Elke Kirsch v ThyssenKrupp Polysius Australia Pty Ltd

[2014] FWC 8640

[2014] FWC 8640

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elke Kirsch
v
ThyssenKrupp Polysius Australia Pty Ltd
(U2014/10062)

DEPUTY PRESIDENT MCCARTHY PERTH, 4 DECEMBER 2014

Termination of employment.

[1] This matter concerns an application lodged by Mrs Elke Kirsch (the Applicant). The Applicant lodged an Unfair Dismissal Application (the Application) asserting that she had been unfairly dismissed from her employment with ThyssenKrupp Polysius Australia Pty Ltd (the Respondent). The Application was lodged on 16 June 2014. The Application states that the Applicant was notified of her dismissal on 3 June 2014 and that her dismissal took effect on 7 July 2014.

[2] The Respondent through their representatives, Minter Ellison, lodged an Employer Response to Unfair Dismissal Application (the Employer Response) on 21 July 2014. The Employer Response stated that the Applicant was dismissed on 14 May 2014 and that she had been notified of the dismissal on that day.

[3] The Respondent objected to the Application on two grounds. Firstly, the Respondent claimed that the dismissal had been lodged outside the 21 days allowed for the lodging of this type of Application. Secondly, the Respondent asserted that the dismissal was a case of a genuine redundancy.

[4] I conducted a conference by telephone on 21 July 2014. That conference was adjourned on the basis that the Applicant would provide material to the Respondent and discussions would take place between them. I indicated I would conduct a further conference if required.

[5] I conducted a further conference by telephone on 18 August 2014. It was clear from that conference that there was a dispute regarding when the Applicant was notified of the termination and when the dismissal took effect. I issued Directions the following day identifying the initial matters in dispute and requiring the parties to lodge submissions and witness statements.

[6] On 18 September 2014, I issued Orders requiring the following:

1. Order requiring Mrs Elke Kirsch (the Applicant) to produce certain devices, usernames and passwords to the Fair Work Commission (the FWC).

2. Order requiring Mr Stephen Kirsch (the Applicant’s husband) to produce certain devices, usernames and passwords to the FWC.

3. Directions and Orders setting out procedural requirements for the inspection of the devices.

[7] The Orders were requested by the Respondent. The reasons for the Orders were that the Respondent asserts that they sent an email to the Applicant on 14 May 2014 notifying her of her termination of employment. They also asserted that the Applicant was aware on 9 May 2014 that a final decision about her employment would be made on 14 May 2014. As the Applicant was asserting that she did not receive the email until 3 June 2014 the Respondent wanted to be able to verify that the Applicant did not access her email prior to 3 June 2014. The Orders therefore required the Applicant and her husband to provide certain electronic devices (phone, tablets and laptop computer) for a short period to enable an independent forensic analysis of the devices. The Orders also required the provision of various usernames and passwords. The Orders required the signing of confidentiality undertakings and that the analysis took place at the offices of the FWC.

[8] On 20 September 2014, the Applicant’s husband Mr Stephan Kirsch stated that the email account in his name (email address given) was used by the Applicant and that he did not have access to that account. He also stated that he was currently overseas (i.e. on 20 September 2014) and further that he was overseas with the Applicant at the time, (presumably meaning when and after the email was sent until 3 June 2014) Furthermore, he stated that he had not read the email in question. He therefore sought that the Order be set aside.

[9] The Applicant emailed the FWC on Sunday, 21 September 2014 at about 11:00pm advising that she was not able to bring in her computer the following day as she was working full time. She also stated that she would be disadvantaged as she ran two businesses using the computer. She also objected to the Order on the grounds that the potential disclosure of all of her private material on her computer was in effect a disproportionate requirement to establish that she had, or had not, opened or read the email in question.

[10] After considering the objections raised by the Applicant and Mr Kirsch I rescinded the Orders.

[11] After a series of amendments to the Directions by changing the due dates for the provision of witness statements and submissions the Application was heard on 25 November 2014. The hearing dealt only with the date the Applicant’s dismissal took effect and if the Application was lodged after the time allowed whether exceptional circumstances existed in order for an extension of time to be allowed.

