1
Fair Work Act 2009
s.394—Unfair dismissal
David Goodenough
v
CXN Transport Pty Ltd T/A Con-X-Ion Airport Transfers
(U2022/9169)
DEPUTY PRESIDENT ASBURY BRISBANE, 24 MARCH 2023
Application for an unfair dismissal remedy – Application filed outside of time required in s.
394(2) – Whether a further period to make the application should be granted – A further period
granted.
Overview
[1] Mr David Goodenough (the Applicant) applies to the Fair Work Commission
(Commission) for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009 (the FW
Act) in respect of the termination of his employment by CXN Transport Pty Ltd T/A Con-X-
Ion Airport Transfers (the Respondent). The application was made on 12 September 2022. The
Respondent objects to the application contending that it was not lodged within 21 days of the
dismissal taking effect, as required by s. 394(2) of the FW Act and further asserts that the
Applicant was not unfairly dismissed as the termination of the Applicant’s employment was a
case of genuine redundancy within the meaning in s. 389 of the FW Act.
[2] Section 394(2) of the Act provides 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
Commission allows under s. 394(2). The parties are in dispute in respect of the date upon which
the dismissal took effect and whether the Applicant made his application within the 21-day
period. Accordingly, this Decision is concerned only with the determination of whether the
application was lodged outside the 21-day period and, if necessary, whether the Commission
can be satisfied that there were exceptional circumstances to justify the granting of a further
period for the Applicant to make his application.
[3] In his Form F2 Application and oral evidence, the Applicant accepted that he was
notified on 15 August 2022 that his position had been made redundant, but he contends that his
dismissal took effect on 29 August 2022, the date he received the redundancy payment. If the
Applicant’s contention is accepted, his application was made within 21 days from the date the
dismissal took effect, as the 21-day period expired on 19 September 2022.
[4] In the Form F3 Response filed on 11 October 2022, the Respondent contended that the
Applicant was informed on 15 August 2022 that his position was made redundant effective on
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DECISION
AUSTRALIA FairWork Commission
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that date. The Respondent further asserted that the Applicant was advised on 15 August 2022
that a redundancy payment, which included payment in lieu of notice, would be paid to the
Applicant and that this was confirmed in an email sent to the Applicant on that date. If the
Respondent’s contention is accepted, the application was made 7 days outside the 21-day period
and could not proceed unless a further period is granted to the Applicant, pursuant to s. 394(2)
of the FW Act.
[5] After the Form F3 Response was filed, correspondence was sent to the Applicant from
the Chambers of Vice President Catanzariti on 9 November 2022, requesting his response to
the Respondent’s contention about the date the dismissal took effect. The Applicant was also
requested to provide further reasons as to whether there were exceptional circumstances to
warrant a further period being granted and to address the matters set out in s. 394(3) of the FW
Act. A brief response was provided by the Applicant on 14 November 2022.
[6] The matter was subsequently allocated to me for determination, and I issued Directions
on 28 November 2022 requiring the parties to file any additional material they sought to rely
on in relation to whether the application was lodged outside the 21-day period and whether a
further period should be granted. On 1 December 2021, the Applicant confirmed by email that
he wished to rely on the material he had already provided, and no additional material was
provided by the Applicant. On 12 December 2022, the Respondent filed an outline of
submissions (amended on 14 December 2022) and the witness statement of Mr Stuart Stratton1,
Director of the Respondent, opposing a further period being granted to the Applicant.
[7] A hearing was conducted by telephone on Friday, 16 December 2022. At the hearing,
the Applicant was self-represented and gave evidence on his own behalf. Mr Stratton was also
in attendance by telephone from the United Kingdom and gave evidence for the Respondent.
Mr C Campbell of Aitken Legal sought permission to represent the Respondent at the hearing
and made oral submissions addressing the matters in s. 596 of the FW Act. No objection was
raised by the Applicant to the Respondent being legally represented.
[8] Having considered Mr Campbell’s submissions, I was satisfied that it would assist the
Commission to deal with the matter more efficiently if the Respondent was legally represented
at the hearing on the basis that the Respondent’s director had been overseas for a period and
had not been involved in the preparation of the case. However, I also indicated that I would
withdraw permission if the presence of legal representative was not conducive to the efficient
conduct of the hearing, having regard to the fact that it was for the Applicant, not the
Respondent, to satisfy the Commission that a further period should be granted, if necessary.
