Juli Playford v Pemberley House Pty Ltd T/A Abacus Industries
[2018] FWC 1669
•21 MARCH 2018
| [2018] FWC 1669 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Juli Playford
v
Pemberley House Pty Ltd T/A Abacus Industries
(C2018/171)
COMMISSIONER PLATT | ADELAIDE, 21 MARCH 2018 |
Application to deal with contraventions involving dismissal – dispute over the date the dismissal took effect – extension of time not required.
Summary
[1] Dr Juli Playford has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment was terminated by Pemberley House Pty Ltd T/A Abacus Industries (Abacus) on 20 December 2017 in contravention of the general protections provisions of the Act.
[2] This application was lodged on 10 January 2018.
[3] On 11 January 2018 Abacus lodged a form F8A which advised that Dr Playford was dismissed on 18 December 2017 and therefore the application was made beyond 21 days from the date of dismissal and was out of time.
[4] On 23 February 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Dr Playford and Abacus were directed to provide an outline of argument by 5 March 2018. Both parties were granted an extension to file their respective documents by 9 March 2018.
Submissions
[5] Dr Playford provided a written submission which is relevantly summarised as follows:
• She was advised of her dismissal on 18 December 2017 but was required to work on 19 and 20 December 2017.
• She did not work after 20 December 2017.
• Her payslip indicated that she was paid for 38 hours work for the week ending 20 December 2017.
• She received a payslip for the week ending 27 December 2017 which indicated that she was paid for 76 hours.
• A ‘Group Certificate’ was provided to her which detailed the period of payment as 1 July 2017 to 20 December 2017.
• The dismissal took effect on 20 December 2017.
• The application was made within the time period allowed.
[6] Abacus filed a written submission which is relevantly summarised as follows:
• A meeting with Dr Playford was conducted on 18 December 2017 where she was advised she was no longer employed as the company was not able to afford to employ her.
• Dr Playford said she wanted to go to Bayswater on Wednesday.
• Abacus recommended she leave on Monday.
• The effective date of the dismissal was Monday 18 December 2017.
• Dr Playford confirmed that 18 December 2017 was the effective date of her dismissal in a communication sent to her adviser (and copied to Mr Shemilt).
• Dr Playford attended for work on Tuesday [19 December 2017] and ‘we just had to put up her presence’.
• Dr Playford did not attend the premises on Wednesday [20 December 2017] and did not provide any evidence of work done at all that day.
[7] A hearing was conducted by way of telephone conference on 20 March 2018. A sound file record of the telephone conference was kept. Mr Alan McDonald of McDonald Murholme represented Dr Playford and Messrs Neale and Lennie Shemilt represented Abacus. Permission was granted to Mr McDonald pursuant to s.596(2)(a) of the Act.
[8] The key issue in dispute in this matter is the date that the dismissal took effect. There is no dispute that Dr Playford was dismissed on 18 December 2017. If Dr Playford’s dismissal took effect on 20 December 2017 the application is within time, if the dismissal took effect before 20 December 2017, the application is out of time and an extension of time will need to be granted for the matter to proceed.
[9] At the telephone conference Dr Playford gave evidence that she was advised on 18 December 2017 that her employment would cease. Dr Playford contended that she advised Messrs Neale and Lennie Shemilt that she would work until 20 December 2017. Dr Playford states that this was agreed. Dr Playford contended that she worked on 19 and 20 December 2017.
[10] Mr McDonald, on behalf of Dr Playford, reiterated his submissions and contended that the evidence pointed to the dismissal taking effect on 20 December 2017.
[11] Mr Neale Shemilt submitted new documents at the hearing, which I received notwithstanding the objection of Mr McDonald.
[12] The first document was prepared by Mr Robert Vosti, Accountant, on a MRV Solutions letterhead dated 15 March 2018. Mr Vosti was not present at the hearing. Mr Vosti’s letter was addressed to whom it may concern and advised that Abacus was unable to continue with the significant outlays made to Dr Playford, as her sales results were below that budgeted.
