Marnie Diosere Gonzales v CHM Wellness Practices Pty Ltd
[2024] FWC 3022
•4 NOVEMBER 2024
| [2024] FWC 3022 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Marnie Diosere Gonzales
v
CHM Wellness Practices Pty Ltd
(C2024/6197)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 4 NOVEMBER 2024 |
Application alleging contravention of General Protections provisions – date dismissal takes effect – payment in lieu of notice - extension of time – whether exceptional circumstances exist – application dismissed.
On 28 August 2024 Ms Marnie Gonzales (Applicant) filed an application under s.365 of the Fair Work Act 2009 (Cth) (Act) against her previous employer, CHM Wellness Practices Pty Ltd (Respondent) alleging that her employment had been terminated by the Respondent in breach of Part 3-1 - General Protections - of the Act.
Under s.366(1) of the Act, an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (Commission) allows under s.366(2).
According to the Applicant, the dismissal took effect on 7 August 2024 and was therefore within the 21-day time period prescribed by s.366(1). In the alternative, the Applicant asked that if the Commission concluded that the dismissal preceded that date, the Commission should extend the time period for the filing of the application under s.366(2) on the basis that there are exceptional circumstances within the meaning of that subsection.
The Respondent maintained that dismissal took effect on 31 July 2024 and that the application was therefore outside the 21-day limitation period.
Factual background
The circumstances giving rise to the issues in these proceedings were the subject of brief evidence at the hearing of this matter on 17 October 2024 and are largely uncontested.
The Applicant commenced employment with the Respondent on 17 April 2024. On 31 July 2024, the Applicant met with a representative of the Respondent, Ms. McMillan. The meeting was arranged by the Respondent to discuss the termination of the Applicant’s employment. The Applicant attended the meeting at around 9am on that day with her husband as a support person.
At the meeting, Ms. McMillan told the Applicant that her employment was being terminated. The Applicant was given a letter by Ms. McMillan. The letter was dated 31 July 2024 and was titled ‘Unsuccessful Completion of Probation Period.’ Amongst other things, it said:
… As you are aware, your employment with CHM is subject to a probationary period. Unfortunately, due to operational changes it has been decided that your employment will end on 7 August 2024. Please consider today (31 July) the start of your notice period.
Your final salary will include payment for any of your accrued and unused annual leave entitlements. These amounts will be subject to tax and all final payments will be paid into your bank account within 7 days of your last day of employment...
Please ensure that you return all company property before your last day (7August), including but not limited to laptop, access cards, any other equipment, company uniforms and documents…
At the meeting the Applicant asked whether she could be paid for her notice period rather than keep working until 7 August. Ms McMillan said this was not the Respondent’s usual policy but that she would make an inquiry of head office and see if it was possible for the Applicant to receive ‘payment in lieu of notice’. Shortly after the meeting, the Applicant’s husband returned the Applicant’s uniforms to the Respondent. Later that afternoon, Ms McMillan contacted the Applicant and told her that her request had been approved and that she would be ‘paid in lieu.’
The Applicant was paid her accrued entitlements and the payment for the notice period, up until 7 August 2024, on 6 August 2024. The Applicant did not work for the Respondent again after 31 July 2024 and had no other communication with the Respondent about the termination between 31 July and 7 August.
The issues
The first question that falls for determination in this case is when did the Applicant’s dismissal take effect? The answer to that question depends on how the facts in the case align with the different senses in which the concept of payment in lieu of notice has been considered in the authorities.
In Siagian v. Sanel Pty Ltd[1] the Court referred to the discussion of the expression ‘payment in lieu of notice’ in the earlier decision in Leech v Preston Borough Council[2]. The relevant extract from the former case is as follows:
“Counsel’s second argument is that, because of the payment in lieu of notice, the termination did not occur on 29 March but at the date of expiration of the period for which payment was made, 15 April. If this argument is correct, s.170EE orders are available.
This argument also raises a complex problem. The problem arises because of the ambiguity inherent in the words “payment in lieu of notice”. The ambiguity was pointed out by Waite J, in Leech v Preston Borough Council [1985] ICR 192 at 196:
‘... it is clear from the authorities cited to us, ... all of which are confirmed by the experience of our lay members, that the expression ‘payment in lieu of notice’ is regularly used throughout industry in one or other of two quite different senses. The first, which is the grammatically correct one, is when it is used to describe the payment to an employee whom it is proposed to dismiss summarily of a lump sum representing compensation for the wages or salary which he would have received if he had been given the notice to which he is entitled by law. The second, which is the colloquial and grammatically inaccurate one, is when the term is used as a convenient shorthand way of telling an employee that he is being given the full period of notice to which he is entitled by law but is at the same time excused any duty (and refused any right) that he would otherwise have under his employment contract to attend at the workplace during the notice period.’
