual leave up to 15 November 2022.
[5] Having regard to the matters set out in the Response, at a case management hearing, I
raised with the parties the issue of whether the Application was filed prematurely, and if so,
whether the Commission should exercise its discretion pursuant to s.586(b) of the FW Act to
waive the irregularity in the manner in which the Application was made.
[2023] FWC 534
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 534
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[6] The Respondent opposed the Commission waiving the irregularity and submitted that
the Application should be dismissed. The Applicant disputed the Application was filed
prematurely.
[7] Following the case management hearing, I issued directions for the filing of evidence
and submissions on the issue of whether the Application was filed prematurely, and if so,
whether the Commission should exercise its discretion pursuant to s.586(b) of the FW Act to
waive the irregularity in the manner in which the Application was made.
[8] The matter was heard before me on 12 December 2022.
[9] I exercised my discretion to grant permission to the parties to be represented by a lawyer,
as I was satisfied as to the matters set out in s.596 (2)(a) and (c) of the FW Act. The Applicant
was represented by Mr S Banga. The Respondent was represented by Ms P Forster.
[10] For the reasons that follow, I am satisfied that the Application was made in accordance
with s.394(1) of the FW Act and was not filed prematurely.
Relevant Background
[11] On 19 July 2021, the Applicant commenced employment with the Respondent in the
role of Senior Financial Advisor.
[12] In late September 2022, there were discussions between the Applicant and Mr David
Hartley, the Respondent’s Director and Senior Financial Advisor, relating to a request by the
Applicant seeking increased remuneration.
[13] On 18 October 2022, the Applicant met with Mr Hartley. The parties are in dispute about
what occurred in this meeting.
[14] The Applicant contends that Mr Hartley advised him that the Respondent cannot meet
his salary expectations and was terminating his employment effective immediately. The
Applicant stated he was required to hand over equipment and keys belonging to the Respondent
and advised that his final pay would be paid weekly over the next four weeks.
[15] The Respondent contends that after advising the Applicant that it could not meet his
salary expectations, the parties agreed to end the employment relationship so that the Applicant
could pursue other opportunities. The Respondent contends that the Applicant requested his
notice payment to be paid out on a weekly basis rather than a lump sum, to which the
Respondent agreed, before inviting the Applicant to provide a letter of resignation.
[16] The Applicant stated that later that day, he received a notification on his mobile
telephone confirming that he had been signed out of the Respondent’s IT systems.
[17] On 19 October 2022, the Applicant filed the Application, contending that he was
dismissed on 18 October 2022.
[2023] FWC 534
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[18] On 20 October 2022, the Applicant received an email from Ms Sue Norman, the
Respondent’s Practice Manager. The email stated:
“…Also, as discussed on Tuesday please forward email confirming your employment
ended 18/10/2022 and that you would like the 4 weeks notice period and annual leave
paid on a weekly basis rather than as a lump sum payment (assume this is still your
preference).”
[19] The Applicant did not reply to this email.
[20] The Respondent subsequently paid the Applicant a week’s salary plus superannuation
each week until 15 November 2022. The Applicant’s accrued annual leave was paid out on 15
November 2022.
Summary of Applicant’s Submissions
[21] The Applicant submitted that he was protected from unfair dismissal and had ‘standing’
to make the Application.
[22] The Applicant submitted that his employment was terminated on 18 October 2022 and
the Application is not premature. It follows that there is no irregularity to waive or rectify.
Summary of Respondent’s Submissions
[23] The Respondent submitted with reference to the decision of a Full Bench of the
Commission in Mihajlovic v Lifeline Macarthur1 that where an employee has been terminated
on notice, the employment relationship ends when the notice period expires.
[24] The Respondent submitted that the Applicant was paid his notice period on a weekly
basis and therefore the employment did not cease until at least 11 November 2022. In support
of this submission, the Respondent submitted that the Applicant continued to accrue annual
leave and receive superannuation payments for this period.
[25] The Respondent further submitted that the Application’s lack of merit supports
dismissing the Application.
Consideration
[26] The issue to determine is whether the Application was filed prematurely, that is, before
the Applicant’s dismissal took effect.
[27] An application which was filed prematurely is properly to be characterised as one which
was not made in accordance with s.394(1) of the FW Act.2
[28] While the parties are in dispute about what was said in the meeting between the
Applicant and Mr Hartley on 18 October 2022, the email from Ms Norman on 20 October 2022
corroborates the Applicant’s contention that the employment ended on 18 October 2022 and
[2023] FWC 534
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that the issue was whether any notice payments and entitlements were to be paid in a lump sum
or by instalments on a weekly basis.
[29] The Applicant did not respond to Ms Norman’s email and it appears that the Respondent
unilaterally elected to make the payment of any notice and entitlements over the ensuing four-
week period and included superannuation contributions and the accrual of annual leave.
[30] Having regard to the materials before me, I am satisfied that the employment
relationship ended on 18 October 2022, and therefore, the Application was not filed
prematurely.
[31] In relation to the payment of superannuation contributions and accrual of annual leave
over the period up to 15 November 2022, I do not consider that is determinative of whether the
employment relationship remained on foot beyond 18 October 2022 where there are
contemporaneous records in the form of the filing of the Application on 19 October 2022 and
the email from Ms Norman on 20 October 2022, that the employment relationship ended on 18
October 2022.
[32] In coming to this conclusion, I do not make any finding about whether the employment
relationship ended on 18 October 2022 by way of resignation by the Applicant, a termination
at the initiative of the employer, or whether the parties agreed to do so. That will be an issue to
determine as part of the substantive proceedings.
Conclusion
[33] The Application was made in accordance with s.394(1) of the FW Act and was not filed
prematurely. The matter will be listed for further programming.
COMMISSIONER
Appearances:
Mr S Banga, solicitor for the Applicant.
Ms P Forster, solicitor for the Respondent.
Hearing details:
Sydney (via Microsoft Teams video-link):
2022.
12 December.
E THE FAIR WORK! THE SEAL NOISSINY
[2023] FWC 534
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Printed by authority of the Commonwealth Government Printer
PR760020
1 [2014] FWCFB 1070 at [17].
2 Ibid at [42].
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb1070.htm
