Isshasri Vasuthaven v Woolworths Group Limited

[2023] FWC 1701

[2023] FWC 1701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Isshasri Vasuthaven
v

Woolworths Group Limited

(U2023/4758)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 14 JULY 2023

Application for an unfair dismissal remedy – extension of time – application made within time – no extension necessary.

Introduction

1. On 31 May 2023, Ms Vasuthaven made an application to the Commission for an unfair dismissal remedy. On 9 May 2023, the Respondent emailed the Applicant advising that her employment had been terminated.

1. Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s.394(3).

1. This decision deals with whether Ms Vasuthaven’s application was made within 21-days after the dismissal took effect, and if not, whether there are exceptional circumstances that warrant additional time being allowed.

1. This preliminary issue was dealt with at a hearing on 13 July 2023, at which the Applicant gave evidence in support of her application. The Respondent made submissions opposing additional time being granted.

Factual findings

1. Ms Vasuthaven’s evidence, which I accept, was that:

   (a)She commenced employment with the Respondent on a casual basis in August 2017;

   (b)On 15 March 2023 she travelled to Malaysia to assist her grandmother who was seriously ill and returned to Australia around 25-26 May 2023. Although she was unsure of the precise date, it was sometime that week;

   (c)Her grandmother lives in a fairly remote area of Malaysia and does not have wi-fi either in her home or surrounds. While she was in Malaysia the Applicant did not have access to the internet either at her grandmother’s house or elsewhere and was unable to, and did not, access her email;

   (d)Upon her return to Australia, the Applicant logged on to the Respondent’s rostering system to check when she would next be rostered to work and found she did not have access to it. She then checked her emails and discovered an email from the Respondent of 9 May 2023 advising that her employment had been terminated from that date based on abandonment of her employment. She was unaware that she had been dismissed until she read the email around 25-26 May 2023;

   (e)After learning she had been dismissed, the Applicant says that she was stressed and unsure of what to do. Her evidence was imprecise and uncertain about her actions from this date, but she said that it took her some time to act, perhaps 1-3 days; and

   (f)Ms Vasuthaven made an unfair dismissal application on 31 May 2023.

Consideration

1. A dismissal does not take effect until an employee is aware that they have been dismissed or has had a reasonable opportunity to become aware.[1] Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter.[2]

1. I accept Ms Vasuthaven’s evidence that she only became aware that she had been dismissed on or around 25 May 2023 when she returned to Australia and discovered the email of 9 May 2023. In the unusual circumstances of this matter, I find that the reasonable opportunity for the Applicant to become aware of the dismissal email started when she returned to Australia on or around 25 May 2023. I therefore find that the dismissal only took effect on or around 25 May 2023.

Conclusion

1. As a result, the application made on 31 May 2023 was clearly within 21 days after the dismissal took effect. Therefore, exceptional circumstances need not be found as no additional time to make the application is needed.

1. The application will be listed for a case management conference shortly, noting that the Respondent has foreshadowed raising a separate jurisdictional objection to the application.

DEPUTY PRESIDENT

Appearances:
Ms Isshasri Vasuthaven, for the Applicant
Ms Nella Bennet, for the Respondent

Hearing details:
Thursday, 13 July 2023
Melbourne via Microsoft Teams

[1] Ayub v NSW Trains [2016] FWCFB 5500.

[2] Foyster v Bunnings Group Limited[2017] FWCFB 3923.

Printed by authority of the Commonwealth Government Printer

<PR764203>