1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Kevin Barr v OS MCAP Pty Ltd (U2023/11306) DEPUTY PRESIDENT ROBERTS SYDNEY, 16 JANUARY 2024 Application for unfair dismissal remedy – whether application made within 21 days after the dismissal took effect [1] On 16 November 2023, Mr. Kevin Barr (Applicant) filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act) with the Fair Work Commission (Commission). The Applicant’s former employer and respondent to the application was OS MCAP Pty Ltd t/as BHP Operations Services (Respondent). [2] An application for an unfair dismissal remedy must be made within 21 days after the dismissal takes effect, or within such further period as the Commission allows.1 Before considering the merits of the application for an unfair dismissal remedy, the Commission must be satisfied that the application was not made out of time2 or alternatively, extend the 21-day time limit provided for in section 394(2)(a). [3] The Respondent objected to the application on the basis that it was made outside the 21- day time limit prescribed by s.394(2) of the Act and argued that an extension of time should not be allowed. However, for the reasons which follow, I have concluded that the application was made within 21 days after the dismissal took effect and as a consequence, no extension of time is required. Background [4] The Applicant commenced his employment with the Respondent in or about October 2020. At the time of his termination, he was working full-time as a Production Supervisor for the Respondent at the BMA Blackwater coal mine site in Queensland. He was working a regular shift rotation of 7 days on and 7 days off at the mine. The Applicant’s usual residential address was at Gracemere in Queensland. [5] At approximately 7.30pm on 23 September 2023, the Applicant was at his home in Gracemere when he was taken into custody by Queensland Police. He was incarcerated in a detention facility at Rockhampton. At the time of his arrest and detention, the Applicant said [2024] FWC 136 DECISION [2024] FWC 136 2 he was absent from work on a rostered day off. He remained in detention until his release on 27 October 2023. [6] While the Applicant was incarcerated, the Respondent sent the Applicant a letter dated 14 October 2023 titled ‘Abandonment of Employment’ (warning letter). The warning letter referred to the Applicant’s unauthorised absence from work since 20 September 2023 and unsuccessful attempts by the Respondent to contact the Applicant by telephone on 3 occasions between 25 September and 12 October 2023. The letter said that the Respondent had been in contact with Mr. Jody Barr (Mr. Barr) - whom the Applicant said had been appointed to act on his behalf pursuant to a power of attorney - on 29 September 2023 but that Mr. Barr had not been able to provide any information about the Applicant’s absence from work. The letter went on to say that the Applicant had not provided the Respondent with an explanation about his inability to attend work, had not applied for any form of leave of absence from work and that in the circumstances, the Respondent regarded the Applicant’s absence as unauthorised. The letter asked the Applicant to contact the Production Superintendent, Mr Linney, by no later than 18 October 2023 and warned the Applicant that the Respondent would regard the Applicant as having abandoned his employment if he did not respond by that date. According to the Respondent, the letter was sent to the Applicant’s work email address, by text message to his mobile telephone and by registered post to his Gracemere home address. [7] A further letter dated 20 October 2023 followed from the Respondent. It referred to the Applicant’s failure to contact the Respondent to explain his unauthorised absence and said that the Respondent was treating the employment of the Applicant to have been terminated at the Applicant’s initiative effective from 20 October 2023. According to the Respondent, the letter was sent by registered post to the Applicant’s Gracemere address and by text to his mobile telephone. The Respondent said that the letter was also emailed to the Applicant but conceded it was inadvertently sent to the wrong email address. [8] On 28 October 2023 the Respondent’s HR Operations Department emailed the Applicant with details of his ‘final pay’ and made reference to the date of 20 October 2023. The email was sent to the Applicant’s correct email address and the Applicant acknowledged at the hearing that he had received the email on that date. [9] The Applicant maintained that the termination of his employment was brought about in circumstances where he was incarcerated and had not received either the warning letter of 14 October or the termination letter of 20 October 2023. Moreover, the Applicant maintained that the Respondent was made aware of his incarceration through Mr. Barr, and that the Respondent would have been aware that the Applicant was not in a position to respond to correspondence terminating his employment. The Applicant said the Respondent did not tell Mr. Barr