Arjun Perinchery v Egencia Australia Pty Limited
[2024] FWC 971
•15 APRIL 2024
| [2024] FWC 971 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Arjun Perinchery
v
Egencia Australia Pty Limited
(U2023/13167)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 15 APRIL 2024 |
Application for an unfair dismissal remedy
On 28 December 2023, the Applicant, Mr Arjun Perinchery filed an application for relief from unfair dismissal against his former employer, Egencia Australia Pty Ltd (Respondent). 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 Fair Work Act 2009 (Act).
Section 394(2) provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such other period as the Commission allows under s.394(3). In his originating application, the Applicant said that his dismissal took effect on 7 December 2023. After the hearing of the matter on 18 March 2024, the Applicant provided final written submissions in which he argued that his dismissal took effect on 16 January 2024 which was the date on which he received an amount for payment in lieu of notice from the Respondent.
The Respondent argued that the Applicant’s dismissal took effect on 8 November 2023 and that there was no basis for granting the Applicant an extension of time to allow his application to proceed.
When Did the Dismissal Take Effect?
Evidence and Submissions
On 8 November 2023, in the late morning, a meeting was held between the Applicant and his direct manager, Mr. Richards at the Respondent’s premises. Mr. Breen, the Respondent’s Human Resources Representative, attended the meeting online. The meeting had been convened to discuss various issues related to the Applicant’s performance at work.
It was not in dispute that at that meeting the Applicant was told that a decision had been made by the Respondent that his employment was to be terminated. There was conflicting evidence as to what was said about when the termination was to take effect. The Applicant gave evidence that Mr. Breen told him that he would no longer be employed by the company, that he would be paid 4 weeks’ pay in lieu of notice and that his last day of work would be the day of the meeting. The Respondent’s evidence was that the Applicant was told that the termination of his employment would take effect immediately and that the Applicant would receive payment in lieu of notice. It was agreed that there was no discussion at the meeting about when the payment in lieu of notice would be paid.
After some discussion at the meeting, the Applicant was told he could either tender his resignation or the company would proceed to terminate his employment. The Applicant was given until 3pm that day to respond. At the end of the meeting the Applicant was asked to hand back all company property. He was then escorted from the premises. He told the Respondent by email later that day that he would not be resigning and that the Respondent should ‘proceed as you will.’ He returned to the office after 5pm to collect his personal effects and did not attend the office or perform any more work for the Respondent after 8 November 2023.
On the same date, the Respondent sent a letter to the Applicant titled “Termination of Employment”. The letter included the following:
Due to the recent events where you have not been available during work hours and admitted to lying about your actions we have made the decision to terminate your employment with Egencia.
Your last day of work is today 8 November 2023. You will be paid your 4 weeks’ notice in lieu to the date Thursday 7th December 2023.
…
In our meeting you were also provided with the opportunity you (sic) review the information and provide feedback on this.
As a result, you are being issued Termination of Employment. (original emphasis)
During the course of his employment the Applicant was paid monthly, on the 15th day of each month. On 15 November 2023, the Applicant was paid an amount for salary, small amounts for annual leave and sick leave and a lump sum payment.
On 20 November 2023, in response to an email from Mr. Breen about the use of a corporate credit card, the Applicant sent an email to the Respondent which included the following:
…Please accept my sincere apologies for the delayed response. The termination of my employment has been difficult to process and has significantly impacted my mental and physical health.
…I note in your email that you wish to withhold my entire final payment? My research and enquiries suggest Fairwork does not deem this to be lawful, per Section 324 of the Fair Work Act. Additionally, all undisputed wages including entitlements should have been paid within 7 days of termination, and not the next pay cycle….
On 21 November 2023 the Respondent, through Mr. Breen, sent the Applicant an email which included the following:
Please note that you were notified of your termination on the 8th of November where your 4 weeks paid notice period would then run from this date to 7th December 2023. This means that you will receive your final pay after this date which will include any annual leave remaining and any contribution to the employee stock plan.
