Juliet Emma Kenworthy v Di Placido Group Pty Ltd
[2024] FWC 2447
•9 SEPTEMBER 2024
| [2024] FWC 2447 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Juliet Emma Kenworthy
v
Di Placido Group Pty Ltd
(U2024/8037)
| DEPUTY PRESIDENT O’KEEFFE | PERTH, 9 SEPTEMBER 2024 |
Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed
Ms Juliet Kenworthy applied to the Fair Work Commission (FWC) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with the Di Placido Group Pty Ltd (Di Placido).
Di Placido has objected to the application on the ground that the application is out of time. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time. On 3 September I held a hearing to determine the jurisdictional objection. Both parties represented themselves. Evidence was provided by Ms Kenworthy as the applicant and by Mr Luca Di Placido on behalf of Di Placido.
When must an application for an order granting a remedy be made?
Section 394(2) of the FW 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.
When did the dismissal take effect?
There is no dispute that Ms Kenworthy’s application was made on 11 July 2024. For the application to have been made in time, the dismissal would have had to have taken effect on 20 June 2024. The parties are in dispute about when the dismissal took effect.
Submissions and evidence
Ms Kenworthy submits that the earliest that dismissal could have taken effect is on 20 June 2024, being the date on which she says she opened an email dated 19 June 2024 from Mr Lucas Di Placido. The email, which was in evidence, read in part as follows:
“As you refuse to attend work, we have no choice but to terminate your employment with us.
If you do choose to turn up for work tomorrow without your dog, we will happily rescind this termination letter.”[1]
In her written submissions Ms Kenworthy claimed that the message was not a clear and unambiguous communication because it contains mixed messages. It was Ms Kenworthy’s further submission at hearing that she had not understood the gravity of the email and that she expected a more formal process of termination. Given this, she had sought advice as to what the letter meant, and it was only having received this advice that she understood she was terminated. As such, she submitted that her application should be regarded as having been made in time.
The Respondent submits that the dismissal took effect on 19 June 2024 when it sent the email. It submitted that the email was clear in that it was titled “Termination Letter”, stated that Ms Kenworthy’s employment was terminated and emphasised that should she comply with instructions the termination could be rescinded. Further, as the parties had exchanged emails earlier in the day, there was no reason why Ms Kenworthy should have been prevented from accessing her emails. In response to this, Ms Kenworthy explained that she did not have an application on her phone for her emails and that she needed to use her phone to access the internet and then log into her email account. As such, she did not receive alerts when an email was sent.
Findings
I do not accept the submission that the email sent by Di Placido on 19 June 2024 was ambiguous and hampered by mixed messages. I find that the email was sufficiently clear in its wording to constitute a termination of employment. It did offer a possibility that the termination could be rescinded, but only in particular circumstances and not in such a way as to confuse the message of dismissal. Further, the ordinary meaning of rescind is to revoke or cancel, and a termination can logically only be revoked or cancelled if it has been given effect.
While Ms Kenworthy claimed that she was a practical person with an aptitude for trades work rather than administrative work and thus did not understand what was happening, I find that the email is nonetheless written in such a way as to clearly convey its intent. It does not rely on jargon or euphemisms but rather uses plain English to advise Ms Kenworthy that her employment was terminated. I would not normally expect an employer to go further than this unless there were very clear reasons – such as a person not being fluent in English – to suggest that the person would not understand what was written.
I should also comment that although termination by email may in most cases be regarded as problematic, in this instance Ms Kenworthy was not attending work and had been warned that further non-attendance may result in termination. In such circumstances, the practical options for Di Placido were to contact her by phone call, SMS or email. Of these options email is arguably the best in that there is a record of the correspondence taking place and a record of exactly what was said.
I then turn to when the termination took effect. In doing so, I rely on the views expressed by the Full Bench in Ayub V NSW Trains[2] (Ayub) as follows:
“In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However, a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal...
…NSW Trains’ email to Mr Ayub of 18 January 2016 can only have affected the dismissal on that day, when the email was sent and apparently received by Mr Ayub at his email contact address, or on 19 January 2016 when he actually read it. Because there was no evidence demonstrating that Mr Ayub did not have a reasonable opportunity to read the email on the 18th, we incline to the view that that was the date upon which his dismissal was effective...”
