Jacqueline Chitty v HCH (WA) Pty Ltd
[2015] FWC 7027
•13 OCTOBER 2015
| [2015] FWC 7027 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jacqueline Chitty
v
HCH (WA) Pty Ltd
(U2015/10843)
COMMISSIONER BISSETT | MELBOURNE, 13 OCTOBER 2015 |
Application for relief from unfair dismissal - extension of time.
[1] Mr Jacqueline Chitty was employed by HCH (WA) Pty Ltd (HCH). She made an application for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) on 10 August 2015. The Respondent says that her employment was terminated on 2 July 2015 and that the dismissal took effect that day.
[2] Section 394(2) of the Act requires that an application for unfair dismissal must be made within 21 days of the time the dismissal took effect. HCH says that Ms Chitty made her application 39 days after the date the dismissal took effect meaning her application was made 18 days out of time.
[3] The Commission has the power, pursuant to s.394(3), to extend the time within which an application can be made if it is satisfied that there are exceptional circumstances taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[4] The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group Pty Ltd 1where the Full Bench of Fair Work Australia found:
In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional…The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. 2
[5] In deciding this matter I have taken into account the written submissions of both parties and the witness evidence that was admitted during the proceedings. In this respect I note that witness statements filed by Mr Robert Chitty and Mr Michael Giacobino that were not relied on by Ms Chitty. I have had no regard to the content of those statements.
Background
[6] In late June 2015 Mr Timothy Hawkins of HCH was present in the WA office (being normally based in Adelaide) in relation to some issues to do with the finalisation of employment of Mr Giacobino with HCH. At this time some fraud issues in the WA office came to light.
[7] Mr Hawkins’ evidence is that, following the termination of Mr Giacobino’s employment and further investigations he became aware that Ms Chitty may also have been involved in the fraud. He says that on 2 July 2015 he said to Ms Chitty words to the effect ‘you are finished, you are caught out, you have to leave the premises’.
[8] Mr Hawkins’ evidence is that at this time he was pretty upset at what had occurred in the WA office and the possible involvement of Ms Chitty in the fraud. He says that he did say to Ms Chitty that she was finished. Mr Hawkins did not provide Ms Chitty with a termination letter. She was not provided with a separation certificate until 14 August 2015.
[9] Ms Chitty says that she understood that from 29 June 2015 she was on annual leave. She says that communication with the employer from this date was not clear and consistently changing.
[10] Ms Chitty says that on 7 July 2015 she was advised by her mother that she had received a bounce back from Ms Chitty’s work email which indicated Ms Chitty did not work there anymore. She gives no evidence as to why she took no action at this time to question the email.
[11] Ms Chitty says that, while she was employed with HCH she was paid each month on the 15th of the month. She says her pay would be deposited into her bank account some time between the 15th and 17th of the month. She says that on 15 July 2015 she did not receive any pay and that it was not deposited into her bank account of 15, 16 or 17 July 2015 (a Friday).
[12] Ms Chitty also says that on 20 July 2015 she met with Mr Giacobino who told her he had seen some documents which indicated she did not work for HCH anymore.
[13] By 20 July 2015 Ms Chitty says that, she ‘guessed’ she was no longer employed by HCH. She says she then contacted Centrelink, the Fair Work Commission and Fair Work Ombudsman. She did not contact HCH to ask them if she was still employed.
[14] Ms Chitty says she received no termination letter or separation certificate from HCH.
[15] Ms Chitty says that, having established facts and gained a better understanding of her rights after 20 July 2015, on 4 August she spoke to the Fair Work Commission who guided her as to the process and forms to submit for an unfair dismissal claim. She lodged her application on 10 August 2015, 21 days after 20 July 2015 when she says she became aware that her employment had been terminated.
Reason for the delay
[16] Ms Chitty says that she was not aware that her employment had been terminated on 2 July 2015, that she only became aware on 20 July 2015 and that as soon as she became aware she sought to understand her rights and made her application for unfair dismissal on 10 August 2015.
When she became aware her dismissal had taken effect
[17] Ms Chitty says she did not become aware of her dismissal until 20 July 2015.
[18] Mr Timothy Hawkins of HCH says that Ms Chitty was told verbally, face to face, on 2 July 2015 that she was dismissed.
Any action to dispute the dismissal
[19] Ms Chitty says that, because of the circumstances surrounding her dismissal she was given no opportunity to dispute it.