The Evidence

[12] Mr Carl Erasmus Meyer gave evidence for the Respondent. Mr Meyer was the Financial Controller for the Respondent. Mr Meyer stated that the Applicant commenced employment with Respondent as a part-time Coordinator Internal Process and Review/Payroll Manager on 1 November 2012 and that he was the Applicant’s direct manager.

[13] Mr Meyer evidenced the corporate restructuring and merging of various business entities which caused an examination of areas where efficiencies might be achieved. One of the areas examined was a consideration of a new Human Resources and Payroll structure for the merged organisation. Mr Meyer stated that he told the Applicant on 4 February 2014 that “there was a strong chance that the TKPA [ThyssenKrupp Polysius Australia Pty Ltd] payroll function would be made redundant but it was not clear at that point what overall impact that would have on her employment.”

[14] In early May 2014 Mr Meyer says that he was informed that the Applicant’s position and the position of the Human Resources Officer were to be made redundant. On 6 May 2014 Mr Meyer and a Senior HR Advisor met with the Applicant and told her that her position had been made redundant. At that meeting Mr Meyer told the Applicant that another meeting was arranged for 8 May 2014 where redeployment options would be discussed. The Applicant was instructed to continue to attend work. The Applicant was also informed that if no suitable alternative employment was identified then she would be dismissed.

[15] A letter was given to the Applicant at the end of the meeting on 6 May 2014 (the 6 May letter). The 6 May letter was tendered and outlined the decision to make the Applicant’s position redundant, the opportunity to consider alternative suitable positions and the entitlements the Applicant would be paid if she were dismissed and arrangements for and matters to be discussed at a meeting to be held at 11:00am on 8 May 2014.

[16] The Applicant was not in the office on 7 May 2014. She sent an email on 7 May 2014 (the 7 May email) using her workplace email address as the sender of the email to Mr Breakell, the signatory to the letter given to her at the meeting on 6 May 2014. A copy of the 7 May email was copied to Mr Meyer. Mr Meyer claimed that the 7 May email and the fact that it used the Applicant’s workplace email address supported the contention that the Applicant had remote access to her workplace emails.

[17] On 8 May 2014, the Applicant sent a text message that she would not be attending work on that day.

[18] On 9 May 2014, the Applicant sent an email from a personal email address (the 9 May sick leave advice). Attached to the email was a medical certificate which stated that the Applicant was suffering from a medical condition and was unfit for work from 8 May 2014 to 14 May 2014.

[19] On 9 May 2014 at 4.38pm a letter was sent to the Applicant via her workplace email address (the 9 May email) informing her that a final decision regarding her employment would be made by 14 May 2014. It also stated that it was likely that the Applicant’s employment would be terminated on 14 May 2014. The letter asked the Applicant to raise any issues she wished to bring to the Respondent’s attention by 4:00pm on 13 May 2014.

[20] Mr Meyer, a few minutes after the 9 May email had been sent rang the Applicant to advise her that the email had been sent and that it had been sent to her work email address. The Applicant did not answer the call. Mr Meyer rang again at 5:26pm which the Applicant answered (9 May phone call). Mr Meyer stated that he told the Applicant that a letter had been sent to her, that the letter was sent to her workplace email address and that “it was important and to her benefit that she read the letter”. Mr Meyer also stated that “at the end of the phone call I repeated to Mrs Kirsch [the Applicant] that she should check her email and read the letter”.

[21] On 12 May 2014, a copy of the letter dated 9 May 2014 was also sent to the Applicant’s private email address (the 12 May email). Also on 12 May 2014, a copy of the letter dated 9 May 2014 was couriered to the Applicant’s home address and left in her letterbox (the 12 May couriered letter).

[22] On 13 May 2014, Mr Meyer stated that at 3.06pm he rang the Applicant. He did not speak to her but he left a voicemail message (13 May voicemail). The message advised the Applicant that Mr Meyer “was following up on the letter that the company had sent to her private email address regarding her redundancy”.