On 15 December 2023 the Applicant received a further payment from the Respondent. The payslip for the pay period showed that an amount was paid for annual leave. According to the Respondent, this amount represented the Applicant’s accrued annual leave entitlements which were payable on termination. There was also a deduction of an amount of one month’s salary which the Respondent said was deducted in error. The Respondent said the error was reversed by a subsequent payment on 16 January 2024. That payment was confirmed by the payslip bearing that date.
It was accepted by the Respondent that no payment in lieu of notice was paid to the Applicant on 15 December 2023. The Respondent said this was also a payroll error. It was not in dispute that the amount that the Respondent ultimately paid to the Applicant for payment in lieu of notice was not paid until 16 January 2024 when the Applicant was reimbursed for the payment for the month of November and paid an additional one weeks’ wages for the period up to 7 December 2023.
An employment separation certificate was provided to the Applicant on 12 January 2024. It specified the employment end date as 8 November 2023.
The Applicant argued that it was not made clear to him at the meeting on 8 November 2023 that his employment would come to an end on that date. He said that the termination letter was also unclear in that it specified that the Applicant’s last day of work would be 8 November but did not explicitly say that his employment would end on that date. He submitted that he was on ‘gardening leave’, that is, that the employment relationship was to remain on foot until the expiry of the notice period on 7 December 2023 but that he was not required to attend or perform any work for the Respondent in the period from 8 November to 7 December. He said the termination of his employment took effect on 7 December. However, in final written submissions, the Applicant argued that his termination did not take effect until 16 January 2024 when he received his payment in lieu of notice. He referred to and relied upon s.117 of the Act and the decision in Southern Migrant and Refugee Centre Inc v Shum (No 3)[1] in support of that submission.
The Respondent submitted that it was made clear to the Applicant at the meeting on 8 November that the employment relationship was being brought to an end with immediate effect. They said that the termination letter reinforced this conclusion. They accepted that there had been an error and a delay with the payment of the amount in lieu of notice but said that that did not extend the employment relationship as the Applicant contended.
Consideration
It is well settled that a dismissal does not take effect until it is communicated in clear terms to an employee.[2] Where there is no written notice of termination the employer’s intention as to the date of termination has to be inferred from what has occurred.[3] Whether the employment relationship has been terminated is a question of fact.[4] In this instance the Respondent’s intention to terminate the employment relationship was conveyed to the Applicant both orally and in writing on 8 November.
My assessment of the evidence is that the Respondent did intend to bring the employment relationship to an end effective on 8 November and that a reasonable person in the position of the Applicant would have understood this to be the case having regard to the background and the communications between the parties. Having heard the evidence of the Applicant and Mr. Breen about the discussion on 8 November, I prefer the account of Mr. Breen to the effect that the Applicant was told that the termination was to take effect immediately. Whilst it may be said that the terms of the termination letter admit of some doubt as whether the relationship is being brought to an end or merely that the Applicant was not required to perform any more work until the expiry of the notice period, I think the letter in combination with the account of the conversation given by Mr. Breen, remove any remaining doubt. The Applicant’s oral evidence was that it was unclear to him whether his employment would remain on foot until 7 December. I am not satisfied that the evidence from the Applicant establishes that he was told that it would continue until 7 December or that a reasonable understanding based on all the circumstances was that it would continue to that date.
The Applicant’s email of 20 November 2023 reinforces the view that the Applicant himself understood that his employment had been terminated by that time. In that email he is claiming that all of his undisputed entitlements should have been paid within 7 days of termination and not in the next pay cycle. Had he been of the view that his employment was ongoing until 7 December 2023 or beyond, it is unlikely that he would have made such a statement.
