Leonie Fasoli-Knight v Pilbara Minerals Pty Ltd
[2021] FWC 2063
•29 APRIL 2021
| [2021] FWC 2063 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Leonie Fasoli-Knight
v
Pilbara Minerals Pty Ltd
(U2021/2078)
DEPUTY PRESIDENT BEAUMONT | PERTH, 29 APRIL 2021 |
Application for an unfair dismissal remedy.
[1] Ms Leonie Fasoli-Knight (the Applicant) applied for an unfair dismissal remedy after her employment with Pilbara Minerals Ltd (the Respondent) came to an end. Her application was filed with the Fair Work Commission on 12 March 2021. Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) sets a 21-day timeframe in which an unfair dismissal application must be filed. The Applicant submits she was notified of her dismissal on 24 February 2021 and therefore her application was made within time. However, the Respondent disagrees, purporting that the Applicant’s dismissal took effect on 18 February 2021 and therefore, the application was filed one day late.
[2] If the application is to now proceed, it is necessary for the Applicant to show that her application was made within time, or if it was not made within time, to show that there are exceptional circumstances that warrant an extension of time in which to make the application and that it is fair and equitable for the extension to be granted.
[3] In short, I have determined that the application was not made within the requisite time and that in all of the circumstances, granting an extension of time in which to make the application is unwarranted. The application is therefore dismissed. My reasons follow.
1 Background
[4] As noted, the threshold issue to first be determined is the date that the Applicant’s employment ceased. To determine that date it is necessary to reflect on the background of the matter, which is derived from the following evidence of the parties.
[5] The Applicant’s letter of termination dated 24 February 2021, stated, ‘[W]e write to confirm the termination of your employment by the Company, as identified to you in our meeting of 17th February 2021’. It thereafter detailed that the Applicant had received a written warning dated 8 December 2020 for conduct that was deemed to constitute workplace bullying and referenced a workplace investigation that had been conducted in February 2021 into additional allegations of workplace bullying. The letter expressed that the second investigation concluded that the Applicant had again engaged in workplace bullying.
[6] Whilst the letter of termination referred to two incidents of workplace bullying, it also referred to a meeting that was held on 16 February 2021, in which Mr Charlie Burns, Senior Business Partner, and Mr Simon Coyle, Operations Manager, presented the findings of the second investigation to the Applicant.
[7] During the hearing, the Applicant gave evidence that at the meeting on 16 February 2021, there was a discussion with Mr Burns and Mr Coyle about a deed of release. Mr Burns explained that having informed the Applicant that a decision had not yet been reached to terminate her employment, the Respondent wanted to provide an ‘indicative and non-binding dead of release’ for the Applicant to consider if the result was the termination of her employment. Mr Burns stated that the Respondent sought to offer the Applicant a variation to the mode by which the employment could be ended. That is, by way of resignation instead of dismissal. Following the meeting, Mr Burns sent to the Applicant an email that attached the deed of release and referenced:
[A]s discussed, we will notify you of our decision regarding your employment tomorrow, having fully considered your comments made today. Subject to that decision, should you wish to proceed with the deed of release, I will send you a formal version of the deed, and you make take up to 48 hours to review it and seek external advice as you see fit. Please note that the four weeks pay included in the deed would be separate to, and in addition to your contractual entitlements of four weeks paid notice, annual leave accrual, and grandfathered time in lieu accrual.
[8] The recitals of the ‘indicative and non-binding deed of release’ stated ‘[T]he parties have agreed that the Employment came to an end (the Employment Cessation) on Thursday 18 February 2021 (the Cessation Date)’.
[9] At that same meeting on 16 February 2021, the Applicant was provided with an opportunity to provide a response to the allegations of workplace bullying. Mr Burns said that the meeting was adjourned over night to enable the Respondent to consider the Applicant’s response and make a decision in relation to the matter.
[10] It was uncontentious that on 17 February 2021, a meeting was held by telephone and the termination of the Applicant’s employment was discussed. It was Mr Burns’ account that he informed the Applicant that the Respondent had made the decision to terminate her employment. Mr Burns reiterated that he made a clear and unambiguous statement that the Applicant’s employment had been terminated.
[11] Mr Burns continued that part of the meeting on 17 February 2021 was held on a without prejudice basis to enable a discussion to ensue regarding the variation for the reason for dismissal, from a dismissal to resignation via a deed of release.
[12] The Applicant expressed several times during the hearing that while there was discussion about the termination of her employment in the meeting on 17 February 2021, she did not believe it was finalised. She stated that she thought, in reference to the period from 17 February 2021 to 24 February 2021, ‘we were in discussion and negotiations… I did not believe that was my date of termination’ – referring to 18 February 2021.