[23] On 14 May 2014, emails were sent to the Applicant at both her workplace email address and her private email address (the 14 May emails) by Mr Meyer and by Ms Micheal, the Head of Human Resources. The emails attached a letter (the termination letter) notifying the Applicant of her dismissal due to redundancy.

[24] The termination letter stated that the dismissal was effective on 14 May 2014. It identified the payments that had been made included payment for accrued and unpaid leave, payment in lieu of notice and severance payments. It also identified that as the Applicant had already been paid up until 31 May 2014 an adjustment had been made to reflect that.

[25] One of the 14 May emails was sent by Ms Michael at 3.33pm. Ms Michael received a delivery status notification at 3.45pm (the 14 May email receipt). The 14 May email receipt was in effect a receipt that served to inform the sender (Ms Michael) that the 14 May email sent to the Applicant including the attached termination letter had been successfully relayed to the private email address of the Applicant.

[26] The termination letter was also couriered to the Applicant on 14 May 2014 (the 14 May couriered letter). Mr Meyer also endeavoured to phone the Applicant just after 7.00pm that day and left a voice message (the 14 May voice message). Mr Meyer evidenced that the voice message stated that the message was that he “was calling to confirm that she had received the company’s letter, sent that day, and could she return my call to confirm this”.

[27] Mr Meyer stated that he later learned that the Applicant had left the country at 6.00am on 14 May 2014 and therefore would not have received the 14 May email or received his 14 May voice message on that day. However, he also stated that the Applicant did not commence leave until 15 May 2014 and no-one in the company had been informed of her leaving the country on 14 May 2014. Mr Meyer says that he had “assumed that she would be leaving the country on that day [i.e. 15 May 2014] and would therefore be home and able to receive the letter of termination which the company sent to her on 14 May 2014”.

[28] Mr Meyer stated that in any event he “had previously contacted Mrs Kirsch [the Applicant] on the same mobile phone number when she was overseas”. He stated that previously while the Applicant was overseas she had “on at least one occasion, taken her personal laptop with her when she travelled overseas and processed pay by logging into her work account remotely.” However, Mr Meyer acknowledged that he had told the Applicant on 6 May 2014 that it would not be necessary for her to process any payroll whilst she was overseas.

[29] Mr Meyer also gave evidence that in January 2014 the Applicant applied for and was granted approval for annual leave from 15 May to 23 May 2014. This was amended on 4 April 2014 by the addition of 28 May to 30 May 2014.

[30] On the morning of 3 June 2014, the Applicant attended the offices of the Respondent, when she was asked what she was doing there she stated that “she had read the email advising her of the termination of her employment only that morning and she did not accept the termination.” The Applicant was told to leave the premises which she did.

[31] Importantly, the Applicant did not dispute any of Mr Meyer’s evidence. Indeed she confirmed it.

[32] Ms Alyce Louise Watkins, a solicitor with Minter Ellison gave evidence. She evidenced that written requests were made of the Applicant on 8 October 2014 (the 8 October requests) in order to “provide her with an opportunity to produce certain electronic devices and information directly to the Respondent’s forensic investigators”. There was no response to that request.

[33] Ms Watkins was not cross-examined and the Applicant gave no explanation why she did not respond to the request.

[34] The Applicant gave evidence. She stated that she “did not receive any termination letter from TKPA (my employer), not by mail and not by E-Mail”. She also stated that “All correspondence was launched by ThyssenKrupp Materials Handling Pty Ltd which is not a party of the employment contract”. She asserts that she received envelopes from ThyssenKrupp Materials Handling Pty Ltd sent to her home address however she “never open these letters and I am still not aware of the content”.

