Jenessa Dulay v Good Beer Coronation Pty Ltd
[2024] FWC 2918
•21 OCTOBER 2024
| [2024] FWC 2918 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Jenessa Dulay
v
Good Beer Coronation Pty Ltd
(C2024/3095)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 21 OCTOBER 2024 |
Application to deal with contraventions involving dismissal – whether application filed out of time – application filed within time
On 10 May 2024, Ms Jenessa Dulay made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of Ms Dulay’s allegations that she has been dismissed from her employment with Good Beer Coronation Pty Ltd (the Respondent) in contravention of Part 3-1 of the FW Act.
Section 366(1) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.
There is no dispute between the parties that on 15 April 2024, the Respondent provided a verbal notice of termination to Ms Dulay. There is, however, a dispute about when the termination took effect for the purpose of s. 366(1) of the FW Act. The Respondent contended that the termination was effective immediately whereas Ms Dulay contended that the termination was effective on 21 April 2024.
The effect of the Respondent’s contention is that the application has been filed outside of the 21 day time limit prescribed by the FW Act. Ms Dulay submitted that the application has been filed within time. In the alternative, Ms Dulay submitted that if the Commission finds that the application has been filed outside of the 21 day time limit prescribed by the FW Act, the Commission should extend time for the filing of the application because there are exceptional circumstances, taking into account the matters raised in s.366(2)(a)-(e).
In summary, I have found that the dismissal took effect on 21 April 2024 and that the application was filed within 21 days after the dismissal took effect. As such, it is unnecessary for me to consider whether time should be extended for the filing of the application.
Directions and hearing
The matter was listed for directions on 7 June 2024.
On 20 June 2024 and 25 July 2024, Ms Dulay filed submissions and a witness statement on her own behalf.
On 11 July 2024, the Respondent filed submissions and a witness statement from Ms Wendy Hill, General Manager.
The matter was listed for hearing on 29 July 2024.
I granted permission for both parties to be legally represented at the hearing pursuant to s. 596(2) of the FW Act. Ms Dulay was represented by Mr A. Kuschert, Lawyer at the hearing. The Respondent was represented by Mr D. Macmahon, Lawyer. Ms Dulay and Ms Hill attended the hearing but neither of them were required for cross-examination and their statements were admitted into evidence without objection.
Factual Background
Ms Dulay was employed as the Head Chef at the Hotel Coronation in Sydney, New South Wales from 8 June 2022. Initially Ms Dulay was employed by Mintjay Pty Limited. In December 2023, Ms Dulay became employed by the Respondent when it purchased the Hotel Coronation.
On 15 April 2024, Ms Hill provided a verbal notice of termination to Ms Dulay. Ms Hill says that Ms Dulay became upset and abusive and that Ms Hill did not provide Ms Dulay with a letter of termination for that reason. Ms Hill said that she advised Ms Dulay on 15 April 2024 that her termination was effective immediately and that 15 April 2024 would be Ms Dulay’s last day. Ms Hill said that she waited while Ms Dulay collected and packed her personal items and escorted her from the premises.[1]
Ms Dulay does not dispute that she received a verbal notice of termination from Ms Hill on 15 April 2024. However, Ms Dulay claims that she was advised by Ms Hill that the termination would take effect on 21 April 2024, and that she may be required to work shifts until 21 April 2024.[2] There is no dispute between the parties that Ms Dulay did not attend work after 15 April 2024.
On 17 April 2024, the Respondent sent an email to Ms Dulay which stated:
Hi Jenessa,
Please find attached, copy of your termination letter.Kind regards,
Administration[3]
On 18 April 2024, the Respondent sent a letter of termination dated 15 April 2024 to Ms Dulay by email. The email provided:
Hi Jenessa,
It has come to our attention that there was an error in the previous document.
In line with 1 week notice is Sunday 21st April not Sunday 28th April. Please see attached correction.Kind regards,
Administration[4]
The letter of termination attached to the email dated 18 April 2024 provided:
Monday 15 April 2024
Private and Confidential
Jenessa Dulay
[address redacted]
Dear Jenessa
Termination of Employment
Your probation period with us at Good Beer Coronation Pty Ltd T/As Hotel Coronation is due to end on 15th June 2024.
