Glenn Newson v Jotar Pty Ltd
[2020] FWC 6187
•18 NOVEMBER 2020
| [2020] FWC 6187 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Glenn Newson
v
Jotar Pty Ltd
(U2020/13193)
DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 18 NOVEMBER 2020 |
Unfair dismissal application – when dismissal took effect – application filed within time.
Introduction
[1] The Fair Work Act 2009 (Cth) (Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2
[2] Mr Glenn Newson contends that his dismissal took effect on 17 September 2020, with the result that the unfair dismissal application he filed on 2 October 2020 (Application) was lodged within the 21 day period provided for in s 394 of the Act. Mr Newson’s former employer, Jotar Pty Ltd (Jotar), contends that his dismissal took effect in the period between 8 and 10 September 2020, with the result that the Application was lodged outside the 21 day time period.
[3] On 17 November 2020, I conducted a hearing, by telephone, in relation to the following questions:
• When Mr Newson’s dismissal took effect.
• If Mr Newson’s Application was filed more than 21 days after the dismissal took effect, whether an extension of time should be granted.
Meaning of dismissal
[4] The question of when a person has been dismissed is governed by s 386 of the Act:
“(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[5] A dismissal takes effect when the employment relationship has ended. 3 The termination of the employment relationship is a different concept from the termination of an employment contract.4
[6] The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment. 5
[7] The unfair dismissal regime in Part 3–2 of the Act applies to “national system employees” and “national system employers”. 6 National system employees are employees of national system employers, being employers which bear particular characteristics such as to make them amenable to particular heads of legislative power of the Commonwealth in s 51 of the Constitution.7 Beyond this, the Act does not seek to establish a statutory definition of what constitutes an employee. National system employees for the purposes of Part 3–2 of the Act are parties to an employment relationship at law.8
[8] Because the question of whether an employment relationship continues to exist is a question of fact, 9 it is necessary to consider all the relevant circumstances to determine whether there has been a communication of a dismissal by words or conduct. The range of facts or factors which may need to be examined to answer the question of whether an employment relationship has ceased to exist by reason of the communication of a dismissal by words or conduct will be determined by the circumstances of a particular case, and may include, without limitation, whether the employee is being paid a wage or other benefits or entitlements, whether the employee is attending or performing work for the employer, whether the employee is being rostered to work or offered work, whether, in the case of a business employing casuals, the employer is rostering other employees to do work in the same role as the applicant in a particular case, whether the employer is exercising, or has the ability to exercise, control over the execution of work by the employee,10 whether either party has communicated to the other party a decision to terminate the relationship, and the terms of the employment contract.
[9] 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. 11
[10] Both parties accept that Mr Newson was dismissed within the meaning of s 386 of the Act. The issue in dispute is when the dismissal took effect.
When does a dismissal take effect?
[11] In Ayub v NSW Trains (Ayub), 12 a Full Bench of the Commission considered when a dismissal takes effect under s 394(2) of the Act (references omitted):
“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated...
[35]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...
[36]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.
…
[41]We therefore do not consider that there is any proper exception to the general proposition established by the authorities under the WR Act and the FW Act that a dismissal cannot take effect for the purposes of those statutes before it is communicated to the employee. There is little support for the existence of any such exception which may be derived from the common law. While it is not inconceivable, as earlier stated, that a contract of employment might expressly provide that it may be terminated by the employer on notice to the employee effective from a time prior to receipt of the notice by the employee, we do not consider for the reasons we have stated that any such contract could be treated as determining the date of effect of a dismissal for the purposes of s.394(2)(a). Termination of employment in accordance with such a provision would be in contravention of s.117(1). Statutory industrial instruments such as modern awards and enterprise agreements could also conceivably allow a date of dismissal which is effectively retrospective (although we are not aware of any which actually do so), but again this could not be treated as determinative of the operation of s.394(2)(a) in a particular case such as to deprive a dismissed employee of the full time period allowed by the provision. In relation to statutory provisions governing public sector employment, we have already noted what was said by the Full Bench in ATO v Wilson about the Public Service Act 1999. We do not consider that such legislation could establish an effectively retrospective date of effect of a dismissal for the purpose of s.394(2)(a) of the FW Act unless that was made clear by express words or by necessary implication. There is no such provision in the Public Service Act as it currently stands.
[42]We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document. That is, we do not consider that s.394(2)(a) requires the strict application of a “postal delivery rule” where the employee has a legitimate explanation for not being able to read the document immediately upon delivery. The circumstances in which this may be the case are undoubtedly manifold, but for example if an employee is on an approved period of annual leave and is holidaying away from home when a dismissal letter is delivered, there is no reason to conclude that the date of dismissal is the date of delivery and not when the employee returns home and first has a reasonable opportunity to read the letter.
