Jayde Paranihi v Roy Hill Holdings Pty Ltd

[2020] FWC 4485

[2020] FWC 4485

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jayde Paranihi
v
Roy Hill Holdings Pty Ltd
(C2020/1669)

DEPUTY PRESIDENT YOUNG MELBOURNE, 25 AUGUST 2020

Application to deal with contraventions involving dismissal – application made within time – no extension of time required.

[1] This decision concerns an application by Mr Jayde Paranihi under section 365 of the Fair Work Act 2009 (Act) for the Commission to deal with a general protections dispute involving dismissal.

[2] Section 366(1) requires that an application under section 365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2).

[3] Mr Paranihi lodged the application on 18 March 2020. Mr Paranihi contends that he was forced to resign because of the conduct of the Respondent.

[4] Without conceding that Mr Paranihi was dismissed, the Respondent contends that if there was a dismissal it took effect on 20 February 2020 and the application was therefore lodged outside the 21 day time period provided under section 366(1). 1 Mr Paranihi contends that his dismissal took effect on 26 February 2020 and the application was therefore lodged within the 21 day time period.2 The Respondent concedes that if it is found that Mr Paranihi’s dismissal took effect on 26 February 2020, the application was lodged in time and no extension of time for the filing of the application would be required.

[5] On 11 June 2020, I issued directions for the parties to file materials. Materials were filed by the parties in accordance with those directions.

[6] On 12 August 2020 I conducted the proceeding by way of hearing by telephone. At the hearing Mr Michael Lourey of Chapmans Lawyers appeared on behalf of Mr Paranihi pursuant to section 596 of the Act. Ms Liza Wilkins, Human Resources Consultant at Trojan HR, gave evidence on behalf of Mr Paranihi. Mr David Garner, Legal Counsel of the Respondent, appeared on behalf of the Respondent. The Respondent filed witness statements for Mr Daryll Pond, Superintendent Supply Chain Execution, and Ms Kathryn Kallane, Supervisor Supply Chain Operations. Mr Paranihi did not require Mr Pond or Ms Kallane for cross examination.

Relevant facts

[7] Mr Paranihi commenced employment with the Respondent on 6 August 2018 in the role of Operator Supply Chain, pursuant to a written contract of employment dated 24 June 2019 (Contract). The Contract provides that the employment may be terminated by either party giving four weeks’ notice in writing. 3 On 13 September 2019 Mr Paranihi was issued with a first and final written warning and placed on a performance improvement plan. By letter dated 20 February 2020 Mr Paranihi resigned from his employment with the Respondent (Resignation Letter). Mr Paranihi provided the Resignation Letter to Ms Kallane around 7.00 am that day. The Resignation Letter is addressed to Mr Elwin Nepgen and relevantly provides as follows:

“Dear Elwin

Please accept this letter as formal notice of my resignation from my position as Operator Supply Chain at Roy Hill Holdings Pty Ltd. As per my Contract of Employment, I am giving the required four weeks’ notice with my last day of employment being Thursday 19 March 2020.

Thank you for giving me the opportunity to work in this position, I did thoroughly enjoy my role and working here until the day I received a written warning on 13 September 2019 for a safety related incident.

Since that day, after declining the subsequent Deed of Release offer, I was placed on a Performance Improvement Plan which has continued now for over five months. I have done my utmost to meet the expectations of my managers and peers but feel the ongoing pressure and stress associated with the PIP's requirement to achieve 100% on a daily basis, along with the repeated threat that my employment will be terminated, are all impacting on my health and wellbeing, most recently resulting in my admission to hospital.

Consequently, as I feel the management at Roy Hill are not supportive of my successful completion of the PIP along with the impact the working environment of the last five months has had on me personally, I tender this resignation.