On behalf of the company, I confirm that we have decided not to continue your employment beyond your probationary period. As a result, your employment will end on Sunday 21stApril 2024.
In lieu of the NES (national employment standards) notice period of 1 week, you will receive 1 week payment of wages. You will also be paid your accrued entitlements in-line with the NES (national employment standards) up to and including your last day of employment.
We wish you well in your future endeavours.
Sincerely,
Wendy Hill
Group General Manager[5]
The Respondent produced the following two documents which, it submitted, showed that Ms Dulay was paid out her notice period of 1 week in lieu of her having to work/serve such notice:
(a)‘Beneficiary Advice’ issued by to the Respondent by the National Australia Bank which showed that the Respondent paid Ms Dulay the sum of $3,394.68 as ‘Coronation Wages’ on 17 April 2024.[6]
(b)A payslip for the pay period 15 April 2024 - 21 April 2024 which showed that the payment date for the sum of $3,394.68 was 21 April 2024 and that the payment was in respect of:
a.22.8 ordinary hours,
b.53.2003 hours remaining balance annual leave and
c.45.6 hours Time in lieu (ADO) (Remaining balance)[7]
There was no reference in either of these documents to any portion of the payment of $3,394.68 being in respect of pay in lieu of notice. During the hearing, the Respondent claimed that the payment in lieu of notice was included in ‘45.6 hours Time in lieu (ADO) (Remaining balance)’. Ms Dulay disputed this and submitted that the time in lieu payment did not include payment in lieu of notice.
Ms Dulay produced an additional payslip which recorded that she had been paid for 38 ordinary hours on 24 April 2024.[8] However during the hearing the Respondent submitted that it issued the payslip in error and that the last payslip that was issued to Ms Dulay was in respect of the net amount of $3,394.68 for the pay period 15 April 2024 - 21 April 2024.
Submissions
Ms Dulay’s submissions
Ms Dulay submitted that the effective date of dismissal was 21 April 2024 on the basis of:
a.Ms Hill’s advice to Ms Dulay on 15 April 2024 that the termination would take effect on 21 April 2024; and
b.The following statement in the letter of termination:
As a result, your employment will end on Sunday 21stApril 2024.
The Respondent’s submissions
The Respondent submitted that:
The Respondent notified Ms Dulay of the dismissal on 15 April 2024 and confirmed the dismissal by way of email on 17 April 2024.
The dismissal letter unequivocally states:
in lieu of the NES (national employment standards) notice period of 1 week, you will receive 1 week payment of wages
Ms Dulay ceased performing work from the date that she was notified of the dismissal, that is 15 April 2024.
The Respondent made ‘final payment’ to Ms Dulay (including all statutory entitlements) on 17 April 2024. Even if Ms Dulay’s final pay was made two days late, this does not invalidate the date of the dismissal. In this regard, the Respondent referred to Southern Migrant and Refugee Centre Inc v Shum (No 3) (Shum)[9] where the Court said:
A dismissal effected contrary to the requirements of s.117(2) of the FW Act is not void or otherwise of no effect. It is simply effected in contravention of the requirements of that section. That reality potentially visits other consequences, including exposure to relief in the nature of civil penalties and compensation under pt 4-1 of the FW Act. But it does not follow that employment that is terminated in contravention of s.117(2) continues as though not terminated at all. It does not.[10]
It cannot possibly be argued, on any sound or defensible basis, that there is any compelling evidence of a contrary intention to the inference that the Respondent intended the termination to take effect immediately.
Even if the reference to 21 April in the termination letter might be considered a clerical/wording error (which is denied), the dismissal took effect on 15 April 2024, having regard to all of the circumstances including the clear indication in the termination letter that Ms Dulay would be paid in lieu of serving her notice period.
If it is accepted that Ms Hill told Ms Dulay that she may be required to work until 21 April, Ms Dulay did not work at all after she was notified of her dismissal on 15 April 2024 and was paid her entitlements on 17 April 2024. It follows that there should have been no misunderstanding on Ms Dulay’s part that her employment ended immediately on 15 April 2024 and in turn, there is no credible or compelling evidence on a contrary intention that the Respondent intended for Ms Dulay’s employment to end immediately upon being notified of her dismissal.