Evidence and Submissions
[9] The background to the application is that the Applicant was initially engaged by the
Respondent as a contractor in 2011 and commenced employment with the Respondent in the
position of General Manager from 31 December 2012. The Respondent operates a business of
airport passenger shuttles to and from major airports on the east coast of Australia. The
Applicant stated that he was instrumental in the growth of the business over 11 years of service
and was offered a share incentive scheme which allowed the Applicant to accrue 1% of the
Respondent’s shareholding per annum for a period of 5 years. In November 2021, the
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Respondent agreed to allow the Applicant to call on the option to purchase an accrued 5%
shareholding in the Respondent.
[10] Mr Stratton stated that due to the COVID–19 pandemic, the business was significantly
impacted and most of its staff members, including the Applicant, were stood down from March
2020. The Applicant began receiving JobKeeper payments through the Respondent from March
2020 until the JobKeeper scheme ceased in March 2021 and the Applicant remained stood down
thereafter.
[11] Mr Stratton also stated that the Applicant subsequently approached the Respondent to
initiate discussions in relation to alternate options for receiving a consistent income. Mr
Stratton’s evidence is that it was at that point that the option of making the Applicant’s position
redundant and providing the Applicant with a redundancy payment was first considered by the
Respondent. However, due to an extreme downturn in the business in the previous 12 months,
the Respondent did not have sufficient capital to pay the Applicant’s full redundancy pay
entitlements. Ultimately, the Respondent came to an arrangement with the Applicant whereby
there would be a calculation of half of the Applicant’s redundancy payment entitlement which
was converted into an equivalent annual leave entitlement that was then paid progressively to
the Applicant at a reduced rate of earnings.
[12] In addition to receiving his annual leave entitlements in accordance with the
arrangement, another arrangement was made to engage the Applicant to perform marketing,
franchisee management and sales duties on a temporary part-time basis from April 2021. In
February 2022, Mr Stratton said that he had a conversation with the Applicant in which he
expressed uncertainty and concern about the future operational need for the Applicant’s
substantive position as a General Manager.2 Mr Stratton also said that in March 2022 the
Applicant ceased performing his part-time duties and by the pay period commencing 9 May
2022, the Applicant had exhausted his annual leave entitlements.
[13] Between March 2022 and July 2022, Mr Stratton said that the Applicant was on an
extended period of sick/personal leave.3 The Applicant gave evidence that while he was on sick
leave, he provided the Respondent with medical certificates on a fortnightly basis to cover each
fortnightly period of his leave, with the final medical certificate covering the period up to 4
August 2022. Mr Stratton said that by the end of July 2022, the Applicant’s personal leave
balance had been exhausted. At the hearing, the Applicant said that in early August 2022, he
expected that he would return to work when his sick leave came to an end on 4 August and that
he made inquiries with the Respondent as to whether he was to resume his position as the
General Manager or be employed at the same rate as the new Marketing Manager who had been
performing the role while he was on sick leave, or alternatively, whether he was to be made
redundant by the Respondent.
[14] On 2 August 2022, the Applicant had several exchanges of emails with Ms Peterson,
Chief Financial Officer of the Respondent, disputing the calculation of his leave balance and
the payslip for the pay period ending 31 July 2022. Mr Stratton was copied into those emails.
In the email sent by the Applicant at 3:41 pm on 2 August 2022, the Applicant stated:
“Sorry also I think that CXN has a morale (sic) if not legal (not sure how fairwork will regard this but my
attorney seems positive) re the leave at 120k per annum versus 65k per annum (as I never signed a
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reduction in pay and as no redundancy was offered I feel that the 398 day leave is application at 120k
rate??
Over to you Stuart?
If I want to start work again (if my [health team] agree) can we all agree I come back at the same hourly
rate as Lidia? (higher or lower irrelevant) Seems fair? If not please advise my redundancy accordingly
Kind regards,
David Goodenough
Marketing/Franchise Manager”
[15] In response to a proposition from me that the Applicant knew by 2 August 2022 that his
employment was going to be terminated when he suggested to the Respondent that either the
Respondent should make him redundant or appoint him to a different role, the Applicant said
that after the conclusion of his sick leave on 4 August 2022, he notified the Respondent that he
planned to return to work but was waiting for instructions from the Respondent. On 11 August
2022, the Applicant corresponded with Mr Stratton, noting that no response had been provided
by the Respondent to his email of 2 August 2022. In the email of 11 August 2022, the Applicant
stated:
“Good afternoon Stuart,
As I have had no response to this email can I please formally request a reply? I am happy to resume work
however as the General Manager position is now redundant “in your words” and will not be in the
foreseeable future please offer me the marketing position (same rate a (sic) Lidia) or the GM position
back or make my position redundancy (sic) as per the law.