Although Waite J did not spell out the result that flowed from each meaning, it is clear from other decisions that, in the first case, the employee’s employment terminates upon the date of payment of the lump sum. In the second case, the employment extends until the expiration of the period for which the payment was made.”
The original intention of the Respondent in the present matter was to put the Applicant on 7-days’ notice that her employment was being terminated, that the termination would take effect on 7 August 2024 and that the Applicant was to continue working for the Respondent until that date. This much is clear from the express terms of the letter of termination that was provided to the Applicant at the meeting on the morning of 31 July. These arrangements changed on 31 July 2024 as a result of discussions between the Applicant and Respondent.
It was not in issue that the Applicant asked the Respondent during the meeting if she could be paid for the notice period rather than have to work during that period. It was also not disputed that the Respondent ultimately agreed to this arrangement and advised the Applicant of this later on the same day. Before the Applicant was told the requested change was agreed to, she arranged for the return of her uniforms. The Applicant said this was in response to the termination letter. The termination letter did not require that the uniforms be returned immediately, but only that this should occur sometime before the last day of employment. At the time the uniforms were returned, the Respondent had advised the Applicant in the termination letter that the last day of her employment would be 7 August. In my view the evidence indicates the Applicant did not want the employment relationship to continue beyond 31 July 2024.
There was nothing in the evidence of the discussion between the parties to suggest that they were contemplating or agreeing to a continuation of the relationship beyond 31 July but with a waiver of any contractual requirement (or right) for the Applicant to attend for work between then and 7 August 2024. The effect of these discussions was that the Applicant received what she requested. Given the employment relationship was being brought to an end by the employer, the Applicant wanted to be paid for the notice period. She did not want to have to work the notice period or to remain employed as a formality until 7 August. In other words, the Respondent had agreed to provide the Applicant with 7-days’ payment in lieu of notice in the first sense in which that concept is described in Siagian.
That the parties intended to bring the relationship to an end on 31 July is also consistent with what his Honour Wilcox CJ described in Siagian as the ‘common sense’ approach.
An employer who wishes to terminate an employee’s services, and is prepared to pay out a period of notice without requiring the employee to work, will surely wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment-related costs. Such as workers’ compensation insurance, payroll tax, liability for leave payments etc.,[3]
Although Wilcox CJ in Siagian described the termination as taking effect on the day the payment of the lump sum is made where there is a payment in lieu of notice in the first sense, I do not think that the fact that the payment itself here was not made until 6 August alters the date the dismissal took effect to that date. In Siagian the Court was dealing with a factual scenario where a termination note and a cheque, including an amount for a notice period, was handed to an employee at the same time. In other matters the Commission has considered the situation where a termination has taken place in circumstances where notice or payment in lieu of notice has not been provided. In Metropolitan Fire and Emergency Services Board v Duggan[4] the Full Bench said:
In summary, it is clear in our view that if an employer terminates the employment of an employee without giving notice, or payment in lieu thereof, in accordance with an obligation owed by the employer under a contract, award, enterprise agreement or s.117 of the Act, the result is that the employer has acted unlawfully and/or wrongfully and the employee will have one or more causes of action available to him or her under the contract, award, enterprise agreement and/or the Act to remedy the deficiency in notice. However, an unlawful or wrongful dismissal does not invalidate or render void the termination of the employment relationship. Whether the employment relationship has been terminated is a question of fact.[5]
In Course v. DoubleIQ Pty Ltd[6] the Full Bench was dealing with a contention that the Commission at first instance had failed to take into account the fact that payment of amounts due on termination, including payment in lieu of notice, had not been made and that this should have resulted in a conclusion that the termination did not take effect until at least the end of the notice period. In refusing permission to appeal the Bench said:
There is simply no support in principle or authority for Mr Course’s contention that termination of employment can only be effective if and when an employee’s entitlements on termination are paid to them in full.[7]
I conclude therefore that the dismissal took effect on 31 July 2024 and as a consequence, the application is out of time. I now consider whether there are exceptional circumstances that might justify an extension of time.
Legislation
Section 366(2) sets out the circumstances in which the Commission may extend time for an application of this kind and the matters which are to be taken into account in determining whether exceptional circumstances exist. It provides:
(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
I deal with each of the matters referred to in s.366(2) below.
