Michelle Sciberras v Labour Solutions Australia Pty Ltd
[2024] FWC 1615
•21 JUNE 2024
| [2024] FWC 1615 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Michelle Sciberras
v
Labour Solutions Australia Pty Ltd
(C2023/6762)
| COMMISSIONER HUNT | BRISBANE, 21 JUNE 2024 |
Application to deal with contraventions involving dismissal – respondent made jurisdictional objection claiming application has been made outside of the 21-day time limit – determination of when employee was made aware of the dismissal – employee emailed termination letter – reasonable opportunity to learn of dismissal one day following the email having been sent – application is within time – jurisdictional objection dismissed.
On 1 November 2023, Ms Michelle Sciberras made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Ms Sciberras stated that she had been dismissed from her employment with Labour Solutions Australia Pty Ltd (the Respondent) on 10 October 2023 whilst she was on sick leave, however she didn’t become aware of the dismissal until sometime later.
In its Form F8A Employer Response, the Respondent stated that the dismissal took effect on 10 October 2023, and objected to the application on the basis that the dismissal had been made outside of the 21-day time limit in which to bring applications.
Section 366 of the Act states:
“366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(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.”
The application was allocated to me to determine whether the application was made within the statutory timeframe and if it was not, whether an extension of time should be granted.
Directions were issued, providing the parties with an opportunity to file witness statements and submissions. A hearing was convened by video using Microsoft Teams on 8 February 2024. Ms Sciberras appeared and gave evidence on her own behalf. Mr Charles Pym of HR Legal was granted leave to appear for the Respondent, instructed by Ms Jenny Collins and Mr David Sztrajt of the Respondent.
Evidence and Submissions of Ms Sciberras
Ms Sciberras commenced employment with the Respondent on 14 January 2019, initially as a Senior Sales Consultant, later being promoted to a Regional/Business Manager.
On 4 September 2023, Ms Sciberras went on sick leave due to a work-related injury. She provided the Respondent with medical certificates covering the period 4 September 2023 to 21 September 2023. She returned to work and was then declared unfit for work for the period 6 October 2023 to 13 October 2023.
Ms Sciberras confirmed that whilst she was on leave, she received an email at 4:11pm on 10 October 2023 from the Respondent advising of her dismissal due to redundancy. She stated that she was not aware of the dismissal until six to eight days later upon noticing an unexpectedly large deposit in her bank account.[1] Ms Sciberras asserted the delay in her learning of her dismissal is attributable to the fact that she was not checking her email account as she was experiencing serious illness and was on sick leave. Ms Sciberras provided a confirmation of psychological treatment from Olsen Medical Centre which provided that she was assessed congruently with a DSM 5 diagnosis of adjustment disorder with mixed anxiety and depressed mood. She is taking medication and is under ongoing psychological treatment.[2] Ms Sciberras also provided a work capacity certificate which provided she had no functional capacity for any type of work until 4 November 2023.[3]
Ms Sciberras stated that the Respondent’s failure to request a read receipt, mail a physical copy by registered mail, call, send a text message or otherwise follow up the correspondence suggests the Respondent’s conduct was intended to delay Ms Sciberras becoming aware of her redundancy. Ms Sciberras suggested this is very likely given the Respondent’s awareness of her medical condition.[4]
Ms Sciberras further outlined in her written submissions that she used the days between learning of her dismissal to 1 November 2023 when she filed her application to contact numerous legal centres regarding the dismissal, ultimately lodging it upon receiving advice from the Working Women’s Legal Centre on 1 November 2023.[5]
Following an order made by the Commission for the production of emails sent by Ms Sciberras from 10 October 2023, it is evident that Ms Sciberras was sending emails from the morning of 11 October 2023, as early as 8:45am.
Ms Sciberras stated that she did not check her email on 10 October 2023 because of her attendance at a medical appointment with her GP that afternoon, at which she was prescribed medication. Ms Sciberras had taken 20mg of Citalopram. After the appointment, she visited her parents, returning home at some time between 6:00pm and 7:00pm. She ordinarily goes to bed around 9:00pm to 9:30pm.
Ms Sciberras stated that she does not have her email set up on her mobile phone, and only accesses emails through her computer at home. Ms Sciberras only accessed emails on occasions where she had specific reason to. The emails she sent on 11 October 2023 were in response to phone calls made to her by people unrelated to the Respondent.
Ms Sciberras submitted that the email sent on 10 October 2023 did not constitute notification of dismissal consistent with the Act, and her application was therefore lodged in time. In the alternative, Ms Sciberras submitted that she ought to be granted an extension of time to lodge an application due to the exceptional circumstances caused by her health issues.
Submissions of Labour Solutions Australia
The Respondent submitted that the application was out of time and falls out of the jurisdiction of the Commission, having been lodged on 1 November 2023 after the dismissal was effected on 10 October 2023. This means the application is one day out of time. Ms Sciberras was informed that her employment was terminated by email at 4:11pm on 10 October 2023.
The Respondent asserted that the email at 4:11pm either was or ought to have been read by Ms Sciberras on 10 October 2023, and that there are no exceptional circumstances which would justify an extension of time.