Could I please receive a formal reply within 48 hours?”
[16] Mr Stratton replied to the Applicant the following day apologising for the delay and
indicating that he was waiting on advice and was hoping to provide a response to the Applicant
in the following week. On 15 August 2022, Mr Stratton emailed the Applicant advising him of
the redundancy of his “role”, as follows:
“Hi David,
In response to your email (without prejudice), we wish to inform you, your role at Con-x-ion has been
made redundant due to the Covid Downturn and the affect (sic) that it has had on our business.
We have calculated your redundancy to be as per the below up to the 4/8/2022 and the final figure will
be adjusted when finalised:
Hourly Rate $32.90
Redundancy 4/08/2022
Start date 31/12/2012
Years in service 9.60
Weeks redundancy 16 608 $20,003.20
Weeks notice 5 190 $6,251.00
Long Service Leave 311.28 $10,258.88
Total Owing to DG $36,513.08
David I'm sorry that we are in this position and we appreciate the work you have put in at Conxion over
the years, we wish you all the best with your future endeavours. Please feel free to reach out for a chat
anytime I'm always available on the phone.
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Kind Regards
Stuart Stratton”
[17] In relation to the email of 15 August 2022, I put the proposition to Mr Stratton during
his evidence, that nowhere did it indicate that the Applicant’s employment was ended, or that
the redundancy took effect, on 15 August 2022. I also questioned Mr Stratton as to why the
amounts shown in the email were calculated up to 4 August rather than 15 August, if the
Applicant’s employment ended on 15 August 2022. Mr Stratton said that the Applicant had no
further income after 4 August and his understanding was that there was no leave or any payment
due to the Applicant after that date, as he did not perform any work after 4 August. Mr Stratton
said that the last medical certificate provided by the Applicant covered a period up to 4 August
and by that point, the Applicant had exhausted his sick leave entitlements.
[18] It is common ground that following the email of 15 August 2022, the Applicant and Mr
Stratton had a meeting on 22 August 2022. Mr Stratton’s evidence of that meeting is that he
and the Applicant discussed various issues, including the buyback of the 5% shareholding from
the Applicant and the “redundancy package”. Mr Stratton said that at the meeting, the Applicant
continued to dispute the calculation of the redundancy payment set out in the email of 15 August
2022, but at no point did the Applicant say anything to Mr Stratton that caused Mr Stratton to
believe that the Applicant thought that he remained employed by the Respondent. Mr Stratton
said he left the 22 August meeting with the impression that the only matter in dispute was the
redundancy pay, and not that the Applicant considered that he remained employed by the
Respondent at that time. Also at the meeting, Mr Stratton collected from the Applicant the
company vehicle which had been provided to the Applicant as part of his role. In response to a
question from me about what Mr Stratton said to the Applicant at the meeting to confirm that
his employment ended on 15 August, Mr Stratton said he referred to what he said in his email
of 15 August.
[19] The Applicant’s recollection of the 22 August meeting was that Mr Stratton suggested
to him that if he was willing to sell his 5% of shares back to the company, the Respondent
would increase his redundancy payment which would give him a tax advantage. During an
exchange with the Applicant, I sought an explanation as to the basis on which the Applicant
claimed to be unaware that the Respondent considered his employment terminated prior to the
22 August 2022 meeting, given that at that meeting he returned his company vehicle and
negotiated the details of his redundancy payment, including the sale of his shares back to the
company. In response, the Applicant said that “I knew I was dismissed, but the question is when”
and in his mind “until such time they pay me, I believe I was still ‘on the clock’”.
[20] On 22 August 2022 after the meeting, the Applicant sent a text message to Mr Stratton
stating “I have decided not to accept your offer, please proceed with the redundancy as emailed
prior…I’d also like a (sic) request a separation certificate. Thanks’ On 25 August 2022, Mr
Procter of Aitken Legal, sent a letter to the Applicant on behalf of the Respondent, on the basis
that it was without prejudice save as to costs. The letter was filed by the Applicant with his
response to the correspondence from the Chambers of the Vice President. In the letter, the
Applicant was advised, among other things, that:
“We are currently taking our client’s instructions in relation to your employment and our client’s decision
that your role was no longer required and as such redundant, which we understand was confirmed with
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you on 15 August 2022. We note that you have indicated your intention to ‘contest’ the redundancy and/or
the redundancy severance package confirmed with you in that correspondence of 15 August, although it
is not clear to us (or our client) what you consider is contestable.”