Section 366(2)(a) – reason for the delay
The reasons for the delay provided by the Applicant may be summarised as follows:
(i)The Applicant was of the view that she had filed the application within time because of the termination letter which referred to the termination date as being 7 August 2024;
(ii)The Applicant had considered filing an application earlier but following the termination of her employment she was in the process of finding another job and had to take care of her child who was ill for one week;
(iii)The Applicant herself fell ill in the week following the illness of her child;
The delay in s.366 is the period after the prescribed 21-day period for lodging an application; it does not include the period from the date the dismissal took effect.[8] However, circumstances arising prior to the delay may be relevant to the reason for the delay.[9]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[10] This is because the reason for delay is a factor forming part of the overall assessment required by s.366(2).[11] A credible explanation for the entirety of the delay would weigh more heavily in favour of a finding of exceptional circumstances. Conversely, a failure to provide a credible explanation for any part of the delay would tend to weigh against such a finding.[12]
The Applicant provided a medical certificate as to the state of her child’s health. The certificate records a medical consultation on 14 August 2024 and a medical condition that had persisted for 2 weeks. It prescribed conservative treatment. There is no evidence of the condition persisting beyond 14 August 2024. The Applicant did not provide any medical evidence relating to her own medical circumstances or when, how or to what extent any health condition that she had might have had an impact on the Applicant’s capacity to file an application.[13] In the absence of further and more detailed evidence, I do not consider that the medical reasons proffered by the Applicant provides a satisfactory explanation for the delay.
Nor do I consider that the Applicant’s misapprehension about the date the dismissal took effect or her search for alternative employment are of much assistance to the Applicant’s case. Given what transpired on 31 July, I do not think that the Applicant could reasonably have believed that the employment relationship was to remain on foot until 7 August 2024. Having to seek alternative employment is an ordinary consequence of losing a job. Overall, I do not think the evidence establishes that the reasons given, separately or in combination, adequately explain the delay or any particular part of the delay, in the filing of the application. I am of the view that the reasons provided weigh against a conclusion that there are exceptional circumstances.
Sub sections 366(2)(b), (c) and (e) – Any action taken by the person to dispute the dismissal, prejudice to the employer and fairness as between the person and other persons in a like position
The Applicant indicated to the Respondent at the meeting on 31 July that she was unhappy with the decision to terminate her employment and said she had outperformed other staff. She also questioned whether the termination was related to her pregnancy. The Applicant also participated in an exit interview with the Respondent by telephone on 13 August. According to notes of the meeting, she said she felt her termination was unfair but did not say she would be formally challenging the dismissal. There was no evidence of any prejudice to the Respondent, including prejudice caused by the delay. These are neutral considerations in the assessment. Nor was there any evidence about fairness considerations as between the Applicant and other persons in a like position. This is also a neutral factor here.
Section 366(2)(d) – Merits of the application
As to the merits of the application, the Applicant has asserted a contravention of the General Protections provisions on the basis that she had made workplace inquiries and that she had disclosed she was pregnant at the time of the termination and that the reasons for her termination related to these matters. The Applicant said that the Respondent was aware that she was pregnant, that the practice had experienced an increase in work volume, that no-one else was terminated and that no satisfactory reason was provided to her to explain her selection for termination. The Respondent denies the claim. The Respondent submitted that the decision to terminate the Applicant’s employment was unrelated to the matters she referred to, including her pregnancy. They said the decision was made because of changes that had occurred since the Applicant’s engagement and the operational requirements of the business.
It is well settled that is not appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).[14] On the limited material available, I am unable to form a view as to the merits of the application. I regard this as a neutral consideration.
Exceptional circumstances - conclusion
In circumstances such as these, the Applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time.
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. 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.[15]
Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case.
The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Ms Gonzales on her own behalf.
Ms McMillan for the Respondent.
Hearing details:
2:00pm, 17 October 2024
Proceedings by Video using Microsoft Teams
[1] (1994) 122 ALR 333, (1994) 54 IR 185.
[2] [1985] ICR 192
[3] Op cit at 206.
[4] [2017] FWCFB 4878.
[5] Ibid at [32].
[6] [2020] FWCFB 5440.
[7] Ibid at [15].
[8] Long v Keolis Downer [2018] FWCFB 4109 at [4].
[9] Shaw v. ANZ Banking Group Ltd [2015] FWCFB 287 at [12].
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].
[11] Ibid at [39].
[12] Stogiannidis op cit at [45].
[13] See for example Higgins v. FQM Australia Nickel Pty Ltd [2023] FWCFB 113.
[14] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].
[15]Ibid, [13].
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