The Respondent relied upon the following observations in Ingersole v Castle Hill Country Club Limited (Ingersole)[11] to support its submissions:
- The concept “the day of the termination” appears in legislation which suggests that there should be no uncertainty in ascertainment of that date. Under s.117(2) of the Act, the day of termination may be either the time at which notice that is worked out in accordance with s.117(3) expires or in a case in which the employer has paid the employee in lieu of notice, the day on which the employment is terminated. In this case the Club paid Ms Ingersole in lieu of notice. Moreover s.117(2)(b) refers to payment in lieu of notice “of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.” (Emphasis added). Such provisions support the view that, as there was payment in lieu of notice Ms Ingersole’s employment was terminated on 1 March 2012. It did not continue until 28 March 2012. As Wilcox J stated in Siagian v Sanel Pty Ltd [1994] IRCA 2; (1994) 122 ALR 333 at 355:
- It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase "payment in lieu of notice"; it accords with common sense. An employer who wishes to terminate an employee's services, and is prepared to pay out a period of notice without requiring the employee to work, will surely usually wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment related costs, such as workers' compensation insurance, payroll tax, liability for leave payments etc. The employer also incurs the risk that some new burden will be imposed in respect of the employment during the period.
- In this case there is no contrary intention. It is clear that the Club paid Ms Ingersole in respect of the hours she would have worked between 1 March 2012 and 28 March 2012 in lieu of notice in purported compliance with s.117(2)(b) of the Fair Work Act. Having regard to the language of s.117(2)(b), such a payment in lieu of notice did not have the effect of extending the employment until the date of the end of the minimum period of notice (see s.117(2)(b) and Siagian v Sanel).
- I am satisfied that the day of termination of Ms Ingersole’s employment was 1 March 2012. Hence it was necessary for the Club to give Ms Ingersole written notice on or before 1 March 2012.[12]
Respondent’s application to reopen its case
On 29 July 2024, after the conclusion of the hearing, I reserved my decision. Later that day, my Chambers received an application from the Respondent to reopen its case. Ms Dulay opposed the application. The Respondent provided written submissions in support of its application on 1 August 2024. On 2 August 2024 I advised the parties that the Respondent will not be granted leave to reopen its case and that reasons would be provided with respect to this matter in this decision.
The Respondent relied on the decision in Stone v Clifford[13] to request permission to re-open proceedings on the following basis:
1. A final judgement has not yet been made on the matter. Evidence has just concluded this afternoon and the decision is reserved.
2. The evidence was known to Ms Dulay as it is her communication, yet it was not tendered by Ms Dulay and the Respondent has only just now become aware of it.
3. The email is significantly different to the evidence of Ms Dulay and gives a very different picture of Ms Dulay’s belief as to her termination.
4. It is necessary for the material to be considered for the purpose of determining the jurisdictional question as well as the credit and weight of evidence of Ms Dulay.
The Respondent submitted that an email had come to the attention of its representative on the day of the hearing soon after its conclusion. The Respondent submitted that this email was relevant to the issue as to when the dismissal took effect. The Respondent submitted that the email was created by Ms Dulay (and sent to the Respondent’s accounts section for confirming termination pay), deals with Ms Dulay’s position on the termination issue and has direct bearing on the date of the communication of the dismissal to Ms Dulay by the Respondent, and with the issue of when the dismissal took effect.
The Respondent submitted that it would be prejudiced if the re-opening of the proceedings is not allowed as the email relates to a substantial issue and is probative. The Respondent submitted that Ms Dulay is not prejudiced as she created the document, there is little delay in the Respondent seeking to tender it and no decision has been made in the matter.
Ms Dulay’s representative advised the Commission that he had sighted the evidence characterised as ‘new’ by the Respondent and noted that as the email had been in the possession of the Respondent since 18 April 2024, it was not ‘new’ evidence.
Ms Dulay submitted that she should not be prejudiced or put to further delay or expense by reason of the fact the Respondent’s solicitors failed to take proper instructions, elected not to tender the email, or neglected to tender the email.
