Michelle Saminaden v Flitner & Company Pty Ltd

[2023] FWC 1271

[2023] FWC 1271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Michelle Saminaden
v

Flitner & Company Pty Ltd

(C2023/485)

DEPUTY PRESIDENT CLANCY MELBOURNE, 30 MAY 2023

Application to deal with a dismissal dispute under s365 of the Act - respondent asserted application filed out of time.

1. On 30 January 2023, Michelle Saminaden made a general protections application involving dismissal to the Fair Work Commission pursuant to s.365 of the Fair Work Act 2009 (the Act). Ms Saminaden’s Form F8 – General Protections Application Involving Dismissal and attachments suggested her dismissal took effect on 5 January 2023 but that she was not notified of it until 10 January 2023, when she was advised “via registered post”.

1. On the basis that the letter of termination dated 5 January 2023 had stated the dismissal had taken effect that day and the general protections application was made on 30 January 2023, the Respondent asserted the application was not made within the requisite 21 calendar days after Ms Saminaden’s dismissal took effect.[1]

1. As such, I conducted a mention on 27 April 2023 and issued directions for the filing and service of material so that the questions of whether or not Ms Saminaden was required to seek an extension of time and if so, whether one should be granted could be determined.[2]

1. A dismissal takes effect when it is communicated to an employee and the employee knows, or at least has a reasonable opportunity to know, that they have been dismissed.[3] In this case it has become apparent on the basis of the material filed by the parties that Ms Saminaden was not notified of her dismissal until 10 January 2023. Specifically:

• The letter of termination dated 5 January 2023 stated Ms Saminaden was terminated with immediate effect;

• It was posted to Ms Saminaden on 5 January 2023 by registered post with the AP Article ID RPP4463800094003490967606; and

• The Australia Post tracking information for this item confirmed it was delivered to and signed for by Ms Saminaden on 10 January 2023.

1. I am therefore satisfied that the general protections application was filed by Ms Saminaden within 21 days after her dismissal having taken effect and as such, the question of whether a further period for the making of her general protections application ought be allowed does not fall for determination. Further, the Respondent has not disputed these background facts and no longer asserts the general protections application was filed out of time.

1. This being the case, my Directions dated 27 April 2023 are vacated and Ms Saminaden is no longer required to advise the Commission and the Respondent as to when she will be ready to prepare for and participate in a Jurisdiction Hearing before the Commission.

1. Noting that a conference was conducted on 6 April 2023 and that Ms Saminaden appears to have enquired about the issuing of a certificate on 8 May 2023, the matter will now be allocated to a member of the Commission to consider whether a certificate in relation to the dispute ought be issued pursuant to s.368(3) of the Act.

DEPUTY PRESIDENT

[1] Section 366(1)(a) of the Fair Work Act 2009 (the Act)

[2] Sections 366(1)(b) and 366(2) of the Act.

[3] Ayub v NSW Trains [2016] FWCFB 5500.

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