Makayla Jones v Classic Edge Body Works

[2023] FWC 1049

[2023] FWC 1049

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Makayla Jones
v

Classic Edge Body Works

(U2023/2750)

COMMISSIONER MIRABELLA MELBOURNE, 8 MAY 2023

Application for an unfair dismissal remedy.

1. This decision concerns an application by Ms Makayla Jones (Applicant) for an extension of time to make a claim for unfair dismissal outside of the 21-day period required by s.394(2) of the Fair Work Act 2009 (Act).

1. On 30 March 2023, the Applicant made an application to the Fair Work Commission (Commission) for an unfair dismissal remedy. The Applicant alleges she was unfairly dismissed by Classic Edge Body Works (Respondent) on 6 March 2023, but that she was not notified of her dismissal until 27 March 2023.

1. In order for the application to proceed, the Applicant requires the Commission to find that her dismissal took effect within 21 days of her dismissal or, in the alternative, that the Commission grant a further period of time within which to bring her application.

1. This published decision reflects the decision I gave ex tempore on 8 May 2023 with corrections for grammatical, syntactical and any other insignificant errors.

1. After taking into account the views of the Applicant and the Respondent regarding whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter.[1]

1. At the determinative conference on 8 May 2023, both parties were self-represented.

1. The Applicant gave evidence on her own behalf. 

2. The following witnesses gave evidence on behalf of the Respondent:

·   Mr Alex Simovic, Director of the Respondent

·   Mr Ruwan Rupasinghe, Director of the Respondent

When did the dismissal take effect?

1. The parties are in dispute about when the dismissal took effect.

1. The Applicant says that she was told by the Respondent on 27 March 2023 that they had posted a termination letter to her on that date, with the termination purporting to take effect on 6 March 2023.  

1. In her submissions and oral evidence, the Applicant said that her application was lodged late because she did not know that she was dismissed until 27 March 2023. The Applicant says that her TAFE provider, the Kangan Institute, had emailed her on 15 March 2023 stating that the Respondent had advised them that the Applicant is “no longer an apprentice”. The Applicant says she sent a text message on 23 March 2023 and on 27 March 2023 to Mr Rupesinge asking for written notice of her termination. On 27 March 2023, Mr Rupesinge replied to the Applicant’s 27 March 2023 text message stating that a letter of termination was sent by post on 6 March. The text message attached a photo of a letter of termination addressed to the Applicant and dated 6 March 2023. The Applicant submits that she never received this letter in the post.

1. The Respondent submits that the dismissal took effect on 6 March 2023 when by ordinary post they posted the termination letter to the Applicant. This was an amendment to their Form F3 response where the Respondent stated that the dismissal took effect on 17 March 2023.

1. Although the Respondent submits that it sent the dismissal letter on 6 March 2023, there is no evidence submitted of any tracking to assist in locating the dismissal letter through Australia Post.

1. The Applicant was made aware that she was “no longer an apprentice” on 15 March 2023 by her TAFE provider. The Applicant says this led her to seek clarification from her employer regarding her employment status. She eventually received clear communication of her dismissal from her former employer on 27 March 2023.

1. Considering all relevant material, I find that the effective date of the Applicant’s dismissal was 27 March 2023.

1. The application having been made within 21 days of the date on which the dismissal took effect, I do not need to consider whether it was made within such further period as the Commission allows. The application will be processed in the Commission in the usual manner.

COMMISSIONER

[1] Fair Work Act 2009 (Cth), s.399.

Printed by authority of the Commonwealth Government Printer

<PR761601>