Lilija Tolj v Assetlink Services Pty Ltd T/A Assetlink
[2012] FWA 5979
•19 JULY 2012
[2012] FWA 5979 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Lilija Tolj
v
Assetlink Services Pty Ltd T/A Assetlink
(U2012/6331)
COMMISSIONER MCKENNA | SYDNEY, 19 JULY 2012 |
Application for unfair dismissal remedy - late application.
[1] Lilija Tolj (“the applicant”) has lodged an application, pursuant to s.394 of the Fair Work Act 2009 (“the Act”), for an unfair dismissal remedy concerning her termination of employment by Assetlink Services Pty Ltd T/A Assetlink (“the respondent”).
[2] The respondent is a contract service provider to the cleaning and security industries. The applicant was formerly employed by the respondent as a cleaner at a site in Rouse Hill, New South Wales, during the period May 2008 to early-March 2012. The applicant is a 56 year old immigrant who was schooled for only four years. The applicant’s first language is Croatian, and she has limited English skills and literacy. The applicant was dismissed by letter dated 2 March 2012.
[3] The dismissal was expressed as taking effect immediately. It is not presently relevant to this decision to outline the circumstances that led to the dismissal. The unfair dismissal application was lodged on 19 March 2012.
[4] In the application form lodged by the applicant, the applicant indicated (in response to question 1 in that form) she was notified of the dismissal on 6 March 2012 and that this was the date the dismissal took effect. In the proceedings, the applicant contended she first became aware the dismissal had taken effect on 6 March 2012, being the date she opened the correspondence from the respondent advising that she had been dismissed on 2 March 2012.
[5] The respondent has taken objection to the application on the basis it has been lodged out of time, contending the dismissal took effect on 2 March 2012. The respondent contended the applicant would have been aware of the dismissal on 5 March 2012 and that she contacted Fair Work Australia on 9 March 2012. The respondent further contended that as the dismissal took effect on 2 March 2012 the application should have been lodged by no later than 16 March 2012.
[6] As to the relevant dates, it is apposite to note that:
- 2 March 2012 was a Friday, being the date the letter of termination was issued;
- 5 March 2012 was a Monday, being the date the respondent contends the applicant must have received the letter;
- 6 March 2012 was a Tuesday, being the date the applicant contends she opened the letter;
- 9 March 2012 was a Friday, being the date of Fair Work Australia correspondence to the applicant concerning the making of an unfair dismissal application;
- 16 March 2012 was a Friday, being the date by which the respondent contends the application should have been lodged to be within time; and
- 19 March 2012 was a Monday, being the date the application was lodged.
[7] In the proceedings on 16 July 2012, the applicant was represented by her daughter, Ms M Tolj; and the applicant was also assisted by an interpreter. The respondent was represented by Mr M Diamond, solicitor.
[8] Written evidence was tendered in the form of a witness statement from the applicant and, in the respondent’s case, an affidavit by Wayne Cooper - National Insurance Manager. The written evidence was tendered without objection and there was no cross-examination.
Date dismissal took effect
[9] Mr Cooper deposed that he advised the applicant of the dismissal in correspondence sent to the applicant by mail on 2 March 2012. There was nothing to suggest that advice concerning the dismissal was otherwise communicated to the applicant, such as by telephone.
[10] The respondent’s case contended the applicant must have known about the termination of employment prior to 6 March 2012, given that the applicant contacted the respondent’s Human Resources Manager on 5 March 2012 and left a message for that manager “enquiring about her termination notice”.
[11] On 6 March 2012, Mr Cooper himself received a telephone call from the applicant at around 8.00am. Mr Cooper deposed that, in that conversation, the applicant wanted to know when she would receive her final payslip. As Mr Cooper was unsure about this, he sent an email to the Payroll Officer at 8.23am on 6 March 2012 as to this matter.