that the Applicant had been terminated even though Mr. Barr was in regular contact with Mr. Linney. [10] The Applicant said he only became aware of his termination at or about 13 November 2023 when he began receiving calls from work colleagues saying they had been told that his employment had been terminated. [11] The Respondent did not contend that the Applicant was not dismissed at the Respondent’s initiative. The Respondent said that the termination of the Applicant’s employment took effect on 20 October 2023 being the date of the termination letter. The [2024] FWC 136 3 Respondent denied that it had any knowledge of the Applicant’s incarceration. The Respondent said that in the absence of any contact from the Applicant, the Respondent was entitled to treat the Applicant’s employment as having come to an end and submitted that it took all reasonable and available steps to draw its concerns about the Applicant’s absence to the Applicant’s attention and to advise the Applicant of his termination. Evidence and Findings [12] The Applicant gave evidence that because of his incarceration, he did not receive either the warning letter of 14 October or the termination letter dated 20 October until after he made contact with the Respondent on or about 13 November 2023. He said that his mobile telephone was confiscated by the police when he was taken into custody and remained in their possession at the time of the hearing. He said whilst he was in custody, he had no access to email or text messages. He said that mail to his home address had been redirected to a friend at Gracemere at some point, but the letters did not find their way to the Applicant. [13] There was some limited evidence from the Applicant about contact during the period of the Applicant’s incarceration between the Applicant’s brother, Mr. Barr and Mr. Linney on behalf of the Respondent. However, the evidence about what exactly transpired between Mr. Barr and Mr. Linney was minimal. Neither of them gave evidence. The details of the exchange were confined to some screen shots of text messages, telephone call logs and the letter from the Respondent of 14 October which made reference to contact with Mr. Barr on 29 September. The latter refers to Mr. Barr’s inability to provide information as to the Applicant’s absence from work. The text exchanges show that on 16 October Mr. Barr asked Mr. Linney to send all emails about the Applicant to Mr. Barr. Mr. Barr provided his email address for that purpose. There was nothing to indicate that any such emails were sent to Mr. Barr. [14] The Applicant gave evidence that he obtained a new mobile phone after his release from custody on 27 October 2023 and that shortly after that, he went through the emails that had been sent to him while he had been incarcerated. He accepted that he received the email from the Respondent on 28 October enclosing details of the Applicant’s ‘final pay’ on that date. However, the Applicant denied that he was made aware of his termination by the email of 28 October 2023 referring to his final pay. He said he understood the email related to leave payments. [15] I am satisfied that the Applicant did not receive the warning letter dated 14 October at the time it was sent because he was in custody. I accept the Applicant’s evidence that he was in custody until 27 October. I accept that the mobile telephone to which the text message was sent had been confiscated and remains in the possession of the police. I accept the evidence that he had no access to email or text messages whilst he was incarcerated and that ordinary mail that was directed to his home address was not accessible to the Applicant until after his release. I think it unlikely that the Applicant would have seen the email containing the 14 October warning letter even after his release since this was sent to his work email address and by that stage, on the Respondent’s view, the Applicant’s employment had been terminated. That being the case, the Applicant may no longer have had access to his work emails. [16] For similar reasons I conclude that the termination letter of 20 October did not come to the Applicant’s notice until after his release and most probably when he requested a copy of it [2024] FWC 136 4 from the Respondent on 13 November 2023. The Respondent conceded that the 20 October email was inadvertently sent to the wrong email address. That email can therefore be discounted as a form of notice of termination to the Applicant at that time. [17] There is no evidence on which I can conclude that the Applicant was made aware of his purported termination through Mr. Barr’s contact with Mr. Linney. [18] It was not in issue that the Applicant received the 28 October email on that date. The subject of the email is “Final Pay – Kevin Barr – 20.10.2023”. It says “We would like to inform you that we have completed processing your separation case.” It goes on to refer to the processing of a payment to the Applicant’s account. Apart from this, the email does not in terms provide explicit notice that the Respondent was