Ilves v Lawson Worldwide Forwarding Pty Ltd

[2017] FWC 2993

[2017] FWC 2993

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Jamie Ilves
v
Lawson Worldwide Forwarding Pty Ltd
(U2016/1270)

DEPUTY PRESIDENT GOSTENCNIK SYDNEY, 31 MAY 2017

Application for an unfair dismissal remedy; effective date of dismissal; whether application out of time; notice of dismissal; whether received; whether notice clear and unequivocal; jurisdictional objection dismissed.

[1] Mr Jamie Ilves (Applicant) commenced employment with Lawson Worldwide Forwarding Pty Ltd (Respondent), on or about 23 June 2006. He was employed in the position of a Cargo Manager for the Air/Sea Import & Export department. The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). That application was lodged on 21 March 2016.

[2] On 22 April 2016, the Respondent lodged its Form F3 – Employer Response to Unfair Dismissal Application. The Respondent objected to the application on the basis that it was made outside the 21 day timeframe specified in s.394(2) of the Act.

[3] The date of termination of the Applicant’s employment by the Respondent is in dispute. The Applicant maintains that the termination of his employment took effect on 1 March 2016 when he read an email in reply from Mr David Eroglu, Director of the Respondent (Mr Eroglu) advising that the employment relationship had been terminated approximately 4 weeks prior   . 1 That email was sent in response to correspondence sent by the Applicant to Mr Eroglu concerning returning to work after a period of sick leave.

[4] The Respondent maintains that Mr Eroglu informed the Applicant that his employment had been terminated on 6 February 2016 when he hand delivered a letter to the Applicant’s address in the early hours of Saturday morning advising that the Applicant’s employment was terminated immediately and 2 weeks’ notice would be provided. 2 The Respondent therefore contends that the Applicant’s application is made out of time and consequently, the Commission has no jurisdiction to determine the matter.

[5] For the reasons set out below I have concluded that the Applicant’s employment ended on 1 March 2016 when he read the email correspondence from Mr Eroglu and as such the unfair dismissal application was made within the 21 day statutory timeframe.

Background

[6] On 24 January 2016 the Applicant became aware that his father was unwell and that he had been admitted into hospital. 3 On 25 January 2016 the Applicant sent a text message to Mr Eroglu advising him that he would not be able to attend work that day due to his father’s illness.4 On 26 January 2016, the Applicant again advised Mr Eroglu that he would not be attending work, to which Mr Eroglu responded that he would like to visit the Applicant’s father in hospital.5 On the afternoon of 26 January 2016, Mr Eroglu attended the hospital and the Applicant and Mr Eroglu discussed the Applicant’s work arrangements for the following 3 days.6 They agreed that the Applicant would not attend the office for that period and that he need not be concerned about his duties during that period.7

[7] On 1 February 2016, the Applicant returned to work. Upon his return to work, the Applicant says that “there seemed a large number of jobs that hadn’t been taken care of or had been completely mishandled and my emails had not been touched.” 8 During the proceeding week, the Applicant became unwell which he submits was a result of increased stress in his work environment and, on 4 February 2016, he left work early.9

[8] The Applicant returned to work on 5 February 2016 and during the course of the day he met with Mr Eroglu. The discussions which took place during the meeting are in dispute. The Applicant says that the totality of the meeting concerned missing wages and annual leave deductions and that Mr Eroglu said that nothing in relation to his entitlements had been altered. 10 The Applicant then says that he told Mr Eroglu that he was feeling unwell and needed to leave.11 Mr Eroglu says that a small part of the meeting concerned the Applicant’s entitlements, but that they also discussed that fact that the “situation had become untenable and I could not continue his employment. I asked Mr Ilves how he wished to proceed in regard to ending his employment.”12 When pressed about this point during the hearing, Mr Eroglu conceded that he did not dismiss the Applicant on 5 February 2016.13

[9] On 5 February 2016, the Applicant sought medical attention and obtained a medical certificate for a period of personal leave, being sick leave from 4 February 2016 to 12 February 2016 inclusive. 14

[10] The Applicant says that on the evening of 5 February 2016, Mr Eroglu sent him an email saying that Mr Eroglu was sorry and that he had paid his missing wages. 15 Mr Eroglu contends during the day on 5 February 2016 he attempted to contact the Applicant by phone and sent a text message asking the Applicant to contact him.16 Mr Eroglu says that he received no response to either of these attempts at contact.17

