Dr Manu Chopra v Al Siraat College Inc T/A Al Siraat College

[2020] FWC 3199

[2020] FWC 3199

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Dr Manu Chopra
v
Al Siraat College Inc T/A Al Siraat College & Others
(C2020/1515)

DEPUTY PRESIDENT MANSINI MELBOURNE, 22 JUNE 2020

Application to deal with contraventions involving dismissal.

[1] This decision concerns the jurisdiction of the Commission in relation to an application for the Commission to deal with a general protections dispute involving dismissal, made under s.365 of the Fair Work Act 2009 (Act).

[2] For the reasons that follow, I have determined that the claim must proceed.

Context

[3] The original application provided that Dr Manu Chopra (the Applicant) commenced employment with Al Siraat College Inc t/a Al Siraat College (the First Respondent) on 2 September 2019 and was notified of his dismissal on 10 March 2020, when his “last payslip was emailed”. 1 In response to the question “What date did your dismissal take effect?” the original application states “Allegedly since 20 December 2019, but I was not notified. So I dispute the date of dismissal.”2

[4] In response to the question “Are you making this application with 21 calendar days of your dismissal taking effect?” the original application expressed uncertainty about whether it was filed within the statutory timeframe because the Applicant was unsure if he had been dismissed, constructively dismissed, or the contract had ended due to the effluxion of time. It is claimed that the contract should not have ended due to the effluxion of time, including because: the Applicant accepted the First Respondent’s offer of employment on the understanding that it would be made ongoing from 20 September 2019 subject to his performance; and, further, that the Applicant sustained an injury during the course of the employment and was entitled to the benefit of the return to work provisions of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The Applicant said he assumed that the employment did not end on 19 December 2019 for these reasons and because his entitlements were not immediately paid out, wages were paid for the period 30 December 2019 to 10 January 2020 and the final payslip was not received until 10 March 2020. 3

[5] The original application was filed on 11 March 2020. The Commission’s registry identified that it may not have been made within the statutory timeframe as required by s.366. As the named Respondents did not agree to participate in an initial attempt at conciliation, the question of jurisdiction was referred to me for hearing.

[6] An initial mention was convened on 1 April 2020. The Respondents opposed the jurisdiction of the Commission on the basis that the application was filed outside the statutory timeframe. The Respondents also said that there was no dismissal at all. The Respondents accepted the Commission’s further offer to attempt conciliation on the basis that a conciliation took place before the filing of materials but there was no agreement. Accordingly, a program for hearing (with exchange of materials in advance) was set.

[7] On 3 April 2020, the Applicant sought to amend his original application to correct a mistake in describing the effective date of dismissal at item 1.3 such that it would read “10 March 2020”. 4 The Applicant communicated with the Commission a number of times requesting this amendment. The parties were requested to address the Commission about all matters in accordance with the directions.5

[8] At the hearing on 18 June 2020, the amendment to the original application to correct the Applicant’s mistake at item 1.3 was allowed pursuant to s.586 of the Act. The parties addressed the Commission about the matter of jurisdiction, which remained in dispute. The Applicant requested that the Commission determine the preliminary question of whether it has jurisdiction to decide that the application was out of time and, only if necessary, address the Commission further about the matters it is required to consider at s.366. The Respondents did not oppose this course. The parties agreed that the Commission would not formally receive or have regard to the witness statements filed by the Respondent and the Applicant in determining the threshold issue and the Commission has adopted that approach.

Was the application made out of time?

[9] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

[10] In this case, the jurisdiction of the Commission was placed in doubt by the contents of the original application. Notwithstanding that the Applicant subsequently amended his application to clarify his contention that he was dismissed effective 10 March 2020, the Respondents maintained that the application must not be allowed to proceed because it was filed outside the statutory timeframe.

[11] The primary contention of the Respondents was that there was no dismissal, because the employment was for a fixed term which ended due to the effluxion of time. It said that the employment contract plainly specified an expiry of 19 December 2019 and was not renewed or extended. The Respondents also claimed that, even if there was a dismissal as pleaded by the Applicant, it must have been effective earlier than 10 March 2020. It argued that this case is distinguishable from the facts before the Full Bench in Cameron Milford v Coles Supply Chain Pty Ltd 6including because: the Applicant was a fixed term employee who was on notice that his employment would come to an end on 19 December 2019; the Applicant had been party to other proceedings before the Commission in which the Respondents had filed a response (on 4 February 2020) which confirmed that the Respondents considered the employment had ended on 19 December 2020; and the Applicant had been sent an email on 5 February 2020 informing him that his employment had come to an end on 19 December 2019 (which was acknowledged that the Applicant denied having received and the Respondent claimed was provided again to the Applicant on 21 February 2020). The Respondents contended that to adopt the Applicant’s pleaded effective date would be to attach a “fictitious” date of the kind contemplated by the Full Bench in Milford as follows:

