Andrea Donnellan (Applicant) v Yulong Investments (Australia) Pty Ltd t/a Yulong (Respondent)

[2020] FWC 2954

[2020] FWC 2954

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrea Donnellan
(Applicant)
v
Yulong Investments (Australia) Pty Ltd t/a Yulong
(Respondent)(U2020/7015)

DEPUTY PRESIDENT MANSINI MELBOURNE, 4 JUNE 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application by the Applicant for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] The Respondent objected to the application on the basis that it was not made within 21 days after the dismissal took effect. I have determined that the application was filed within the statutory timeframe and must proceed. The reasons for that decision follow.

Factual background

[3] On 14 April 2020, the Applicant alleges to have been advised by telephone that she was “stood down” from her role as Gardener due to COVID-19. The Applicant subsequently requested clarification from the Respondent.

[4] On 15 April 2020, the Respondent emailed the Applicant outlining its concerns with her conduct and/or performance. The email appears to include an invitation for the Applicant to resign from her employment with the Respondent, otherwise her contract would be terminated. On 16 April 2020, the Applicant responded that she would not resign. The Applicant claims to have provided a medical certificate to the Respondent that same day. The medical certificate is signed by a medical practitioner, dated 16 April 2020 and covers the period 15 to 30 April 2020.

[5] On 20 April 2020, the Applicant was notified of her dismissal by email which attached a termination letter. The Applicant did not attend for work or perform any duties for the Respondent after 20 April 2020. The Respondent’s cover email sent on 20 April 2020 stated:

“Please check the attachment. The employment separation certificate will be given to you on the day you leave, because we need to calculate your annual leave according to your working hours.”

[6] The termination letter (which was attached) relevantly included the following:

“I am writing to you about the termination of your employment with Yulong Investments Aus Pty Ltd.

[...]

Based on your length of service, your notice period is 2 weeks. Therefore your employment will end on 4^th May 2020.

Your employment will end immediately. Based on your length of service, your notice period is 2 weeks.

You will also be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment. [...]

[7] An employment separation certificate prepared by the Respondent was provided to a Government authority (Centrelink) which stated that the “employment ceased” on 4 May 2020, entitlements were paid out on 4 May 2020, but that no payment in lieu of notice was made to the Applicant. This document was signed and dated 20 May 2020.

[8] Final payslips were provided to the Commission, which record payments made on 25 April 2020 (in respect of the pay period from 11 to 24 April 2020) being for “Ordinary Hours” and “Annual Leave”, and on 9 May 2020 (in respect of the pay period from 25 April until 8 May 2020) being for “Annual Leave (remaining balance)” and “Ordinary hours 0.000”. It is clear from the payslips and the separation certificate that no payment in lieu of notice was made to the Applicant. It is also clear from the payslips that the Applicant was not paid any wages in respect of the period from 25 April until 4 May 2020 (the second week of the notice period). It is not apparent from the payslips whether the Applicant was paid any wages in respect of the period from 20 to 24 April 2020 (part of the first week of the notice period).

[9] Screenshots of communications between the Applicant and the Respondent in the period following her dismissal reflect that the Applicant understood that her employment had ended “immediately” on 20 April 2020 and that she was entitled to payment of two weeks’ notice. There is an undated screenshot of a communication from a Mr Li on behalf of the Respondent which reflects that it disagreed:

“What April was trying to say is the following: She would give you 2 weeks wages only if you resign your job. You did not choose to resign your job, so you should have worked to earn your wages. Also, on your termination letter, it says your termination day is 4th May, you should be working normally before that date to earn your salaries.”

[10] On 1 May 2020, the Applicant caused her unfair dismissal application to be sent by express post to the Fair Work Commission. An express post receipt and tracking information establishes that the mail was received by Australia Post on 1 May 2020, redirected on 5 May 2020 and not delivered until 18 May 2020. The Commission’s records show that the application was processed and recorded as filed on 21 May 2020.