[35] An explanation about the corporate organisation and reorganisation provides a context for the veracity of the Applicant’s reasons for not opening the envelopes. Mr Meyer evidenced that ThyssenKrupp Industrial Solutions (Australia) Pty Ltd (TKISA) is the holding company for ThyssenKrupp Polysius Australia (TKPA). TKPA, ThyssenKrupp Materials Handling Pty Ltd (TKMH) and Uhde Shedden Australia Pty Ltd (Uhde Shedden) are wholly owned subsidiaries of TKISA. Importantly, he stated that “in 2013, a decision was made to merge the three subsidiaries so that they would eventually operate as one merged business under TKISA. While the merger process has yet to be fully completed, some functions of TKPA, TKMH and Uhde Shedden are already working across the merged business, while others will in the relatively near future”.

[36] The Applicant also stated that she “did not receive the information about the intention of the termination of my long term employment contract”.

[37] She also stated that she could not have received telephone calls on her regular mobile phone number (and presumably voice mails) as her “Australian mobile phone is not running outside Australia”.

The Brown v Dunne Rule - Submissions by Minter Ellison

[38] The Respondent prepared a written submission on the rule of Browne v Dunne 1. The submission is repeated in full below:

“1. The rule in Browne v Dunn (1983) 6 R 67 has been described most recently by the High Court in MWJ v The Queen (2005) 222 ALR 436, where Gummow, Kirby and Callinan JJ stated at [38]:

The rule is essentially that a party is obliged to give appropriate notice to the other party, and any of that person’s witnesses, of any imputation that the former intends to make against either of the latter about his or her conduct relevant to the case, or a party’s or a witness’s credit.

2. The rule was formulated by Hunt J in Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 16 as:

It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in that proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1984) 6 R 67.

3. There is an exception to the general rule in Browne v Dunn where prior notice of points in contention has been given. Where the witness has prior notice that there is other material in the proceedings that will be relied upon to contradict the evidence of the witness, it is not necessary to raise the issue with the witness in cross-examination.

4. A party or witness may have prior notice from the application, documents received in the proceedings and from witness statements or affidavits filed.

5. In Kennedy v Wallace (2004) 142 FCR 185 Black CJ, Emmett and Allsop JJ held at [56]:

It is well accepted that the emergence of issues from such documents can operate to satisfy the rule in Browne v Dunn ... This is so because the “practical rule of fairness enshrined in the Browne v Dunn principle” (Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 AT 590 Kirby P) requires that the opposing party be on notice in order that they may adduce evidence and make submissions to the contrary.

6. In Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382 at 405 Allsop P and Basten and Campbell JJA held at [105]:

Exchange prior to trail of affidavits that disclose the position of the respective parties concerning a particular evidentiary matter can prevent a Browne point being successfully raised: West v Mead (2003) 13 BPR 24, 431; [2003] NSWSC 161 at [95]-[99].

7. In Burke v Corruption and Crime Commission (2012) 289 ALR 150 at 187 per Buss JA, Martin CJ and Mazza JA agreeing:

It will often be apparent from the nature of or the issues in a case, as defined by the originating process, other documents filed with the court or the submissions of counsel, that general credibility of a witness, or the credibility of a witness on a particular matter, is in dispute.

8. Further, in Lazarevic v Western Australia [2007] WASCA 156 at [17] per McLure JA, Wheeler JA and EM Heenan AJA agreeing that:

The rule in Browne v Dunn does not apply where the witness is on notice that his or her evidence is in contest and notice may come from a variety of sources, including the other side’s opening and from the general manner in which the case is conducted: Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236.”

Consideration and drawing of inferences

[39] There are a number of matters that involve the potential drawing of inferences in this matter.

[40] The evidence clearly establishes that the Applicant was aware that she was highly likely to be dismissed on 14 May 2014. The efforts the Respondent took to engage with her were extensive. In summary it involved:

● Early February 2014 - advice that corporate restructuring is likely to see her position made redundant which would impact on her employment.
● 6 May 2014 - notification that her position was redundant.
● 6 May 2014 - notification of a meeting on 8 May 2014.
● 7 May 2014 - confirmation email about redundancy of position and meeting planned for 8 May 2014.
● 9 May 2014 - email and letter informing Applicant that decision would be made regarding her employment on 14 May 2014 and to respond with any issues she wished to raise.
● 9 May 2014 - phone call by Mr Meyer requesting she read and respond to the 9 May 2014 letter.
● 12 May 2014 - copy of 9 May 2014 letter couriered to Applicant.
● 12 May 2014 - copy of 9 May 2014 letter emailed to the Applicant’s personal email address.

