Juanfeng Zhao v The Trustee for the Abberfield Family Trust

[2023] FWC 2853

[2023] FWC 2853

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Juanfeng Zhao
v

The Trustee for THE ABBERFIELD FAMILY TRUST

(C2023/5049)

COMMISSIONER CIRKOVIC MELBOURNE, 30 OCTOBER 2023

General protections dismissal dispute - application filed within time.

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

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

1. Before dealing with the dispute, the Commission must be satisfied that the application was not made out of time.

1. This published decision reflects the decision I gave orally at the hearing on 30 October 2023 with corrections for grammatical, syntactical and any other insignificant errors.

1. Subsection 1 of section 366 of the Fair Work Act provides 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.

1. Under subsection 2 of section 366 of the Fair Work Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters listed in that subsection. Those matters are:

(a)   the reason for the delay;

(b)   any action taken by the Applicant to dispute the dismissal;

(c)   prejudice to the employer (including prejudice caused by the delay);

(d)   the merits of the application; and

(e)   fairness as between the Applicant and other persons in a similar position.

1. As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.

1. In this case, there is a dispute about when the Applicant’s dismissal took effect. Accordingly, there is a question as to whether the application was made out of time. The application was lodged on 20 August 2023 at 12.07pm.

First, I must consider when the dismissal took effect.

1. The parties are in dispute about when the dismissal took effect.

1. As noted by the Full Bench at paragraph 36 of its decision in Ayub v NSW Trains, which is at [2016] FWCFB 5500, a dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware. Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter (see the decision of the Full Bench in Foyster v Bunnings Group, which is at [2017] FWCFB 3923).

1. The Applicant in her Form F8 states that she was notified of her dismissal on 2 June 2023 and that ‘the letter of termination in written form was written on the 2nd of June however an emailed version was received 22nd June’. In the Applicant’s Outline of Submissions, she states that she was notified of her dismissal by email on 22 June 2023.

1. The Applicant submits in her Form F8 that she was on unpaid leave in China from 22 May 2023 due to a family emergency. The Applicant contends that she applied for leave prior to leaving for China as she knew she would be unable to access her emails in China due to national security, and that the unpaid leave application was accepted verbally by the Respondent’s Director of Nursing (Director of Nursing). The Applicant further states in her written submissions that she sent an email to the Director of Nursing on 17 May 2023, reminding him that she would be on unpaid leave and was going to China on 22 May 2023.

1. At hearing, following a request from the Commission, the Applicant provided copies of the termination letter dated 2 June 2023, correspondence of 17 May 2023 to the Director of Nursing requesting an explanation for her annual leave being declined, correspondence of 18 May 2023 to the Director of Nursing informing him that she is going overseas, correspondence of 20 May 2023 to the Director of Nursing requesting a copy of the annual leave policy, and a copy of her travel itinerary to China for 22 May 2023, returning to Melbourne on the morning of 1 August 2023.

1. The Applicant gave evidence at hearing that her unpaid leave request was approved verbally by the Director of Nursing on 21 May 2023 during her last shift before flying to China.

1. The Respondent claims that the Applicant was terminated because of dereliction of duties on 2 June 2023. The Respondent vehemently disputes the Applicant’s evidence that her unpaid leave request was approved verbally by the Director of Nursing on 21 May 2023, and states that in any event, the Director of Nursing did not have the authority to approve leave, and any such leave was contrary to the Respondent’s written policy.

1. At hearing, at the request of the Commission, the Respondent provided emails of 17 May 2023 and 21 May 2023. The first email was sent by the Director of Nursing on 17 May 2023 to the Applicant and records that ‘unfortunately your annual leave is declined’. The second email was sent by ‘Reception’ to the Director of Nursing on 21 May 2023 and states ‘Alice has informed me that she will still take her leave with no pay this week. I have taken her off the roster for this coming week’.

1. Generally, where an employee is advised of their dismissal by email, the presumption is that an employee will have had a reasonable opportunity to become aware of their dismissal if the email is received in the inbox of the employee’s usual email address (see the Full Bench’s decision in Ayub v NSW Trains at [2016] FWCFB 5500). However, this presumption may be rebutted where there is evidence of circumstances that demonstrate that mere receipt of the email in the inbox did not amount to a reasonable opportunity to become aware of the dismissal. Such circumstances might include the employee being incapacitated due to illness or unable to access their email. As noted in Ayub, a refusal to open an email would not be a circumstance that demonstrates that an employee did not have a reasonable opportunity to become aware of the dismissal.

1. It is not in dispute that the termination letter was forwarded to the Applicant on 22 June 2023 by email and post. At hearing, the Applicant gave evidence that she became aware of her dismissal when she returned from China and opened her ‘mailbox’ and ‘emails’ on 2 August 2023.

1. There is significant conflict between the parties as to the circumstances surrounding the Applicant’s request to take unpaid leave and in particular the conversation between her and the Director of Nursing on 21 May 2023. I note the Respondent’s submission that, in any event, the Director of Nursing does not have the authority to approve a request for unpaid leave of an indefinite period. On the material before me, I am unable to resolve the contest between the parties.

1. What is apparent on the evidence before me is that the Applicant was absent in China from 22 May 2023 until the morning of 1 August 2023. I accept the Applicant’s evidence that she was in China attending her ill parents and that she was unable to access her emails whilst in China due to restrictions imposed on her ability to access her emails on account of national security measures.

1. On the basis of the above, I find that the Applicant did not have a reasonable opportunity to become aware of her dismissal until sometime after 8.40am on 1 August 2023 when she returned to Melbourne from China. I find that the dismissal took effect on 1 August 2023. I note for completeness that the Applicant contends her dismissal took effect on 2 August 2023 when she opened her ‘mailbox’ and ‘emails’. In either case, I observe the application is within time.

Conclusion

1. For the above reasons, I have concluded the Applicant’s dismissal was effective 1 August 2023. The last day to file the application was 22 August 2023. The application was lodged on 20 August 2023 and was therefore within time.

1. As I have found 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.

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

COMMISSIONER
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