terminating or had terminated the Applicant’s employment. Consideration [19] It is well settled that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.3 In Ayub v NSW Trains4 the Full Bench concluded that the 21-day period to lodge an application for an unfair dismissal remedy could not begin to run before an employee who has been dismissed at the initiative of the employer became aware that they had been dismissed, or at least had a reasonable opportunity to become aware of this.5 The Bench confirmed that the relevant legal principles applicable to the termination of the employment contract were equally applicable to the termination of the employment relationship.6 [20] More recently, a Full Bench7 of the Commission has said: The Commission and its predecessor have, under the Act and the Workplace Relations Act 1996, approached the question of when a dismissal takes effect in a manner consistent with the common law principles relating to notice and the termination of an employment contract. At common law, an effective notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable. [21] In Ayub, the Bench also said that other than in the limited circumstances where a contract of employment provides for it, it was difficult to contemplate that an employment contract could ever be terminated retrospectively.8 The Bench went on to consider whether there were any exceptions to the general proposition that a dismissal could not take effect before it is communicated to the employee and concluded as follows: We therefore do not consider that there is any proper exception to the general proposition established by the authorities under the WR Act and the FW Act that a dismissal cannot take effect for the purposes of those statutes before it is communicated to the employee. There is little support for the existence of any such exception which may be derived from the common law. While it is not inconceivable, as earlier stated, that a contract of employment might expressly provide that it may be terminated by the employer on notice to the employee effective from a time prior to receipt of the notice by the employee, we do not consider for the reasons we have stated that any such [2024] FWC 136 5 contract could be treated as determining the date of effect of a dismissal for the purposes of s.394(2)(a).Termination of employment in accordance with such a provision would be in contravention of s.117(1).Statutory industrial instruments such as modern awards and enterprise agreements could also conceivably allow a date of dismissal which is effectively retrospective (although we are not aware of any which actually do so), but again this could not be treated as determinative of the operation of s.394(2)(a) in a particular case such as to deprive a dismissed employee of the full time period allowed by the provision.9 [22] Given my conclusions in relation to the Respondent’s correspondence dated 14 and 20 October, in my view the evidence in this case establishes that, at the very earliest, the termination of the Applicant’s employment first came to his attention on 28 October 2023 when he received the email from the Respondent’s HR Department with details of his ‘final pay’. That email must have raised concerns with the Applicant about the status of his employment. He had been absent from work for over a month with no direct contact with his employer. He was being notified of ‘final pay’ and ‘separation’. However, there is some doubt as to whether the email is in sufficiently clear terms to constitute an effective notice of termination or provided the Applicant with a reasonable opportunity to become aware that his employment had been terminated by the Respondent. What is clear from the authorities however is that at on the best view for the Respondent, the email could only have constituted a notice of termination that took effect from that date. It could not have constituted a valid retrospective notice of a termination that took effect on 20 October 2023. [23] Having decided that the termination of the Applicant’s employment was not effective from 20 October 2023, it is ultimately unnecessary to resolve the question of whether the dismissal took effect on 28 October 2023 or the later date of 13 November 2023 when the Applicant contacted the Respondent and was provided with copies of the earlier correspondence. Either way, the application was filed within the 21-day time limit and an extension of time is unnecessary. [24] The Respondent’s objection is dismissed. The matter will be relisted for further hearing on a date to be determined. DEPUTY PRESIDENT Appearances: Mr Barr for the Applicant, [2024] FWC 136 6 Ms Toohey for the Respondent. Hearing details: By video using Microsoft Teams at 10:00am AEDT on Tuesday, 9 January 2024. Printed by authority of the Commonwealth Government Printer <PR770321> 1 Section 394(2). 2 Section 396(a). 3 Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at para. 24. 4 [2016] FWCFB 5500. 5 At [36] and [48]. 6 At [24]. 7 Clarke v Uniti Group Ltd [2023] FWCFB 133 [19]. 8 At [22]. 9 At [41].