● 13 May 2014 - voice message left by Mr Meyer for the Applicant regarding the redundancy.
● 14 May 2014 - email with termination letter to Applicant.
● 14 May 2014 - termination letter couriered to the Applicant.

[41] The Applicant advised the Respondent of her non-attendance at work on 7 May 2014 and then forwarded a copy of a medical certificate stating she had a medical condition and could not attend work from 8 May to 14 May 2014.

[42] The Applicant also evidenced that she had pre-purchased flight tickets for flights out of Australia on 14 May 2014. She was thus aware of her being very difficult to contact if contactable at all on 14 May 2014. Mr Meyer spoke to the Applicant after her notification of her medical certificate regarding the redundancy.

[43] There was no evidence that the Applicant was ill to the point of being unable to communicate with the Respondent between 8 May and 14 May 2014. There is also no evidence that the Applicant could not access her emails nor open any mail couriered to her during that week. There is also no evidence why the Applicant left the country before her annual leave was due to commence or why she did not seek to change the commencement date of her leave.

[44] It is crystal clear that the Applicant was aware that it was highly likely that she would be dismissed on 14 May 2014 yet she made no effort whatsoever to inform the Respondent of her travel plans. There is also no evidence of the Applicant advising the Respondent of her contactability despite their being a history of her being contactable when she was overseas on previous occasions.

[45] There is also no evidence produced by the Applicant that she did not use any electronic devices whilst she was overseas and access any of her workplace or personal email accounts and, if she did, if she deliberately did not access emails from the Respondent and if so why.

[46] It is outlined above that the Applicant was ordered, which was later rescinded, to provide her electronic devices for forensic analysis. The Applicant objected to the provision of the devices. The Applicant provided no alternative times or means of providing the devices, for example by providing her phone one day or even a portion of a day and similarly for her laptop. Nor did she indicate whether her phone or laptop had backups around or after the 14 May 2014. In short the Applicant was clearly not going to facilitate any forensic analysis of her devices. In the circumstances I decided to rescind the Order. In doing so I expected, and I believe there was an obligation on, the Applicant to provide some reasons and evidence relating to what the Respondent had identified as the reasons they were seeking to have a forensic analysis of her devices.

[47] It was also evidenced that after that Order was rescinded that the Applicant was requested by the Respondent to provide the devices. She did not respond to that request. The Applicant provided no evidence nor offered any alternatives to facilitate examination of her devices. She also gave no evidence that she did not have email access by her phone or her laptop to her various email accounts when she was overseas or in transit on 14 May 2014. Nor did she provide any evidence whether she accessed other emails on those emails addresses during that period.

[48] The Applicant asserted that envelopes she tendered which had been couriered and express posted to her had not been opened. She explained that they had not been opened because there was a stamp from another entity on the envelope. I consider this account to be disingenuous. Firstly, the Applicant appears to be stating she would only open envelopes from particular entities. Secondly, she infers that she was ignorant of any relationship between TKISA, TKMH, and TKPA. It is obvious that the envelopes involved something that was intended for her and it is just as obvious that if she did not open them it was not because of ignorance but rather that she did not want to be informed of the contents that clearly would have been something that her employer wished her to be informed of.

[49] Rather than the tendering of those envelopes supporting her contention that she had been totally ignorant of her dismissal it only served to confirm that she had conducted herself in a way to evade being notified of her dismissal.

[50] The Applicant’s evading of receipt of the notice became even more cynical by her attendance at the workplace on 3 June 2014. She did not endeavour to call anyone prior to her attendance. Indeed despite being aware of her likely dismissal before 14 May 2014 she made no effort to contact or enquire about developments since the meeting that notified her that her position was redundant.