[11] At a mention before me on 29 May 2020, the Respondent declined to participate in an initial conference and the parties consented to the question of jurisdiction being determined on the papers. I adopted that course in light of the fact that resolution of the jurisdictional question does not involve any factual disputes (s 397 of the Act). The parties respectively sought to and did file further materials in relation to this preliminary issue.

Is the application out of time?

[12] Section 394(2) of the Act states 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 pursuant to s 394(3).

[13] It was only during the course of the proceedings that there came to be a conflict about when the Applicant’s dismissal took effect.

[14] The original application stated that the dismissal was notified on 20 April 2020 and effective “immediately”. The Applicant then filed a statement on 26 May 2020 in which stated that she was dismissed on 15 April 2020. After the Mention on 29 May 2020, the Applicant proceeded to file materials in support of her current position, that her employment ended effective 4 May 2020, and therefore this application was filed within the 21 day timeframe.

[15] The Respondent accepted that the termination letter may be somewhat ambiguous, but sought to argue that the dismissal was effective immediately upon being communicated to the Applicant on 20 April 2020. It asked the Commission to accept that its intention was always that 4 May 2020 was the effective date but that the date of 20 April 2020 should be determined as the effective date because this was the Applicant’s intention. It said the Applicant had acknowledged as much in her application and communications sent around that time, albeit subsequently seeking to change her story.

[16] A dismissal on notice takes effect upon the date of the expiration of the specified period of notice where this is clearly identifiable. 1 In the case of a dismissal with a payment in lieu of notice, the dismissal needs to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed. There may also be an additional requirement that the payment in lieu of notice has actually been received by the employee.2

[17] It is not contentious that the Applicant was notified of her dismissal on 20 April 2020 and did not attend work or perform duties for the Respondent from that date.

[18] I do not accept that the Applicant’s intention is of itself conclusive as to the effective date of termination or that, in not attending for work during the notice period from 20 April to 4 May 2020, the Applicant caused her employment to end effective 20 April 2020. The undated communication from Mr Li reflects that the Respondent did not believe it was required to pay two weeks’ notice, or to pay wages for the period 20 April to 4 May 2020 because the Applicant did not work. However the materials before the Commission do not reflect any direction by the Respondent to the Applicant to the effect that she was required to attend for work or perform duties during the notice period specified in the termination letter. It was not contended that the Respondent accepted her medical certificate and considered the Applicant to be on personal leave (paid or unpaid) during this period. I consider that the documents before the Commission objectively establish that the effective date of dismissal was 4 May 2020. The correspondence sent by the Respondent to the Applicant on 20 April 2020 is ambiguous. It refers, on two occasions, to the Applicant’s notice period being “2 weeks”. It also states that the Applicant’s “employment will end on 4^th May 2020”. However, the following sentence in the letter states that the Applicant’s “employment will end immediately”. This sentence may be interpreted to mean either that the Applicant’s employment will end immediately on 20 April 2020 or immediately on the conclusion of the two week notice period (4 May 2020). Read in context, I am of the view that a reasonable person would interpret the correspondence from the Respondent to the Applicant on 20 April 2020 to mean that the Applicant’s employment with the Respondent would end on 4 May 2020. The context which supports this conclusion includes: (a) the clear and definite reference in the 20 April 2020 letter to the fact that the Applicant’s “employment will end on 4^th May 2020”, (b) the fact that the 20 April 2020 letter refers to Applicant being paid her “accrued entitlements and any outstanding pay, up to and including your last day of employment”, rather than such entitlements being paid up to and including 20 April 2020; and (c) similarly, the covering email to the 20 May 2020 letter states that the “employment separation certificate will be given to you on the day you leave, because we need to calculate your annual leave according to your working hours”. In addition, the end date of 4 May 2020 was confirmed by the separation certificate which was completed by the Respondent after the fact on 20 May 2020, being an important record that was submitted to a Government authority.