[11] Mr Eroglu says that on the evening of 5 February 2016 he drafted a letter to the Applicant confirming the termination of his employment (termination letter). 18 A copy of the termination letter was annexed to Mr Eroglu’s witness statement. The termination letter stated that the Applicant’s employment was terminated immediately and that 2 weeks’ notice will be provided.19 The termination letter was not on company letterhead nor was it signed, and when questioned about the informality of the letter during the proceeding, Mr Eroglu said that he did sign it, but the copy tendered into evidence was a reprint.20 Mr Eroglu contends that at approximately 5.00am on 6 February 2016 whilst on his way to work, he personally hand delivered the termination letter into the Applicant’s letterbox.21

[12] The Applicant’s says that he did not receive the termination letter and throughout the period of 6 February 2016 to 1 March 2016, thought that his employment was still current. In his application, the Applicant refers to security footage which he contends makes good his case that the termination letter was never delivered. The Applicant argues that the security footage failed to provide any vision of Mr Eroglu delivering the letter into his letterbox. The camera footage was of considerable contention during the proceeding as the Applicant did not produce the footage to the Commission or to the Respondent either prior to the commencement of the hearing nor during it. When cross-examined about the existence of the security footage and what it allegedly illustrated, the Applicant submitted that he did not feel it as necessary to produce the footage because it did not show anything. 22

[13] Given the weight the Applicant attributed to the security footage, I felt it necessary to utilise Google Maps to gain a better understanding of the position of the security camera in proportion to the location of the Applicant’s letterbox. The Applicant also produced images on his mobile phone which illustrated the position of the camera. It was borne out in evidence, that the security camera was located in the Applicant’s carport, some distance away from where the letterboxes for the flats where the Applicant lives are situated. The camera was also obstructed by a tree and it seems likely that if the footage was produced, it may not have shown any vision of Mr Eroglu putting the letter in the Applicant’s letterbox. To that point, the Applicant submitted that “the Applicant’s position is that that’s not evidence. Even if we had it here we wouldn’t see anyone, that wouldn’t evidence that no one was there.” 23

[14] On Monday, 8 February 2016, the Applicant sent a text message to Mr Eroglu indicating that his stress level was high and that he could not attend work. 24 To support his absence from work, the Applicant sent Mr Eroglu a multimedia message attaching the medical certificate referred to in [9] above.25 The Applicant says despite sending the medical certificate, Mr Eroglu made no attempt to contact him.26 Mr Eroglu says that during that week he made several attempts to contact the Applicant to discuss the situation and one of those attempts was on 8 February 2016 in the form of a text message which said the following:

“Tried calling you friday (sic). You did not call me back. Please let me know what you want to do”  27

[15] On Monday, 15 February 2016, the Applicant sent another medical certificate to Mr Eroglu by email for a further period of sick leave. 28 The medical certificate provided for a period of sick leave from 15 February 2016 to 19 February 2016 inclusive.29 The Respondent replied to the email on 15 February 2016 at 8:36am in the following terms:

“I find it hard that you cant (sic) answer you (sic) phone.” 30

[16] On Monday, 22 February 2016, the Applicant was still unwell and sent another medical certificate to Mr Eroglu by email. In the email, the Applicant said “please find attached and will need to catch up with you David during the week to discuss etc…” 31 The medical certificate was for the period of 22 February 2016 – 26 February 2016 inclusive.32After receiving this email, Mr Eroglu submitted that he tried contacting the Applicant by phone, but there was no answer.33 Given that the Applicant did not answer his phone, Mr Eroglu replied to the email saying, “Tried calling you… no response… Please call me urgently…”34 Mr Eroglu contends that he received no response to his email and could not contact the Applicant during the week.35 He also sent the Applicant a text message that evening at 8.05pm stating “I suggest you call me ASAP.”36

[17] On Tuesday, 1 March 2016 at 5.34am, the Applicant sent a further medical certificate to Mr Eroglu by email for another period of sick leave commencing on 27 February 2016 – 4 March 2016 inclusive. 37 That email contained the following:

“Hi David,

Please find attached doc cert (sic) and tried to send but bounced back…

Also noticed that you cut my mobile and I’m not well and I’m not playing these games – I have asked you several times to meet up and discuss to no avail.

