1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Menelas Michalitsis
v
Dig Dig Demolition Pty Ltd
(U2023/11033)
COMMISSIONER ALLISON MELBOURNE, 20 DECEMBER 2023
Application for an unfair dismissal remedy – extension of time – effective date of termination
when dismissal notification goes to junk mail
1. What this decision is about
[1] This decision relates to an application by Menelas Michalitsis (the Applicant) for an
unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The
Applicant alleges that he has been unfairly dismissed from his employment with Dig Dig
Demolition Pty Ltd (the Respondent).
[2] The information provided in the application and in the employer response form lodged
by the Respondent indicates that the application may have been made out of time.
[3] An application for an unfair dismissal remedy must be made “within 21 days after the
dismissal took effect”.1 If an application is not made in this time frame, it is out of time and will
generally be dismissed. The only exception to this is when the Commission is satisfied that
exceptional circumstances exist, and the Commission chooses to exercise its discretion under
s.394(3) of the Act to extend the period for the application.
[4] This decision considers whether the application was made out of time, and if so, whether
exceptional circumstances exist that warrant the Commission exercising its discretion under
s.394(3) to extend the period for application.
2. Outcome and Preliminary Observations
[5] As will become clear, having assessed all the circumstances of this matter and the
relevant statutory considerations and legal principles, I have determined that the effective date
of dismissal was 19 October 2023 and therefore the application was not made out of time.
[6] As I have found that the application was made within 21 days after the dismissal took
effect, I have not had to consider if there were exceptional circumstances justifying extending
[2023] FWC 3430
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 3430
2
the period for application. I note that if I had to consider this, I would be likely not to have
found that exceptional circumstances existed.
[7] At the outset I note that Mr Bryn Lynch, Managing Director of the Respondent, was a
compelling and believable witness for the Respondent. However, with the exception of matters
noted in paragraphs 50 and 51 below, the circumstances that have led to my decision were
largely out of the Respondent’s control.
3. Background
[8] The Applicant commenced employment with the Respondent on 28 June 2022. The
Applicant performed work as a truck driver.
[9] On Thursday 28 June 2023 a serious workplace occupational health and safety incident
occurred, which the Respondent alleges the Applicant was involved in (the OHS incident). The
Applicant denies his involvement in the OHS incident.
[10] On Friday 29 June 2023 the Applicant ceased work and commenced a period of
authorised absence due to an injury, currently the subject of a contested workplace injury claim.
While absent from work, the Applicant provided the Respondent with Certificates of Capacity
(COCs) covering the period 3 July 2023 to 7 October 2023,2 sent to the email address
sales@digdigdemolition.com. Ms Jodie Sullivan, office administrator of the Respondent,
routinely confirmed receipt of the COCs.3
[11] On 4 July 2023 the Respondent commenced an investigation into the OHS incident
through an external party, HR Gurus, led by Ms Louise Betts. In addition to investigating the
OHS incident, the Respondent asked Ms Betts to consider a complaint made by the Applicant
into alleged bullying behaviour against the Applicant (the bullying complaint).
[12] Ms Betts first investigated the bullying complaint. Ms Betts’ investigation found that
the bullying complaint was not substantiated. Ms Betts emailed these findings to the Applicant
on 1 August 2023.
[13] On 5 August 2023, Ms Betts reported her findings regarding the investigation of the
OHS incident to Mr Lynch. The investigation concluded the Applicant was involved in the OHS
incident and had engaged in unsafe conduct.
[14] On 18 August 2023, the Applicant sent an email to Ms Betts contesting her findings in
relation to the bullying complaint. An extract from this email reads “on advice from my lawyer
I have to give you the opportunity to reassess your findings before proceeding further.”4
[15] On 5 September 2023 the Applicant sent a second email to Ms Betts, carbon copying
his lawyer Ms Vhalos.5 The email raised concerns with Ms Betts’ findings that the bullying
complaint had not been substantiated. Relevantly, this email states:
“… If I don’t receive a reevaluation(sic) of my case, you will leave me no option than to
pass this matter to my lawyer who will be contacting you personally, HRgurus and Dig
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Dig demolition pty ltd (sic) as per the WHS act… It is extremely difficult for me to refrain
from taking my pain medication so as to have a clear head to address this matter.”