[51] It is inescapable from all of the above that the Applicant evaded receiving the notice of her dismissal. Indeed it appears to me that throughout the week of 8 to 14 May 2014 the Applicant was deliberately exploiting and abusing the obligations that the Respondent has under the Fair Work Act 2009 (the FW Act) regarding redundancy. Furthermore after the 14 May 2014 the Applicant appears to me to have continued her conduct by avoiding opening emails sent to her and letters that had been couriered to her. Her conduct in attending the workplace on 3 June 2014 in the knowledge that she had been sent notice of dismissal without a phone call or an email appears to have been some sort of display to establish her ignorance of her dismissal, when in reality it was an exercise to try and establish a misguided view about her employment still being on foot.

[52] I also do not consider the Applicant to be a credible witness. In stating that I do not suggest that the Applicant deliberately lied but rather she did not seem to grasp that some of her statements would influence my view of her credibility. For example the Applicant stated that she “did not receive the information about the intention of the termination of my long term employment contract”. Yet the evidence of Mr Meyer was that he spoke to her and informed her of the need to respond to the letter and emails that had been sent to her. Notably the Applicant was verbally advised and physically given a copy of the letter on 6 May 2014 about the redundancy of her position and the strong implication of that letter that she would likely be dismissed. It is simply being pedantic and disingenuous to suggest that she was not given information about the intention of the termination of her long term employment contract as though she was ignorant of the high probability of that occurring notwithstanding the information she had been given.

[53] The whole approach of the Applicant seems to me to be something of a wilful blindness to try and establish a right that does not exist.

[54] The Applicant also claims that she has not been dismissed at all and is still in the employment of the Respondent. If she were correct, which I consider she is not, then by her own assertion she cannot make an application for unfair dismissal as she has not been dismissed. If what she wants is a declaration that she is employed, that is something the FWC does not have the power to declare.

[55] I find that the Applicant was dismissed on 14 May 2014. The Respondent made every feasible effort to engage the Applicant in discussions about the redundancy of her position in order to try and mitigate the effects of it. I find that the Applicant deliberately and manipulatively evaded those discussions. If she was unaware of her dismissal on 14 May 2014 that was because of her own impropriety and conduct and not because of any failure by the Respondent to properly fulfil their obligations in respect of her redundancy and her dismissal.

[56] As the dismissal took effect on 14 May 2014 it remains to determine whether there are exceptional circumstances that exist that should cause me to allow the Application notwithstanding that it had been lodged outside the allowable time.

[57] The reason for the delay is clearly because the Applicant was under the mistaken impression that the dismissal took effect on 3 June 2014 which was the time she says she was notified. I have found above that the dismissal took effect on 14 May 2014. The reason for the delay is clear from the evidence and findings above. Given the conduct I have found above it does not weigh in favour of a finding of an exceptional circumstance.

[58] The Applicant was notified of the dismissal on 3 June 2014. Her wilful blindness of not opening or making arrangements to have access to her personal or company emails from 14 May 2014 do not weigh in favour of an exceptional circumstance. Furthermore even if I accept that she received notification on 3 June 2014 that was an eventuality caused by her own actions and inactions. It does not weigh in favour of a finding of an exceptional circumstance.

[59] The Respondent submitted that they would be prejudiced additional costs of defending the matter in the event an extension of time was granted to allow the Application. I do not consider the Respondent would suffer prejudice if the Application was allowed.

[60] The merit of the Application also does not weigh in favour of a finding of an exceptional circumstance. The Respondent gave evidence of the redundancy of the Applicant’s position and whilst the Applicant gave evidence in counter to the Respondent’s assertions her evidence is not as strong as that of the Respondent. Notwithstanding this I will give neutral weight to this element of my considerations.

[61] The fairness between the Applicant and other persons in a similar position weighs against a finding of exceptional circumstances.

[62] I find that exceptional circumstances do not exist. Therefore, I will not extend the time for the filing of the Application. The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

E Kirsch in person.

A Power of Counsel for the Respondent

Hearing details:

2014.

Perth:

November, 25.

 1 (1983) 6 R 67.

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