[21] On 25 August 2022, the Applicant replied to Mr Procter by email stating:
“Thank you for your email, so the thing is that my advice it (sic) to follow all instructions from Fairwork
Australia, as no payout has yet been made I can’t challenge an email detailing the payout. Please advise
your client to make the payout as emailed and with that and the separation certificate I will allow Fairwork
Australia and you to determine whatever is required by law.
Please note that until I receive the payout I am still “on the clock” and expect compensation accordingly.”
[22] During the hearing, the Applicant explained that when he said he was still “on the
clock”, he meant that he considered himself to remain employed by the Respondent and that he
“was accruing wages and sick leave and leave pay as per the law”. On Monday, 29 August
2022, Mr Stratton sent a text message to the Applicant confirming that the redundancy payment
had been made and apologised for the delay due to the previous Friday being a public holiday.
The Applicant responded by stating “I’d like to place on the record as at to date I have not
received my redundancy offered the 15th August, again I am on the clock until payment is made.”
It is not in dispute that the Applicant was paid the redundancy payment on 29 August 2022. On
30 August 2022, Mr Procter of Aitken Legal wrote to the Applicant stating as follows:
Dear David,
RE: PAYMENT OF YOUR SEVERANCE PACKAGE AND OTHER MATTERS
We refer to the above matter and our previous correspondence.
Our client rejects your assertion, made to our client directly, and then us, that you remain ‘on the clock’.
Your employment terminated due to redundancy on 15 August 2022.
Our client’s email to you on 15 August 2022 was clear in its communication to you that your position
was made redundant at that time, and the only result of a plain reading of that email can be that your
employment with our client was terminated on that date. Further, in the meeting between you and Stuart
Stratton on 22 August 2022, you and he discussed the amount of your redundancy entitlements, not
whether your position was made redundant and certainly not on the basis you were then in ongoing
employment, as well as the resolution of all matters in contention between you both. This conversation
undeniably proceeded on the premise that your employment had ended.
In any event, your vague reference to expecting ‘compensation’ is misguided, noting you have not been
accessing any paid leave entitlement, and have not been working let alone making yourself available for
work. As such, even if your employment continued beyond 15 August 2022, which it clearly did not, you
would not be entitled to any additional “compensation”.
Our client is disappointed you have refused its invitation to particularise any dispute you have to its
calculation of your severance package in any meaningful way that would allow it to consider your
position. We note our client’s previous formulation of your severance package was calculated to 4 August
2022. Our client has now recalculated the severance package to which you are entitled, up to the actual
date of termination of your employment, 15 August 2022. That severance package is made up as follows:
Weeks Hours Amount
Redundancy 16 608 $20,003.20
Notice 5 190 $6,251.00
Long Service Leave 311.82 $10,258.88
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Total $36,513.08
We are instructed that our client paid the amount of $36,513.08 less tax according to law, to you by
electronic funds transfer to your nominated bank account on Monday 29 August 2022. Our client will
provide you with a pay slip in due course.
…”
[23] In oral submissions, the Applicant contended that Mr Stratton did not stipulate in the
email of 15 August 2022, or any subsequent communication, the exact date upon which the
Applicant’s dismissal or redundancy was to take effect. While this submission was made after
I had put this proposition to Mr Stratton, the Applicant maintained that, in his mind, until he
received the redundancy payment on 29 August 2022, he considered that he was still “on the
clock”, meaning that he remained employed by the Respondent and consequently, in his view,
the dismissal or redundancy had not taken effect prior to 29 August 2022. In addition, the
Applicant submitted that even if the dismissal was found to have taken effect on 22 August
2022, being the date of his meeting with Mr Stratton, his application would still have been made
within the 21-day period.
[24] The Applicant further submitted that if he was wrong and the dismissal or redundancy
in fact took effect on 15 August 2022, it would be relevant to a consideration of whether there
were exceptional circumstances justifying the grant of a further period, that after receiving the
letter from Aitken Legal on 25 August 2022, he had a “relapse” as he considered the letter
“intimidating and tantamount to bullying”. The Applicant said that he was bedridden from his
relapse and was unable to “do anything else”. Notwithstanding this, the Applicant said that
because he considered that the 21-day period commenced from 29 August 2022, “I forced
myself to do what I needed to do to ensure that I have made that application within the 21 days
from the 29th.”
