Jason Sy v ABC Tissue Products Pty Ltd

[2020] FWC 4393

[2020] FWC 4393

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jason Sy
v
ABC Tissue Products Pty Ltd
(C2020/3031)

DEPUTY PRESIDENT MANSINI MELBOURNE, 24 AUGUST 2020

Application to deal with contraventions involving dismissal.

[1] This decision concerns an application by Mr Jason Sy (Applicant) for the Commission to deal with a general protections dispute involving dismissal, made under s.365 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined that the application was filed within the statutory timeframe and must proceed. The reasons for this decision follow.

Was the application made out of time?

[3] Section 366(1) requires that a general protections application involving dismissal:

a) be made within 21 days after the dismissal took effect; or

b) within such further period as the Commission allows having regard to the factors set out in s 366(2).

[4] In this case, there is a dispute about when Mr Sy’s dismissal took effect. Accordingly, there is a question as to whether the application was made out of time.

Factual background

[4] The relevant factual context was not contentious and is summarised as follows.

[5] On 7 April 2020, ABC Tissue Products Pty Ltd (Respondent) posted a letter to Mr Sy of same date with the subject line “Re: Termination of your employment” (the Termination Letter). The Termination Letter alleged that Mr Sy: had been absent for more than 3 months in a 12 month period; had not provided medical certification in support of his absence since 1 February 2020; and, in response to an email of 2 April 2020, had provided little or no guidance about when he would be able to return to work or medical certification in support. The Termination Letter concluded:

“Given all of the above, ABC has no other option but to confirm the cessation of your employment due to your continued inability to perform the inherent requirements of your position; one such requirement is of course attendance.”

[6] Also on 7 April 2020, the Respondent updated its records to reflect that Mr Sy’s employment had ceased effective that same day. The Respondent did not attempt to contact Mr Sy by telephone or email on that day.

[7] On 8 April 2020, the Respondent emailed a copy of the Termination Letter to Mr Sy. It did so as a courtesy, in case Mr Sy needed evidence of his termination to apply for government welfare payments.

[8] Mr Sy did not confirm the exact date that the Termination Letter was received in the mail, but his recollection was that it was received some weeks later via Australia Post.

[9] On 29 April 2020, Mr Sy filed this application with the Commission.

[10] The matter was allocated to me for determination of the jurisdictional issue. The parties filed materials in advance. 1 The matter proceeded to hearing on 19 August 2020.

The submissions

[11] The Respondent contended that the termination was effective 7 April 2020 because that is the date that it caused the Termination Letter to be posted to Mr Sy and its records reflect that the termination was effective on and from 7 April 2020. It asked the Commission to therefore find that the application was filed one day outside the statutory timeframe.

[12] Mr Sy accepted that the Respondent informed him of his dismissal by email on 8 April 2020. He asked the Commission to find that 8 April 2020 was the effective date of his dismissal and, accordingly, the application was filed within the statutory timeframe.

Consideration

[13] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2). In this case, there was no dispute as to whether a “dismissal” has in fact occurred. However, the effective date of Mr Sy’s dismissal was contested and is a matter to be determined for the purposes of identifying whether the application was made within the statutory timeframe.

[14] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 2 An employer may communicate a dismissal to an employee “by plain or unambiguous words or conduct”.3 In the case of a dismissal without notice, the dismissal needs 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.4

[15] Where an employee is informed of their dismissal by email, the employee is usually 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. 5

[16] The 21 days for lodgment does not include the date that the dismissal took effect. 6

[17] As stated above, the relevant facts are not in dispute.

[18] In this case, the Respondent’s decision to confirm the cessation of Mr Sy’s employment was recorded by letter of 7 April 2020. The Termination Letter does not specify an effective date nor does it specify a notice period. I accept that it was the Respondent’s intention for the employment to cease with immediate effect on 7 April 2020. Further, whilst the Termination Letter does not expressly say so, it purported to confirm that Mr Sy’s employment ceased with immediate effect.

[19] However, the only communication with Mr Sy about the Respondent’s decision to confirm the cessation of his employment was to provide him with a copy of the Termination Letter:

a) By post, mailed on 7 April 2020; and

b) By email, sent on 8 April 2020.

[20] It was not contended that the Termination Letter could have been received by post on 7 April 2020. Indeed, the Respondent’s rationale for emailing the Termination Letter on 8 April 2020 is reflective of its acknowledgement that this was a more expeditious way of communicating with Mr Sy, who was not likely to receive the Termination Letter by post for some days.

[21] On all of the evidence before the Commission, I do not consider that the Applicant’s dismissal was communicated to him in such a way that he knew or had a reasonable chance to find out that he had been dismissed on 7 April 2020 or at any time prior to 8 April 2020.

[22] For completeness, it is noted that there would appear to be a question about whether Mr Sy in fact abandoned his employment such that it in fact came to an end prior to the Respondent’s decision to confirm its cessation. Mr Sy disputed that he had abandoned his employment. Even if an earlier cessation date were argued (it was not), the Commission is not empowered to resolve that dispute as to do so would exceed the jurisdiction of the Commission by “correlatively” determining the substantive application. 7

Conclusion

[23] For the above reasons, the Applicant’s dismissal was effective 8 April 2020. The period of 21 days ended at midnight on 29 April 2020. The application was lodged on 29 April 2020.

[24] As I have found that the application was not out of time, there is strictly no need for the Commission to be satisfied that there are “exceptional circumstances” pursuant to s.366(2) in order for the application to proceed.

[25] Accordingly, the jurisdictional objection is dismissed and the application will now proceed to conference before the Commission.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR721976>

 1   Mr Sy’s strict noncompliance (through an initial delay in filing those materials) was waived.

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

 3   Plaksa v Rail Corporation NSW[2007] AIRC 333 (Cartwright SDP, 26 April 2007) at para. 8; citing Barolo v Centra Hotel Melbourne, Print Q9605 (AIRC, Whelan C, 10 December 1998); Mohammed Ayub v NSW Trains[2016] FWCFB 5500 (Ayub) at [17], [48] and [49].

 4   Ayub at [48].

 5   Ayub at [50]; see also s.14A of the Electronic Transactions Act 1999 (Cth).

 6 Not including the date the dismissal took effect, per s.36(1) of the Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009 (see s.40A of the Act).

 7   Cameron Milford v Coles Supply Chain Pty Ltd [2019] FWCFB 2277 at [21].