“Consistent with the reasoning in Hewitt, we consider that the time limitation in s 366(1) must be read as operating by reference to the dismissal that is pleaded in the application that is lodged in the Commission. There will be some cases where there is a genuine dispute concerning the date upon which the pleaded dismissal took effect which may have consequences for compliance with the time limitation in s 366(1). The theoretical scenario posited by Coles whereby an applicant adopts a fictitious date for the pleaded dismissal in order to avoid the operation of the time limitation would no doubt give rise to a dispute of this nature (although we have no experience of this ever having actually happened). In this type of case it will be necessary for the Commission to identify the correct date of the pleaded dismissal in order to determine whether the application was filed within the prescribed 21 days and consequently whether it is necessary to consider the grant of an extension of time under s 366(2).” 7

[12] The Applicant contended that s.366 is not enlivened unless and until a “definite and certain” conclusion is reached by the Commission that there is no dispute about there being a dismissal, there is no dispute about the date of the dismissal and there is no dispute about the application being filed out of time. The Applicant also argued that, as there is no jurisdiction for the Commission to decide whether a dismissal has in fact occurred, then in those circumstances the Commission has no jurisdiction to hear, make findings of fact or determine whether the application was filed outside the statutory timeframe pursuant to s.366. He asked the Commission to accept that there is no jurisdiction to determine the effective date of dismissal other than the date that he, as the claimant, has alleged.

[13] I accept that in this case the parties are in dispute as to whether a “dismissal” has in fact occurred within the meaning of the Act. For the purposes of dealing with this application, it is not necessary to determine whether the Applicant was dismissed because it is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1 of the Act. 8

[14] Nonetheless, the legislation requires the identification of an effective date of the alleged dismissal to assess whether an application under s.365 was made within the statutory timeframe. In the ordinary course, the effective date is a question of fact to be determined on the evidence before the Commission. 9 However, a Full Bench has indicated that caution should be exercised in determining the effective date in a case where the allegation of dismissal is disputed so as not to exceed the jurisdiction of the Commission by “correlatively” determining the substantive application.10 At this preliminary stage, the respective claims are as yet untested however there would appear to be a genuine dispute about the facts. The Respondent has presented at least an arguable case that the effective date of dismissal was in fact earlier than 10 March 2020. However, there is nothing before me to suggest (nor was it alleged) that the Applicant in this case deliberately adopted a fictitious date in order to avoid the operation of the time limitation. In the circumstances of this case, I accept that a determination of the effective date of dismissal would require a determination (directly or indirectly) of the questions of merit, which I am unable to determine on the basis of the authority in Milford.11

[15] In view of the foregoing, and without expressing any view concerning the date of the termination of the Applicant’s employment or the merits of his application generally, I must adopt the Applicant’s contention and conclude that his alleged dismissal was effective 10 March 2020. As the application was filed on 11 March 2020, the question of whether to extend the time for filing does not arise. Accordingly, the application will now proceed in accordance with s.368.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR720308>

Appearances:

Dr M. Chopra, Applicant, on his own behalf
Mr J. Monroe, solicitor, for the Respondents

Hearing via telephone:

2020
18 June.

 1   Items 1.1 and 1.2 of the Original Application dated 11 March 2020.

 2   Item 1.3 of the Original Application dated 11 March 2020.

 3   Item 1.4 of the Original Application dated 11 March 2020.

 4   Applicant’s email and attached Memorandum dated 3 April 2020.

 5   Emails from the Commission to the Applicant and the Respondents dated 4 May 2020 and 13 May 2020.

 6   [2019] FWCFB 7658 (Milford).

 7 At [28].

 8   Hewitt v Topero Nominees Pty Ltd [2013] FWCFB 6321 at [50].

 9   Byrne v Australian Airline [1995] HCA 24 at [25]; (1995) 185 CLR 410 at page 428.

 10   Cameron Milford v Coles Supply Chain Pty Ltd [2019] FWCFB 2277 at [21].

 11   Milford at [22] to [30].