[16] On 26 September 2023, Mr Lynch sent the Applicant two emails.
[17] The first email is timestamped at 1:52PM and is entitled “Outcome of investigation into
complaint against Adam Schutz.”6 This email confirms that the Respondent accepts Ms Betts
findings that the Applicant’s bullying complaint has not been substantiated and attaches a letter
with the investigation findings.
[18] The second email is timestamped at 2:00PM and is entitled “Dig Dig Demolition Aus.”7
This email notifies the Applicant of the investigation findings relating to the OHS incident and
invites the Applicant to “raise any additional information about the incident” which “will be
taken into consideration in determining what action should be taken as a consequence of your
actions.” The email notes that any response should be provided by 4 October 2023.
[19] A “show cause” letter was attached to the second email. The letter details the
investigation findings, including findings that the Applicant was involved in the OHS incident,
had engaged in unsafe behaviour, and had breached the Respondent’s safety policies. It then
states, “I am considering summarily terminating your employment on the grounds of gross
misconduct,” and invites the Applicant to attend a show cause meeting on 27 September 2023.
Alternatively, it allows the Applicant to respond in writing by 4 October 2023.
[20] Both the above emails were sent by the Respondent’s managing director, Mr Lynch,
from his email address bryn@digdigdemolition.com.
[21] All email correspondence from the Respondent to the Applicant prior to the emails sent
on 26 September 2023 had been sent from the email sales@digdigdemolition.com.8
[22] The Applicant did not attend the show cause meeting on 27 September 2023 or respond
in writing by 4 October 2023.
[23] On 7 October 2023, the Applicant’s most recent COC provided to the Respondent
expired.9 The Applicant did not submit further COCs to the Respondent after this date.
[24] On 9 October 2023, Mr Lynch emailed the Applicant a termination letter summarily
dismissing the Applicant. The termination letter was sent from the email address
bryn@digdigdemolition.com.10 The letter referred to “Jodie” (presumably Ms Sullivan) making
contact to arrange the collection of the factory key and Dig Dig branded uniform items, and to
enquire about whether the Applicant wished to be provided with a Separation Certificate.
However, no further communication took place.
[25] The Applicant provided witness evidence that the emails dated 26 September 2023 and
the email with the letter of termination dated 9 October 2023 went to his junk mail. The
Applicant has given evidence that:
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• On the night of 18 October 2023, the Applicant had a conversation with his wife about
the difficulties of keeping track of various emails in his inbox. His wife offered to assist
him by organising his emails into separate folders.
• The Applicant took sleeping medication and went to sleep at approximately 10:30 –
11:00PM that night. To his knowledge, his wife accessed his computer afterwards to
organise his emails.
• That night, the Applicant’s wife woke him up to inform him of the show cause and
termination emails. Upon being woken, the Applicant went to the computer and noted
the time was approximately 12:30AM on 19 October 2023.
• The Applicant read the show cause and termination emails at that time.
For reasons set out below I have accepted the Applicant’s evidence in this regard.
[26] At 4:04AM on 19 October 2023, the Applicant emailed Mr Lynch in response to his
email dated 9 October 2023.11 Relevantly, this email states:
“Hi there Bryn, I reject your assessment and outcome… I request more time to finish my
recovery and would be happy to defend myself once I am off the heavy medication and
able to think clearly… As I have found out you have a history of unfair dismissal with
FWA(sic) and I really would not like to take this further… Due to my injury and subject
to my recovery I may not be able to commence work with DIGDIG again because of the
manual labour involved… I am writing to you between taking my medication in the
middle of the night and still don’t feel clear in the head, but this needs to put forward to
you.”
[27] The Applicant filed his application for unfair dismissal remedy on 9 November 2023.12
[28] As a result of the Applicant’s injury the Applicant has been required to take four
different medications.13 These medications impact on the Applicant’s mental capacity. In a
certificate of capacity dated 6 September 2023, the Applicant’s doctor, Dr Jay Yazdian notes
“pain medication affects [the Applicant’s] concentration and memory.”14 In addition the
Applicant has suffered a range of psychological injuries as a result of his physical injury. The
Applicant provided a psychological report to the Commission dated 16 November 2023 which
amongst other things indicated that psychological injuries suffered as a result of the Applicant’s
injury include:15
• “Severe stress.