I wish you and those at Roy Hill all the best for the future.” 4

[8] Ms Kallane took the Resignation Letter to Mr Pond and they opened it together. At 7.26 am Mr Pond sent the following email to Mr Lomman, General Manager Demand Chain:

“Hi Mike,

Jayde Paranihi has tendered his resignation this morning as per the attached letter.

Although Roy Hill have given him full support to succeed Jayde has noted that the perceived pressure of being on a PIP is having a negative effect on his health. This has resulted in him being admitted to hospital.

Can you give approval for Jayde to be released from employment immediately and pay him out his 4 weeks’ notice period. I believe this will also be of benefit to Jayde who can relax prior to reemployment elsewhere.” 5

[9] At 7.45 am Mr Lomman responded to Mr Pond’s email stating “Approved”. 6

[10] At 7:52 am, Mr Pond sent an email to Ms Maddocks, Advisor Employee Experience, forwarding Mr Lomman’s email saying:

“Hi Emma,

Can you please discuss with Giles and confirm that we can immediately release Jayde.

Mikes approval below.

Once I get confirmation of approval from HR I will inform Jayde.”  7

[11] Shortly afterwards, Mr Pond spoke to Mr Paranihi at his workstation and said words to the effect of “I accept your resignation.” Mr Paranihi replied with words to the effect of “Thanks”. Mr Pond then said words to the effect of “You look pale, are you OK?”. Mr Paranihi said that he had been admitted to hospital for stress during the previous three days he had been absent from work. 8

[12] At 9.19 am Mr Paranihi was directed by Ms Kallane to undertake a random drug and alcohol test. 9

[13] Mr Pond spoke with Mr Paranihi again later that morning and said words to the effect of “You should go home while we process your resignation and get some rest. I will contact

you early next week. You are still able to access Roy Hill’s employee assistance program

if you need.” 10

[14] It is uncontested that Mr Paranihi went home as directed.

[15] At 10.45 am Mr Pond sent a further email to Ms Maddocks saying:

“Hi Emma

I have spoken to Jayde and I informed him that I have accepted his resignation. Due to his recent time in Hospital I have advised him to go home immediately and I will contact him on Monday to check how he is. He has been reminded that EAP-BSS is available should he require to use them.” 11

[16] At approximately 12.15 pm Mr Paranihi telephoned Ms Kallane to advise the results of the drug and alcohol test he had been required to undertake. During that conversation Mr Paranihi said to Ms Kallane words to the effect of “Daryll has told me to go home and he will call me early next week to discuss the arrangement for my resignation.” Ms Kallane responded with words to the effect of “You rest up and hopefully the time at home will help you de-stress.” 12

[17] At 4.01 pm on Monday 24 February 2020, Mr Paranihi sent the following text to Ms Kallane:

“Hi Kat. I have been waiting for someone to contact me but haven't heard from anyone. Am I required in tomorrow?” 13

[18] Ms Kallane replied as follows:

“Hi Jayde, tried to call with no answer. Daryll has advised for you to take another day of paid R&R and we will call you tomorrow to see how you are going. Kat” 14

[19] Mr Paranihi replied, “Sorry was on dinner duties, ok thanks for letting me know.” 15

[20] At 4.39 pm on Monday 24 February 2020, Mr Pond sent a further email to Ms Maddocks saying:

“Hi Emma,

Did we get sign off from Barry regarding paying out Jayde for the month.” 16

[21] Barry is a reference to Mr Barry Fitzgerald, the Chief Executive Officer of the Respondent.

[22] At 5.21 pm on Monday 24 February 2020, Ms Maddocks replied to Mr Pond as follows:

“Hi Daryll,

Not as yet, I followed up on this today.

Hoping to have the approval tomorrow. Will keep you updated.” 17

[23] At 12.47 pm on Tuesday 25 February 2020 Mr Paranihi sent the following email to Ms Kallane and Mr Pond:

“Hi Daryll,

Following my letter of resignation provided to you on Thursday 20^th February 2020, I would like to confirm details of our conversation and clarify what is happening.