[25] In response to the proposition that he had provided no evidence, such as a medical
certificate or report, to support his claim that he suffered from a medical condition in the
relevant period which prevented him from making the application, the Applicant said that his
treating psychologist was in the United States at the time, and he did not receive treatment from
his psychologist in relation to the relapse. The only medical evidence provided by the Applicant
was an undated medical certificate stating that the Applicant was unfit to attend work from 20
May 2022 to 10 June 2022.
[26] The Respondent submitted that the Applicant’s apologies for his “tardiness re the 21
days” in his email to the Vice President’s Chambers could only be interpreted as an
acknowledgment or admission by the Applicant that his application was filed out of time.
Further, Mr Stratton’s email to the Applicant on 15 August 2022 was said to be unambiguously
clear in communicating to the Applicant that his employment was terminated because of the
redundancy of his position and the only reasonable conclusion that could be drawn from reading
that email is that the Applicant must have understood his employment to be at an end on that
day.
[27] The Respondent submitted that the Applicant had an opportunity between 15 August
2022 and 22 August 2022 to dispute the termination by filing an unfair dismissal application
and yet failed to do so. The Applicant had another opportunity in the 22 August meeting to raise
an objection to the termination of his employment, or at the very least, seek clarification as to
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the character of the 15 August 2022 email if he was under any sort of false impression but the
Applicant did not do so. At that point in time, the Respondent stated that the Applicant had 14
days remaining (from 15 August 2022) to make his application, and still did not make the
application within time. At the end of the meeting on 22 August 2022, the Respondent stated
that the Applicant returned the company vehicle to Mr Stratton which is a clear indication that
the Applicant must have known his employment relationship had ended.
[28] Further, the Respondent submitted that in the Applicant’s text message of 23 August
2022, the Applicant not only acknowledged the redundancy notice of 15 August 2022, but in
fact requested that the Respondent continue with the redundancy of his position and thanked
Mr Stratton. In the letter of 30 August 2022, Aitken Legal acting on behalf of the Respondent
refuted any inference that the Applicant remained employed on 30 August 2022 and
unequivocally confirmed that the Respondent considered that the Applicant’s employment with
the Respondent came to an end on 15 August 2022. At the time of receiving that correspondence
on 30 August 2022, the Respondent stated that the Applicant still had 6 days remaining (from
15 August 2022) to file his application, but the Applicant did not do so.
[29] In relation to the Applicant’s submission that the final date of his employment was 29
August 2022 as that was the date his final payment was received, the Respondent submitted
that this submission must be rejected because there is no premise in law that supports such a
submission, and it is commonplace (and in fact many industrial instruments acknowledge) that
entitlements due on termination of employment will be paid after the final day of employment.
Even if it is accepted that the Applicant was suffering from a medical condition (which the
Respondent submitted that the Commission should not accept, due to a lack of evidence) there
was insufficient detail as to why that alleged medical condition rendered the Applicant unable
to prepare and file the application during that period.4
Approach to determining whether a further period should be granted
The date the dismissal took effect
[30] The FW Act does not define when a dismissal takes effect. Some guidance, however,
may be found in s. 117(1) of the FW Act, which provides as follows:
“117 Requirement for notice of termination or payment in lieu
Notice specifying day of termination
(1) An employer must not terminate an employee’s employment unless the employer has given the
employee written notice of the day of the termination (which cannot be before the day the notice is given).
Note 1: Section 123 describes situations in which this section does not apply.
Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In
particular, the notice may be given to an employee by:
(a) delivering it personally; or
(b) leaving it at the employee’s last known address; or
(c) sending it by pre‑paid post to the employee’s last known address.”
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[31] In Ayub v NSW Trains5 a Full Bench of the Commission considered the proper meaning
and application of the expression “within 21 days after the dismissal took effect” in s.394(2)(a)
of the FW Act. In particular, the Full Bench considered whether in any circumstances a
dismissal could be said to have taken effect before it was communicated to the relevant
employee observing that:
“[17] At common law, a contract of employment may unilaterally be terminated by the employer with
notice or by way of a summary dismissal. The general principle is that to effect the termination of a
contract of employment, an employer must, subject to any express provision in the contract, communicate
to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the
communication is in writing, the communication must at least have been received by the employee in
order for the termination to be effective. Where notice is given of the termination of the employment
contract, then the contract will terminate at the end of the period of notice specified in the communication
to the employee. The principles in this respect were summarised by the Supreme Court of NSW (White
J) in Fardell v Coates Hire Operations Pty Ltd as follows:
‘[82] To be effective, a notice of termination of a contract of employment must specify a time
when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination
of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977]
IRLR 351 at 354). The notice is to be construed according to how it would be understood by a
reasonable person in the position of the recipient who had knowledge of the background of the
dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd
[1997] UKHL 19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR
115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at
677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at [99]).’