As my determination of this matter involved consideration of the legal principles in relation to when a dismissal ‘took effect’, I deal with it at the end of this decision.
Consideration – when did Ms Dulay’s dismissal take effect?
The issue that I am required to determine, for the purpose of considering whether the application has been made in accordance with s.366(1)(a), is the date that Ms Dulay’s dismissal ‘took effect.’ This phrase was considered by a Full Bench of this Commission in Mohammed Ayub v NSW Trains (Ayub)[14] in the context of an unfair dismissal application which was made pursuant to s.394. After reviewing the relevant authorities, the Full Bench expressed the following views which are relevant to the matter before me:
[49] In relation to a dismissal with notice, drawing on the common law principles earlier identified, the dismissal would take effect upon the date of the expiration of the specified period of notice. It is necessary however for that date to be clearly identifiable. This would equally apply to a conditional notice of termination. In the case of a dismissal with a payment in lieu of notice, the dismissal would need 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. There may also be an additional requirement that the payment in lieu of notice has actually been received by the employee.[15]
The Respondent relied upon the cases of Ingersole and Shum to support its contention that the delay in issuing the termination letter and providing the payment in lieu of notice to Ms Dulay did not alter the date of termination. It should be first observed that these cases are about the employer’s obligations under s.117 of the FW Act, which deals with the requirement to give written notice of the ‘day of termination’ or make payment in lieu of the required period of notice. These cases do not deal with the meaning of when a dismissal ‘took effect’ under s.366(1)(b) or s.394(2)(a). Although the ‘day of termination’ and when a dismissal ‘took effect’ may be the same date, the Full Bench decision in Ayub shows that this is not always the case. In Ayub, the Full Bench concluded that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[16] Consequently, the ‘day of termination’ for the purpose of s.117 may be the date that an employer delivers a letter of termination to the employee’s home address which states that the employee is dismissed that day. However, if the employee is absent from their home for a week, the date that the dismissal ‘took effect’ may be when the employee returns and reads the letter a week after the ‘day of termination’.
Secondly, in my view, the cases of Ingersole and Shum do not assist the Respondent in establishing that the dismissal of Ms Mulay took effect on 15 April 2024 in circumstances where the termination letter states ‘your employment will end on Sunday 21stApril 2024’.
In the case of Shum, the applicant Ms Shum alleged that she was not given proper notice of termination because the letter of termination letter dated 19 June 2017 was sent to her by email. Ms Shum claimed that she did not read the email until 26 June 2017 because it was in the spam folder of her email account.[17]
The letter relevantly provided:
You are hereby given payment in lieu of 1 week notice that your employment with SMRC will terminate on 19th June 2017. All your unused annual leave entitlements will be paid along with your final payment. The payment will be transferred to your bank account within a week. Your final payslip will be sent to your personal email address.[18]
Further Ms Shum submitted that the provision of notice of the termination of her employment by email sent on 19 June 2017 did not satisfy s.117(1) of the FW Act, as that sub-section does not contemplate email as a means by which such notice may be given.[19] The Federal Court did not accept these arguments. However, it found that Ms Shum’s final payment, including in lieu of the period of notice to which she was entitled, was made on 23 June 2017, after her employment came to an end, and as such Ms Shum’s employment was terminated contrary to s.117 of the FW Act.[20] Ms Shum submitted that the consequence of this is that the relevant termination date for calculating her period of continuous service with SMRC was 23 June 2017,[21] which was rejected by the Federal Court, who found that a dismissal effected contrary to the requirements of s.117(2) of the FW Act is not void or otherwise of no effect.[22]
In Ingersole, the applicant in that matter, Ms Ingersole was verbally advised by her employer, the Castle Hill Country Club Limited (the Club) on 1 March 2012 that her position had been made redundant effective immediately, that she would be paid in lieu of notice and that she was to hand in her keys and leave that day.[23]On the afternoon of 1 March 2012, the Club sent Ms Ingersole a letter by registered mail notifying her of her termination due to redundancy, however Ms Ingersole did not receive the letter until after this date. The letter advised that Ms Ingersole’s position would become redundant effective 28 March 2012.[24] It also stated the following:
As discussed with you, CHCC does not require you to work out your notice period. Your notice period will be paid out to you on termination of your employment. Your last day of employment with CHCC will be on 1 March 2012.[25]
Ms Ingersole made numerous claims against the Club, including that it contravened s.44 of the FW Act in that it failed to give her notice required under s.117 of the FW Act.[26] Ms Ingersole’s contention, which was accepted by the Court, was that the Club failed to comply with s.117(1) of the FW Act because she was dismissed from her employment on 1 March 2012 but was not ‘given’ written notice of her dismissal until after that date.[27] The Club contended that as the notice of termination letter gave four weeks’ notice (although it provided for payment in lieu of notice) the day of termination of Ms Ingersole’s employment could be seen as 28 March 2012.[28] It is in this context that the Court made the observations that are relied upon by the Respondent in the current application.