After providing my resignation I was requested to attend a random drug and alcohol test before 2pm, the second random test I have attended since returning from leave, which I successfully passed. I was told after my first break that once I complete the test, that the best thing for my wellbeing was to go home, take Friday and Monday off, and that someone would get back to me once the paperwork regarding my resignation was finalised.

I was not contacted by anyone either day regarding the above, so at about 4pm yesterday (Monday) I sent a text message to Kat to find out what was happening. Kat advised me to take another day of paid R&R and someone would call me today to see how I am going. I tendered my resignation to put an end to the ongoing pressure and finalise my employment but find the current situation of being sent home with no communication as to what is going is causing me further unnecessary anxiety.

To clarify the current situation can you please acknowledge my resignation has been received and advise by COB today the following:

As I am not entitled to paid R&R under my contract of employment how am I being paid for the days I have been sent home at your request?

Am I required to work out my notice period as provided in my resignation letter?” 18

[24] In response to the above email Ms Kallane telephoned Mr Paranihi later that afternoon but could not contact him. She left a voicemail for Mr Paranihi and at 4.57 pm sent the following email to him:

“Hi Jayde,

Acknowledging that I have received your email below.

I tried to contact you today and have left you a voicemail. I will try to reach you again tomorrow.

Hope you are going ok and encourage you to utilise the EAP support available to you.

Speak soon and take care.” 19

[25] On 26 February 2020, Ms Maddocks advised Mr Pond that she had received approval to waive Mr Paranihi’s notice period and to pay him in lieu of notice. Mr Pond authorised Ms Maddocks to attach his electronic signature to a confirmation of resignation letter (Confirmation of Resignation Letter). At 1.03 pm Ms Kallane sent an email to Mr Paranihi in the following terms:

“Hi Jayde,

Thanks for your reply text after my call to you last night.

Further to my email below, please find attached confirmation of resignation letter.

I confirm you will be paid as normal up until 25 February 2020 and an amount equivalent to 4 weeks' salary in lieu of notice effective from today.

Should you have any questions please feel free to contact me.

Wishing you all the best for the future.” 20

[26] The Confirmation of Resignation letter attached to Ms Kallane’s email provided as follows:

“Dear Jayde,

Re: CONFIRMATION OF RESIGNATION

I confirm acceptance of your letter of resignation dated 20 February 2020.

You advised me previously that you were recently admitted to hospital. Given this, I considered it would be best for you to stay home rather than attend the office while we processed your resignation.

So that you can focus on your health and wellbeing, Roy Hill will not require you to work your notice period. Instead, you will be paid an amount equivalent to 4 weeks' salary in lieu of notice effective from today. You will receive this payment and any other monies owed to you in the next available pay run. Your final payslip will be mailed to your home address recorded on SAP Fiori and your final day as an employee is the date of your resignation on 20 February 2020.

We will continue to offer our support by making our Employee Assistance Prover {BSS} available to you on 1800 30 30 90 for the next 30 days.

Thank you for your contribution to Roy Hill. We wish you all the best with your future endeavours.” 21

Legal principles

[27] “Dismissed” is defined in section 386 of the Act 22 relevantly, 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.

(3) 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.”

[28] A dismissal takes effect when the employment relationship has ended. 23 The termination of the employment relationship is a different concept from the termination of an employment contract.24

[29] Whether an employment relationship continues to exist is a question of fact. 25 The range of facts or factors which may need to be examined to answer the question of whether an employment relationship continues to exist will be determined by the circumstances of a particular case, and may include, without limitation, whether the employee is being paid a wage or benefit or entitlements, whether the employee is attending or performing work for the employer, whether the employer is exercising, or has the ability to exercise control over the execution of work by the employee26 and the terms of the employment contract.

