Madison Douglas v Taryn J Dennis
[2024] FWC 1397
•29 MAY 2024
| [2024] FWC 1397 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Madison Douglas
v
Taryn J Dennis
(C2024/2811)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 29 MAY 2024 |
Application to deal with contraventions involving dismissal – whether out of time – date dismissal took effect – application to proceed to conciliation
On 1 May 2024 Ms Madison Douglas made a general protections dismissal dispute application under s 365 of the Fair Work Act 2009 (Cth) (FW Act).
The respondent employer is Ms Taryn Dennis trading as Feather Brown and Skin Clinic.
The respondent employer contends that the application is out of time. The applicant disputes this. The applicant seeks an extension of time, if required.
The out of time issue requires determination. If the application is out of time, then, unless time is extended, it cannot proceed further. If the application is not out of time, or if time is extended, a conciliation conference under s 368 must be held.
This decision determines the out of time issue.
I conducted a hearing on 28 May 2024. I heard evidence from the applicant (Ms Douglas) and the respondent employer (Ms Dennis, the owner).
Consideration
Date dismissal took effect
Applications must be made “within 21 days after the dismissal took effect” (s 366(1)(a)).
There is a dispute over the date dismissal took effect.
This dispute is material. The application was filed on 1 May 2024. If dismissal took effect on 11 April 2024, the application was filed on day twenty and is within time. If dismissal took effect on 9 April 2024, the application was filed on day twenty-two and is one day out of time.
A dismissal does not take effect until it is communicated to the employee or communication of the fact of dismissal (such as by letter or electronic means) is readily accessible to the employee.
The respondent employer submits that the applicant was dismissed on 9 April 2024 and that this was confirmed by email on 11 April 2024.
The applicant submits that she was not dismissed until 11 April 2024 when she received an email that attached a letter of termination.
The evidence of Ms Dennis was that:
Ms Douglas went to the workplace (for a meeting) on 9 April;
Whilst at the workplace on 9 April Ms Dennis gave Ms Douglas warning letters and later told her that she was dismissed and gave her a termination letter;
The following day (10 April) Ms Dennis made up Ms Douglas final pay; and
On 11 April Ms Dennis sent Ms Douglas an email attaching the termination letter to maintain a record and paper trail of the dismissal.
In contrast, the evidence of Ms Douglas was:
She was absent from the workplace on 9 April due to an injury, and attended her doctor’s that day;
Did not speak to Ms Dennis on 9 April; and
Did not know she was dismissed until she received an email on 11 April which attached a termination letter dated 9 April.
These are diametrically opposed versions.
Whilst both Ms Douglas and Ms Dennis gave evidence clearly and were confident in their recall, the documentary material provides greater support to a finding, which I make, that the dismissal took effect on 11 April 2024. I do so for the following reasons.
Firstly, two emails (not one) were sent on 11 April. Both are in evidence. The first was sent at 7.01am and referred to a customer complaint on 3 April. That email stated, “we must now hold you accountable” and that “further action will now unfortunately have to be taken”. The second was sent twenty minutes later at 7.21am and attached a notice of termination of employment dated 9 April 2024. It is somewhat implausible that an email advising of impending “further action” would be sent at 7.01am on 11 April if termination had been notified two days earlier.
Secondly, unlike the earlier warning of 25 March 2024 in which Ms Dennis expressly stated “I am writing to follow up after our discussion today”, the termination email of 11 April made no reference to the communication being confirmation of an earlier discussion (on 9 April).
Thirdly, it is somewhat implausible that an employer would send a termination email, solely for record keeping and paper trail purposes, if a letter of termination had already been provided given that a letter itself is a written record. I take into account that the letter of termination is dated 9 April 2024, but this does not mean that it was not first communicated on 11 April 2024.
For these reasons I find that the dismissal of Ms Douglas took effect on 11 April 2024 when she read the email of that date which attached a letter of termination dated 9 April 2024. The evidence is not sufficient to find that there was oral communication of dismissal on 9 April 2024 even though Ms Dennis may well have made the decision that day and calculated final entitlements the following day.
Whether out of time
As the dismissal took effect on 11 April 2024, the application was filed on day twenty and is within time.
I observe that had I found the dismissal to have taken effect on 9 April 2024 (thereby being one day out of time) I would have extended time under s 366(2). I would have done so for the collective combination of the following:
Ms Douglas made genuine attempts inside the 21-day period to seek advice and assistance about filing an in-time application. This included contacting the Fair Work Commission, seeking the assistance of the Workplace Advisory Service on 11 April after receiving the letter of termination, and then the Working Women’s Centre, and lodging an on-line application on 1 May 2024, before appointments with a solicitor were able to be scheduled, as she did not want to delay her application and risk being out of time;
there is no material prejudice to the respondent employer; and
both parties agree that there is benefit in conciliation being conducted on the dispute.
Conclusion
The Commission has before it a valid application by Ms Douglas that is within time.
Being a validly made application, it will proceed to a private conciliation conference under s 368. The provisional listing for 2.30pm (ACST) on 30 May 2024 will proceed. A further Notice of Listing is issued in conjunction with publication of this decision.
DEPUTY PRESIDENT
Appearances:
M. Douglas, on her own behalf
T. Dennis, on behalf of Taryn J Dennis.
Hearing details:
2024.
Adelaide;
28 May.
Final written submissions:
M. Douglas: 28 May 2024
T. Dennis: 28 May 2024
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