• Sleep disturbance.
• Unable to engage in many activities that he had enjoyed prior to [the] … injuries.
• Poor motivation.
• Poor concentration and attention.
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• Depression.
• Anxiety.
• Loss of enjoyment in most activities.
• Feeling helpless and hopeless.”
4. When did the dismissal take effect?
[29] To determine whether an unfair dismissal application is made in time, the Commission
must first determine when the dismissal took effect.
[30] A dismissal does not take effect until an employee is aware that the employee has been
dismissed or has at least had a reasonable opportunity to become so aware. This was relevantly
considered in relation to s.394(2) by the Full Bench of the Commission in Ayub v NSW Trains16
where at [36] it was held:
“Having regard to the language, purpose and context of s 394(2)(a), we do not consider…
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.”
[31] Whether an employee has had a reasonable opportunity to become aware will
necessarily turn on all the facts of the matter.17
[32] Noting the Applicant’s evidence that the letter of termination went to his junk mail and
that he did not become aware of the dismissal until 19 October 2023, I asked the parties to
address me on when the dismissal took effect.
Applicant’s Submissions
[33] The Applicant submitted that the dismissal occurred on 19 October 2023 – the date the
Applicant became aware of the letter of termination. In respect of this issue, the Applicant gave
evidence that:
• The two emails dated 26 September 2023 and the email attaching the termination letter
on 9 October 2023, all of which were sent from bryn@digdigdemolition.com, were
filtered into his junk email.
• The Applicant did not see any of the emails from bryn@digdigdemolition.com when
they were delivered into his junk email.
• At the time the show cause and termination letters were sent, the Applicant was not
expecting communications from the Respondent other than matters relating to his
ongoing WorkCover claim. This was for two reasons. First, he had previously explained
[2023] FWC 3430
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to Ms Betts that he was unable to participate in the investigation relating to the OHS
incident. Second, because he believed that Mr Lynch was in receipt of the COCs he had
been sending and was therefore aware that he was still in a condition where he was
unable to attend or participate in any investigation or disciplinary process.
• The Applicant became aware of the termination letter at approximately 12:30AM on 19
October 2023, when his wife was organising his emails and discovered the emails from
Mr Lynch.
[34] The Applicant further submitted that he did not have a reasonable opportunity to become
aware of the termination before 19 October 2023.
[35] In this regard the Applicant submitted his circumstances could be distinguished from
those in Foyster v Bunnings Group Limited18. In Foyster a Full Bench of the Commission found
that an employee who had corresponded with his employer via email, had failed to avail himself
of the reasonable opportunity to become aware of the fact of his dismissal, by not opening
emails from his employer delivered to his inbox. The Applicant submitted in this case, unlike
Foyster, the relevant emails had gone to junk mail. As the Applicant had been receiving
correspondence from the Respondent regarding his Workcover claim in his regular inbox, there
was no reason for the Applicant to expect other emails from the Respondent to go to junk mail.
[36] In addition, the Applicant submitted that stress and other mental health conditions
arising from his physical injury, as well as the effects of the medication he was taking, were
factors contributing to him not regularly checking his junk folder.
Respondent’s Submissions
[37] The Respondent submitted that the termination took effect when it was emailed to the
Applicant on 9 October 2023.
[38] The Respondent submitted that the Applicant’s evidence that he was unaware of the
dismissal until 19 October 2023 should be rejected. In this regard the Respondent argued that
the Applicant must have been aware of the termination on 9 October because the Applicant
ceased sending in COCs to cover the period after 7 October 2023. The Respondent submitted:
“[It] is too much of a coincidence that the Applicant simply ceased his pattern of
supplying CoCs immediately after the Respondent sent the letter of termination on 9
October 2023 for an unconnected reason.” 19
[39] In addition the Respondent argued the Applicant had not provided adequate evidence
on how he became aware of the dismissal and had failed to explain why the Applicant was not
monitoring his emails. The Respondent also submitted that as the Applicant had received other
emails from the Respondent into his inbox from the domain name “digdigdemolition.com”, it
was unlikely that emails from bryn@digdigdemolition.com which has the same domain name,
would go into junk mail.
