1
Fair Work Act 2009
s.365—General protections
Jonathon Matta
v
AVJennings Holdings Ltd
(C2022/7036)
COMMISSIONER SCHNEIDER PERTH, 26 OCTOBER 2023
Application to deal with contraventions involving dismissal.
[1] Mr Jonathon Matta (the Applicant) made an application to the Fair Work Commission
(the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the
Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant
has been dismissed from their employment with AVJennings Holdings Pty (the Respondent) in
contravention of Part 3-1 of the Act.
[2] The Respondent has objected to the application on the grounds that the application was
filed out of time.
[3] The Commission must be satisfied that the application was not made out of time and, if
it was, whether there are exceptional circumstances giving rise to an extension of time.
Relevant law – Dismissal date
[4] Section 366(1) of the Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
[5] As the Full Bench has stated, “the 21 day period prescribed… does not include the day
on which the dismissal took effect.”1
[6] The Full Bench further stated, “if the final day of the 21 day period falls on a weekend
or public holiday, the prescribed time will be extended until the next business day.”2
[7] The parties are in dispute about when the dismissal took effect.
Submissions and Evidence – Dismissal date
[2023] FWC 2802
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2802
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Applicant
[8] The Applicant submits that the dismissal took effect on 29 September 2022.
[9] The Applicant made the following submissions in support of his position, as follows.
[10] His letter of termination stating the following “your employment will cease effective 29
September 2022 (reflecting the 3month notice period) on the basis of redundancy”.
[11] The Applicant’s letter of termination also stated the following “this decision means that
you are in redeployment.”
[12] The Applicant’s annual leave was calculated up to 29 September 2022.
[13] The Applicant’s years of service with the Respondent was calculated as 1.18 years
(calculated based on his employment ending on 29 September 2022) which reflected his
redundancy payment of 4 weeks.
[14] On 1 July 2022, the Applicant received an email from Ms Lisa Hunt (General Manager
of Human Resources for the Respondent) which stated the following:
“you are still an employee and required to be contactable and respond. It is expected that
you will respond to myself by 12pm today”.
[15] The Applicant submitted that based on the information provided by the Respondent he
was still an employee of the Respondent until the termination of his employment had taken
effect on 29 September 2022.
[16] The Applicant relied on the proper construction of a notice of termination, as was
discussed by White J in Fardell v Coates Hire Operations:
“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” and “the notice is
to be constructed according to how it would have been understood by a reasonable
person in the position of the recipient who had knowledge of the background of the
dealings between the parties”. 3
[17] The Applicant submitted that from the perspective of the employee, the notice of
termination outlined the termination date of 29 September 2022, and that any other intentions
of the Respondent are not relevant to the question.
[18] The Applicant submitted that the Respondent’s communication gave the Applicant the
reasonable belief that he was still an employee of the Respondent until 29 September 2022.
This included the Respondent confirming that the Applicant was “in redeployment” and various
forms of communication confirming the Applicant’s final day of employment being 29
September 2022.
[2023] FWC 2802
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[19] The Applicant submitted that he was confused after receiving the email of Ms Hunt on
1 July 2022, which stated:
“you are still an employee and required to be contactable and respond. It is expected that
you will respond to myself by 12pm today”.
[20] The Applicant’s evidence was that after discussing this email with his partner, his
understanding was that he was still employed until 29 September 2022 (in line with the
documentation he had received) and as a result he could not seek to commence employment
elsewhere until after this date.
[21] The Applicant gave evidence that he contacted the payroll department at the Respondent
on 4 July 2022, and requested that his final payments be paid monthly to assist with budgeting.
[22] The Applicant gave evidence that this request was rejected by the Respondent, and the
Applicant was paid his final payment on or around 15 July 2022.
[23] The Applicant submitted his final payslip into evidence, which was received on 20 July
2022, which confirmed a termination date of 29 September 2022.
[24] The Applicant acknowledged that he was upset by the news that he was being made
redundant. However, the Applicant denies he was confrontational or aggressive towards Mr
Orlandi or any other Respondent employee on the day in question.
[25] The Applicant acknowledged that there was a discussion between himself, Mr Orlandi
(the Applicant’s Manager), and Ms Hunt over the return of company property and the return of
his access card.
[26] The Applicant denies that he threw his access card on his desk or similar.
[27] The Applicant submitted that Mr Orlandi and Mr George escorted him to the car park
and the Applicant then left the premises.
Respondent
[28] The Respondent submits that the dismissal in fact took effect on 29 June 2022, when
the Applicant was advised that his employment was terminated due to his position being made
redundant.