[13] Mr Vosti contended that Dr Playford was dismissed on 18 December 2017 and was paid one weeks’ notice in lieu.
[14] Mr Vosti advised of his understanding that Dr Playford attended work on Tuesday 19 December 2017 and stated that he was informed that Dr Playford took sales calls on Wednesday 20 December 2017. The final pay calculations were completed by him on 20 December 2017.
[15] The second document was dated 18 December 2017 and I was advised that this document was read to Dr Playford and then given to her. The document was provided as a Word document and was not on a letterhead or signed. Mr Neale Shemilt contended this was the dismissal letter. The document advised Dr Playford that Abacus had just received very bad news from the Accountant and that it was making an appalling loss and that the business could not sustain this level of loss any longer. It states:
“We are going to have to let you go from our employment, unfortunately.
Thanks for all the efforts that you have put in, all the hot days and all the travel, and all the sales chats – we will certainly miss you. I can give you a good reference
I think the fact is that the printing trade is contracting and this is why we aren’t able to make the sales targets – despite all we try, so we need to drastically cut our expenses asap
So, sorry to do this, but it is a must
Thanks again for all you have done for us – and I think it is best if we make it a quick exit to save you more trauma.”
[16] Abacus contends that the reference to ‘cut expenses asap’ and ‘quick exit’ were to be understood as the dismissal taking immediate effect.
[17] Abacus submitted a number of documents with its submissions, included was an email sent by Dr Playford to Mr Vosti (copied to Messrs Neale and Lennie Shemilt) which advised she had been made redundant and that “I have decided to work until Wednesday end of pay week 14th to 20th. There are still many things to be done for the company, I was given the opportunity to leave today by Neale but I declined.” Dr Playford then sought information as to her entitlements.
[18] Messrs Neale and Lennie Shemilt confirmed they received that communication but did not reply. When asked why they did not take issue with the statement about working until 20 December 2017, they both said they did not want to push Dr Playford out the door. A similar response was made in response to the allegation by Dr Playford that it was agreed at the dismissal meeting that she would work until 20 December 2017.
[19] I find it surprising that if Abacus was so firm in its view that the employment must cease on 18 December 2017 that it did not reject the position put by Dr Playford at the dismissal meeting or not respond to the information contained in the email to Mr Vosti.
[20] I find that Abacus did not expressly state the date upon which the dismissal took effect and that the ‘dismissal letter’ submitted at the hearing was worded in a fashion that Dr Playford could not have reasonably concluded that the dismissal took effect on that date. The use of the terms ‘asap’ and ‘quick exit’ do not convey that the dismissal was to occur ‘immediately’.
[21] To determine the effective date I need to consider the conduct of the parties. It is clear that Dr Playford proposed working until 20 December 2017 to conclude her work, and that this proposition was not disputed by Abacus. In addition, Abacus appears to have accepted the work performed by Dr Playford on 19 and 20 December 2017. The payslip for the week ending 20 December 2017 also infers that Abacus paid for this work, as it contained a full weeks ordinary hours and did not cease with effect from 18 December 2017. The payment in lieu of notice (which appears to exceed that referred to by Mr Vosti) was paid separately on 27 December 2017.
[22] I find that the dismissal took effect on 20 December 2017 and that this application was made within the time specified. An Order 1 to this effect will be issued. I note that the matter has already been conciliated and that the conciliator has advised that the parties have reached an impasse, a certificate pursuant to s.368 of the Act will therefore be issued.
COMMISSIONER
Appearances (by telephone):
Mr A McDonald of Counsel on behalf of the Applicant.
Messrs N and L Shemilt on behalf of the Respondent.
Hearing (Conference) details:
2018.
Adelaide:
March 20.
Printed by authority of the Commonwealth Government Printer
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