The Respondent submitted that the mental health conditions experienced by Ms Sciberras are not sufficient to enliven exceptional circumstances to justify an extension of time. The Respondent asserted that Ms Sciberras having forwarded emails from her work email to her personal email suggest that she experienced no significant difficulty in her capacity to access emails and correspond. As such, the degree of severity of her mental health challenges did not impede her from being able to understand her dismissal or to lodge her application on time.
The Respondent asserted that Ms Sciberras’ contention that she did not read her emails until 16-18 October 2023 are not indicative of not having been properly notified of her dismissal. In particular, Ms Sciberras’ active conduct of her WorkCover claim indicated that she had full capacity to engage in work-related matters and chose to disregard any medical advice she may have received advising her not to.
The Respondent submitted that Ms Sciberras’ conduct prior to termination shows somewhat regular use of both her work and personal email while on leave. The Respondent submitted that Ms Sciberras has not given evidence that demonstrates that her medical condition on 10 October 2023 prevented her from reading the email sent to her.
The Respondent submitted that Ms Sciberras’ application should be dismissed due to being lodged out of time, and that the Commission should not grant an extension for exceptional circumstances.
Evidence of Mr Prasad
Mr Prasad is the Managing Director of Adcorp Holdings Australia Pty Limited, which is the parent company of the Respondent and has operational control of the Respondent.
From late August 2023 to early September 2023, Mr Prasad began to contemplate an organisational realignment of the Respondent; the process then commenced in September 2023. On 28 September 2023, Mr Prasad sent correspondence to Ms Sciberras informing her of the elimination of her role and inviting her to apply for other roles within the Respondent. He informed her that applications close on 4 October 2023.
On 29 September 2023, Ms Sciberras informed Mr Prasad that she was unwell with a migraine and vomiting. She attached a medical certificate for the period 29 September 2023 to 6 October 2023.
Mr Prasad became aware that Ms Sciberras had advised her manager that she was unwell. He sent the following email to her on 3 October 2023:
“Good morning Michelle
I'm sorry to hear that you're not feeling well. Trent has provided me with your medical certificate since he's getting ready to go on his annual leave. In light of this, please direct any future communications to me for consideration.
You are still welcome to participate in the recruitment process related to the organisational realignment, provided that you and your doctor believe you are well enough to do so this week. As mentioned earlier, we are aiming to proceed swiftly with this process. If you can provide a medical clearance and submit your application before the closing deadline tomorrow, your application will be taken into consideration.
If you are able to, please forward your application to [email address] for both or either of the roles attached in this email.
Please be mindful and as mentioned in my previous correspondence with you, all Regional and Business Manager roles at LSA will be made redundant from next week (9th October 2023) and we are taking applications from interested applicants for the alternative roles mentioned in this email and prior correspond ence with you. We urge you to participate in this process so you can be considered as an applicant.”
On 4 October 2023, Ms Sciberras sent Mr Prasad the following email:
“Hey Trent,
So sorry I won’t be at the meeting today I’m not feeling 100%. I will put in a leave day.”
On 5 October 2023, Mr Prasad sent the following email to Ms Sciberras:
“Good afternoon, Michelle,
I’m reaching out to you to follow up about the recent organisational changes being implemented at LSA and consultation with the affected staff to give each affected person an understanding of our changes to align with operational and growth requirements of the Company. As I mentioned before, this structural alignment has involved all Regional / Business Manager positions across the business, including your position now considered redundant.
We wrote to you about considering two alternative managerial positions being available and encouraged you to consider applying, subject to your medical practitioner's guidance, given your current incapacity. I also invited you to a restructuring consultation.
Unfortunately, we haven't received any response from you about this meeting invitation/communications or an application for either of the two currently available positions. As you would be aware, the application period has now closed; however, let us know if this was an administrative oversight and if you are still interested in applying as soon as possible.
As an alternative, we also want to inform you that there is a vacant Recruitment Resourcer position available that you may be interested in. The annual salary for this position is $75,000 per annum plus superannuation. While this may be seen as a step down from your former position level, it is currently the only available opening that matches your skillset and experience. Please find attached the position description for the Recruitment Resourcer for your review. If you are interested in accepting this position, you will also qualify for a partial redundancy payment based on the salary difference between your existing and accepted position.
If you are interested in accepting this Recruitment Resourcer position, please let us know by Monday, October 9th, 2023, before 11:00 PM (AEST).
Let me know if you have any questions or would like to arrange a meeting to discuss this.
So that you know, the complementary advice and support service through Acacia EAP remains available to you at any time.”
On 8 October 2023, Ms Sciberras sent her manager, Trent, a medical certificate for the period 6 October 2023 to 13 October 2023.
At 4:11pm on 10 October 2023, Mr Prasad emailed Ms Sciberras a termination letter. The termination letter noted that on 8 October 2023, Ms Sciberras had provided a medical certificate noting she was unfit for work until 13 October 2023.
Mr Prasad’s evidence is that the Respondent’s IT records indicate that Ms Sciberras was active on her email account throughout the periods she was on sick leave. He stated that she sent numerous emails from her work account to her personal account, which were both work and non-work related.[6] I have examined these, and they were predominantly sent in September 2023.