[29] The Respondent submitted that the conversation with the Applicant, on 29 June 2022,
made it clear that his employment was ending that day with immediate effect, however he could
come in over the next few days to wrap things up and do a handover.
[30] Ms Hunt present on the day of the redundancy meeting, it was the evidence of Ms Hunt
that it was the intention of the Respondent to end the Applicant’s employment by redundancy
with immediate effect.
[2023] FWC 2802
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[31] Ms Hunt said that following the meeting she was in a meeting room next door to the
Applicant and Mr Orlandi and “some minutes later, I could hear through the walls, the loud
raised voice of the Applicant, who was shouting”.
[32] Ms Hunt said that she re-entered the room and observed that the Applicant was no
longer seated and that both the Applicant and Mr Orlandi were standing.
[33] Ms Hunt’s evidence was that Mr Orlandi was backed up against the wall and the
Applicant was shouting at Mr Orlandi.
[34] Ms Hunt’s evidence was that following the confrontation between the Applicant and Mr
Orlandi, the Applicant was advised that he would be escorted from the property and that he
would be required to return all company equipment in his possession.
[35] Ms Hunt’s gave the following evidence about her interpretation of the events, stating
there was:
“no doubt in my mind that it was clear that the employment of the Applicant was
terminating at that point, and that he would be paid in lieu of notice.”
[36] Ms Hunt provided a copy of an internal email outlining the events that occurred during
the meeting between the parties in support of the position that the Applicant was aggressive
towards Mr Orlandi.
[37] It was the evidence of Ms Hunt that the intent of the communication between the
Respondent and the Applicant on 29 June 2022 was as outlined below:
• The letter of termination sent to the Applicant confirmed that his position has
been “abolished effectively immediately”.
• The Applicant’s employment ended on 29 June 2022; however, the Applicant
would be paid in lieu of serving out his three-month notice period to 29
September 2022.
• The Applicant was no longer required to perform any work for the Respondent
and the Applicant was no longer required to return to the office after 29 June
2022.
• The use of the phrase “will cease effective 29 September 2022” was intended
to explain that the Applicant’s three-month contractual notice period would be
paid out in lieu and would end on 29 September 2022, with the date of
termination being 29 June 2022.
[38] Ms Hunt gave evidence that she was frustrated by the lack of communication from the
Applicant in relation to the return of company property.
[2023] FWC 2802
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[39] Ms Hunt explained that the chosen language was used to convey the importance to the
Applicant of returning the company property or else the company may have sought to escalate
the matter to the police.
[40] Ms Hunt also gave evidence in relation to her email to the Applicant on 1 July 2022,
which stated:
“you are still an employee and required to be contactable and respond. It is expected that
you will respond to myself by 12pm today”, was that the language used in this email
was ill-chosen.
[41] Ms Hunt’s evidence was that her intention in this email was to remind the Applicant of
his post-employment obligations to the Respondent and return his employer issued equipment.
[42] It was the evidence of Ms Hunt that the termination date on the Applicant’s final payslip
reflected the final date of the three-month notice period, not the actual date of termination.
Consideration – Dismissal date
[43] The evidence submitted by the parties was heavily contested in relation to the events
that occurred on 29 June 2022 at the Respondent’s premises. Notably, in relation to the
interaction between the Applicant and Mr Orlandi.
[44] I have closely considered the email that Ms Hunt sent on the day following the meeting
with the Applicant.
[45] I accept that the Applicant may have been more upset and may have come across as
more hostile or aggressive than he may himself recall. However, from the notes provided, I am
not satisfied that what occurred had a material impact or change on what had been discussed by
the parties prior to Ms Hunt leaving the office.
[46] The Respondent is an employer who has the benefit of human resources management
support within the business operation at a very senior level.
[47] The Respondent had clearly been in discussions internally in relation to the on-going
requirements and the structure of the business moving forward prior to meeting with the
Applicant.
[48] The Applicant received a notice of termination, which I consider to be poorly drafted
and, understandably, confusing.
[49] The letter provided to the Applicant contains the following statements:
“This decision means you are now in redeployment”
“Your employment will cease effective 29 September 2022 (reflecting a 3 month notice
period) on the basis of redundancy”.
[2023] FWC 2802
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“Given the circumstances, you will not be required to work out your notice period so you
will receive payment in lieu of notice for this period, accrued annual leave (forecast to
29 September 20220) and your retrenchment component (4 weeks).”
[50] Having considered the above, in consideration of Fardell v Coates Hire Operations,4 I
have found that, regardless of the Respondent’s intention, the plain reading of the letter of
termination states that the Applicant’s employment will cease effective 29 September 2022.