It is important to note that unlike the applicants in these cases, Ms Dulay did not rely upon the late payment of termination monies on 17 April 2024 or the issuing of the termination letter on 18 April 2024 to argue that the Respondent contravened s. 117, the termination was of no effect or that it did not take effect on 15 April 2024. Rather, Ms Dulay relied upon the plain and ordinary meaning of the language in the letter of termination, which was consistent with her evidence of the events of 15 April 2024, to contend that the effective date of dismissal was 21 April 2024. Further, and tellingly:
In Shum, the letter of termination stated ‘your employment with SMRC will terminate on 19th June 2017’ and the Court found that the ‘day of termination’ was 19 June 2017.
In Ingersole, the letter of termination stated ‘Your last day of employment with CHCC will be on 1 March 2012.’ and the Court found that the ‘day of termination’ was 1 March 2012.
Hence Ms Dulay’s contention that the effective date of dismissal was 21 April 2024 based on her letter of termination stating, ‘your employment will end on Sunday 21stApril 2024’ is consistent with the approach of the Courts in Shum and Ingersole, albeit that these cases were concerned with s.117 rather than s.366(1).
Applying the decision of the Full Bench in Ayub to the matter before me, I must determine whether the dismissal was one with notice or payment in lieu. The Respondent contends that Ms Dulay’s dismissal involved a payment in lieu of notice and took effect on 15 April 2024. It relies upon the fact that Ms Dulay did not return to work after 15 April 2024 and that she received payment in lieu of notice on 17 April 2024. It also relies upon Ms Hill’s evidence that she informed Ms Dulay that the dismissal took effective immediately and that Ms Dulay collected all of her personal belongings.
In relation to the payment made to Ms Dulay on 17 April 2024, I note the Full Bench’s observation in Ayub that there may be an additional requirement that the payment in lieu of notice has actually been received by the employee to establish an immediate dismissal. This is a reference to the decision of Siagian v Sanel Pty Limited[29]. This case is also referred to in the extract from Ingersole relied upon by the Respondent. In Siagian v Sanel Pty Limited the employer communicated verbally to Mr Siagian that his employment was terminated and handed him a piece of paper headed ‘Statement of Earnings on termination’ and a cheque. The Court found that the termination of Mr Siagian’s employment took effect immediately on 29 March 1994 because of the communication of termination on that date, combined with the payment in lieu of notice.
In Ms Dulay’s case, the payment was not made on the date that the Respondent claims that the dismissal took effect, but two days later. Further, there is a dispute about whether the payment made on 17 April 2024 was in respect of payment in lieu of notice. Ms Hill did not provide evidence about this matter on behalf of the Respondent although she was in a position to do so. The only evidence before me in relation to this matter is the payslip issued to Ms Dulay and the ‘Beneficiary Advice’ issued to the Respondent by the National Australia Bank. Neither of these documents refers to a payment in lieu of notice. In relation to the Respondent’s claim during the hearing that the payment in lieu of notice was included in ‘45.6 hours Time in lieu (ADO) (Remaining balance)’, I note that there is no evidence to support this claim. Further, it appears to me that it is unlikely that a time in lieu payment would include a payment in lieu of notice as they are distinctly different entitlements so it would be illogical to combine them. In this regard I note that a time in lieu payment is in respect of additional hours worked and ADO is likely to refer to ‘accrued day off’ which is a distinctly different entitlement to payment in lieu of notice. In the circumstances there is insufficient evidence before me to conclude that the payment made to Ms Mulay included payment in lieu of notice. In any event, the payment does not support the Respondent’s contention that the date that Ms Mulay’s dismissal took effect was 15 April 2024 as according to the Respondent’s evidence, the payment was made two days after this date.