[12] I consider the letter seems likely to have been delivered to the applicant’s address on 5 March 2012 rather than 6 March 2012, given the evidence of Mr Cooper as to the various telephone and emailed communications from around 8.00am on 6 March 2012. However, the situation is not entirely clear, because there was no evidence as to the time of postal deliveries to the applicant’s address. Further, the correspondence may have been delivered to the applicant’s postal address on 5 March 2012, but not actually opened by her until the morning of 6 March 2012 and relevantly prior to her telephone call to Mr Cooper at about 8.00am. That is, there was no evidence from the Human Resources Manager herself as to respondent’s contention that the message left for her by the applicant was an enquiry about a termination notice, only hearsay. Further, the applicant’s own evidence was that she “opened” the letter on 6 March 2012 - which would not seem an unreasonable delay if it was delivered on 5 March 2012.
[13] Even accepting the respondent’s case at its highest as to the date the applicant received the letter, it seems to me there is question as to whether the application is to be considered as being out of time. So much was effectively contended for by the applicant in her response to question 1 in the initiating process and at paragraph 9 in the applicant’s outline of submissions in the proceedings.
[14] The respondent submitted that the 14 day period for lodging an application under s.394 of the Act commences from the date the dismissal took effect, and not, as the applicant had submitted, the date the applicant became aware of the termination of employment.
[15] The position as to the question of when a dismissal takes effect is reasonably well-settled and, in my view, against the respondent’s submissions. For example, in Commonwealth of Australia (Australian Taxation Office) v Wilson [PR901127], a Full Bench of the Australian Industrial Relations Commission said this:
“[11] Counsel for the Commonwealth referred us to a number of authorities but conceded that there are few on point. One decision which appears to us to bear directly on the issue is Transport Workers' Union of Australia v National Dairies Limited (1994) 57 IR 183. In National Dairies Keely J, sitting in the Industrial Relations Court of Australia, was required to decide whether the employment in question terminated before or after the date on which legislation providing statutory remedies for unfair dismissal commenced to operate. In the course of his judgment His Honour said:
"It was accepted by the respondent's counsel, for the purpose of the present hearing, that the employer's letter of purported termination was not received by the applicant until 30 March 1994. In my opinion the mere posting of the letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee. I am unable to uphold the respondent's submission that the intention of the legislature was to make it a contravention of the Act for an employer to perform actions "pursuant to which the employer seeks to terminate an employee even if that wish is never communicated to the employee ie even if a letter of termination posted by an employer is never received by the employee."
With respect we agree with His Honour's conclusion. Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee. Those circumstances did not, however, exist in this matter and we therefore refrain from further discussion of the point.
[12] The Commonwealth seeks to meet this argument. It submits that while the termination could not occur until the respondent received the termination letter, once the letter was communicated the termination operated according to the terms of the letter. Relevantly the letter specified Friday 19 May 2000 as the date of termination. The Commonwealth submits that while the termination did not operate until at least 22 May 2000, once it operated it was effective from 19 May 2000 and within the probationary period.
[13] We reject this submission. We do so primarily because its adoption has the potential to frustrate the operation of the legislation. It would permit a party to select an operative date for termination which bore no relationship to the date on which the termination was to be communicated to the other party. A range of examples could be constructed but it is sufficient to mention only one. We are not prepared to construe the statutory provisions in a way which would permit an employer to deprive an employee of a right of action pursuant to s.170CE [of the Workplace Relations Act 1996] (subject to the discretion in s.170CE(8) to receive an application lodged out of time) by delivering a letter purporting to terminate the contract 3 weeks earlier. Whilst this may be thought a fanciful example, the meaning of the word "termination" in s.170CE(1) is a legal question which must be answered consistently regardless of the facts of the case. It seems to us that in a case of this kind "termination" must be construed to refer to the date on which the termination is communicated to the employee. The same conclusion was reached by Senior Deputy President Williams in Grzelka v Peel Training and Employment (Inc) [Print T3393] at para [13].
[14] We note that a similar conclusion was reached by a Full Bench of the Commission in Burns v Aboriginal Legal Service of Western Australia (Inc) [Print T3496 esp. at para 24]. That case was concerned with the question of whether to accept an application which had been lodged out of time. The date of termination was relevant in order to calculate the number of days by which the application was out of time. It is submitted by the Commonwealth that cases involving a consideration of whether an application lodged out of time should be accepted are to be distinguished from the present case because of the terms of s.170CE(7). That section reads:
"An application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect."