The Applicant’s later contention that his employment did not come to an end until he received his pay in lieu of notice on 16 January 2024 is misplaced. Deficiencies in the notice (or payment in lieu) requirements under the National Employment Standards in the Act may ground a separate proceeding and ultimately result in the imposition of civil penalties, however it will not invalidate the effectiveness of a notice which is otherwise effective in bringing the employment relationship to an end.
In Metropolitan Fire and Emergency Services Board v. Duggan[2017] FWCFB 4878 the Full Bench considered the interaction between s.117 and the phrase ‘notice of the dismissal’ in s.383(a)(i). The Bench said:
[32] In summary, it is clear in our view that if an employer terminates the employment of an employee without giving notice, or payment in lieu thereof, in accordance with an obligation owed by the employer under a contract, award, enterprise agreement or s.117 of the Act, the result is that the employer has acted unlawfully and/or wrongfully and the employee will have one or more causes of action available to him or her under the contract, award, enterprise agreement and/or the Act to remedy the deficiency in notice. However, an unlawful or wrongful dismissal does not invalidate or render void the termination of the employment relationship….
[33]Accordingly, a notice of termination which does not comply with s.117 of the Act may be effective to bring about the termination of the employment relationship and may constitute “notice of the dismissal” within the meaning of s.383(a)(i) of the Act. Construing the Act in this way is consistent with the purpose of the relevant provisions, as set out above.
Employment relationships are commonly brought to an end summarily and a payment made at the same time in lieu of the payment the employee would have received if they had been given the period of notice to which they were entitled by law. In such cases courts and tribunals have concluded that the end of the employment relationship coincides with the payment.[5] This situation has been described as reflecting the grammatically correct usage of the term ‘payment in lieu of notice.’ Here the payment was not made at the same time as the employee was told his employment was at an end. The Respondent told the Applicant that the termination was to be effective from 8 November. There was to be a payment in lieu of notice at a future point. The Respondent appears to have intended to make the payment in lieu of notice at the expiry of the period for which the notice was paid, which was well after the termination took effect, and did not in fact ultimately make the payment until more than two months after the termination. However, this, in my view, did not have the effect of extending the employment relationship to 16 January 2024 (or 7 December 2023). In reaching this view I have taken into account the fact that the Applicant’s accrued annual leave was also not paid until December 2023, the Respondent apparently taking the view that this could be paid at the same time as they intended to make the payment in lieu of notice. I do not think that this alters the conclusion.
I have also taken into account the undisputed account of events on 8 November, namely that the Applicant was asked to hand over company equipment and collect his personal belongings. This does not suggest any intention on the Respondent’s part that the employment relationship continued to subsist. It makes it unlikely that the Applicant was left with the impression that it did.
I conclude that the Applicant’s dismissal took effect on 8 November 2023.
As the application was not filed until 28 December 2023, the application was not filed within the statutory timeframe and I now consider whether there are exceptional circumstances which would justify an extension of time.
Extension of Time
Exceptional Circumstances – s.394(3)
The parties were directed to file material going to the extension of time issue prior to the matter being listed for hearing. There was very limited material filed in response.
Reason for Delay
By correspondence dated 28 February 2024 the Applicant asserted his employment was terminated on 7 December as evidenced by emails between the parties. He said that the lack of cooperation from the Respondent in providing requested documentation since 20 November 2023 further supported his claim.
The Applicant said that delay in receiving his final payment and other relevant documentation from the Respondent led to confusion regarding the actual date his employment was terminated. He said that these documents were critical to understanding his financial and employment status post-dismissal and that their delayed provision directly impacted his perception and understanding of the dismissal's finality.
The Applicant also said that he decided not to lodge the application until late December because he was in dispute with the Respondent about the payment of his entitlements and he was concerned that if he lodged an application he would not be paid.
These points are relevant to the reason for the delay, which is one matter I am required to consider under s.394(3) in determining whether an extension of time should be allowed.
The delay is the period between the last date on which the application could have been lodged within the statutory timeframe, in this case 29 November 2023, and the date the application was lodged.