In relation to Ms Dulay not returning to work after 15 April 2024 and taking her personal belongings, these are matters which could show that Ms Dulay was no longer employed by the Respondent, however, they could also show that the Respondent did not require Ms Dulay to attend the workplace during the notice period. The latter is common practice and is sometimes referred to as ‘gardening leave’.
In relation to Ms Hill’s evidence that she informed Ms Dulay that the dismissal took effect immediately, this was contradicted by Ms Dulay’s evidence that termination would take effect on 21 April 2024, and that she may be required to work shifts until 21 April 2024. It was very unusual that neither Ms Dulay nor Ms Hill were required for cross-examination although they were both in attendance at the hearing. Consequently, I am unable to make any findings about their credibility and must assess their evidence on the basis of the other material before me.
Given that there appeared to be some tension between Ms Hill and Ms Dulay on 15 April 2024 as a consequence of the termination, I believe that it is unlikely that Ms Hill advised Ms Dulay that she may be required to work shifts until 21 April 2024. However, I accept Ms Dulay’s evidence that Ms Hill told her that the termination took effect on 21 April 2024 as this is consistent with the clear and unambiguous language of the termination letter written by Ms Hill which states ‘your employment will end on Sunday 21stApril 2024’. I also note that the termination letter does not refer to 15 April 2024 as being the termination date.
In relation to the notice payment, I note that the letter states, ‘In lieu of the NES (national employment standards) notice period of 1 week, you will receive 1 week payment of wages.’ [emphasis added]. If the employment had in fact ended on 15 April 2024, the Respondent would have been required to make the payment in lieu of notice on 15 April 2024. The fact that it did not and the letter is expressed as providing for a payment in the future is consistent with the employment continuing until 21 April 2024. The fact that the termination letter refers to a payment in lieu does not alter the clear an unambiguous language with respect to the date that the employment will end. Further the letter states, ‘you will also be paid your accrued entitlements in-line with the NES (national employment standards) up to and including your last day of employment.’ In my view ‘last day of employment’ is a reference to the date that the employment will end, being 21 April 2024.
Taking into account all of the evidence before me, I find that the dismissal of Ms Dulay on 15 April 2024 was a dismissal with notice and that the date of the expiration of the specified period of notice was clearly identifiable in the text of the letter of termination as 21 April 2024. As such I find that Ms Dulay’s dismissal took effect on 21 April 2024 and her application was lodged within the 21-day period prescribed by s.366(1)(a), and no extension of time under s.366(2) is required.
Consideration – the Respondent’s application to reopen its case
In Esso Australia Pty Ltd v The Australian Workers’ Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union[30], Deputy President Gostencnik, (as he then was), expressed the view that the exercise of the discretion to allow a party to reopen their case is to be guided by the principle of whether in the circumstances:
…the interests of justice are better served by allowing them to reopen their case than by refusing their application to do so. The evidence that is sought to be adduced in relation to an application to reopen the case plainly needs to be fresh evidence, that is, evidence that was not available and could not have been adduced at the time of the hearing. It must be relevant in the sense that it engages with one or more issues requiring determination and it must be material, that is sufficiently probative of one or more of those issues so that it may be said that its admission will most probably affect the deliberations as to the result.[31]
I have adopted this approach in my consideration of the Respondent’s application to reopen its case.
The Respondent was on notice that Ms Dulay was claiming that the date the dismissal took effect was 21 April 2024 at least as early as the initial directions conference before me on 7 June 2024. This was seven weeks before the hearing. At any time during this period and particularly leading up to the date that its material was due, the Respondent could have searched its records for email evidence supporting its claim that the date the dismissal took effect was 15 April 2024. It has not explained why it did not do so and why the email which it now seeks to rely upon only came to light after the hearing concluded. In the circumstances, I am not satisfied that the evidence which is sought to be adduced was not available and could not have been adduced at the time of the hearing.
