Dr Hazel Honey Lim v Independent Schools Australia
[2022] FWC 1821
•12 JULY 2022
| [2022] FWC 1821 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Dr Hazel Honey Lim
v
Independent Schools Australia
(C2022/323)
| COMMISSIONER YILMAZ | MELBOURNE, 12 JULY 2022 |
Application to deal with contraventions involving dismissal - whether application made outside the prescribed 21 days - when the dismissal took effect - application not out of time.
On 5 January 2022, Dr Hazel Honey Lim lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) against Independent Schools Australia (ISA). Dr Lim commenced employment on 15 September 2021 and on 17 November was advised that her dismissal was to take effect on 15 December 2021. ISA submit that they subsequently brought the dismissal forward to 3 December 2021, while Dr Lim submits that her dismissal took effect on the original date of 15 December 2021. If the original date stands, the application is not out of time. I find the dismissal took effect on 15 December 2021, and the following are the reasons for my decision.
Dr Lim was employed by ISA in the position of Assistant Director - Policy and Research (Data). ISA is a peak body for state and territory associations of independent schools across Australia to represent the interests of independent schools in relation to funding and advocacy on national education issues. Dr Lim’s position was a critical role responsible for delivering the CEO and the Director of Policy research regarding key policy issues and costings in relation to funding.
At the time of Dr Lim’s employment her duties were at first performed from home due to the COVID-19 pandemic lockdowns. She submits that on 1 November she fell ill for a few days after her second dose of the COVID-19 vaccine and also experienced technical difficulties in accessing important work reports from the shared drive. An important comparison report was submitted on 8 November 2021 and she was also required to deliver a costing of a policy change. Dr Lim submits that the costing request was new to her and to understand what was required she revisited the costings prepared by her predecessor. Dr Lim submitted her costings on 9 November 2021, 15 minutes late with a discrepancy in the estimates which she could not reconcile. It is understood that the purpose of the material was for a meeting between the CEO and the Department of Education, Skills and Employment Minister on the morning of 9 November 2021.
In the afternoon of 9 November 2021, Dr Lim went to the office and revisited the estimates, she then resent her revised model. At 8.41pm of 10 November 2021, Dr Lim forwarded to her employer, an email apologising for the lateness of her work. In the same email she states that she had not previously received requests for information so close to the deadline and then makes suggestions on handling costings in the future.
In response to her email, Dr Lim was invited on 11 November 2021 to a meeting to be held on 15 November, which also coincided with their regular weekly catch up. During this meeting, ISA suggested Dr Lim consider her continued employment. A follow-up meeting was held on 17 November 2021, where Dr Lim was given notice of termination of employment. A letter of termination was forwarded to Dr Lim on 19 November 2021. Dr Lim submits she never understood the reasons for her dismissal.
ISA submit that the application is out of time because Dr Lim’s employment was terminated on 3 December 2021. It contends that Dr Lim was dismissed because she did not have the required technical skills to meet the expectations of the role and disputes that her dismissal was because she exercised a workplace right. It denies any contravention of the general protections provisions in the Act and submits there are no exceptional circumstances to grant an extension of time for the application. Dr Lim submits that her email of 10 November 2021 constitutes a complaint or enquiry, and her dismissal is a contravention of her workplace right to make an enquiry or complaint.
While this decision concerns itself with the date of effect of the dismissal in the first instance, merit will not be considered if I find the application within time. On that basis it may be helpful to the parties to make brief observations on the matter of merit. Dr Lim contends that her email of 10 November 2021 is a complaint or inquiry, that she had a workplace right to make a complaint or inquiry and her dismissal was a contravention of her workplace right. However, ISA submit that Dr Lim was subject to a six-month probation period and during this period she did not display the skills or the speed to perform tasks required of the role. The incident of submitting materials to the CEO for her meeting with the Minister on 9 November 2021 was relevant to this observation by ISA. From the evidence, Dr Lim’s difficulties and delay were also her own concerns, and this was reflected in her email where she apologised. However, Dr Lim maintains that despite her difficulties and delay that she had the required skills and considers action can be taken to avoid such circumstances from being repeated.
I appreciate that Dr Lim is deeply disappointed by the decision to dismiss her, and she is critical that no feedback was given to her, or a reason given for her dismissal. However, failure to provide a reason for the dismissal or clear feedback does not in itself render Dr Lim’s dismissal a contravention of her workplace rights. Further, Dr Lim relies on her email, but having read the email multiple times, it is difficult to form the view on any objective basis that it is either an inquiry or complaint as contemplated by the Act. Nevertheless, even though some criticism of ISA’s management of the circumstances may be warranted, Dr Lim cannot ignore the fact that her failure to comply with her deadline for a critical meeting for the association placed her CEO in a difficult and possibly embarrassing situation by being unprepared. This matter should not be considered lightly given the very senior role that Dr Lim held. On the basis of my observations, and in the absence of any evidence to the contrary, I have formed the preliminary view that taking into consideration all of the materials before the Commission, I do not consider that Dr Lim’s application would have a reasonable prospect of success. I make this observation pursuant to s.368(3) (b) of the Act. Despite my observations, Dr Lim is entitled to her own view, and should she decide to pursue her application further, I strongly advise that she obtain independent advice concerning her prospect of success.