…
[48]Nonetheless the critical point made in Gisda Cyf that the shortness of the period allowed to lodge a claim must inform the way in which the time-limiting provision is interpreted is valid in the context of the FW Act. Indeed the proposition is a fortiori given that time period allowed by the FW Act is much shorter and the circumstances in which an extension of time may be obtained are more constrained. An interpretation of s.394(2)(a) which would have the practical effect of reducing further what is already a very limited opportunity to lodge an unfair dismissal claim would be rejected if another is reasonably available. Our conclusion is that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.
[49]In relation to a dismissal with notice, drawing on the common law principles earlier identified, the dismissal would take effect upon the date of the expiration of the specified period of notice. It is necessary however for that date to be clearly identifiable. This would equally apply to a conditional notice of termination. In the case of a dismissal with a payment in lieu of notice, the dismissal would need to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed. There may also be an additional requirement that the payment in lieu of notice has actually been received by the employee.
[50]In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.”
Relevant facts
[12] On the evening of 8 September 2020 Mr Newson attended a tavern and consumed at least one alcoholic drink. He drove Jotar’s work truck to the tavern.
[13] There is a dispute between the parties as to whether Mr Newson was on-call on the evening of 8 September 2020, but I do not need to resolve that dispute to determine the issues identified above.
[14] Ms Amanda Batley, a director of Jotar, used a tracking device to discover that Mr Newson’s work truck was parked outside a tavern on the evening of 8 September 2020. Ms Batley attended the tavern. There is a dispute as to what was said between Mr Newson and Ms Batley at the tavern on 8 September 2020. Mr Newson contends that Ms Batley walked up to him at the tavern and said one word, “keys”. Mr Newton then handed the keys to Ms Batley.
[15] Ms Batley did not give evidence at the hearing on 17 November 2020. Another director of Jotar, Mr Shaun Dickson, gave evidence and provided a hearsay account of the conversation between Mr Newson and Ms Batley. Mr Dickson contends the conversation was in words to the following effect:
Mr Newson: “Oh fuck, I swear this is my first drink, I’m sorry, I swear this is the first one I swear.”
Ms Batley: “I don’t give a fuck Glenn, one sip is enough – give me the keys, I warned you this would happen.”
[16] Mr Newson denies this account of his communication with Ms Batley on 8 September 2020.
[17] By way of context, Mr Dickson gave hearsay evidence of a further conversation between Mr Newson and Ms Batley, this time in June 2020:
Ms Batley: “If I catch you drinking you know what will happen Glenn, it’s over.”
Mr Newson: “Yes I know.”
[18] On the evidence presently before me, I prefer Mr Newson’s direct evidence of his communication with Ms Batley on 8 September 2020 over the evidence given by Mr Dickson. Mr Dickson was not present at the tavern on the evening of 8 September 2020. His evidence concerning the conversation between Ms Batley and Mr Newson on that evening is, so he says, based on what Ms Batley told him. Because Ms Batley was not called to give evidence at the hearing on 17 November 2020, Mr Newson had no opportunity to cross examine Ms Batley about her recollection of the conversation on 8 September 2020. In any event, even if I had found that the conversation took place between Mr Newson and Ms Batley on 8 September 2020 in the terms contended for by Mr Dickson, it would not, contrary to Jotar’s contention, constitute communication of termination to Mr Newson. At its highest, the conversation constituted a direction to hand over keys to the work truck and, when considered in context, a communication that something was “over”. It is not clear what was “over”. It may have been the employment relationship, but may also have been Mr Newson’s right to drive the work truck or use the work truck to travel to and from work. On the evidence presently before me, there was no clear communication of any dismissal on 8 September 2020.
[19] On 9 September 2020 Mr Newson did not attend work. He attended a medical practitioner and, during the course of 9 September 2020, provided Jotar with a medical certificate for his absence from work in the period from Wednesday, 9 September 2020 to Friday, 11 September 2020 inclusive. Mr Newson was paid sick leave from 9 to 11 September 2020. Mr Dickson approved the payment of sick leave, but says he did so because he knew that Mr Newson was experiencing financial difficulties at the time. The payment was made to Mr Newson, together with his other remuneration for the week, on 11 September 2020. 13
[20] Mr Newson spoke to Mr Peter Medcalf, another director of Jotar, on 9 September 2020. There is a dispute as to what was said. Mr Newson contends that he told Mr Medcalf that he was seeing a doctor and would provide a medical certificate later in the day.