Ms Kenworthy confirmed at hearing that while she did not have alerts on her phone to advise an email had been received, there was no reason that she could not have read the email sent by Di Placido on 19 June 2024.
Conclusion – date of dismissal
In summary, I therefore find that the email dated 19 June 2024 advised Ms Kenworthy in clear terms that her employment was terminated. That email could have been accessed by Ms Kenworthy on that date and given this, I am satisfied that the date of dismissal was 19 June 2024. As noted above, the application was lodged on 11 July 2024, being 22 days after the dismissal and outside of the 21-day time limit imposed by the Act. Ms Kenworthy wants to proceed with her application and so it is therefore necessary to consider whether an extension of time should be granted.
Are their exceptional circumstances that would merit an extension of time to lodge the application?
Under section 394(3) of the FW Act, the FWC may allow a further period for an unfair dismissal application to be made if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the Applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the Applicant to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3] As neither party had made any effective submissions regarding the above matters, at hearing I questioned both of them with respect to each of the individual matters to ascertain their views. I set out my consideration of each matter below based on the responses given.
Reason for the delay
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]
Submissions and evidence
Ms Kenworthy submitted that the delay had been due to a number of factors. Her evidence was that after her dismissal she had approached the Western Australian Apprenticeship Board for advice and that they had referred her to the Fair Work Ombudsman who had in turn referred her to Circle Green Legal. However, her evidence was that she had engaged with Circle Green within two days of her dismissal. I note that at conciliation and prior to hearing Ms Kenworthy had been represented by Circle Green.
However, as she had been speaking with her direct manager and believed that there may have been some possibility of re-employment by Mr Di Placido, she had asked Circle Green to lodge the application on the last possible day. Ms Kenworthy stated that she had forwarded the emails between herself and Mr Di Placido to Circle Green and advised them that she had received the notice of termination on 20 June 2024. Circle Green lodged the application on 11 July 2024.
Di Placido submitted that there was nothing to suggest Ms Kenworthy had lodged the application at the first opportunity or indeed for some time after that. Di Placido submitted that the application may have been a “last minute” decision on the part of Ms Kenworthy. Mr Di Placido’s evidence was that he did not accept that there had been any conversations between himself and Ms Kenworthy’s direct manager about Ms Kenworthy returning and that on the contrary he had only spoken to that person about why Ms Di Placido could not return.
Findings
I am inclined to accept Ms Kenworthy’s evidence that she engaged with Circle Green soon after her dismissal, and that she did provide them with the various emails between herself and Mr Di Placido including the dismissal email. I note that the Form F2 which originated the application was completed by Circle Green and those emails were appended to the Form F2. I also accept that Ms Kenworthy had been having conversations with her former direct manager about returning but I further accept that based on Mr Di Placido’s evidence that any implication from the direct manager that there was a possibility of reinstatement was misconceived.
I now turn to the reason for the late lodgment by Circle Green. Ms Kenworthy had seemingly inferred to Circle Green that she was terminated on 20 June 2024. Circle Green appeared to be of the view that this was the correct date because of its assessment of the various emails sent by Mr Di Placido. In the Form F2 Circle Green argued that the termination was given effect by Mr Di Placido’s email of 20 June. I disagree with this argument and take the view that the email of 20 June 2024 merely confirmed the termination from the previous day. Although the argument was not put by Ms Kenworthy, I believe I must address the issue of representative error, as it might be argued that Circle Green were in error in taking 20 June 2024 as the termination date.
It appears to me that Circle Green had formed a view on the termination and stood ready to argue that view. However, I find that the argument has little merit. The email from Di Placido dated 19 June 2024 clearly terminates Ms Kenworthy’s employment. She claims to have not received that email until 20 June 2024 but Ayub disposes of any argument that this is the termination date.
The argument that the email from Di Placido dated 20 June 2024 dismisses Ms Kenworthy also lacks merit. That email does nothing more than confirm the termination from the previous day. I am also inclined to the view that it would have been prudent for Circle Green to take a conservative approach to the date of dismissal given the potential consequences for lodging out of time. Given this, I take the view that there is some element of representative error.