It was not in dispute that the Applicant did not receive his payment in lieu of notice or a separation certificate until January 2024, well after the date of his termination. However, I do not consider that these matters provide a satisfactory explanation for the delay. I do not think there was so much justifiable doubt on the Applicant’s part about the status of his employment because of these matters that it could reasonably account for the delay in taking steps to file an application. His reluctance to file an application for fear of having payments permanently withheld, whilst understandable, did not ultimately prevent him from making the application before those issues were resolved. The Applicant was actively raising issues about his final termination payment, requesting documents from the Respondent and referring to the fact that he had been researching the requirements of the Act on 20 November. He was equally able to consider and attend to the filing of an unfair dismissal application to safeguard his position. He did not do so.
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.[6] Here, I do not consider that the reasons for the delay provided by the Applicant weigh in favour of a conclusion that there are exceptional circumstances justifying an extension of time.
Awareness of the Dismissal
I have concluded that the Applicant became aware of the dismissal on the day it had taken effect. The Applicant therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. There is nothing that weighs in the Applicant’s favour under this heading.
Action to Dispute Dismissal
The Applicant did take steps to dispute the payments he was entitled to on termination and to request documentation relating to his employment and the termination. He did not take issue with the termination itself until the lodgement of the application. There is nothing that weighs in the Applicant’s favour under this heading.
Prejudice/Fairness between persons
The parties did not make submissions about any relevant prejudice to the employer or any issues of fairness as between the Applicant and other persons in a similar position. I am unable to identify any such prejudice or fairness issues. These are neutral considerations.
Merits
I am not required to embark on a detailed consideration of the substantive case[7] or to resolve all contested facts going to the merits for the purpose of dealing with this application. That would be a matter for a full hearing.
There were a number of allegations about the Applicant’s performance, one of which was not contested. This was an incident in September 2023 where the Applicant fell asleep on the job and was uncontactable for 3 hours. The Applicant described a further allegation that he had absented himself from the office for a brief period in early November 2023. The Applicant said he told his colleagues beforehand and that this was a common practice which was ‘usually accepted’. There were also allegations about misuse of a corporate credit card which the Applicant said was inadvertent.
The Respondent alleged the Applicant had been showing up late and leaving work early and had a record of absenteeism, late requests for time off and poor performance. They tendered a first and final written warning document that had been given to the Applicant on 22 September 2023 which referred to some of these issues.
I am unable to form a concluded view about those issues on the available evidence. However, the Applicant accepted that there was at least one legitimate performance issue raised with him. I also note that the Respondent had provided the Applicant with an opportunity to respond to allegations of poor performance, put him on notice that termination was being considered and given him a written warning before his ultimate termination. In those circumstances I think the case for the Applicant on the merits would not be without its difficulties, but for present purposes I regard the merits as a neutral consideration.
Conclusion
Having regard to all of the circumstances of this case and the matters in s.394(3), and my conclusions in relation to those matters set out above, I am not satisfied that there are exceptional circumstances to warrant an extension of time.
The Applicant’s application for an unfair dismissal remedy is dismissed. An order to that effect will be issued separately.
DEPUTY PRESIDENT
Appearances:
Mr Perinchery for the Applicant.
Mr Breen for the Respondent.
Hearing details:
By Video using Microsoft Teams at 2pm AEDT on Monday, 18 March 2024.
Final written submissions:
Filed by Applicant on 19 March 2024.
Filed by Respondent on 20 March 2024.
[1] [2022] FCA 481.
[2] Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496, Mihajlovic v Lifeline MacArthur[2013] FWC 9804.
[3] Mihajlovic op cit at [9].
[4] Metropolitan Fire and Emergency Services Board v. Duggan[2017] FWCFB 4878 at [32].
[5] See Siagian v. Sanel Pty Ltd [1994] IRCA2 and for example Re Braszell (1984) 26 AILR 222 cited therein.
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[7] Kyvelos v Champion Socks Pty Ltd Print T2421.
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