I shall be back next Monday on my on my doctors (sic) orders but we need to discuss / talk prior to my return on Monday.

Suggest we meet up on Saturday to put this ever ongoing (sic) situation to bed and you know my address and look forward to you sometime Saturday afternoon.

…

I look forward to our discussion and I ask that you do the right thing David as seriously not good what you guys are trying to do…

Anyway look forward to see (sic) you on Saturday…

Regards,

Jamie Ilves 38

[18] At 5.38am, Mr Eroglu replied to the Applicant’s email as follows:

“I have called you 100 times…left you many messages and emails to call me

I am not sure what is happening here…

Your employment was terminated on the Friday you left…letter was personally dropped into your letterbox.

Your 2 week notice period is over.

Please call me to discuss” 39

[19] The email of 1 March 2016 that is reproduced above at [18] is, according to the Applicant, the first occasion on which he became aware that his employment had been terminated.

[20] It is not known what transpired, if anything, between 1 March 2016 and 6 March 2016, however, on 7 March 2016, the Applicant sent another email to Mr Eroglu containing a further medical certificate and asking for his personal effects to be gathered up so that he could come and collect them. 40

Consideration

[21] An unfair dismissal is set out relevantly in s.385 of the Act as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and
(b) …
(c) …
(d) …”

[22] The word dismissed is defined in s.386 of the Act. It provides as follows:

“386 Meaning of dismissed

(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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part”.

[23] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. 41 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.42 Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective.43 Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee.44

[24] Section 386(1)(a) of the Act defines the term dismissed as a situation where a person’s employment has been terminated at the initiative of the employer or where a person is forced to resign as a result of some act of the employer. A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 45 That which will constitute ‘communicated’ for the purpose of providing notice will vary on a case-by-case basis and must be considered and applied taking in account the particular circumstances of a case.

[25] In Transport Workers’ Union of Australia v National Limited Dairies 46, Keely J said:

“In my opinion there mere posting of the letter of termination does not in itself amount to termination of the employment of the employee concerned until its contents are communicated to the employee.” 47

[26] In Wilson v Commonwealth of Australia (Australian Taxation Office) 48a Full Bench of the then Australian Industrial Relations Commission agreed with the reasoning of Keely J stating that:

“We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee. Those circumstances did not, however, exist in this matter and we therefore refrain from further discussion of the point.” 49

[27] In Mohammed Ayub v NSW Trains 50 (Ayub), the Full Bench noted the following:

“[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.” 51 [Footnotes omitted]

[28] The threshold issue to be determined in this case is the date that the Applicant’s employment ceased. If it was 1 March 2016 as contended by the Applicant, then his application was lodged within the 21 day statutory timeframe. If however, the date of the dismissal was 6 February 2016 as contended by the Respondent, the Applicant’s application was lodged out of the 21 day statutory timeframe and I will need to determine whether there are exceptional circumstances warranting the consideration of whether to exercise my discretion to allow the Applicant a further period within which to make his application.

[29] The Applicant submits that he was completely unaware of the existence of the termination letter until 1 March 2016 and his conduct between 1 February 2016 to 1 March 2016 is consistent with that contention. The Applicant submits that the continuous supply of medical certificates together with the fact that he did not ask for his personal belongings to be returned until 7 March 2016 is behaviour that supports his argument and accordingly it cannot be concluded that the Applicant failed to avail himself of the opportunity to learn of the termination letter. 52

[30] The Respondent submits that the dismissal was ‘communicated’ to the Applicant on 6 February 2016 when the dismissal letter was hand delivered to the Applicant’s home address relying on Ayub to support its argument. The Respondent contends that there was no evidence put before the Commission that the Applicant did not have a reasonable opportunity to read the dismissal letter nor was there any evidence put forward that the Applicant’s stress or illness meant that he could not retrieve letters from his letterbox. 53 Accordingly, the Respondent contends that the application is out of time and should be dismissed. It is not entirely clear to me how evidence of a negative inherent in the Respondent’s contention could have been lead, particularly given the Applicant’s evidence that he did not receive the letter. Whilst I accept that Mr Eroglu delivered the letter, the Respondent’s submission must be rejected. The Applicant’s evidence was consistently clear. He did not receive the letter. It was not put to the Applicant that he had received the letter, had read it or that he was not being truthful. I accept Mr Ilves evidence that he did not receive the termination letter. It follows that he could not have had a reasonable opportunity to read that which he had not received. It also follows from this conclusion that the only other communication of the termination of the Applicant’s employment was contained in the 1 March 2016 email. Accordingly, dismissal was effected on that day.