This matter was heard on 22 April 2022. Dr Lim gave witness evidence as did Ms Ruth Underwood Business Manager for ISA. ISA applied for permission to be represented by a legal practitioner pursuant to s.596 of the Act, however permission to appear was refused.
Consideration - the date of dismissal
The date of dismissal must be satisfied to determine if the application was made out of time. General protection applications have a 21-day statutory time frame from the date of dismissal for lodgement with the Commission. Section 366(1) of the Act provides that applications must be made within 21 days “after the dismissal took effect.” The parties are in dispute when the dismissal took effect.
A dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware.[1] Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter.[2]
Dr Lim submits that her last day of employment was 15 December 2021, the date the dismissal took effect. She tendered in evidence her payslip and an extract of her bank statement which showed payment on 15 December 2021. The payslip covers the pay period 6 to 19 December 2021 and shows payment on 15 December 2021. The payslip records the wages, unused holiday pay, superannuation salary sacrifice and tax paid. There is nothing in the payslip to suggest that wages were paid in lieu of notice.
The letter of termination is dated 18 November 2021 and was received by Dr Lim by email on the following day.[3] The letter relevantly states:
“This letter confirms the decision made by Independent Schools Australia to conclude your contract, as conveyed to you in a meeting on 17 November 2021 with Margery Evans, Chief Executive Officer and Caroline Miller, Director, Policy & Research.
Your employment will finish on 15 December or earlier by mutual agreement. Any outstanding wages and accrued leave entitlements ordinarily payable on termination of employment, will also be paid to you. These payments will be processed in the first pay cycle after 15 December 2021.”[4]
On 6 December 2021, Dr Lim forwarded through an email attaching the CTC and DMI score comparisons for 2021-2022. In the body of the email, Dr Lim states that her computer stalled while trying to sync with SharePoint, and she provides commentary on the reports as she understood what had been expected of her from the meetings of 15 and 17 November 2021. She further makes comment on the instruction to prioritise her job searching. While the email refers to her departure from ISA, it does not clarify whether the employment had already come to an end or is yet to come to an end.[5] In the same attachment, Ms Miller’s email in response follows. The email of 4.25pm simply thanks Dr Lim for the reports.
ISA tendered in evidence an email from Caroline Miller, Director, Policy and Research dated 29 November 2021, at 3.55pm, which is titled “finalisation of employment” and relevantly states:
“Following on from our conversation this morning I am writing to confirm with you that your employment with ISA will cease on 3 December 2021 but your pay will continue until 15 December 2021 as agreed.
Your remaining property – the hand sanitiser and wipes – will be left at the front desk for you to pick up when you drop off the ISA key. Please let me know when would be a suitable time for you to drop off the key before the end of the week.[6]”
Ms Ruth Underwood, Business Manager tendered a witness statement in which she states that towards the end of November, the CEO and Director of Policy and Research discussed with her Dr Lim’s employment and it was decided that she was not following instructions and it would not be productive to keep her employed until 15 December 2021.[7] Ms Underwood states that she spoke to Dr Lim on 26 November 2021 suggesting to bring forward the termination date to 3 December 2021. She states that she did this to prepare her for when the decision was ultimately made. She attached to her witness statement her handwritten notes from the meeting.[8]
The handwritten notes prepared by Ms Underwood suggest finishing up at the end of the following week, and do refer to Dr Lim’s lack of understanding of why she was terminated.
Ms Underwood did not attend the meeting of 29 November 2021 but attached the email from Ms Miller to Dr Lim to her witness statement. This email confirms that Dr Lim’s employment ends on 3 December 2021 and is provided for in pargraph [12] of this decision. Also attached to her witness statement is an email from Dr Lim to herself on 3 December 2021 forwarding the email of 29 November 2021.[9]
Additional emails attached to Ms Underwood’s witness statement show that arrangements were put in place to return the key, that Dr Lim understood that she had access to the SharePoint to 3 December 2021, that Dr Lim’s correspondence after 3 December was through her private email address and that Dr Lim would be paid until 15 December 2021.
There is no evidence, that it was agreed to bring forward the dismissal date. It is alleged by ISA that in the meeting of 29 November, the dismissal date was brought forward. Only two people were present in that meeting- Dr Lim and Ms Miller. Dr Lim gave evidence denying there was any agreement or direction to bring forward the dismissal date. It is apparent that no further access or continued work would be required of Dr Lim other than the reports that she had to complete. Ms Miller did not give evidence.
