Belinda Browning v Mills Brands

[2019] FWC 7947

[2019] FWC 7947

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Belinda Browning
v
Mills Brands
(C2019/4484)

DEPUTY PRESIDENT CROSS SYDNEY, 21 NOVEMBER 2019

Application to deal with contraventions involving dismissal - jurisdictional objection - out of time.

[1] On 19 July 2019, Ms Belinda Browning (the “Applicant”) lodged an application (the ”Application”) pursuant to s.365 of the Fair Work Act 2009 (the “Act”). The Applicant said she had commenced employment with Mills Brands Pty Limited (ABN 117 885 828) (the ”Respondent”) on 17 December 2015 and her employment had been terminated by the Respondent on 17 June 2019. The Applicant was employed by the Respondent as a Full-Time Storeworker.

[2] On 19 July 2019, the Applicant filed an application with the Fair Work Commission (the “Commission”) to deal with a general protections dispute involving dismissal. Section 1.4 of the Applicant’s Form F8 indicated that she was filing outside of the 21-day statutory time frame. The Applicant provided the following reason for the delay:

“I didn’t get the notice From the postman until the 27-6-19 that is when I signed for the letter at the post office.”

[3] As the Applicant herself indicated she had filed her application late, on the date of 24 July 2019, the Commission contacted the Respondent noting the application appeared to have been lodged outside of the 21-day statutory time frame and sought the Respondent’s consent for the matter to progress to a General Protections conference. On the same day, the Respondent wrote refusing to consent to the conference and the matter was allocated to my Chambers.

[4] On 25 July 2019, the Respondent filed a response to the Applicant’s general protections claim. Section 6.1 of the Respondent’s Form F8A raised a jurisdictional objection:

“This claim is outside the parameters of the Act

Belinda’s employment was terminated with full consultation from Kemp and Co Lawyers (Employment Law specialists).

More than the required notice was given each step of the way. All correspondence was sent by registered post.

We believe Belinda is fraudulently misrepresenting the facts in an attempt for a quick cash grab which she is simply not entitled to.” 

[5] On 29 July 2019, I convened a Directions Hearing to inform the parties I would be determining whether the Applicant lodged her claim outside the 21-day statutory time frame. By consent, the Applicant and the Respondent agreed to a timetable for the filing of Outlines of Submission addressing the issue, together with any witness statements and other documentary material upon which each party intended to rely. The Applicant and the Respondent also agreed that the application would be determined upon the materials filed.

[6] On 15 August 2019, the Applicant filed submissions in the form of a second Form F8. Under section 1.4 of her second Form F8, the Applicant explained the reason for her filing delay:

“I Didn’t receive the first notice of the registered mail I only got the second one on the 27-6-19 that is when i went straight to the post office and signed for the letter I have sent a photo of the letter Circling the date of pickup”

[7] The Applicant submitted documentary evidence of a photo of an Australia Post registered post envelope with the circled handwritten note:

“F 27/6”

[8] On 5 September 2019, the Respondent filed their Submissions in Reply. Paragraph 21 of the Respondent’s Submissions in Reply states:

“The Respondent understands that the Applicant did not receive the Termination Letter until 27 June 2019, however, the Applicant waited until 19 July 2019 to complete the application.”

[9] The section that determines whether a general protections application was lodged within the permissible period is s.366 of the Act:

“366 Time for application

An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).”

[10] In order to make this determination, I must first determine the date on which the dismissal took effect. A Full Bench in Beverly Jean Burns v Aboriginal Legal services of Western Australia (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496, said at [24]

“In our view, a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated”

[11] In the context where termination was effected by a letter posted to an employee, Keely J in Transport Workers’ Union of Australia v National Dairies Limited (1994) 57 IR 183 (Industrial Relations Court of Australia), said at p.184/185

“In my opinion the mere posting of the letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee.”

[12] Keely J’s approach was adopted by a Full Bench in Commonwealth of Australia (Australian Taxation Office) v Wilson [2001] AIRC 163 (Industrial Relations Court of Australia), at [11] where they stated:

“Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received.”

[13] On the evidence before me, it is agreed between the parties that the date the dismissal was communicated to the Applicant and thus the date that the dismissal took effect was 27 June 2019.

[14] Section 36(1) of the Acts Interpretation Act 1901 (Cth) states that when a period is expressed to begin after a specified day it does not include that day. Section 366(a) of the Act is expressed in such a manner and so, the twenty-one-day time frame does not include the day the dismissal took effect. The Applicant’s Application was filed on 19 July 2019, on the twenty-first day after the dismissal took effect. As such, the Application was filed within the statutory time frame.

[15] The jurisdictional objection with respect to the matter being filed out of time is dismissed and I so order. The Application will be listed for conciliation.

DEPUTY PRESIDENT

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