[18] A notice of termination may validly operate notwithstanding that it is stated to take effect subject to
a condition, provided that the notice is expressed with sufficient certainty so that conditional date of
termination is ascertainable, the condition upon which the termination becomes operative has been
fulfilled and the employee is in a position to know that the condition has been satisfied.
[19] When the termination occurs without notice on the basis that a sum of money is paid in lieu of the
notice that would otherwise be required, then the termination would take effect when communicated to
the employee subject perhaps to the additional requirement that the amount in lieu of notice has actually
been paid to the employee.”
[32] The Full Bench also considered cases where a notice of termination of employment had
been purported to operate retrospectively and stated that there is no proper exception to the
general proposition established by the authorities under the former Workplace Relations Act
and the FW Act, that a dismissal cannot take effect before it is communicated to the employee.
The Full Bench went on to conclude that:
“[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation
to either question that the provision should be interpreted or applied so that the 21-day period to lodge an
application for an unfair dismissal remedy could begin to run before an employee who has been dismissed
at the initiative of the employer became aware that he or she had been dismissed, or at least had a
reasonable opportunity to become aware of this. The combination of the very restricted time period to
lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances”
required to be surmounted in order to obtain an extension of time to lodge an application, clearly
demonstrates that it was intended that the timeframe to agitate such an application was to be strictly
limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this
was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by
s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her
situation, seek advice or information about his or her rights, make a decision to seek a remedy, and
complete and lodge an application. In that context it would require express language to justify an
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interpretation of the provision under which the 21-day time period allowed is further shortened because
a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were
it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which
significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair
dismissal remedy application.”
[33] After considering the objects of the FW Act, the Full Bench also observed that it would
not be consistent with a system that addresses the needs of employees as well as employers and
is intended to ensure that a “fair go all round” is accorded to employees as well as employers,
that the practical opportunity to lodge an application is diminished or eliminated, by treating
any dismissal as having retrospective effect. Support for this construction was also found in
s.117 of the FW Act which provides that an employer shall not terminate an employee’s
employment unless the employer has given the employee written notice of the day of the
termination, which cannot be before the day the notice is given.
[34] Subject to some exceptions which are not presently relevant, the principles from cases
concerning when a dismissal takes effect, are:
• A failure on the part of an employer to provide written notice of termination of
employment as required by s. 117 of the FW Act will not necessarily result in a finding
that a dismissal has not taken effect;
• To effect a termination of employment requires plain and unambiguous
communication by words or conduct;
• A dismissal does not take effect until it is communicated to the employee and cannot
take effect retrospectively; and
• The 21-day period for an employee to lodge an unfair dismissal application does not
commence to run before an employee, who has been dismissed at the initiative of the
employer, becomes aware that he or she had been dismissed, or at least has a
reasonable opportunity to become aware of it.
[35] It is axiomatic that a plain and unambiguous communication of dismissal includes the
date on which the dismissal is to take effect.
A further period under s. 394(3)
[36] The FW Act allows the Commission to grant a further period within which to make an
unfair dismissal application only if it is satisfied that there are “exceptional circumstances”
taking into account matters set out in s. 394(3) of the FW Act. Briefly, exceptional
circumstances are circumstances that are out of the ordinary course, unusual, special or
uncommon but the circumstances themselves need not be unique or unprecedented, or even
very rare.6 Exceptional circumstances may include a single exceptional factor, 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
[37] The requirement that there be exceptional circumstances before a further period can be
granted 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 application for approval of an enterprise
agreement must be made, which is exercisable simply if in all the circumstances the
Commission considers that it is “fair” to do so.
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[38] Section 394(3) requires that, in considering whether to grant a further period for an
application to be made, the Commission must take into account the following:
(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.
[39] 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 consider these matters in the context of the application.
Consideration
Reason for the delay
[40] The reason for the delay provided by the Applicant is that he believed he remained in
employment until 29 August 2022, when he was paid redundancy payments by the Respondent.