[31] In any event, even if the termination letter delivered into the Applicant’s letter box on 6 February 2016 had been read by the Applicant, its contents are neither clear nor unequivocal. The termination letter provided as follows:

“5 Feb 2016

…

Dear Jamie,

As advised earlier in the office, i (sic) am unable to go on any further with current situation. I think its (sic) best if we move on. Obviously personal problems has (sic) affected your work…

Effective immediately, your employment is terminated with Lawson Worldwide Forwarding, i believe usual 2 week notice period will be required.

I will give you a formal termination letter on Monday, Please call me if you need to discuss any further. I am disappointed that it has come to this, i (sic) would like to make this at least stressful as possible for both of us.

Kind regards

David Eroglu

Lawson Worldwide Forwarding” 54

[32] The letter purports to terminate employment “immediately”, but provides that “I believe usual 2 week notice period will be required”. It is by no means clear from the foregoing that employment ended “immediately”. Next the letter provides that “I will give you a formal termination letter on Monday”, adding to the uncertainty of the immediacy with which employment was said to have ended.

[33] Mr Ergolu’s evidence about this was as follows:

PN694

THE DEPUTY PRESIDENT:  Can I ask you this?  So do I understand you correctly that you intended for his employment to end two weeks after you delivered the - - -?
---Well, however period he needs.

PN695

Yes?---As in - - -

PN696

So when you delivered the letter?---Yes.

PN697

Was it your intention?---It was to formalise the cessation of the employment but as in however he needs.  Either if he wants to not come in at all.  That's okay as well.  It's more a case of - well, we can work out the timing as in one week, two weeks, four weeks or what it may be with him or not come in at all.

PN698

Sorry, just listen to my question.  I'm trying to understand what your intention was.  When you dropped off the letter because the letter says, "Effective immediately your employment is terminated"?---Mm-hm.

PN699

But what I understood you to be saying was that what you were really trying to communicate was that two weeks from today because you say, "I believe the usual two weeks' notice period will be required"?---Yes.

*** ERSAN DAVID EROGLU XXN MR JEWELL

PN700

So that the employment would not end on the 6th but end two weeks later?---Well, I don't know the technicality of it but I assumed - - -

PN701

Well, put aside you had to give him two weeks or four weeks?---I made assumption.  My assumption is that his employment is terminated on a day however I need to give the usual two weeks' notice.

PN702

Yes?---Maybe did I word it differently or - - -

PN703

No, no.  I'm asking you - - -?---- - - what I was trying to - - -

PN704

- - - what you intended to communicate?---Yes, so what I was trying to word was that "Your employment is terminated immediately however the usual two weeks' notice is required."

PN705

Yes?---And that's - that was my assumption or what I was trying to attempt to put on paper.

PN706

Right?---So I don't know technically if I have worded it correctly but it was a case of the employment was terminated however the usual two weeks' notice period is required or given with it there.  And that was my - - -

PN707

So that you expected him to work for that two weeks or - - -?---Well, yes.  I need to know about what's pending - what's - do the handover, do the - - -

PN708

And if at the time you were aware that Mr Ilves was entitled to four weeks' notice or five weeks' notice because of his age?---Uh-huh - well, I found out later.

PN709

Yes, I understand that?---Yes.

PN710

But assuming that - your intention, I assume, was to give him the lawful period of notice?---Yes.  Yes.

PN711

And so does it follow from that that what you intended to lawfully comply was to give him four or five weeks' notice?---Yes.

*** ERSAN DAVID EROGLU XXN MR JEWELL

PN712

And then you expected him to work during that period?---Well, it's open to discussion if he - - -

PN713

I understand that but I'm talking about your intention?---The intention was - was that we'd come to an agreement.  Maybe he'd be able to find a job quicker and move on - - -

PN714

Yes?---- - - after two weeks.

PN715

Yes?---Or maybe he might stay the full four or five weeks.  Or he might say, "Look, you know that's fine but I'll leave earlier." with that - I haven't had the experience.

PN716

I understand.  So can I ask you this then in the third paragraph of the letter of termination?---Mm-hm.

PN717

Where you say, "I'll give you a formal termination letter
- - - "?---Mm-hm.