However, this must be tempered by Ms Kenworthy’s instructions that lodgment must be made at the latest possible time. Applicants to the Commission have 21 days to lodge their claims and there is no suggestion that they are obliged to lodge earlier than 21 days. However, Ms Kenworthy was in a position where her claim could have been lodged within time if she had not issued instructions that it be lodged as late as possible. Given this, I find that such representative error as there may be is not totally responsible for the late lodgment. In assessing the significance that should be attached to this matter, I have formed the view that it weighs slightly in favour of a finding of exceptional circumstances.
Did the Applicant first become aware of the dismissal after it had taken effect?
As found above, the views expressed in Ayub point to a conclusion that in effect Ms Kenworthy should be regarded as having the opportunity to be aware of her termination on 19 June 2024. However, her evidence is that she became aware on 20 June 2024. For the purposes of this matter, I have concluded that 19 June 2024 should be taken as the date when Ms Kenworthy had an opportunity to become aware of her termination. Even if the later date of 20 June is correct, in the circumstances I am not persuaded that there has been any significant disadvantage conferred on Ms Kenworthy and I therefore regard this as being a neutral factor in my consideration of exceptional circumstances.
What action was taken by the Applicant to dispute the dismissal?
Ms Kenworthy gave some unsubstantiated evidence that she had been having conversations with her immediate manager post-termination and that these discussions had led her to believe that Mr Di Placido might contact her to discuss re-employment. However, Mr Di Placido’s evidence was that he was unaware of the nature of any such conversations and that, to the contrary, the discussions he had been having with that manager were to the effect that he could not have Ms Kenworthy back as an employee. Other than this, it appears that Ms Kenworthy did not take any steps other than seeking advice from Circle Green Legal and lodging her claim.
In Jenson Curtin v High Country Plumbing & Gas Fitting Pty Ltd [5] Deputy President Colman said:
“The consideration in s 394(3)(c) is whether the applicant took any action to dispute the dismissal. In my view this is primarily concerned with action taken by the applicant to dispute the dismissal directly with the former employer, such as telling the employer that the dismissal was unfair or would not be accepted by the applicant, rather than action of which the employer is unaware…”
I adopt the reasoning of Deputy President Colman and note that in this case there does not appear to be any evidence of Ms Kenworthy directly disputing the dismissal with Mr Di Placido. I therefore find that this matter weighs slightly against a finding of exceptional circumstances.
What is the prejudice to the employer (including prejudice caused by the delay)?
The parties were not in dispute over this issue and I concur with them that there would be no prejudice to the employer if the application was to proceed. I therefore regard this as being a neutral factor in my consideration of exceptional circumstances.
What are the merits of the application?
It is often the case that the FWC will approach this matter on the basis that merits are most properly assessed when all the evidence is available and has been tested. However, in this matter I believed that it was appropriate to conduct some level of assessment of the merits as much of the evidence that would be relevant to the merits was already before the FWC. On that basis I asked both parties to provide me with their assessment of the merits – with reasons – and I explored those reasons with them.
In essence, the termination arose because Ms Kenworthy had been bringing her dog to work. Mr Di Placido had issued instructions that she was not to continue to do so. It appears that Ms Kenworthy then took some time off work on the basis that she could not make arrangements for her dog to be supervised while she was at work.
Ms Kenworthy made certain submissions that suggested that she did not agree that the termination had been procedurally fair. She said that she had expected a more formal process and expected that the Apprenticeship Board would become involved. She took the view that the termination was a “blindside” and that nothing she had done could be taken to be gross misconduct that would warrant termination. She further submitted that the actions she had taken with respect to her dog were taken in consultation with her immediate manager and she was not aware of any contrary instructions regarding bringing her dog to work.
Mr Di Placido submitted that it had not been his preference to dismiss Ms Kenworthy but her behaviour had meant that his options were limited. Such behaviour is identified in his submissions and evidence where he had identified that Ms Kenworthy was disobeying lawful and reasonable instructions. In assessing the merits of the application I have taken into account the evidence before the FWC and the submissions from the parties.