[13] Mr Burns sent to the Applicant an email on 17 February 2021, which now attached a ‘formal Deed of Release’ and noted in its contents that the Applicant ‘may elect to sign in exchange for your resignation effective 18 February 2021’. The email also detailed the proposed final payments for the Applicant concerning the four week notice period, annual leave accrual and grandfathered time off in lieu. In respect to these entitlements, Mr Burns wrote, ‘[T]he payments pertaining to the three bullet points above will be made irrespective of whether or not you sign the Deed’. The attached ‘formal Deed of Release’ referred to an employment end date of 18 February 2021.
[14] On 18 February 2021, the Applicant responded to Mr Burns’ email providing a counteroffer to the terms of the ‘formal Deed of Release’. It was noted in the Applicant’s email that the changes she requested would enable full and final settlement and if her requests were met, she was prepared to execute the Deed of Release. Later in the day of 18 February 2021, Mr Burns replied, noting that the Respondent declined parts of the counteroffer.
[15] Whilst parts of the counteroffer had been declined, the Applicant then pressed to have included in the Deed of Release agreed entitlements for ‘mobile reimbursement’ and ‘sick leave’. The Applicant confirmed by email dated 19 February 2021 that once the changes to the Deed of Release were provided, she would ‘review and execute accordingly’. Not long after the Applicant’s email, Mr Burns responded, attaching an updated Deed of Release that provided for the two ‘entitlements’. The updated Deed of Release again referred to an employment end date of 18 February 2021.
[16] It appears that by the afternoon of 19 February 2021, the Applicant had decided that she required a three month ex gratia payment in addition to her normal entitlements, including the applicable notice period. Her counteroffer was to remain open until 22 February 2021. By 22 February 2021, Mr Burns replied on behalf of the Respondent rejecting the Applicant’s counteroffer. In that same email, Mr Burns noted ‘[S]hould you choose not to accept the Deed, your termination of employment will be technically formalised effective from 18 February 2021’. At hearing, the Applicant acknowledge receipt of the email but clarified that she thought the parties were still in ‘discussion and negotiations’.
[17] By email dated 23 February 2021, the Applicant informed Mr Burns that she was not prepared to accept the Deed of Release provided on 17 February 2021. In the second paragraph of the Applicant’s email dated 23 February 2021, she wrote:
Further, I want to check my understanding as per our phone conversation of Wednesday February 17. I was told in that phone call that I had an option to sign the deed, and if I did not sign the deed that my employment would be terminated. Could you please clarify for me, that by not signing the deed, which I am not prepared to do, that my employment is terminated?
2 When did the dismissal take effect?
[18] Section 386(1)(a) of the Act defines the term ‘dismissed’ as a situation where a person’s employment has been terminated at the initiative of the employer or where a person is forced to resign as a result of some act of the employer. A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 1 What will constitute ‘communicated’ for the purpose of providing notice, will vary on a case-by-case basis and must be considered and applied taking in account the particular circumstances of a case.
[19] At common law, it is accepted that an employer may unilaterally terminate the contract of employment with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. 2 Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective.3
[20] Returning to the threshold issue for determination in this case, the Applicant gave evidence that she did not consider that her dismissal took effect until 24 February 2021. Her belief was premised on the notion that to effect her dismissal the Respondent was required to communicate to her in writing that she was dismissed. Further, while she understood that the intention of the Respondent was to dismiss her, this was not finalised, said the Applicant, until 24 February 2021, the date when she first became aware of the termination of her employment. The Applicant pressed that the discussions and negotiations between the parties impacted the dismissal date. However, based on the evidence before me, I am unpersuaded that this is the case.
[21] Mr Burns said he had verbally communicated to the Applicant on 17 February 2021 that the Respondent had terminated the employment of the Applicant effective 18 February 2021; his account aligning with the other evidence adduced. At hearing, the Applicant acknowledged that this was the Respondent’s intent, but again advanced that her belief was that a termination of employment did not occur until she had received written notification.
[22] In her Form F2, the Applicant identified she was notified of her dismissal on 17 February 2021 and that it took effect on 18 February 2021. It was not until the Respondent objected to her application on the jurisdictional ground that the application had been filed out of time that the Applicant provided the following account in her ‘Outline of Argument: Extension of time’:
1. When were you notified of the dismissal?
Verbally by phone – had a phone call with Pilbara Minerals (Charlie Burns) – Wednesday 17 February 2021 – Intention to terminate my employment however wanted me to agree to a Deal which included resignation. We were still in discussion on termination.
Email – Formal dismissal letter received by email from Pilbara Minerals – Wednesday 24 February 2021, 4pm This was when I formally received confirmation of termination.
2. How were notified of the dismissal?
Initially verbally by phone – Wednesday 17 February 2021, 1pm as outlined above.