ISA also contend that Dr Lim’s notice was payment in lieu even though it was not paid to her until 15 December 2021. From the facts of the matter I have formed the view that Dr Lim was dismissed during her probation period with notice until 15 December 2021. During the period of notice, ISA remained concerned with Dr Lim’s work concerning the outstanding reports and decided that Dr Lim would not be required to continue to work beyond 3 December 2021. Active steps were taken to withdraw her access to SharePoint and other resources from that date. It did not take steps to pay Dr Lim the balance of her notice in lieu. While I accept that Ms Underwood did not use the terminology or garden leave with Dr Lim, she was not present at the meeting of 29 November 2021 to hear what explanation or conditions were attached to the importance of 3 December 2021.
The matter of when the dismissal took effect has been the subject of a number of proceedings before the Commission. It will assist by restating the principles. Where an employee is given notice of the termination of their employment, the dismissal will take effect at the end of the period of notice that has been given to the employee.[10] On this point it is apparent that when Dr Lim was dismissed, she was given notice until 15 December 2021. There is no evidence that the meeting of 29 November altered the period of notice but did alter the expectation for Dr Lim to attend to duties and access SharePoint and the building with a key.
Where an employee is given notice of the termination of their employment, but the termination is subject to a condition, the dismissal takes effect on the date specified as the conditional date of termination if:
· the conditional date of termination is sufficiently clear;
· the condition has been fulfilled; and
· the employee is in a position to know that the condition has been fulfilled.[11]
There is no evidence of change to the notice period or end date of employment, and this was confirmed by the email dated 29 November 2021. The payment of wages and entitlements were effectively calculated up to and paid on 15 December 20221 as originally advised.
However, it is a question of fact whether a dismissal takes effect immediately with payment in lieu of notice.[12] Where the employer’s communication is clear and there is no evidence of a contrary intention, termination by payment in lieu of notice will result in immediate termination of the contract of employment when the dismissal is communicated to the employee.[13] Dr Lim’s dismissal did not display the characteristics of a dismissal on 3 December 2021 with notice in lieu. Further I do not accept the submissions that ISA’s failure to pay Dr Lim in lieu on 3 December 2021 did not disturb the date of dismissal on 3 December, and failure to pay the notice in lieu at that time was simply a breach of the Act.
The date of dismissal is a question of fact and in this matter, ISA strongly press the point that the dismissal occurred on 3 December 2021. I find the observations of Deputy President Saunders helpful in Nathan Jackson v Mahmoud Hasan Abulamoun in the context of ISA’s assertion that the dismissal took effect on 3 December 2021:
“[41] The question of whether an employment relationship has ceased to exist does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.” [14]
Conclusion
On the evidence and submissions before me and for the above reasons, I conclude that Dr Lim’s date of dismissal was 15 December 2021 for the purposes of s.366(1) of the Act. Her general protections application was filed on 5 January 2022. This means that the application was made within the 21-day statutory time frame. Consequently, I need not take into account the considerations of s.366(2) of the Act in respect to whether there are exceptional circumstances for an extension of time.
I am well aware that the parties participated in a conciliation conference where progress towards settlement was not made, and both indicated a preference for a certificate to be issued. I intend to issue a certificate unless both parties advise of a preference for a further private conference. The parties will be contacted by my chambers to determine whether a further conference is to be scheduled pursuant to s.368(2) or a certificate issued pursuant to s.368(3) of the Act. If a certificate is issued, the Commission’s file will be close.
COMMISSIONER
COMMISSIONER
Appearances:
Dr H. Lim, the Applicant.
Ms R. Underwood for the Respondent.
Hearing details:
2022
Melbourne (By Video using Microsoft Teams)
22 April
[1] Ayub v NSW Trains[2016] FWCFB 5500, [36].
[2] Foyster v Bunnings Group Ltd[2017] FWCFB 3923, [17].
[3] Email of 19 November 2021 at 4.01pm with letter of termination - Attachment 4a to Applicant’s outline of submissions.
[4] Attachment ISA-01 to Form F8A- Response to general protections application, and attachment 4b to Applicant’s outline of submissions.
[5] Email of 6 December 2021 from Dr Lim to Caroline Miller at 1.23pm – Attachment 3 to the Applicant’s outline of submissions.
[6] Attachment ISA-02 to Form F8A - Response to general protections application.
[7] Witness statement of Ms Ruth Underwood at [19].
[8] Ibid at [20] and attachment RU-2A.
[9] Ibid at attachment RU-4.
[10] Birrell v Australian National Airlines Commission (1984) 5 FCR 447, 457, cited in Ayub v NSW Trains[2016] FWCFB 5500, [17].
[11] Fardell v Coates Hire Operations Pty Ltd (2010) 201 IR 64.
[12] Siagian v Sanel Pty Ltd (1994) 54 IR 185.
[13] Siagian v Sanel Pty Ltd (1994) 54 IR 185.
[14] Nathan Jackson v Mahmoud Hasan Abulamoun (2020) FWC 4056.
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