Further, the Respondent presented a weak evidentiary case. If, as it claimed, the ‘day of termination’ was 15 April 2024:
it did not issue written notice of termination on 15 April 2024 as required by s.117(1) of the FW Act;
it did not make a payment in lieu of notice on 15 April 2024 as required by s.117(2)(b) of the FW Act;
it made a payment to Ms Dulay on 17 April 2024 but did not specify in any of the documents it relies upon in relation to the payment that it was in respect of notice of termination;
it sent a letter to Ms Dulay on 17 April 2024 advising her ‘employment will end on Sunday 28thApril 2024’.
it sent a letter to Ms Dulay on 18 April 2024 advising her ‘employment will end on Sunday 21stApril 2024’.
it issued Ms Dulay with a payslip which recorded that she had been paid for 38 ordinary hours on 24 April 2024 then claimed that the payslip was issued in error.
The facts which can be objectively ascertained on the evidence before me, when considered together, do not point to the dismissal taking effect on 15 April 2024. It is therefore unlikely that an email from Ms Dulay sent to the Respondent (which Ms Dulay’s representative claimed was sent on 18 April 2024) would be of assistance to the Commission in determining the effective date of dismissal. Even if the email contained an acknowledgement from Ms Dulay that she was dismissed on 15 April 2024, it is difficult to see how Ms Dulay’s subjective views about the date her dismissal took effect could outweigh the evidence which militates against such a finding, particularly as such views would need to be considered in the context of the Respondent’s confusing communication and conduct about the matter as outlined above.
Finally, I note that the reopening of the Respondent’s case would invariably result in further directions being made for the filing of material and further hearing time being allocated to the matter, resulting in potential delays to the conclusion of the matter and the parties incurring further legal costs.
Having regard to all of the circumstances, I do not grant permission to the Respondent to re-open its case. While the evidence the Respondent wishes to adduce may be relevant to the issue requiring determination in this matter, it cannot be considered fresh evidence and I am not satisfied that it is sufficiently probative of the issue in dispute that its admission is likely to affect my deliberations as to the outcome in this matter. Requiring Ms Dulay to incur further costs and potential delays is not justified in these circumstances. The interests of justice are not better served by allowing the Respondent to reopen its case than by refusing its application to do so.
Conclusion
Taking into account the parties’ submissions and all of the evidence before me, I have found that Ms Dulay’s termination took effect on 21 April 2024 and that the application was filed within 21 days of that date.
The matter will shortly be listed for Conference so that the Commission can deal with the matter as required by s.368 of the FW Act.
DEPUTY PRESIDENT
Appearances:
Mr A. Kuschert, for the Applicant
Ms J. Dulay, Applicant
Mr D. Macmahon, for the Respondent
Hearing details:
2024
29 July 2024
In person, Sydney
[1] Witness Statement of Wendy Hill, Digital Hearing Book (DHB), 80.
[2] Witness Statement of Jenessa Dulay, DHB, 29
[3] DHB, 89.
[4] DHB, 88.
[5] DHB, 90.
[6] DHB, 83.
[7] DHB, 82.
[8] DHB, 109.
[9] [2022] FCA 481
[10] Ibid, [206].
[11] [2014] FCCA 450
[12] Ibid, [372]-[374].
[13] [2016] FCCA 2045.
[14] [2016] FWCFB 5500
[15] Ibid, [49].
[16] [48]
[17] [2022] FCA 481, [20].
[18] Shum v Southern Migrant and Refugee Centre Inc & Ors [2020] FCCA 214, [97]
[19] Ibid, [186].
[20] Ibid, [192]-[193].
[21] Ibid, [204].
[22] Ibid, [206].
[23] [2014] FCCA 450, [97]
[24] Ibid.
[25] [369]
[26] Ibid, [353].
[27] Ibid, [359].
[28] Ibid [368].
[29] (1994) 54 IR 185
[30] [2019] FWC 3696
[31] Ibid, [12].
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