Christine Travaglia v Fox in the Box Pty Ltd
[2022] FWC 2251
•13 SEPTEMBER 2022
| [2022] FWC 2251 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Christine Travaglia
v
Fox In the Box Pty Ltd
(C2022/2704)
| DEPUTY PRESIDENT CROSS | SYDNEY, 13 SEPTEMBER 2022 |
General protections dismissal dispute – whether application filed out of time – application filed within time.
On 29 April 2022, Ms Christine Travaglia (the Applicant) lodged an application (the Application) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant stated she was employed, by “Timothy Byrne (Fox In The Box Pty Ltd)”, however in the hearing of the matter the parties consented to the variation of the Application to identify Fox In The Box Pty Ltd (“the Respondent”) as the correct respondent. The Applicant commenced her employment with the Respondent in August 2018. The Applicant claimed that she was notified of her dismissal on 12 April 2022, and that the dismissal took effect on that date
.
The Respondent disputed the termination date recorded in the Application and asserted that the Applicant’s employment was terminated on 7 April 2022. General Protections applications involving dismissal must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. If the Respondent’s contention regarding termination date is correct, the Application would have been lodged outside of the time prescribed, and 1 day after the last day on which such an application could have been made, being 28 April 2022.
On 15 June 2022, directions were issued to program the manner in which the Application was to proceed (the Directions), requiring the filing of materials for the determination of whether the Application was out of time, and if so, whether she would be allowed an additional period within which to lodge the Application.
The parties complied with the Directions. In Particular:
(a) On 30 June 2022, the Applicant filed an Outline of Submissions and a bundle of documents;
(b) Between 20 July and 2 August 2022, the Respondent filed an Outline of Submissions, and various other supporting documents; and
(c) On 9 August 2022, the Applicant filed a Reply Submission and a Documentation List.
On Tuesday 16 August 2022, the matter was heard. Each party supplemented their written submissions with further oral submissions.
Relevant Facts
The relevant facts of the matter were disclosed by the materials filed and the submissions made at the hearing of the matter. While there was some difference between the Applicant and Mr Byrne’s recollections, for the purposes of dealing with the jurisdictional issue, I have proceeded on the basis of the submissions of Mr Byrne as representing the best case for the Respondent. On those submissions, the relevant facts are as follows:
(a) On 7 April 2022, Mr Byrne, a Director of the Respondent, arrived at the restaurant premises of the Respondent. On arrival, Mr Byrne spoke to the Applicant about a function occurring in the upstairs part of the restaurant. The person the Applicant was complaining about was Mr Byrne’s wife, also a Director of the Respondent.
(b) Mr Byrne recorded that the conversation then became agitated, being that the Applicant stood up and declared that she didn’t need to put up with “f@#$%^&* crap like this”. Mr Byrne said, “you can leave and not to come back, you are finished here!” The Applicant collected her belongings and left mid shift. Mr Byrne said he immediately organised staff to cover for the Applicant not being at work.
(c) The Applicant attended work and worked shifts on 8 and 9 April 2022.
(d) On Sunday 10th April 2022, Mr Byrne arrived with his family and some guests to the venue and was surprised to see the Applicant at the venue and working. When Mr Byrne had finished eating and was leaving, the Applicant approached him and placed an envelope in his hand. A conversation then occurred in the following terms:
Mr Byrne: “What is this?”
Applicant: “My letter of resignation.”
Mr Byrne: “Don’t bother. I don’t need to accept it!”
Applicant: “That’s not how it works, you don’t get to not accept it.”
Mr Byrne:“It doesn’t carry any validity as you were dismissed for your behaviour and actions on Thursday evening.”
Mr Byrne then put the envelope down upon the bench and proceeded to leave. The resignation letter provided 2 weeks’ notice from 10 April 2022, effective 24 April 2022.
(e) On 11 April 2022, Mr Byrne received an email from the Applicant that advised:
I have just spoken with someone that has informed me that I am only required to provide 1 weeks notice, so with that information I am letting you know my final shift will be Sunday the 17th of April.
If you wish to sit down and discuss this further, please provide me with a day and time so I can arrange to have a 3rd party there as witness.
(f) On Tuesday 12th April 2022, Mr Byrne sent the Applicant the following email:
In reference to your recent letter of resignation offered on Sunday evening 10th April 2022 and as I briefly stated at the time won’t be accepted as it carries no validity. The events that unfolded on the evening of Thursday 7th of April 2022; including your behaviour and actions, leading to you walking out and leaving mid-way through your shift, have resulted in your employment being terminated on the grounds of Serious Misconduct.