[19] This is not a case where an employee was told that their employment was terminated with immediate effect and a payment in lieu of notice would be made to them such that it may be argued that the employment relationship had in fact come to an end at the time the communication was made to the employee or upon the payment in lieu of notice being made to the employee. 3 The fact that the Applicant did not work during her two week notice period and was not paid for part or all of her two week notice period does not alter the conclusion that the Applicant’s dismissal took effect on 4 May 2020, in accordance with the communication from the Respondent to the Applicant on 20 April 2020.

[20] Accordingly, I consider the effective date of the Applicant’s dismissal was 4 May 2020. The Commission’s records show that the unfair dismissal application was received by the Commission on 21 May 2020.

[21] The period of 21 days ended at midnight on 25 May 2020. The application was therefore filed within the 21 day time period prescribed by s 394(2).

[22] Were it not for the delays in the postal service, then the application may have been filed prematurely (because the Applicant took steps to file it by express post on 1 May 2020 which may in the ordinary course have been received prior to the dismissal taking effect on 4 May 2020) in that it was not filed after the dismissal took effect in accordance with the language of s 394(2). However it is not the Commission’s role to speculate and, as the application was not ultimately filed until 21 May 2020, the issue does not arise. I note that I would in any event consider this an appropriate case to exercise the discretion at s 586(b) in favour of the Applicant and waive the irregularity in the form or manner in which the application was made.

[23] As I have found that the application was not out of time, there is strictly no need for the Commission to be satisfied that there are “exceptional circumstances” pursuant to s 394(3) in order for the application to proceed. However I make the observation that, even if the Respondent’s contention were accepted and the effective date was 20 April 2020 (with the period of 21 days ending at midnight on 11 May 2020), the Applicant has offered a credible and acceptable reason for the delay. The Applicant’s evidence included an Australia Post express post receipt dated 1 May 2020, and Australia Post tracking reference which showed that the mail was received by Australia Post on 1 May 2020, redirected on 5 May 2020 and not delivered until 18 May 2020 (notwithstanding that the Commission did not process the application until 21 May 2020). In her statement, the Applicant claimed to have been unaware of postal delays or that the Commission’s offices were closed. The Respondent argued that the circumstances were not exceptional because the Commission’s website included notice that the Commission had stopped accepting applications in person and by post, and provided guidance about other available methods of filing an application (online, by email or by fax) and these were “not unforeseeable events”. It also said that ignorance is not an exceptional circumstance and, further, pointed to the Applicant’s evidence that she had obtained advice from “FairWork” on or around 16 April 2020 and ought to have been aware of the statutory timeframe for lodgement. Whilst the Applicant may have been able to check the website and identify that the Commission’s offices were closed and applications were not being accepted by post, the fact is that filing was ultimately effected in a manner that is provided for in the Commission’s Rules. Given the highly unusual circumstances of the lengthy delay in the Australia Post express post service delivery and the Commission’s registry office being closed at the relevant times due to COVID-19, and the evidence that the Applicant had taken steps to effect filing well within the statutory timeframe (even on a 20 April 2020 effective dismissal date), I consider this would amount to an acceptable and credible reason for the delay and weigh strongly in favour of a finding of exceptional circumstances.

[24] For completeness it is noted that, of the other criteria at s 394(3) which the Commission is to take into account, the Respondent submitted that it would be unfair to extend the time for filing because another applicant employed by the Respondent experienced the same circumstances and did file the application in time. There was no suggestion of prejudice to the Respondent or any action taken by the Applicant to dispute the dismissal. The merits of the substantive claim are presently untested. On the material before the Commission, I would be inclined to find that the Applicant’s reason for the delay outweighs the other factors and find that this amounts to exceptional circumstances as to justify the exercise of the discretion to extend the time for filing.

Conclusion

[25] For the above reasons, the jurisdictional objection is dismissed and the application will now proceed to conference before the Commission.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Mohammed Ayub v NSW Trains[2016] FWCFB 5500 at [49]; Mr Peter Mihajlovic v Lifeline Macarthur[2013] FWC 9804 at [4]-[7].

 2   Ibid.

 3   Mohammed Ayub v NSW Trains[2016] FWCFB 5500 at [49].