[40] In the alternative, the Respondent submitted the Applicant had a reasonable opportunity
to become aware of his dismissal before 19 October 2023. In this regard the Respondent argued
[2023] FWC 3430
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that given the Applicant was aware that he was under investigation for serious misconduct, had
been in contact with the investigator regarding the investigation, and had made complaints
about the investigator’s conduct in the investigation, he reasonably ought to have been
monitoring his email inboxes at least once a week for any emails from the Respondent.
[41] The Respondent relied on the decision in Kamau v OC Connections.20 In this decision,
Commissioner Bissett held that the delivery of a notice of termination of employment to junk
email, where the Applicant was aware that emails from the Respondent regularly go to junk
mail, did not provide a reasonable explanation for delay in making an application to the
Commission.
Consideration
When did the Applicant become aware of the Dismissal?
[42] On the balance of probabilities, I accept the Applicant’s evidence that he did not become
aware of the dismissal until 19 October 2023. I accept the Applicant’s evidence that the notice
to show cause letter and termination letter went to his junk email and he did not become aware
of the emails until his wife alerted him at 12.30am on 19 October 2023. I have come to this
conclusion noting the following factors.
• As noted above, the show cause letter and termination letter were emailed to the
Applicant from the email address bryn@digdigdemolition.com. In the past, email
correspondence sent by the Respondent to the Applicant was sent from
sales@digdigdemolition.com. While I note the Respondent’s contention that an email
with the same domain is unlikely to go to junk mail, there was no substantial evidence
put before me regarding this.
• Because the Applicant had previously received emails from the Respondent from the
email sales@digdigdemolition.com I accept he was not looking for correspondence
from the Respondent from a different email address.
• The show cause letter proposed the Applicant attend a meeting on the 27 September
2023 or respond in writing by 4 October 2023. The Applicant did neither. On the balance
of probabilities it seems more likely than not that if the Applicant had been aware of the
show cause letter he would have made some response before termination. I have
determined this noting that the Applicant did make efforts to object to Ms Betts’
investigation findings in relation to the bullying complaint on 18 August and 5
September 2023, and also noting that the Applicant appears to have been receiving some
legal assistance from 18 August 2023.
[43] I note the Respondent’s argument that the fact the Applicant stopped submitting COCs
from 7 October 2023 indicates that the Applicant knew he was terminated. In cross-
examination, the Applicant gave further evidence to the effect that:
• Due to financial issues at the time of termination, he was unable to contact his doctor
immediately to arrange for a new COC.
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• He had a phone consultation with his doctor on 19 October 2023, and acquired a COC
for the period 8 October 2023 to 5 November 2023 following that consultation.21
• This consultation occurred after he had sent the email to Mr Lynch at 4:04AM.
• Notwithstanding that the last COC provided to the Respondent expired on 7 October
2023, he had more COCs provided from his doctor which confirmed he did not have
capacity to work to the current date.
[44] While it does seem an unusual coincidence that the Applicant stopped providing COCs
after 7 October 2023, ultimately this is circumstantial evidence and on balance I am satisfied
with the Applicant’s explanation for the delay given in witness evidence as outlined at
paragraph [43] above.
Did the Applicant have a reasonable opportunity to become aware of the dismissal
prior to this date?
[45] Having found that the Applicant did not become aware of the dismissal until 19 October
2023, I now turn to whether the Applicant had a reasonable opportunity to become aware of the
dismissal prior to 19 October 2023.
[46] Given the evidence in front of me, I am satisfied the Applicant did not have a reasonable
opportunity to become aware of the dismissal prior to 19 October 2023. In this regard I have
considered the matters set out in the following paragraphs.
[47] As regular communication from the Respondent went to the Applicant’s inbox, there
was no reason for the Applicant to expect that communication from the Respondent would go
to his junk folder. In this regard, this matter can be distinguished from Kamau v OC
Connections22, as the Applicant in that matter was aware that correspondence from the
Respondent regularly went to the junk folder.
[48] I note the Respondent’s contention that the Applicant should have been expecting
correspondence from the Respondent regarding the investigation, and therefore it was
reasonable for the Applicant to be checking all of his email inboxes once a week. I reject this
submission on the following grounds:
• The Applicant was receiving correspondence from the Respondent from another email
address and had no reason to believe correspondence from the Respondent would go to
his junk mail.
• The Applicant provided uncontested evidence that he was not expecting correspondence
regarding the investigation as he had communicated to Ms Betts he was unable to
participate further in the investigation relating to the OHS incident.