[51] Whilst I accept that the Respondent may have intended to terminate the Applicant’s
employment with immediate effect, the language used to communicate this to the Applicant did
not reflect this intention.
[52] It is the responsibility of the Respondent to ensure that the notice of termination is
outlined in such a way that the person receiving the notice could not be confused by the notice
being provided.
[53] Having considered the notification provided by the Respondent to the Applicant, I have
found that it reasonable for the Applicant to conclude that his employment was not ending until
29 September 2022.
[54] Having regard to the matters I have referred to above, I find that the dismissal took effect
on 29 September 2022.
Conclusion – Dismissal date
[55] As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the
day on which the dismissal took effect”.5
[56] As I found above, the dismissal took effect on 29 September 2022.
[57] The final day of the 21 day period was therefore 20 October 2022 and ended at midnight
on that day.
[58] The application was made on 19 October 2022.
[59] The application was made in time. There is no need for the Commission to consider
whether there are exceptional circumstances and if an extension should be granted.
[60] For completeness, and in the event that I have erred in the above conclusion, I will also
turn to consider whether an extension of time would be granted in the circumstances that the
Respondent’s position is correct.
Relevant law – Extension of time
[61] Section 366(2) of the Act allows for the Commission to exercise discretion in granting
a further period for an application to be made.
[2023] FWC 2802
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[62] The Commission must be satisfied there are exceptional circumstances permitting such
discretion to be exercised, 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.
[63] Each of the above matters must be considered in assessing whether there are exceptional
circumstances.6
[64] Briefly, exceptional circumstances are circumstances that are out of the ordinary course,
unusual, special, or uncommon. The circumstances themselves do not need to be unique nor
unprecedented, nor even very rare.7
[65] 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.8
[66] The reason for the delay is not in itself required to be an exceptional circumstance. It is
one of the factors that must be weighed in assessing whether, overall, there are exceptional
circumstances.9
[67] An applicant does not need to provide a reason for the entire period of the delay.
Depending on all the circumstances, an extension of time may be granted where the applicant
has not provided any reason for any part of the delay.10
[68] The determination of whether exceptional circumstances exist requires the consideration
and assessment of all relevant circumstances.11
[69] I set out my consideration of each matter below.
Submissions and Evidence – Extension of time
What are reasons for the delay?
[70] The Applicant submitted that the delay was for the following reasons:
• The conduct of the Respondent resulted in the Applicant having a genuine and
reasonable belief that his employment was not ending until 29 September 2022.
• The Applicant was suffering from a serious mental health medical condition which
seriously impacted his ability to make an application.
[2023] FWC 2802
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[71] The Applicant provided a medical report from his treating medical professional which
confirms that whilst the Applicant had been diagnosed with his medical condition prior to his
termination, the Applicant’s health was impacted, and his condition deteriorated following the
termination of his employment.
[72] This medical condition impacted the Applicant’s ability to engage in normal day to day
activity.
[73] The Respondent submitted that if the Applicant was uncertain about the date in which
his employment had been terminated then it was the Applicant who held the responsibility to
seek confirmation in relation to the effective date of his termination.
[74] The Respondent submitted that at no time after his dismissal did the Applicant seek to
confirm the date of his termination.
[75] The Respondent submitted that the Applicant had been diagnosed with the medical
condition in question in December 2021, therefore this was not an exceptional circumstance.
Conclusion
[76] Having regard to the above, I find that the reasons for the delay would reasonably and
logically contribute to a delay in filing.
[77] I find that it is completely understandable that the Applicant reasonably believed his
employment did not end until 29 September 2022 due to the issues regarding the clarity of the
termination notice discussed earlier.
[78] It is reasonable to conclude the Applicant did not believe he could make his application
prior to his employment ending.
[79] Without detailing the nature of the Applicant’s medical status, I am satisfied that, on the
medical evidence provided by his treating practitioner, the Applicant’s pre-existing medical
condition deteriorated following the termination of his employment and this further contributed
to the delay.
What action was taken by the Applicant to dispute the dismissal?
[80] The Applicant’s lawyers wrote to the Respondent on 6 October 2022 in relation to the
Applicant’s termination and the Applicant’s allegation that the Respondent had taken adverse
action against the Applicant.
[81] The Respondent’s lawyers provided a response to the Applicant’s lawyers on 14
October 2022.
[82] The Applicant’s application was then filed with the Commission on 19 October 2022.
[2023] FWC 2802
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[83] On assessment of the submissions and evidence, I find that the Applicant was acting on
the understanding that his employment ended on 29 September 2022.
