Jie Liu v OzDream Tours Pty Ltd
[2024] FWC 1711
•28 JUNE 2024
| [2024] FWC 1711 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jie Liu
v
OzDream Tours Pty Ltd
(C2024/2350)
| COMMISSIONER SCHNEIDER | PERTH, 28 JUNE 2024 |
Application to deal with contraventions involving dismissal
Ms Jie Liu (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with OzDream Tours Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act.
The Respondent has objected to the application on the grounds that the application was filed out of time.
The Commission must be satisfied that the application was not made out of time and, if it was, whether there are exceptional circumstances giving rise to an extension of time.
Relevant law – Dismissal date
Section 366(1) of the Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
As the Full Bench has stated, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]
The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]
The parties are in dispute about when the dismissal took effect.
Submissions and Evidence – Dismissal date
The Applicant submits that the dismissal took effect on 20 March 2024.
The Applicant submitted a copy of medical certificate confirming that she attended the emergency department on 20 February 2024 seeking medical attention. The Applicant was provided with a medical certificate on 21 February 2024 and directed to rest for seven (7) days.
The Applicant also provided a copy of a Workers’ Compensation Capacity Certificate dated 29 February 2024.
The Applicant submitted a copy of an email sent by Ms Winnie Wu of the Respondent, dated 20 March 2024, which states:
“I hope this letter finds you well. This letter is writing to confirm your dismission from our company OzDream Tours and to notice about your last payslip”.
The Applicant submits that this was the formal notification of her employment being terminated.
The Respondent submits that the dismissal in fact took effect on 18 March 2024, as the Applicant had been verbally advised that her employment would end in one months’ time during a meeting between the Applicant and the Respondent on 19 February 2024.
The Respondent, in an email dated 20 March 2024, outlined the following in regard to the meeting on 19 February 2024:
“Meeting attendees: Max Qian (Executive Director), Lee Li (GM), Caesar Wei (operational executive), Winnie Wu (HR director), Jane Liu
The contents of the meeting are:
1, Your department manager Caesar to sort out your work mistakes and confirm with you;
2. HR Winnie summed up and fed back the negative feedback from various departments of the company on your work content;
3. Based on the summary and feedback from all aspects and the discussion by the company's management, we believe that your working ability does not match our job requirements, and we decided to give you a notice of dismissal and the notice is given one month in advance. We would like to give you a one-month transition period to handle the handover of the remaining work, and at the same time give you one month to find a new position which may be more suitable for you. Therefore, you will officially leave on March 18th. During the one-month notice period from February 19th to March 18th, we will not hand over new work contents to you due to the consideration of work efficiency and quality, but you need to finish and hand over your preliminary work, such as the follow-up of the remaining work of the tour group that you were responsible for, and other relevant work data and files’ sorting out, especially the collection and arrangement of business data and bills;
4, the company's general manager Lee and executive director Max confirmed the above resolution notice;
5. The employee Jane agreed to this notice.”
The Respondent submits that the Applicant was verbally notified of the termination of her employment on 19 February 2024 and advised that her employment would end on 18 March 2024.
The Respondent has not provided any witness evidence that confirms a dismissal was formally communicated to the Applicant in February by way of witness statements from Mr Qian, Mr Lee Li, Mr Ceasar Wei, or Ms Winnie Wu.
The Applicant responded to the Respondent’s email of 20 March 2024 on 22 March 2024. In her response, the Applicant disputes the Respondent’s version of events as to what occurred at the meeting on 19 February 2024.
The Applicant, in an email dated 22 March 2024, stated the following in relation to the meeting held in February:
“If you want to dismiss me, the company explicitly stipulates that a written notice of contract termination must be issued. Verbal dismissal is invalid. In the meeting on February 19th, you also mentioned it was a mutual decision, and I had one month to consider. I could also consider finding another job. What I agreed to was this aspect, not agreeing to be dismissed.”
Consideration – Dismissal date
The Applicant and Respondent clearly have very different versions of events as to what occurred during the meeting on 19 February 2024.
I note that the Respondent did not produce any evidence corroborating its position that the Applicant was verbally notified of her termination in February aside from the email it sent to her on 20 March 2024.
Having considered the submissions and upon review the material provided by the parties, I am not satisfied that the Applicant was notified on 19 February 2024 that her employment would be terminated on 18 March 2024. If this was indeed the case, noting this fact was contested by the Applicant, it is questionable as to why there was no witness evidence adduced in support of the Respondent’s assertion. Further, it is questionable that a written follow up confirming the content and outcome of such an important meeting was not issued to the Applicant until over a month later.
Even if I were satisfied that the Respondent communicated a notice of termination to the Applicant in the February meeting, I could not be satisfied that such notice was clearly articulated.
On assessment of the meeting minutes emailed to the Applicant and the Applicant’s response to that email, it is not far-fetched that the Applicant believed the Respondent was providing a further month for both parties to consider the prospects of her ongoing employment. Such conclusion on the Applicant’s part would be especially understandable in the circumstances where the notice of termination was not clearly communicated during, or soon after, the meeting – on assessment of the materials before me and in the circumstances of this matter, it appears that this is likely what occurred.
It is well-established that a dismissal will not take effect for the purposes of calculating the time period for lodgment until the dismissal has been clearly communicated to the employee.
It is the responsibility of the Respondent to ensure that the notice of termination is outlined in such a way that the person receiving the notice could not be confused by the notice being provided.
Whilst the Respondent may have intended to terminate the Applicant’s employment on 18 March 2024 after allegedly giving the Applicant verbal notice on 19 February 2024, I am not satisfied that this was clearly articulated to the Applicant at the meeting on 19 February 2024.
If the Respondent had intended to give the Applicant notice that her employment was to end on 18 March 2024, the Respondent should have followed this up in writing to the Applicant following the meeting of 19 February 2024.
From the submissions and evidence filed by the parties, I have found that the Applicant’s termination of employment was first clearly articulated and communicated to her on 20 March 2024.
Conclusion
Having regard to the matters I have referred to above, I find that the dismissal took effect on 20 March 2024, when it was communicated to the Applicant.
It is a matter of record that the application was filed on 10 April 2024.
Accordingly, the application was not filed out of time and the objection is dismissed.
The application having been made within 21 days of the date on which the dismissal took effect, I do not need to consider whether to allow a further period for the application to be made.
Consequently, the matter will now proceed.
COMMISSIONER
[1] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A; [2015] FWCFB 1877.
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