[30] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 27

Consideration

[31] The Respondent submits that no employment relationship existed between Mr Paranihi and the Respondent after he provided the Resignation Letter 28 and accordingly, Mr Paranihi’s dismissal took effect on 20 February 2020.29 It submits that both parties were aligned that the employment relationship had ended30 and that both parties clearly articulated that the date of the dismissal was 20 February 2020.31 For the reasons which follow, I reject those submissions and find that Mr Paranihi’s dismissal took effect on 26 February 2020.

[32] Firstly, I consider it clear that the Resignation Letter gave notice of Mr Paranihi’s resignation from his employment with the Respondent. I consider it equally clear that the Resignation Letter provides that Mr Paranihi’s employment would terminate on 19 March 2020 at the expiration of the four week notice period. The Resignation Letter did not bring about an end to the employment relationship or the contract of employment. The reasons asserted in the Resignation Letter for Mr Paranihi’s resignation do not alter this, nor does the fact that Mr Paranihi’s application is premised on conduct of the Respondent which he asserts forced him to resign. Following the provision of the Resignation Letter, absent some intervening event, Mr Paranihi’s employment would have continued until expiration of the notice period, thereby terminating on 19 March 2020.

[33] Secondly, whilst I accept that Mr Pond’s intention was to end Mr Paranihi’s employment on 20 February 2020 and make a payment in lieu of notice and that he took immediate steps to seek to bring that about, that is not, in fact, what occurred. Mr Paranihi was not privy to any of the correspondence between Mr Pond and Ms Maddocks regarding the early cessation of his employment and the intention to make payment in lieu of his notice period. Mr Pond’s own evidence is that approval for this was not obtained until 26 February 2020. Nor does Mr Pond’s “acceptance” of Mr Paranihi’s resignation bring about an end to the employment relationship. Resignation is a unilateral act that takes effect of its own force. Expressions such as “confirmation” or “acceptance” of a resignation are mere linguistic courtesies. 32 Mr Pond’s evidence is that he told Mr Paranihi to go home and rest while his resignation was “processed”. I note that his evidence is not, as submitted, that he told Mr Paranihi to go home while authority was obtained to waive his notice period.33 Whatever Mr Pond might have intended by his statement regarding the processing of Mr Paranihi’s resignation, it did not constitute a clear communication to Mr Paranihi that his employment had been brought to an immediate end and that he would be provided with payment in lieu of working out his notice period. That the employment relationship had ended is also inconsistent with Mr Pond’s evidence that he told Mr Paranihi that he would check on him on Monday34 and Mr Pond’s further evidence that he thought Mr Paranihi would benefit from a “few days to consider his position” as he “anticipated that [Mr Paranihi] may possibly wish to rescind his resignation.”35 Similarly, that the employment relationship had ended is inconsistent with Ms Kallane directing Mr Paranihi on Monday 24 February 2020 to take a further day of “R&R”, notwithstanding her evidence that she was mistaken as to Mr Paranihi’s entitlement to this.36 Further, it is also inconsistent with Mr Paranihi seeking clarification on Monday, 24 February 2020 as to whether he was required at work the following day and on Tuesday, 25 February 2020 enquiring as to whether he is required to work out his notice period.

[34] Thirdly, I reject the submission that Mr Paranihi’s absence from the workplace or non-performance of duties after 20 February 2020 supports a conclusion that the employment relationship no longer existed. On 20 February 2020 Mr Pond directed Mr Paranihi to go home and he would contact him on Monday. Mr Paranihi complied with that direction and waited to hear from Mr Pond. On Monday he was told by Ms Kallane to take a further day of paid leave. On the Tuesday he sought clarification from Mr Pond as to whether he was required to work out his notice period. On Wednesday he was provided with the Confirmation of Resignation Letter. Accordingly, Mr Paranihi was directed not to perform duties from after the drug and alcohol test on 20 February until 26 February 2020 and he complied with those directions. In these circumstances, that Mr Paranihi did not return to the workplace or perform any duties after that time does not, as submitted, establish that the employment relationship no longer existed. Rather, the fact that the Respondent continued to direct Mr Paranihi after 20 February 2020 in relation to the performance or otherwise of duties is consistent with the employment relationship still being on foot. I also note that after Mr Paranihi provided the Resignation Letter he was directed to undertake a random drug and alcohol test, a direction with which he complied. This too is consistent with the employment relationship remaining on foot after he provided the Resignation Letter.