On 12 October 2023, Ms Sciberras was paid her termination payment which included redundancy payment, notice in lieu and accrued but undertaken annual leave. It was a net sum of $29,354.31.
In oral evidence given during the Hearing, Mr Prasad stated he was informed by Mr Michal Klos, contractor Human Resources Manager of the Respondent, that at some time after 5:00pm on 10 October 2023 he unsuccessfully attempted to dial Ms Sciberras to inform her of her dismissal. Mr Prasad further claimed that a copy of the dismissal was sent by post to Ms Sciberras. Mr Prasad did not give any reason why he had not previously informed the Commission or his representative about either attempt to inform Ms Sciberras of the termination of her employment. Mr Prasad said that although he drafted and sent the redundancy letter, he delegated the phone call to Mr Klos as the role of contractor HR Manager is that “they do the executions and interactions at the coalface for me”.
The Commission’s examination of evidence
I have carefully examined the evidence put before the Commission by the parties.
In respect of the large sum of money deposited into Ms Sciberras’ bank account, it was available in her account on 12 October 2023. There were no transactions until 16 October 2023, when Ms Sciberras makes various purchases using a debit payment. I am satisfied that in making the payments that she did, she would not have become aware of the large balance within her account.
It was not until 17 October 2023 that Ms Sciberras made a withdrawal of $5,000. This is an amount she would not have expected, I conclude, given the small amount of money in her account prior to the large deposit having been made on 12 October 2023. Accordingly, I am satisfied that by at least 17 October 2023, Ms Sciberras was aware that a large sum of money had been deposited into her account.
I have reviewed the emails sent by Ms Sciberras from 10 October 2023, when the Respondent sent to her the termination letter by email. Ms Sciberras did not send any emails on 10 October 2023. She did send a number of emails on 11 October 2023, commencing at 8:45am.
Consideration
It has been well established that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[7] However, in Ayub v NSW Trains,[8] the Full Bench of the Commission considered whether any exceptions to this principle existed and whether mere receipt of a communication is sufficient to constitute communication. The Full Bench stated:
“[35] We see no reason to depart from the above line of authority insofar as it is consistent with the general principle at common law that a dismissal may not take effect prior to it being communicated to the employee. Neither party submitted otherwise. However two questions remain. The first is whether there are any exceptions to this principle, the existence of which are suggested but not identified in Makenja and WorkPac. The second is whether the mere receipt of a communication (whether a letter, fax or email) is sufficient to constitute the communication of the dismissal to the employee in circumstances where the employee has not read the communication immediately upon receipt.
[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this.”[9]
Further, in circumstances where an employee is informed of their dismissal by email, the Full Bench held:
“[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.”[10]
On all of the evidence before the Commission, I do not consider that the dismissal was communicated to Ms Sciberras in such a way that she knew, or had a reasonable chance to find out, that she had been dismissed on 10 October 2023, until such time she accessed her emails on her home computer on 11 October 2023.
I accept Ms Sciberras’ evidence that she was with her parents on the evening of 10 October 2023 and then went home without opening her computer to read emails, having gone to bed at a rather early hour. She does not have email access on her mobile phone.
There is no evidence before the Commission that the Respondent successfully followed up the 4:11pm email to Ms Sciberras on 10 October 2023 to courteously and respectfully inform her that she had been made redundant. Ms Sciberras was on declared sick leave at this point, and she was under no obligation to be reading work emails into the late afternoon and evening of 10 October 2023.
For completeness, I am satisfied that the first opportunity Ms Sciberras had to learn of her dismissal was when she accessed her home computer on 11 October 2023 and sent emails to third parties.
Conclusion
For the above reasons, Ms Sciberras’ dismissal was effective on 11 October 2023. The period of 21 days in which to bring an application ended at 11:59:59pm on 1 November 2023. She made her application on 1 November 2023. The application has therefore been made within the statutory time limit and there is no requirement for the Commission to be satisfied that there are exceptional circumstances pursuant to s.366(2) in order for the application to proceed.
Accordingly, the jurisdictional objection is dismissed, and the application will now proceed to conference before the Commission.
COMMISSIONER
Appearances:
M Sciberras for the Applicant.
C Pym, Counsel, instructed by J Collins and D Sztrajt of HR Legal for the Respondent.
Hearing details:
2024.
Brisbane.
By Video using Microsoft Teams.
8 February.
[1] Witness Statement of Ms Michelle Sciberras, at pg 35 of DHB.
[2] Psychological Report, at pg 26 of DHB.
[3] Work Capacity Certificate, at pg 45 of DHB.
[4] Witness Statement of Ms Michelle Sciberras, at pg 92 of DHB.
[5] Witness Statement of Ms Michelle Sciberras, at pg 41 of DHB.
[6] Ibid, at para [12].
[7] Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24]; Ayub v NSW Trains[2016] FWCFB 5500.
[8] Ayub v NSW Trains[2016] FWCFB 5500.
[9] Ibid, at [35]-[36].
[10] Ibid, at [50].
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