The resultant loss to Fat Bob’s for the drinks deliberately not charged to the private function for 41 people on the night (which you personally provided the quoting, pricing/invoicing for client approval, including personally receiving and placing the drinks order on the evening) and your blatant disregard, rudeness and deliberate mishandling of the function and review; Including leaving your co-workers to pick up the pieces has made your position of “Venue Supervisor” untenable.
I am still at a loss to understand the motivation of your actions on Thursday evening 7th April 2022 and to this point have received no mention of it from you since your unexplained departure.
I have not had a chance to speak or engage with you since that Thursday.
I arranged staff to cover for your absence for the following day and had your absence covered for Saturday and Sunday.
I still had not heard from you by the Sunday evening when on my arrival to Bob’s were you to be there, unannounced and working. Still not a word or acknowledgement from you till you thrust your letter of resignation at me and I refused to accept it.
It should also be noted that in locking up and closing on Sunday evening you failed to engage the security roller door at the main entrance which is deemed also to be a serious security breach and misconduct which places the venue at risk.
The venue Staff code of conduct clearly states - sub heading of “theft”
Any employee who steals from the premises or other staff will be instantly dismissed,
Irrespective of value. The giving away of free drinks or food is regarded as theft and a serious breach of conduct.Whilst I was not expecting, or had no way of knowing your intent after you left mid shift, you position has been terminated effective immediately.
As your employment with Fat Bob’s is under twelve months you will be paid out to the end of shift Sunday 10th April plus any outstanding entitlements. I am available for an exit interview should you require on Wednesday 2pm or Thursday 2pm.
In the hearing of the matter, the Respondent submitted:[1]
If she was dismissed, I hold that she was dismissed effective Thursday 7 April at some time around between 8, when she left, and 10.30 that night. (Audio malfunction) on the Sunday, I was seeking advice on the Monday. I think we can probably disregard getting any assistance or advice over the Saturday and the Sunday. It takes some time, with COVID, to get bookings with people who can give me that advice.
That's what occurred. The email went to her Tuesday outlining the events of Thursday, pointing out her dismissal and, as she had only been with Fox In the Box Pty Ltd, which she is fully well aware of in her own payslips and her own conversations with the book-keeper, it clearly states she was paid out for the previous owner of the business.
Consideration Regarding Date of Dismissal
To be effective, a notice of termination must be received by the recipient. As Keely J
observed in Transport Workers Union v National Dairies Limited[2] in a matter involving a
notice of termination posted by an employer to an employee:
“In my opinion the mere posting of a 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.”
In Ayub v NSW Trains[3] the Full Bench addressed circumstances involving email communications. The Full Bench held:
“We see no reason to depart from the above line of authority insofar as it is consistent with the general principle at common law that a dismissal may not take effect prior to it being communicated to the employee. Neither party submitted otherwise. However, two questions remain. The first is whether there are any exceptions to this principle, the existence of which are suggested but not identified in Makenja and WorkPac. The second is whether the mere receipt of a communication (whether a letter, fax or email) is sufficient to constitute the communication of the dismissal to the employee in circumstances where the employee has not read the communication immediately upon receipt.
Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question 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. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal
remedy application.”
I reject the Respondent’s submission that the Applicant should have divined her dismissal on 7 April 2022, from the circumstances identified. It is clear from the email of 12 April 2022, that she was not advised of her termination until 12 April 2022. That the events of 7 April 2022 involved volatility does not somehow mean that the Applicant would understand she was dismissed, particularly where she then worked on each of the following three days, the last of which in the presence of Mr Byrne while he dined.
Mr Byrne even sought to rely on the conduct of the Applicant on Sunday 10 April 2022, when he advised her on 12 April 2022 that:
It should also be noted that in locking up and closing on Sunday evening you failed to engage the security roller door at the main entrance which is deemed also to be a serious security breach and misconduct which places the venue at risk.
Conclusion
As the Applicant was dismissed on 12 April 2022, the Application filed on 29 April 2022 was not out of time.
DEPUTY PRESIDENT
Appearances:
Ms C Travaglia, for the Applicant
Mr T Byrne, for the Respondent
Hearing details:
2022
Sydney (via videoconference)
[1] Transcript PN 76 and 77
[2] (1994) 57 IR 183, at pp. 184 to 185.
[3] [2016] FWCFB 5500, at [35] and [36].
Printed by authority of the Commonwealth Government Printer
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