PN718

"- - -on Monday"?---That's right.  Yes.

PN719

You expected him to come to work on Monday?---Yes.

PN720

But you never gave him a formal letter?---Oh - yes - no, he didn't come in Monday.

PN721

No.  I understand.  All right?---I sort of thought that there'd be - well, that was a very basic note if you like - I've done.  I wasn't sure that if I need to provide a formal document.

PN722

No - - -?---As such.

PN723

I understand?---Which has proper names, addresses, details - - -

PN724

Yes?---- - - and so forth.  So thinking that he'll come in Monday and we'll formally work something out there for him.

*** ERSAN DAVID EROGLU XXN MR JEWELL

[34] A number of things are apparent from the above. First, that Mr Eroglu expected the Applicant to attend at work on the Monday following the delivery of the letter. 55 Secondly, the formal letter of termination to which reference is made in the termination letter was never given to the Applicant.56 Thirdly, whether the Applicant would work out some, none or all of the notice period was to be worked out at a discussion that would occur on Monday, 8 February 2016.57 This is all consistent with the equivocal nature of the termination letter. The letter was clear in its message that employment will end, but unclear as to the date on which it would end.

[35] The Respondent places reliance upon the fact that it made multiple attempts to contact the Applicant to discuss the termination and all of those attempts were to no avail. However, I prefer the evidence and submissions of the Applicant on this point. The Respondent made no attempt to contact the Applicant after Mr Eroglu hand delivered the termination letter to confirm that it had been received and read. 58 Moreover, all of the attempts that the Respondent made between 6 February 2016 and before 1 March 2016 to contact the Applicant made no mention of the purported termination of the Applicant’s employment. Those attempts at contact merely made statements about the Applicant not answering his phone or requesting the Applicant to call Mr Eroglu.

[36] It is clear that the Applicant continued to act as if the employment relationship was on-going and his behaviour in obtaining and providing medical certificates supports this view. In this period, the Respondent did nothing to disabuse the Applicant as to his view about the continuing employment relationship. In addition, the Applicant’s correspondence of 1 March 2016 advising he would be “back next Monday” further evidences that his conduct was consistent with a continuing employment relationship. Additionally, the Applicant did not request for his personal belongings to be collected until 7 March 2016 providing further support for the point that the Applicant was, prior to 1 March 2016, unaware of the termination.

[37] Thus, even if, contrary to my principal finding, the Applicant received and read the termination letter of 6 February 2016, it did not amount to an unequivocal notice of termination. In order to terminate an employment relationship, the party exercising the right to terminate must give clear and unequivocal notice that it no longer wishes to be bound by the employment contract. In other words, there must be no doubt in the mind of the party whose employment is being terminated that the employment relationship has come to an end. The law concerning the construction of notice is well established both generally and in the industrial relations context. Some of those established principles are outlined as follows.

[38] The principles governing the interpretation of contractual notices were summarised in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd. 59 Although the notice in this case concerned the construction of a trust deed and notices under deed, the same principles of construction apply. Lord Steyn posited as follows:

“The question is not how the landlord understood the notices. The construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood the notices. And in considering this question the notices must be construed taking into account the relevant objective contextual sense. … the inquiry is objective: the question is what reasonable persons, circumstanced as the actual parties were, would have had in mind…” 60 [Emphasis added].

[39] More relevantly, as Hatcher VP observed in Ayub:

“The general principle is that to affect 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.” 61

[40] Finally, in order to take effect, notice of termination of an employment relationship must stipulate when that termination is to take effect, or it must at least be possible to determine that time. 62

[41] It is evident from the earlier extract of the transcript that Mr Eroglu intended to discuss the precise end date of the employment with the Applicant when the Applicant attended work on 8 February 2016, and that he expected the Applicant to attend work on that day. On the evidence, Mr Eroglu intended the letter to act as a catalyst – that is, the purpose of the termination letter was to put the Applicant on notice that his employment was going to be terminated, rather than actually terminating the employment relationship then and there. 63 Mr Eroglu himself did not know what the date of termination was to be because, as he contended, it was open for discussion to enable the parties to come to some sort of an agreement.64 It is clear that Mr Eroglu did not have a definitive termination date for the Applicant given that he expected him to come to work on the following Monday. The intention was to discuss the cessation of employment and allow the Applicant however long he needed to adapt to the finalisation of his employment. Given that the Applicant did not attend work that Monday, there was no ‘formal’ ending of the employment relationship. It would be unreasonable to expect the Applicant to know that his employment had been terminated and when that termination was to become effective in these circumstances.