[84] After this date, it is reasonable to conclude that the Applicant met with his lawyers and
instructed them to engage with the Respondent in attempts to raise his grievances and start to
action his dispute.
[85] After receiving a response from the Respondent’s lawyer, the application was filed with
the Commission.
[86] I find that the Applicant held a firm belief and understanding that his employment ended
on 29 September 2022 and as a result waited until after this date to commence this application.
[87] This is an entirely reasonable proposition given the Applicant’s understanding.
[88] I find that the Applicant did take action to dispute his dismissal after the date the
Applicant believed it had taken effect.
What is the prejudice to the employer (including prejudice caused by the delay)?
[89] The Respondent submits that it would suffer the following prejudice should an extension
of time be granted to the Applicant:
• The Applicant’s duties are now being undertaken by other employees of the
Respondent.
• Due to the behaviour of the Applicant, there is no possibility of any on-going
relationship between the parties.
[90] Having considered the above, I am not satisfied that the Respondent would suffer any
notable prejudice if an extension of time is granted.
What are the merits of the application?
[91] The competing contentions of the parties in relation to the merits of the application are
set out in the filed materials.
[92] Having examined these materials, it is evident to me that the merits of the application
turn on contested points of fact.
[93] 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)”.12
[94] It is not possible to make any firm or detailed assessment of the merits. The Applicant
has an apparent case, to which the Respondent has an apparent defence.
[2023] FWC 2802
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[95] In the circumstances, I find that it is not possible to make an assessment of the merits of
the application.
Fairness as between the Applicant and other persons in a similar position
[96] Neither party made substantial submissions in relation to this point.
[97] I note that the Applicant highlighted a decision of Commissioner Spencer in which an
extension of time was granted following confusion over the date of termination.13
[98] I have considered the circumstances of the Applicant’s termination. I do not believe
there are any notable issues of fairness arising between the Applicant’s situation and other
persons in a similar position.
Is the Commission satisfied that there are exceptional circumstances, taking into account the
matters above?
[99] I must now consider whether I am satisfied that there are exceptional circumstances,
taking into account my findings regarding each of the matters referred to above.
[100] 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.14
[101] 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.15
[102] Having considered the criteria as required, I am satisfied that there are exceptional
circumstances in this matter.
[103] The action of the Respondent, by poorly drafting an unclear termination letter, caused
significant confusion for the Applicant which led the Applicant to incorrectly believe that their
employment had not been terminated on 29 June 2022. Rather, the Respondent’s
communication surrounding the Applicant’s termination supports the conclusion that the
Applicant would be reasonably confused and justified in a belief that his employment ceased
on 29 September 2022.
[104] I have also considered the medical evidence provided by the Applicant which outlines
his medical condition and the deteriorating of his health following the termination of his
employment.
[105] From the evidence provided, the Applicant was clearly impacted following the
termination of his employment and was struggling to complete basic everyday tasks. The
evidence supports the position that the Applicant would have had significant struggles in filing
the application.
[2023] FWC 2802
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[106] Having regard to all of the matters listed at section 366(2) of the Act, I would be satisfied
that there are exceptional circumstances.
[107] In this matter, I would exercise my discretion to grant an extension of time of the entire
period of delay, allowing the matter to proceed.
Conclusion
[108] As concluded earlier, I am satisfied that the Applicant’s termination took effect on 29
September 2022. Accordingly, the application was not filed out of time and the objection is
dismissed.
[109] In the alternative, I am satisfied that there are exceptional circumstances giving rise to
an extension of time for the application to be filed.
[110] Consequently, the matter will now proceed.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
PR767616
1 [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act
2009 (Cth) s 40A.
2 [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act
2009 (Cth) s 40A; [2015] FWCFB 1877.
3 (2010) 201 IR 64, 82.
4 (2010) 201 IR 64.
5 [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act
2009 (Cth) s 40A.
6 [2018] FWCFB 901, [39].
7 [2011] FWAFB 975, at [13].
8 [2011] FWAFB 975, at [13].
9 [2018] FWCFB 901, [39].
10 [2018] FWCFB 901, [40].
11 [2018] FWCFB 901, [17].
12 [2011] FWAFB 975, [36].
13 [2010] FWA 1524.
IWORK COM THE FAIR WORK C ALOTMANI MISSION THE SEAI
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb553.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb553.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb1877.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb553.htm
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/2018fwcfb901.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb901.htm
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/2010fwa1524.htm
[2023] FWC 2802
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14 [2011] FWAFB 975, [13].
15 [2011] FWAFB 975, [13].
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb975.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb975.htm