The Applicant also asserts that he was suffering from a medical condition, described by him as
a “relapse”, following receipt by him of a letter from the Respondent’s legal representative on
25 August 2022 in relation to his redundancy.
[41] For a dismissal to be effective, plain and unambiguous communication of the dismissal
is required. I am not satisfied that the Applicant’s dismissal was communicated to him in a
plain and unambiguous manner. The email of 15 August 2022, sent to the Applicant by Mr
Stratton, does not state that the Applicant’s employment has been terminated with effect from
that date. This lack of clarity is compounded by the fact that the payments said to be due to the
Applicant on the termination of his employment, are calculated as at 4 August 2022 and are
subject to further adjustments “when finalised”. Further, these amounts were not actually paid
until 29 August 2022. That date coincides with the end of a period of sick leave the Applicant
states that he had taken. The fact that the Applicant’s paid sick leave accruals had been
exhausted does not mean that he ceased to be employed.
[42] I do not accept the Respondent’s submission that on any reasonable reading of the email
of 15 June 2022, the Applicant should have understood that his employment was at an end,
effective from that date. A submission that I should make such a finding, based on a reasonable
reading of the email, indicates that it did not plainly and unambiguously communicate that the
Applicant’s employment had been terminated. If the email was clear, it would not be necessary
to consider what a reasonable person would have understood. In the circumstances existing at
[2023] FWC 715
12
the time the email was sent it was not reasonable for the Applicant to have concluded that he
had been notified of his dismissal effective 15 August 2022.
[43] The next discussion between the Applicant and Mr Stratton was at a meeting on 22
August 2022. Mr Stratton does not state that he informed the Applicant that he had been
dismissed on 15 August 2022. Rather, Mr Stratton said that he repeated the contents of the
email of 15 August 2022. Given my finding that the email was unclear, I do not accept that this
was sufficient to constitute a plain and unambiguous communication of the dismissal. Mr
Stratton also said that the Applicant continued to dispute his redundancy payment. Given that
the correspondence of 15 August stated that the figure for redundancy payments would be
adjusted when finalised, and the Applicant and Mr Stratton were still debating the subject of
redundancy paymente on 22 August, I do not accept that the Applicant should have understood
that he had been dismissed on that date or an earlier date.
[44] While the Applicant returning his Company vehicle on 22 August is consistent with his
employment ending on that date, it is also consistent with the Applicant accepting that his
employment would end when negotiations about his redundancy payments concluded and the
Applicant simply taking the opportunity to return the vehicle while attending the Respondent’s
premises. The text message sent by the Applicant to Mr Stratton on 23 August 2022, does not
indicate an understanding that his employment had ended and, to the contrary, invites Mr
Stratton to proceed with the redundancy and to provide a separation certificate.
[45] I am also of the view that the emails exchanged between the Applicant and the
Respondent prior to 15 August 2022, do not establish that the Applicant understood the
Respondent’s position that his employment ended on 15 August 2022. The emails establish
nothing more than the fact that, prior to 15 June 2022, the parties were negotiating about matters
including a redundancy payment, in the context of the Respondent having informed the
Applicant that his position was redundant. The Applicant’s correspondence indicates that while
he understood that his position was redundant, he wanted either an alternative position or a
redundancy payment and believed he was still employed. The fact that a person’s position is
redundant at a particular point, does not necessarily mean that the person’s employment has
been terminated.
[46] In this regard, emails from the Applicant to the Respondent dated 2 and 11 August8
indicate that redundancy was being discussed prior to 15 August 2022. An email on 15 August
in which the Applicant forwarded the email from Mr Stratton to Ms Peterson, the Respondent’s
payroll person, states that the Applicant intended to “contest this”. Given that the forwarded
email contains a table setting out payrates, the Applicant had been engaged in a discussion about
his entitlements to redundancy pay, and the email was forwarded to Ms Petersen rather than Mr
Stratton, the email indicates the Applicant was disputing redundancy payments consistent with
his view that his dismissal would not take effect until he had received those payments.
[47] I do not accept that the Applicant has provided evidence sufficient to establish that his
health issues are an acceptable explanation for the delay in filing his application. However,
based on the matters set out above, even if the dismissal did take effect on 15 August 2022, I
am satisfied that the reason for any delay in filing the application is lack of clarity in the
communication of the Applicant’s dismissal. This weighs in favour of a further period being
granted for the application to be filed.
[2023] FWC 715
13
Whether the person first became aware of the dismissal after it took effect
[48] If the dismissal took effect on 15 August 2022, I am satisfied that the Applicant became
aware of the dismissal on 29 August when he was unequivocally notified by the Respondent’s
lawyer that the Respondent had purported to dismiss him on 15 August. Even if I am wrong
on this point, given the lack of clarity in the 15 August letter, the earliest date upon which the
Applicant could have been notified of his dismissal was on 22 August when he met with Mr
Stratton. If the dismissal took effect on that date, the application was not made outside the
required time. The fact that the Applicant first became aware of the dismissal after it
purportedly took effect, is a matter that weighs in favour of the grant of a further period to make
the application.