[42] That employment was not to cease on 6 February 2016 is supported by the text message Mr Eroglu sent to the Applicant on 8 February 2016 65 asking the Applicant what he wanted to do referring to further discussions about attending work throughout the notice period66 and did not cancel the Applicant’s work mobile phone contract until 29 February 2016.

[43] The Respondent disputes that the termination letter was equivocal and contends that the formal termination letter setting out the Applicant’s final entitlements was intended to be handed to the applicant the next business day. 67 The letter setting out the Applicant’s final entitlements however was not provided to the Applicant. I do not accept that the Applicant’s non-attendance at work on 8 February 2016 is a reasonable justification for the failure of the Respondent to confirm that the Applicant had received the termination letter and confirmed that he understood its contents. In a text message sent on 8 February 2016 and in an email sent on 15 February 2016, reference could have been, but was not, made to the earlier delivered termination letter. Moreover, the “formal letter” could have been, but was not, delivered by courier or registered post. Mr Eroglu had ample opportunities to advise the Applicant that his employment had been terminated but none were seized.

[44] Accordingly, even if the termination letter was received and read by the Applicant, it cannot be said that it amounted to unequivocal notice of termination because, as it has been established, the effective date of dismissal was open for discussion.

[45] It follows therefore that the Applicant did not receive notice that his employment had been terminated until 1 March 2016 when Mr Eroglu replied to the Applicant’s email correspondence specifically stating “your employment was terminated…” 68 That the Applicant received this email is not in dispute.

[46] Therefore, I consider that the Applicant’s dismissal took effect on 1 March 2016.

Conclusion

[47] I am satisfied that the Applicant’s employment was terminated on 1 March 2016. As a consequence, the Applicant’s unfair dismissal application was lodged within the 21 day statutory timeframe and as such, the matter will be set down for hearing at a date and time to be advised. The Respondent’s jurisdictional objection is dismissed

[48] An order giving effect to this decision is separately issued in PR593379.

DEPUTY PRESIDENT

Appearances:

Mr A Jewell with Mr S Nottle, Solicitor for the Applicant

Mr B Favaro with Ms T Duthie, Solicitor for the Respondent

Hearing details:

Melbourne.

24 March 2017.

Final written submissions:

Applicant’s Final Submissions 31 March 2017 and Applicant’s Final Submissions in reply dated 12 April 2017.

Respondent’s Final Submissions dated 7 April 2017.

 1   Exhibit 1, Witness Statement of Jamie Ilves, dated 3 February 2017 at [66] and Annexure JI-5; see also Form F2, question 1.2.

 2   Exhibit 2, Witness Statement of Ersan Davut (David) Eroglu, dated 14 July 2016 at [13] – [14].

 3 Exhibit 1, Witness Statement of Jamie Ilves, dated 3 February 2017 at [48].

 4 Ibid at [49].

 5   Ibid at [50] – [51].

 6 Ibid at [51].

 7   Ibid.

 8 Ibid at [54].

 9   Ibid at [55] – [57].

 10   Ibid at [59]; see also Transcript PN506 – PN511.

 11   Ibid; see also Transcript PN506 – PN523.

 12 Exhibit 2, Witness Statement of Ersan Davut (David) Eroglu, dated 14 July 2016 at [9].

 13   Transcript PN564.

 14   Exhibit 1, Witness Statement of Jamie Ilves, dated 3 February 2017 at Annexure JI-3, medical certificate dated 5 February 2016.

 15 Exhibit 1, Witness Statement of Mr Jamie Ilves dated 3 February 2017 at [58].

 16 Exhibit 2, Witness Statement of Ersan Davut (David) Eroglu, dated 14 July 2016 at [11].

 17 Ibid at [12].

 18   Ibid.

 19   Ibid at Attachment A.

 20   Transcript PN806.

 21   Exhibit 2, Witness Statement of Ersan Davut (Daivd) Eroglu, dated 14 July 2016 at [14]; see also Transcript PN618 and PN626.

 22   Transcript PN64 – PN66 and PN96 – PN99.

 23   Transcript PN225.

 24 Exhibit 1, Witness Statement of Jamie Ilves dated 3 February 2017 at [64].

 25   Exhibit 3, Second Witness Statement of Ersan Davut (David) Eroglu, undated at Annexure DE-11, MMS time stamped 8.58am.