It appears to me that Di Placido had warned Ms Kenworthy about her behaviour with respect to bringing her dog to work. In evidence before the FWC was an email dated 17 June 2024 from Mr Di Placido to Ms Kenworthy[6]. In that email, Mr Di Placido states as follows:
“Hi Juliet,
I personally spoke to you last week and instructed you not to bring the dog to work as it is an occupational health and safety issue. At no point have I told you that it is okay to bring a dog to work.
There is no issue with your employment with our company and we would like you to attend Work and you are a valued member of our staff. You were sent home today because you deliberately did not follow my instructions last week and brought the dog to work.
You will not be paid today or any other day that you bring the dog to work. I’ve made that very clear to you. You are jeopardising the safety of the dog yourself and everyone else around you.
Can you please attend work tomorrow.”
In response to this email, Ms Kenworthy sent an email to Mr Di Placido wherein she gave some background to her acquisition of the dog in question and claimed that she had been given permission by her manager – who I note is subordinate to Mr Di Placido – to have the dog at work. In that email[7], Ms Kenworthy then states as follows:
“I will have Ike (the dog) with me at work tomorrow unless you or Martin dismiss me for work tomorrow beforehand.”
The parties then exchanged some further emails where it appears neither conceded their position. It also appears from the text of the emails that Ms Kenworthy did not attend for work on 18 June 2024. On that date, Mr Di Placido emailed[8] Ms Kenworthy as follows:
“Hi Juliet
I believe your current actions constitute serious misconduct.
If you continue to not carry out lawful and reasonable instructions as a part of your employment it will lead to further discipline not excluding and up to termination of your employment.
Please take this as your last warning. Please attend work tomorrow.”
Ms Kenworthy responded to this email with an email dated 19 June 2024[9] as follows:
“Good morning,
Having a dog at a workplace such as Indian Motorcycles does not fall under gross misconduct.
Have a great day”
The next correspondence between the parties was Mr Di Placido’s email terminating Ms Kenworthy’s employment. Given that the emails referred to above were not disputed or contested by either party, I accept that they form an accurate record of the interactions between them in the days before dismissal. Given that, I am concerned that Ms Kenworthy seems to have clearly disobeyed a lawful and reasonable instruction from the Managing Director of her employer Mr Di Placido. Further, she has taken a somewhat insouciant approach to addressing the concerns of Mr Di Placido and sought to lecture him about workplace law albeit that the position for which she advocated was incorrect. She has not accepted his authority, nor has she requested any additional leave to allow her to make alternative arrangements for the care of her dog. In these circumstances, I am inclined to the view that if there is to be a weighing of the merits of this case, it would appear to me that scales would clearly tip towards the Respondent. In my view, this is a factor that weighs against a finding of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore regard this as being a neutral factor in my consideration of exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons for the delay, being representative error compounded by Ms Kenworthy’s instructions to delay lodgment;
(b) Ms Kenworthy having the opportunity to be aware of the dismissal at the time that it took effect and, in any case, actually becoming aware one day afterwards;
(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;
(d) the absence of any prejudice to the employer;
(e) the merits of the application being weak; and
(f) no issue of fairness arising as between the Applicant and other persons in a similar position.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[10] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[11]
Of the matters at (a) to (f) above, I found above that (b), (d) and (f) were neutral in my consideration. Matter (a) weighs slightly in favour of exceptional circumstances. However, (c) weighed slightly against exceptional circumstances and (e) weighed firmly against. As such, on balance it is clear to me that when I consider the factors in total, I must find that there are not exceptional circumstances.
Conclusion
I have found that the application lodged by Ms Kenworthy was lodged outside of the 21-day time limit prescribed by the Act. In considering the grant of an extension of time, I have found that there are no exceptional circumstances that would warrant granting such an extension. The application is therefore out of time and must be dismissed. An order to that effect will issue.
DEPUTY PRESIDENT
Appearances:
Applicant: Juliet Emma Kenworthy
Respondent: Lucas Di Placido
Hearing details: Tuesday, 3 September 2024
[1] Court Book page 13 paras 4-5
[2] Ayub v NSW Trains 2016 FWCFB 5500 at [50] and [53]
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[5] Jenson Curtin v High Country Plumbing & Gas Fitting Pty Ltd[2022] FWC 2916 at [10]
[6] Court Book page 15
[7] Court Book page 15
[8] Court Book page 13
[9] Court Book page 13
[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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