[23] On 17 February 2021, the Applicant was sent a ‘formal Deed of Release’. Noted in its contents was that the Applicant ‘may elect to sign in exchange for your resignation effective 18 February 2021’. That same email however detailed the proposed final payments including entitlements such as the four week notice period. It expressed that such entitlements would be paid irrespective of the Applicant signing the deed. Again, the Deed of Release referred to an employment end date of 18 February 2021.
[24] The Applicant recalled receiving an email from Mr Burns dated 22 February 2021 in which he stated that should she chose not to accept the Deed of Release that her employment would be technically formalised on 18 February 2021. While the Applicant expressed a belief that she thought both her and the Respondent were in discussions and negotiations still, the correspondence of 18 and 19 February 2021 from the Applicant to Mr Burns demonstrates that those negotiations and discussions pertained only to the terms of the Deed of Release relating to financial amounts, converting carer’s leave to sick leave and a breakdown of withholding tax.
[25] Subsequent correspondence from the Applicant to Mr Burns in the latter part of the day on 19 February 2021, referred to, ‘[S]hould my employment be terminated’. Again, Mr Burns confirmed that the Applicant’s employment had already terminated, noting, ‘[F]irstly, it is the position of the Company that we have enacted the termination of your employment with just cause…’. While the Applicant noted in her email to Mr Burns of 23 February 2021 that she sought to check her understanding that by not signing the Deed her employment was terminated, this does not dissuade me from making the following finding.
[26] I am of the view that it was consistently and unequivocally communicated to the Applicant that the end date of her employment was 18 February 2021. Whether the ending of her employment was to be by way of dismissal or resignation was in effect placed in her hands, but the date was not. On any objective level, it is open to find that the Applicant’s dismissal took effect on 18 February 2021 and therefore her application has been made outside of the requisite statutory period.
3 Extension of time
[27] Under s 394(2) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd. 4 In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can 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.
[28] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if it is satisfied that there are exceptional circumstances taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person 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 person and other persons in a similar position.
[29] Each of these factors are considered below.
3.1 Reason for the delay
[30] The Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation. 5 The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.6
[31] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application. 7 However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.8
[32] The parties were informed of the factors the Commission takes into account when determining whether to grant an extension of time. Notwithstanding the Applicant advanced her case primarily on the basis that her application had been filed in time. It, therefore, followed that she attributed the delay in making her application to two factors. The first, her belief that she could not submit her unfair dismissal application until she had received formal written notification in the form of her termination letter and the second, as she received her letter of termination on 24 February 2021, she was under the impression that this was the effective date of dismissal and she was therefore within the required timeframe for making her application. The Applicant acknowledged that she was uncertain of the termination process which had resulted in the situation.
[33] Whilst the Applicant noted in her written submissions that she was extremely distressed having been informed ‘I was to be terminated’ on 17 February 2021 and was unable to think clearly, needed time to investigate her options, had not been well and had to deal with the unexpected death of a close friend, that did not appear to preclude her from negotiating the terms of a Deed of Release. It is observed that on 18 February 2021, the Applicant sent to Mr Burns an email setting out amongst other matters:
…
I request the below changes are made in relation to the Deed of Release to enable full and final settlement:
1) The settlement amount is adjusted as follows;
• is increased to six months’ salary…
• reimbursement of phone allowance for the period Nov 2019 to Feb 2021…
• carers leave uploaded and recorded by Pilbara Minerals in ConnX for the period 5-9 February be changed to Sick Leave with medical …
• allowances owed as per email …
2) Pursuant to Clause 2 of the settlement agreement a breakdown of the withholding Tax is required to be provided to the me prior to Pilbara Minerals making the payment in 2.a)1). Accordingly, Pilbara Minerals is to confirm the deductions made, align with the existing Tax thresholds relevant to me and as such do not unduly increase my Tax liability as a result of the payment…
Noting the above requests are met, I am prepared to execute the Deed of Release with the above noted changes …
[34] Similarly, on 19 February 2021, the Applicant provided a further counteroffer in response to that proffered by the Respondent, cogently articulating her demands. It is difficult to reconcile the Applicant’s assertions of having been so affected with stress and anxiety such that she was incapacitated from making her application in time, against evidence which simply does not paint a picture of someone absent clarity of thought.
[35] As observed, the Applicant gave evidence of experiencing stress and anxiety in the period between the dismissal and the lodging of her unfair dismissal application. Inevitably, losing a job may cause distress, as can the passing of a close family friend, and while I appreciate that the Applicant speaks of circumstances that were difficult, they were not however exceptional. Furthermore, in the absence of direct or corroborative evidence to substantiate such difficulties, it is simply not open to find that these circumstances were exceptional.