 26   Applicant’s Outline of Submissions, dated 2 February 2017 at [27]; see also Transcript PN320 – PN326.

 27   Exhibit 3, Second Witness Statement Ersan Davut (David) Eroglu, undated at Annexure DE-11, MMS time stamped 8.58am.

 28   Ibid, email between Mr Eroglu and the Applicant dated 15 February 2016 at 8.34am.

 29   Exhibit 1, Witness Statement of Jamie Ilves, dated 3 February 2017 at Annexure JI-4, medical certificate dated 12 February 2016.

 30   Exhibit 3, Second Witness Statement Ersan Davut (David) Eroglu, undated at Annexure DE-11, email between Mr Eroglu and the Applicant dated 15 February 2016 at 8.36am.

 31   Ibid, email between Mr Eroglu and the Applicant dated 22 February 2016 at 9.10am.

 32   Exhibit 1, Witness Statement of Jamie Ilves, dated 3 February 2017 at Annexure JI-4, medical certificate dated 19 February 2016.

 33 Exhibit 2, Witness Statement of Ersan Davut (David) Eroglu, dated 14 July 2016 at [21].

 34   Exhibit 3, Second Witness Statement Ersan Davut (David) Eroglu, undated at Annexure DE-11, email between Mr Eroglu and the Applicant dated 22 February 2016 at 9.28am.

 35 Exhibit 2, Witness Statement of Ersan Davut (David) Eroglu, dated 14 July 2016 at [21].

 36   Exhibit 3, Second Witness Statement Ersan Davut (David) Eroglu, undated at Annexure DE-11, text message dated 22 February 2016 at 8.05pm.

 37   Exhibit 1, Witness Statement of Jamie Ilves, dated 3 February 2017 at Annexure JI-4, medical certificate dated 26 February 2016.

 38   Ibid at Annexure JI-5, email between Mr Eroglu and the Applicant dated 15 February 2016 at 5.34am.

 39   Ibid at 5.37am.

 40   Exhibit 4, email from Applicant to Mr Eroglu, dated 7 March 2016 at 10.24am; see also Transcript PN1122.

 41   Mohammed Ayub v NSW Trains[2016] FWCFB 5500 at [17].

 42   Ibid.

 43   G J McCarry, ‘Termination of Employment Contracts by Notice’ (1986) 60 Australian Law Journal 78 at [79].

 44   Birrell v Australian National Airlines Commission (1984) 5 FCR 447at 457.

 45   Burns v Aboriginal Legal Service of Western Australia (Inc) (AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 [24].

 46 (1994) 57 IR 183.

 47   Ibid at 184/185.

 48   PR901127.

 49 Ibid at [11].

 50   [2016] FWCFB 5500.

 51   Ibid.

 52 Applicant’s Final Submissions, dated 31 March 2017 at [13].

 53 Respondent’s Final Submissions, dated 7 April 2017 at [9].

 54   Exhibit 2, Witness Statement of Ersan Davut (David) Eroglu, dated 14 July 2016 at Attachment A.

 55   Transcript PN719.

 56   Transcript PN720.

 57   Transcript PN694, PN697, PN710 and PN715.

 58   Transcript PN820 – PN826.

 59 [1997] AC 749.

 60   Ibid at [767]–[768].

 61   Mohammed Ayub v NSW Trains[2016] FWCFB 5500 at [17].

 62   Burton Group v Smith [1977] IRLR 351 at [354]; Fardell v Coates Hire Operations Pty Ltd [2010] NSWSC 346 at [82] and G J McCarry, ‘Termination of Employment Contracts by Notice’ (1986) 60 Australian Law Journal 78 at [79].

 63   Transcript PN694 – PN740.

 64   Transcript PN713.

 65   Exhibit 3, Second Witness Statement of Ersan Davut (David) Eroglu, undated at Annexure DE-11, text message time stamped 9.00am.

 66   Transcript PN880 – PN884.

 67 Respondent’s Final Submissions, dated 7 April 2017 at [26].

 68   Exhibit 3, Second Witness Statement Ersan Davut (David) Eroglu, undated at Annexure DE-11, email between Mr Eroglu and the Applicant dated 1 March 2016 at 5.38am.

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