[35] Fourthly, it is uncontested that the Confirmation of Resignation Letter was not provided to Mr Paranihi until 26 February 2020. That letter informs Mr Paranihi that he is not required to work out his notice period and that he will be paid in lieu of notice, “effective from today”. I consider it clear that it is this correspondence that communicates to Mr Paranihi that his employment is at an end. It is of no import that the Confirmation of Resignation Letter asserts that Mr Paranihi’s last day as an employee was 20 February 2020. A dismissal does not take effect until it is communicated to the employee. A dismissal therefore cannot, in circumstances such as those presently relevant, take effect retrospectively. For the same reason, it is also of no import that the Respondent’s official records list Mr Paranihi’s last day as an employee as 20 February 2020.

Conclusion

[36] Accordingly, I find that Mr Paranihi’s dismissal took effect on 26 February 2020. The application was therefore made within the 21 day time period provided under the Act and no extension of time is required.

[37] The application will be referred for conciliation in accordance with section 368 of the Act.

DEPUTY PRESIDENT

Appearances:

M Lourey on behalf of the Applicant

D Garner for the Respondent

Hearing details:

2020.
Melbourne and Perth (by telephone):
August 12.

Final written submissions:

Applicant, 23 July 2020

Respondent, 2 July 2020

Printed by authority of the Commonwealth Government Printer

<PR722121>

 1   Respondent’s Further submissions at [15]

 2   Applicant’s Outline of argument: Extension of time at q.1d

 3   Exhibit A2, p.2

 4   Applicant’s book of documents, p.5; Exhibit R1, Annexure DP-1

 5   Exhibit R1 at [6]

 6   Ibid, Annexure DP-2

 7   Ibid

 8   Exhibit R1 at [9]

 9   Applicant’s book of documents, p.6-7

 10   Exhibit R1 at [11]

 11   Ibid at [13] and Annexure DP-3

 12   Exhibit R2 at [10]

 13   Ibid at [11]

 14   Ibid; Applicant’s book of documents, p.8; Exhibit R2, Annexure KK-3

 15   Applicant’s book of documents, p.8; Exhibit R2, Annexure KK-3

 16   Exhibit R1 at [14] and Annexure DP-4

 17   Ibid

 18   Exhibit R2, Annexure KK-4

 19   Applicant’s book of documents, p.10; Exhibit R2, Annexure KK-4

 20   Ibid

 21   Exhibit R1, Annexure DP-5

 22   Also see section 12

 23   Siagian v Sanel Pty Ltd [1994] IRCA 2; Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878 at [21]

 24   Visscher v Guidice and Others (2009) 258 ALR 651 at [53] to [5] 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] FECFB 5162 at [31]-[50]

 25   Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 428; Metropolitan Fire and Emergency Services Board v Duggan[2017] FWCFB 4878 at [27]

 26   Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 4040; 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 [9]

 27   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24]; Ayub v NSW Trains[2016] FWCFB 5500 (Hatcher VP, Wells DP, Johns C, 30 September 2016)

 28   Respondent’s Further submissions at [20], [28]

 29   Ibid at [21-27], [28]

 30   Ibid at [24]

 31   Ibid at [27]

 32   Birrell v Australian National Airlines Commission (1984) 9 IR 1010 at 109; Marks v Commonwealth (1964) 111 CLR 549

 33   Respondent’s Further submission at [23]

 34   Exhibit R1, Annexure DP-3

 35   Exhibit R1 at [12]

 36   Exhibit R2 at [11]