[36] An argument that the Applicant was operating under a misapprehension regarding the requirement to have received a written letter of termination such that she was unaware of her legal rights, is also insufficient in and of itself to constitute an ‘exceptional circumstance’ within the meaning of the Act. 9
[37] I have considered the delay as the period beyond the 21-day period, and while the application was made one day late, I am not satisfied that the Applicant has made out an acceptable or reasonable explanation for the period (or part thereof) of the delay in lodging her unfair dismissal application. This weighs against a finding that there are exceptional circumstances.
3.2 Whether the person first became aware of the dismissal after it had taken effect
[38] For the reasons detailed at paragraphs [20]-[25] of this decision, I am of the view that the Applicant became aware of her dismissal on 18 February 2021. I, therefore, consider this to be a neutral consideration.
3.3 Action taken by the person to dispute the dismissal
[39] In the Applicant’s email dated 19 February 2021, the Applicant referred to her intent to seek further legal advice regarding her options ‘should’ a decision to terminate be based on no foundation or rationale. Those options included unfair dismissal, adverse action and breach of her contract. The Applicant noted that this was not her preferred approach and she sought to settle things sensibly. However, the actions taken by the Applicant after her dismissal were not actions to dispute her dismissal, but were assertions made in settlement negotiations with a view to leveraging a preferrable settlement agreement.
[40] The Applicant has traversed in her written submissions the steps she took to argue against her dismissal after she became aware of it. However, the content is an account regarding the disciplinary process and the Applicant’s view as to its inadequacy from a procedural perspective.
[41] It follows that there is no evidence before the Commission that the Applicant took any action to dispute her dismissal once it had taken effect on 18 February 2021, other than by lodging her application for an unfair dismissal remedy. In all of the circumstances, I am satisfied that this weighs against the grant of an extension.
3.4 Prejudice to the employer
[42] The Respondent has contended that it is disadvantaged because it has had to spend considerable time preparing a response to the application. I am not persuaded, based on this assertion, that prejudice would arise if an extension of time was granted. I consider this to be a neutral consideration.
3.5 Merits of the application
[43] In Kornicki v Telstra-Network Technology Group, 10 the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said, in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit. 11
[44] Concerning the substantive application, the merits have not been fully tested. Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application. 12 The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded. It is for these reasons that I have concluded this factor to be one that is neutral.
3.6 Fairness as between the person and other persons in a similar position
[45] The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by the Deputy President in Morphett v Pearcedale Egg Farm, 13 where it was said:
[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission. 14
[46] I am not satisfied that the criteria of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party based on the submissions filed by both parties.
4 Conclusion
[47] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. Having considered each of the statutory criteria and all of the circumstances of the matter, I am not satisfied that there are exceptional circumstances that support an extension of time.
[48] While appreciative that the delay in making the application was one day, having regard to the reasons for the delay in culmination with the other factors one considers under s 394(3), which are predominately neutral, it remains the case that it is not fair and equitable to grant an extension of time.
[49] In short, the Applicant demonstrated competence in her negotiations regarding the terms of settlement and appeared unaffected by a lack of clarity in her thought processes. There was no direct evidence to support the impact upon her of other purported personal circumstances. While the Applicant may have operated under the misapprehension regarding when her dismissal took effect, she was clearly cognisant of potential claims or applications open to her by way of recourse for her dismissal. Therefore, it was always open to her to research the point or seek advice on the same. The Applicant’s unfamiliarity of the law does not assist her in this respect. As noted, the other factors considered under s 394(3) are predominately neutral except for the Applicant not taking steps to dispute the dismissal – a factor which weighs against the granting of an extension of time.
[50] It follows that the Applicant’s application for an unfair dismissal remedy is dismissed. An Order 15 will be issued with this decision.
DEPUTY PRESIDENT
Appearances:
Ms Leonie Fasoli-Knight, the Applicant;
Mr Charlie Burns for the Respondent.
Hearing details:
Perth (telephone)
April 15
2021
Printed by authority of the Commonwealth Government Printer
<PR728650>
1 Burns v Aboriginal Legal Service of Western Australia (Inc) (AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 [24].
2 Mohammed Ayub v NSW Trains[2016] FWCFB 5500 [17].
3 G J McCarry, ‘Termination of Employment Contracts by Notice’ (1986) 60 Australian Law Journal 78 [79].
4 Nulty v Blue Star Group Pty Ltd [2011] 203 IR 1 (‘Nulty’).
5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 [39].
6 Ibid.
7 Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 [40].
8 Mr KeMitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 [12].
9 Nulty [14].
10 Kornicki v Telstra-Network Technology Group Print P3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
11 Ibid.
12 Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899.
13 [2015] FWC 8885.
14 Ibid [29].
15 PR728988.
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