[21] Mr Medcalf did not give evidence at the hearing on 17 November 2020. Mr Dickson provided a hearsay account of the conversation between Mr Newson and Mr Medcalf. Mr Dickson contends the conversation was as follows:
“The following day being 9 September 2020, Mr Newson rang the other director of the company Peter Medcalf and pleaded with him to delay his dismissal until Friday 11 September 2020. Peter’s reply was that the termination was immediate.”
[22] Mr Newson denies this account of the conversation. Mr Newson also denies that he spoke to Mr Medcalf on 9 September 2020 about the termination of his employment.
[23] On the evidence presently before me, I prefer Mr Newson’s direct evidence of his communication with Mr Medcalf on 9 September 2020 over the evidence given by Mr Dickson. Mr Dickson’s evidence concerning the conversation between Mr Medcalf and Mr Newson on 9 September 2020 is based on what Mr Medcalf told him. Because Mr Medcalf was not called to give evidence at the hearing on 17 November 2020, Mr Newson had no opportunity to cross examine Mr Medcalf about his recollection of the conversation on 9 September 2020. Further, Mr Newson’s account of the conversation is consistent with his email communications with Mr Dickson on 10 September 2020. I address the content of those emails below.
[24] Mr Dickson gave oral evidence that on 10 September 2020 he sent a text message to Mr Newson, requiring Mr Newson to be at work at 7am on 14 September 2020 for a formal meeting. Mr Dickson claims that he did not intend to conduct a disciplinary meeting with Mr Newson on 14 September 2020. Rather, Mr Dickson says he intended that meeting be for the purpose of Mr Newson handing over Jotar’s possessions and money. Mr Newson responded by email to Mr Dickson’s text message, informing Mr Dickson that he was “off sick for a reason, please schedule any work matters for when I’m fit for work”. Mr Dickson then sent Mr Newson an email, at 1:14pm on 10 September 2020, in the following terms:
“Glenn,
That’s ok, we can stick [to] the original plan of meeting Monday morning 14th at 0700.
This meeting is a formal delivery of gross misconduct and needs your attendance. Failure to do so we [sic] be classed as;
1. Refusing to carry out a lawful and reasonable instruction that is part of your contract of employment
I understand you are currently in possession of a valid medical certificate which expires tomorrow 11th September.
Glenn, as you are well aware, your contract of employment ended Tuesday night when you were seen to be drinking alcohol in a Tavern whilst on – call and also had an opened can of alcohol in the company vehicle.
Please make yourself available at the above time.”
[25] Mr Newson responded with an email, sent at 3:58pm on 10 September 2020, in the following terms:
“Shaun,
I’m not aware of any such thing from Tuesday night.
By law if the allegations against myself to be deemed correct, I would have been spoken to in business hours the following day.
I’m truly disgusted and disappointed that an employee of the company can be treated like this.
I have been intimated [sic] & harassed by the company for many reasons including not doing hours outside a contract I never received, over and excess hours expected by management, verbally abused, threatened and many more then will be listed in the meeting.
Redback towing has a duty of care to look after their employees.
But all that seems to happen is that you are spoken to and treated like garbage.
If I’m to be reprimanded on issues of after hours, I’m entitled to defend myself.
If the meeting requires legal representation, I will organise work cover, my lawyer and a representative from department of fair trading.
I will not be bullied by this company any further.
I’m off on mental health issues in your attitude towards this is disgraceful.
The company should be ashamed of itself and the way uses and abuses its staff!”
[26] Mr Newson did not attend the meeting on Monday, 14 September 2020. Instead he provided a medical certificate in relation to his absence from work in the period from 14 September 2020 until 20 September 2020 inclusive. Mr Newson was paid sick leave in the period from 14 to 18 September 2020. The sick leave payment was made to Mr Newson on Friday, 18 September 2020. 14 Mr Dickson says that although he approved the sick leave payment for this period, it was really a payment in lieu of notice to Mr Newson.
[27] Mr Newson says he did not have any further communications with anyone from Jotar in the period from the sending of his email to Mr Dickson at 3:58pm on 10 September 2020 to his receipt of an email, at 2:46pm on 17 September 2020, from Mr Dickson in the following terms:
“Hi Glenn,
Please note this email as confirmation of your official termination of employment with Redback Towing due to Serious Gross Misconduct (details as mentioned below)
As Redback requested you to attend the Somersby Office at 0700 Monday morning, you will be paid until COB Friday 11th September.
Please also note the amount of $275.00 is payable for the below job.
Any owing entitlements will be paid in full.
If you have any belongings at any of the Redback locations, please make an appointment with myself to collect.”