While we doubt whether any relevant distinction can be made between the meaning of the expression "termination" in s.170CE(1) and the meaning of the expression "termination took effect" in s.170CE(7) this is not a matter which requires resolution in this case. We have reached our decision independently of the decision in Burns by construing the expression "termination" in s.170CE(1).”
[16] In Burns v Aboriginal Legal Service of Western Australia (Inc) [Print T3496], to which reference was made in the preceding quote, a Full Bench of the Australian Industrial Relations Commission said:
“[24] As we have already stated, the facts of this matter are not in dispute. The letter of termination purports to make the termination effective from 14 April 2000. The letter, however, was dated 18 April 2000 and was delivered by courier to the appellant’s home address on 19 April 2000. In our view, a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated. The earliest that such communication could be said to have occurred in this case was the date upon which the letter of termination was received at her home address, i.e. 19 April 2000.” [My italics]
[17] Similarly, in Mackenja v Baptist Community Services [2007] AIRCFB 38, this was said:
“[18]There is an additional matter which was not raised in argument. Section 643(14) [of the Workplace Relations Act 1996] requires an application to be lodged within 21 days of “the day on which the termination took effect.” Normally a termination of employment would not “take effect” before it was communicated to the employee concerned, although that may not always be the case. In this case it does not seem to be in contest that the appellant was not aware of the letter of termination until 22 August 2006. The application for relief was filed within 21 days of that date. In cases in which abandonment of employment is alleged the time at which the termination took effect may only be ascertainable after resolving factual and legal issues. It will be rare for such issues to be resolved fairly without a hearing. But if on one view of the material before the Commission the application was within time, there is a strong case for allowing the application under s.643(14).”
[18] Thus, a termination of employment is generally not considered to take effect unless and until it is communicated to the employee. In this case, accepting the respondent’s case at its highest, the applicant received the letter on Monday, 5 March 2012 in circumstances where the application was lodged on Monday, 19 March 2012.
Extension of time
[19] In the event I am wrong in my assessment that the application has not been lodged out of time, I turn to consider the relevant statutory provisions relevant to extension of time.
[20] The reason for the delay: The reasons relied on by the applicant for the delay were:
- the applicant was not aware of the dismissal until 6 March 2012;
- the applicant needed assistance to complete the application form once she had received it from Fair Work Australia due to her lack of English skills and literacy skills; and
- the applicant suffers from a serious anxiety condition, but nonetheless made every effort to seek assistance and to submit the application form within 14 days of her knowledge of the dismissal.
[21] The respondent submitted:
- the applicant was made aware as soon as practicable that she had been dismissed;
- the applicant sought and received assistance from Fair Work Australia and from her daughter prior to the end of the time limit for lodging an application; and
- considering the evidence adduced by the respondent as to contact between the applicant and staff of the respondent, it cannot be accepted that the applicant first became aware of the dismissal on 6 March 2012.
[22] It is common ground the applicant has poor literacy and English language skills and that she was being treated for a medical condition but, on the preponderance of the authorities, those factors would not, in and of themselves, ordinarily or necessarily constitute exceptional circumstances in relation to an extension of time.
[23] If it is the case that the dismissal took effect on 2 March 2012, the time for making an application for an unfair dismissal remedy had already started to run against the applicant, albeit she was unaware of that fact.
[24] Whether the person first became aware of the dismissal after it had taken effect: The applicant was not aware of the dismissal on the date it purportedly took effect, namely, 2 March 2012.
[25] Any action taken by the person to dispute the dismissal: The applicant contacted the respondent on a number of occasions seeking explanation of the contents of the letter terminating her employment and to dispute the dismissal, which she considered to be unfair. The applicant subsequently contacted Fair Work Australia on 9 March 2012, after showing the letter of termination to her taxation agent.
[26] Prejudice to the employer (including prejudice caused by the delay): As to prejudice to the employer, the respondent’s submission referred to the costs that would be associated with defending the application if an extension of time were granted. To the extent this matter was relied on by the respondent, it would be an aspect of prejudice that may be relied on by any respondent and, here, the respondent is a large employer which employs some 920 employees. If the application is indeed late, any prejudice caused by the delay itself would be minimal or non-existent in circumstances where the respondent contends the application should have been lodged by Friday, 16 March 2012, whereas it was lodged on the next working day, namely, Monday, 19 March 2012.