• The Applicant was off work for an injury and on medication which impacted his mental
capacity. The Respondent was aware of this given the Applicant had consistently
provided the Respondent with COCs.
[2023] FWC 3430
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[49] The Applicant checked his junk box within 10 days of the termination. In the
circumstances I am of the view this was reasonable.
[50] Given the Applicant was away from work for an injury, in my view, once the Applicant
had failed to show up for the show cause meeting or respond in writing, it was incumbent on
the Respondent to take steps – such as phoning the Applicant – to ensure he had received the
show cause letter, before terminating him by email correspondence. If the Applicant had been
alerted to the show cause letter by a phone call, even if the termination letter had gone to the
junk folder, it is unlikely he would be able to sustain an argument that he had no reasonable
opportunity to become aware of the termination. However, this did not occur in this case.
[51] I also note that despite the termination letter stating that “Jodie” would be in contact
with the Applicant to make further arrangements to effect the termination, there is no evidence
before me that such contact occurred. If a follow-up communication had been made with the
Applicant following the termination letter, it is likely that the Applicant’s argument of having
no reasonable opportunity to become aware of the termination would be limited to the date of
that follow-up communication.
[52] Accordingly for the reasons set out above I find the dismissal took effect on 19 October
2023.
5. Was the Application made within 21 days after the dismissal took effect?
[53] The 21-day period prescribed in s.394(2) does not include the day on which the
dismissal took effect.23
[54] As I found above, the dismissal took effect on 19 October 2023. The final day of the
21-day period was therefore 9 November 2023 and ended at midnight on that day. The
Applicant made his application on 9 November 2023 and accordingly made his application in
time.
6. Conclusion
[55] As I have found that the application was made within 21 days of the date on which the
dismissal took effect, there is no need for me to consider if there were exceptional circumstances
warranting an extension of time with reference to the matters listed under s.394(3). If I had to
determine this matter it is likely I would have determined that there were not exceptional
circumstances. This is primarily because on the evidence it appears clear that the Applicant had
some form of legal assistance from at least 5 September and was aware of unfair dismissal
remedy.
[56] I will issue directions for the next step in this matter to proceed to hearing on the merits.
I note the Respondent has raised a further jurisdictional objection on the basis that the
Respondent is a small business and that the dismissal complied with the Small Business Fair
Dismissal Code. This jurisdictional objection will be heard simultaneously with the merits of
the application.
[2023] FWC 3430
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COMMISSIONER
Appearances:
B Shaw of Counsel, with permission on behalf of the Applicant.
B Lynch for the Respondent
Hearing details:
2023
13 December
Melbourne
20 December
Video via Microsoft Teams, Melbourne
Final supplementary written submissions:
Applicant Submissions 18 December 2023
Respondent Submissions 19 December 2023
Printed by authority of the Commonwealth Government Printer
PR769682
1 Section 394(2) of the Act
2 Exhibit MM-7.
3 Annexure BL-12, Hearing Book page 105.
4 Annexure BL-4, Hearing Book page 85.
5 Annexure BL-4, Hearing Book page 85.
6 Annexure BL-6, Hearing Book page 89.
7 Annexure BL-8, Hearing Book page 92.
8 See Annexure BL-12 and Annexure BL-13, Hearing Book pages 105-106.
9 Exhibit MM-7, Hearing Book page 51.
10 Annexure BL-14, Hearing Book page 107.
11 Exhibit MM-3.
12 Form F2, Hearing Book page 7.
WORK OF THE FAIR WORK NOGEN leser SEAL SE THE
[2023] FWC 3430
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13 Exhibit MM-1.
14 Exhibit MM-7.
15 Exhibit MM-2.
16 [2016] FWCFB 5500.
17 Foyster v Bunnings Group Ltd [2017] FWCFB 3923 at [17]
18 Foyster v Bunnings Group Ltd [2017] FWCFB 3923.
19 Respondent’s Supplementary Submissions Opposing the Extension of Time at [4]
20 [2020] FWC 4641
21 MM-5 and MM-6.
22 [2020] FWC 4631.
23 Singh v Trimatic Management Services Pty Ltd [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.
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb5500.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3923.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3923.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc4641.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc4631.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb553.htm