[28] Mr Newson responded, at 9:56pm on 17 September 2020, by email in the following terms:
“Shaun,
As you are well aware I have been unfit for work and including a meeting that you and I know I could not meet due to till Unfit for work under a medical certificate
The actions of the company disgraceful towards their employees that are unfit for work and also their duty of care.
I was unable to meet for this meeting, which you were well aware of the day before and I’m still covered under a doctor’s certificate.
Your and the companies lack of duty of care as noted and will pursue this matter to the utmost degree.
I also notice that you have cc in your legal representation and acknowledge it…”
[29] Mr Newson says he was not aware of his dismissal until it was communicated to him by email on 17 September 2020.
[30] On 23 September 2020 Mr Newson received a letter from Jotar’s solicitor, stating, inter alia, “We are instructed that your employment was terminated on 9 September 2020. The termination of your employment relates to an incident our client considers “serious misconduct” on the 8 September 2020”.
[31] Mr Newson lodged his Application in the Commission on 2 October 2020.
Consideration of when dismissal took effect
[32] For the reasons given in paragraph [18] above, I reject Jotar’s contention that Mr Newson’s dismissal took effect on 8 September 2020.
[33] I also reject the contention that Mr Newson’s dismissal took effect on 9 September 2020. I have found that Mr Newson and Mr Medcalf did not discuss the termination of Mr Newson’s employment in their discussion on 9 September 2020.
[34] As to Jotar’s contention that the dismissal took effect on 10 September 2020, Jotar relies on that part of the 10 September 2020 email from Mr Dickson to Mr Newson in which Mr Newson was informed that “your contract of employment ended Tuesday night …” Like all communications, this part of the email must be read in context. It is inconsistent with the earlier part of the same email in which Mr Newson was directed to attend a meeting at 7am on Monday, 14 September 2020. Mr Newson was also informed that any failure by him to attend the meeting would be classed as a refusal to carry out a lawful and reasonable instruction in accordance with his contract of employment. The clear implication from this part of the email is that Mr Newson’s contract of employment with Jotar remained on foot and the rights and obligations under it could be enforced. At the very least, the 10 September 2020 email gave rise to confusion as to the status of Mr Newson’s employment with Jotar. It is apparent from Mr Newson’s email sent to Mr Dickson at 3:58pm on 10 September 2020 that Mr Newson believed he remained employed and wanted an opportunity to defend himself. Mr Dickson did not seek to clarify the position by responding to that email from Mr Newson.
[35] Having regard to the inconsistency in the 10 September 2020 email communication concerning whether Mr Newson’s contract of employment had “ended”, I find that there was no communication to Mr Newson on 10 September 2020 by plain or unambiguous words or conduct that his contract of employment, or employment relationship, had been terminated. In addition, Mr Newson remained on paid sick leave on 10 and 11 September 2020. This is inconsistent with there being a termination of the employment relationship on 10 September 2020.
[36] I find that Mr Newson’s dismissal took effect on 17 September 2020. That is the first date on which Mr Newson’s dismissal was communicated to him by plain or unambiguous words or conduct. In that regard, I rely on the first sentence of Mr Dickson’s email dated 17 September 2020 to Mr Newson, “Please note this email as confirmation of your official termination of employment with Redback Towing due to Serious Gross Misconduct …”.
Conclusion
[37] For the reasons given, Mr Newson’s dismissal took effect on 17 September 2020. His unfair dismissal application was filed within the 21 day period provided for in s 394 of the Act. The matter will now be referred to a conciliator for a conciliation conference to take place.
DEPUTY PRESIDENT
Appearances:
Ms A Millar, Consultant of Australian Dismissal Services, for the Applicant
Mr I Gardiner, Solicitor, for the Respondent
Hearing details:
2020.
Newcastle (by telephone):
17 November.
Printed by authority of the Commonwealth Government Printer
<PR724666>
1 Section 394(2)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
2 Section 394(3) of the Act.
3 Siagian v Sanel Pty Ltd [1994] IRCA 2 (Wilcox CJ); Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]
4 Visscher v Giudice and Others (2009) 258 ALR 651 at [53] to [55] per Heydon, Crennan, Keifel and Bell JJ; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]-[22]; Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [31]-[50]
5 Commonwealth Bank of Australia v Barker (2014) 312 ALR 356 at 357 [1]
6 s.380 of the Act
7 Ayub v NSW Trains[2016] FWCFB 5500 at [25]
8 Ibid
9 Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 428; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [27]
10 Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 404; Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16 at 24 & 35; Forstaff v Chief Commissioner of State Revenue (2004) 144 IR 1 at [91]
11 Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [45], applyingKoutalis v Pollett [2015] FCA 1165; 235 FCR 370 at [43]
12 [2016] FWCFB 5500
13 Ex A2
14 Ex A3
0
12
0