[27] The merits of the application: While the applicant contended the application had substantial merit, the respondent contended to the contrary. In her written submissions at paragraph 16, the applicant contested the respondent’s reliance on s.248 of the Workers Compensation Act 1987 (NSW) as grounding a reason for the dismissal. The applicant essentially maintained she had sustained a compensable, work-related injury even though her workers’ compensation claim has been declined in 2011 and the insurer’s decision was not contested. Notwithstanding the fact there was no extant workers’ compensation claim as at the date of the dismissal, the respondent purported to rely on s.248 of the Workers Compensation Act as leaving it with “no alternative” but to dismiss the applicant. The letter of termination of employment read, in part:
“Further to our recent conversation in relation to your workers compensation claim for the injury that occurred on 30 August, 2011, you advised that you were not capable of travelling to any other site than our Rouse Hill Town Centre site. As previously advised [named medical practitioner] is of the opinion that you should not return to the Rouse Hill site.
We wish to advise that we have now reviewed your situation and unfortunately we are not in a position to offer you an alternate [sic] site and pursuant to Section 248 of the Workers Compensation Act of 1987 we are left with no alternative but to terminate your services immediately, and we will pay an [sic] outstanding entitlements owed to you into your bank account today. ...” [My italics]
[28] Section 248 of the Workers Compensation Act, on which the respondent expressly relied in its letter of termination, is a provision dealing with offences and penalties provisions against employers concerning the dismissal of an employee within six months of sustaining a compensable, work-related injury. Section 248 of the Workers Compensation Act is not a legislative provision which, it appears, validly could be relied on as a reason for an employer to assert it had “no alternative” but to dismiss an employee - and this is so irrespective of whether a workers’ compensation claim made by an employee has been accepted or (as in the case of the applicant) declined by the insurer. It seems to me the applicant may have an arguable case for an unfair dismissal remedy.
[29] Fairness as between the person and other persons in a similar position: The submissions for the applicant relevantly referred only to what might be regarded as subjective fairness.
Conclusion
[30] I doubt this application is out of time as I do not consider, having regard to the authorities cited earlier, the dismissal took effect until 5 March 2012, at the earliest, but possibly on 6 March 2012.
[31] If, contrary to my primary view, the application is out of time on the basis that the dismissal took effect on 2 March 2012 then I am otherwise satisfied an extension of time should be granted because the applicant did not know she had been dismissed on 2 March 2012.
[32] The applicant’s lack of knowledge of the dismissal until 5 March 2012, at the earliest, strongly favours an extension of time in circumstances where the application was lodged on 19 March 2012. That is, the legislation provides that an application for an unfair dismissal remedy must be made within 14 days after the dismissal took effect. Here, the applicant lodged her application within 14 days after she first become aware she had been dismissed. As a result of contacting on Fair Work Australia on 9 March 2012 in connection with making an application or by virtue of the subsequent receipt of the materials from Fair Work Australia, or both, the applicant would have become aware of the time stipulation for making an application. However, it seems to me that it would visit an injustice on the applicant - such as to constitute exceptional circumstances - if the applicant were not to be allowed the benefit of same period of time of 14 days from the time she first became aware of the dismissal for lodging her application. For me to determine otherwise would be effectively to deprive the applicant of the benefit of the period of time of 14 days for making an application that ordinarily applies where an applicant is contemporaneously aware of the date of dismissal; and in circumstances where I consider she has an arguable case for an unfair dismissal remedy.
[33] If an extension of time is actually required in the particular circumstances of this application, I would make an order granting it. Given my primary conclusion that the application is not late, I do not, however, consider it necessary to make an order in relation to an extension.
[34] The application will now be remitted for programming concerning the substantive application.
COMMISSIONER
Appearances:
Ms M Tolj for the applicant, Mrs L Tolj.
Mr M Diamond, agent, for the respondent, Assetlink Services Pty Ltd T/A Assetlink.
Hearing details:
2012.
Sydney:
July 16.
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