Prejudice to the employee
[20] Ms Chitty says that she does not consider the lateness of her application has resulted in any unfairness to HCH.
[21] Whilst HCH says that the last 3 months has had a huge impact on its operations it does not claim any unfairness should the application for an extension of time be granted. I do note however that HCH is a small business with 3 employees.
Merits of the application
[22] The circumstances surrounding the dismissal are disputed. I do not intend to set out in any detail those circumstances, suffice it to say I have not reached any view as to the merits of the application and have considered this a neutral matter in making my decision.
[23] I do note however that HCH is a small business and that it believed that Ms Chitty was involved in fraudulent activities.
Fairness between the Applicant and other employees in a similar position
[24] No submissions were made on this matter. This is a neutral matter in my consideration.
Consideration
[25] In Workpac Pty Ltd v M Bambach 3the Full Bench of Fair Work Australia found that ‘there is ample authority that a termination of employment takes effect when it is communicated to the employee. There may be some exceptions to this general proposition but none are relevant in the context of this matter.’4 [footnote omitted]
[26] In Makenja v Baptist Community Services 5 a Full Bench of the AIRC found:
Normally a termination of employment would not "take effect" before it was communicated to the employee concerned, although that may not always be the case. In this case it does not seem to be in contest that the appellant was not aware of the letter of termination until 22 August 2006. The application for relief was filed within 21 days of that date. In cases in which abandonment of employment is alleged the time at which the termination took effect may only be ascertainable after resolving factual and legal issues. It will be rare for such issues to be resolved fairly without a hearing. But if on one view of the material before the Commission the application was within time, there is a strong case for allowing the application under s.643(14).
[27] In Wilson v Australian Taxation Office 6 that Full Bench of the AIRC found:
Counsel for the Commonwealth referred us to a number of authorities but conceded that there are few on point. One decision which appears to us to bear directly on the issue is Transport Workers' Union of Australia v National Dairies Limited (1994) 57 IR 183. In National Dairies Keely J, sitting in the Industrial Relations Court of Australia, was required to decide whether the employment in question terminated before or after the date on which legislation providing statutory remedies for unfair dismissal commenced to operate. In the course of his judgment His Honour said:
"It was accepted by the respondent's counsel, for the purpose of the present hearing, that the employer's letter of purported termination was not received by the applicant until 30 March 1994. In my opinion the mere posting of the letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee. I am unable to uphold the respondent's submission that the intention of the legislature was to make it a contravention of the Act for an employer to perform actions "pursuant to which the employer seeks to terminate an employee even if that wish is never communicated to the employee ie even if a letter of termination posted by an employer is never received by the employee.""
With respect we agree with His Honour's conclusion. Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. 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.
[28] Whilst the provisions of the relevant legislation which applied at the time of these decision is not replicated in the Fair Work Act 2009, as a matter of logic the principles must continue to apply. An employee cannot know that he or she needs to take action to seek relief from unfair dismissal if he or she is not aware that they have been dismissed. In such cases to find an application has been made out of time and no account is taken of the lack of awareness of the dismissal is, on any account, unreasonable.
[29] I accept that Ms Chitty reasonably did not consider her employment had been terminated on 2 July 2015 and she believed that she was on annual leave. I also accept that HCH is a very small business and it was dealing with a difficult situation in its WA office.
[30] However, even in circumstances where Mr Hawkins believes he had told Ms Chitty her employment was terminated he has failed to convey this in a clear and concise way such that there was no confusion. Ms Chitty understood, conveniently, that she was on annual leave. In submissions and evidence Mr Hawkins did not question Ms Chitty’s assertion that she was, in any event, to be on annual leave at this time. Had Ms Chitty not had grounds to believe she was on annual leave my decision in this matter would be different.
[31] In these circumstances I am satisfied that Ms Chitty was not aware that her employment had been terminated until 20 July 2015. She made her application for unfair dismissal within 21 days after she became aware of this dismissal.
[32] I am satisfied in this case that exceptional circumstances exist such that Ms Chitty should be granted an extension of time until 10 August 2015.
COMMISSIONER
Appearances:
T. Preece of Hale Legal for the Applicant.
T. Hawkins with G. Napier of the Respondent.
Hearing details:
2015.
Melbourne, Perth and Adelaide (video hearing):
September 30.
1 (2011) 203 IR 1.
2 Ibid, [13].
3 [2012] FWAFB 3206.
4 Ibid, [19].
5 [2007] AIRCFB 38.
6 AIRC, PR901127.
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