Whether the person took action to dispute the dismissal
[49] While the action taken by the Applicant disputed his redundancy payment, I accept that
the Respondent was informed that the Applicant did not accept the circumstances in which his
employment ended and that he was in dispute about the ending of his employment. This is not
a case where the Applicant emerged from left field after an extensive period, and filed an unfair
dismissal application with no indication that the dismissal was disputed. This is also a matter
that weighs in favour of a further period being granted, albeit only slightly.
Prejudice to the employer (including prejudice caused by the delay)
[50] I do not accept that the Respondent will suffer any prejudice if a further period is
granted, other than that the Respondent will be required to defend the application. That
prejudice does not relate to the delay in filing the application. However, the mere absence of
prejudice is, considered in isolation, an insufficient basis to grant an extension of time. This is
a neutral consideration.
The merits of the application
[51] In the matter of Kornicki v Telstra-Network Technology Group9 the Commission
considered the principles applicable to the exercise of the discretion to extend time under
s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for
lodgement. However we wish to emphasise that a consideration of the merits of the substantive
application for relief in the context of an extension of time application does not require a detailed analysis
of the substantive merits. It would be sufficient for the applicant to establish that the substantive
application was not without merit.”
[52] The matters the Commission is required to consider in deciding whether a dismissal is
unfair, include the reason for the dismissal, the way it was carried out, the effect on the person
who was dismissed and other relevant matters. A dismissal may be unfair because of any one
or more of these considerations.
[53] In the present case, the Respondent objects to the application on the ground that it asserts
the dismissal was a case of genuine redundancy. For the Applicant’s claim to succeed, he must
rebut this objection. Mr Stratton states that the business was adversely affected by the COVID-
[2023] FWC 715
14
19 Pandemic the role of General Manager previously performed by the Applicant is no longer
required and that he and his brother, as Directors of the Respondent, have absorbed the duties
performed by the Applicant. The Applicant appears to assert that he should have been
redeployed into another position.
[54] The outcome of this case will depend on the evidence that is accepted at a hearing, and
at this stage, it is not possible to reach any view other than that the application is not without
merit. Accordingly, merit is a neutral consideration.
Fairness as between the person and other persons in a similar position.
[55] As a Full Bench of the Commission has noted, “this consideration is concerned with the
importance of the application of consistent principles in cases of this kind, thus ensuring
fairness as between the [applicant] and other persons in a similar position. This consideration
may relate to matters currently before the Commission or others previously decided by the
Commission.”10 It is consistent with other cases that a further period can be granted in
circumstances where a dismissal has not been plainly and unambiguously communicated so
that this is an acceptable explanation for delay. This factor is neutral in the present case.
Conclusion
[56] Having regard to the matters in s. 394(3) of the FW Act, I am satisfied that there are
exceptional circumstances in this case. The substantive reason for the delay is that the dismissal
was not communicated in a plain and unambiguous manner and the Applicant was not aware
that he had been dismissed until some weeks after the Respondent purported to dismiss him.
This is an exceptional circumstance in the sense it is out of the ordinary or unusual, that a
dismissal is not communicated in plain and unambiguous terms. These matters weigh in favour
of the grant of a further period and are not outweighed by other matters I am required to
consider.
[57] Because I am satisfied that there are exceptional circumstances, I have determined to
exercise the discretion to extend the time for making the application to 12 September 2022. An
Order to that effect will issue with this decision. The matter will be listed for Case Management
and a Notice of Listing will also be issued.
DEPUTY PRESIDENT
Appearances:
AL OF THE FAIR WORY COMMISSION THE S
[2023] FWC 715
15
D Goodenough, the Applicant.
C Campbell of Aitken Legal for the Respondent.
Hearing details:
2022.
Brisbane (By Telephone):
16 December.
Printed by authority of the Commonwealth Government Printer
PR760582
1 Exhibit R1.
2 Exhibit R1 at [29].
3 Ibid at [32].
4 Rose v BMD Constructions Pty Ltd [2011] FWA 673.
5 [2016] FWCFB 5500.
6 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].
7 Ibid.
8Annexure SS-1 to Mr Stretton’s statement of evidence.
9 Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
10 Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr760582.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwa673.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb5500.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb975.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb6963.htm
