Ming-Chwen Lee v Weboost Pty Ltd

[2020] FWC 2419

[2020] FWC 2419

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ming-Chwen Lee
v
WEBOOST PTY LTD

(U2020/126)

DEPUTY PRESIDENT MANSINI MELBOURNE, 7 MAY 2020

Application for an unfair dismissal remedy – application filed prematurely, before effective date of dismissal – whether to waive irregularity – waiver granted.

[1] This decision concerns a preliminary objection to an application by Ms Lee for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined that the application was premature and this is an appropriate case to waive the irregularity. The reasons follow.

Context

[3] On 6 January 2020, Ms Lee filed her unfair dismissal application with the Commission. The application was served on the employer on 13 January 2020.

[4] The application alleged that Ms Lee was dismissed by reason of her pregnancy. It identified that Ms Lee was notified of her dismissal on 19 December 2019 and the effective date of her dismissal was 30 December 2019. Ms Lee filed bank account records which show payments were made to her by WEBOOST PTY LTD (WeBoost) as follows:

a) on 15 December 2019, with the descriptor “Pay for Nov 2019”;

b) on 9 January 2020, with the descriptor “Commission”; and

c) on 28 January 2020, with the descriptor “Pay for Dec 2019”.

[5] On 16 March 2020, WeBoost filed its response to the application. The response attached a termination letter issued “on or about 31 January 2020” which stated that the effective date of dismissal was 31 January 2020. The termination letter gave three reasons for dismissal: unsatisfactory performance in September and December 2019; an extended period of absence from work for January 2020, without notice to WeBoost; and violation of company regulations in “recently” seeking to procure WeBoost clients on behalf of a new employer without official resignation from WeBoost, among other alleged violations.

[6] WeBoost did not allege to have made any attempt to contact Ms Lee to ascertain her whereabouts, however maintained she was still employed and paid for the period to 31 January 2020. It provided a payslip marked as paid on 30 January 2020 but being for the period 1 January to 31 January 2020. That payslip reflects payment of: two public holidays (New Years’ Day and Australia Day); remaining balance of annual leave; and nil payment for items marked as “other unpaid leave no show”. WeBoost said that Ms Lee was summarily dismissed and not entitled to notice of termination.

[7] An initial attempt at conciliation was not successful. The Respondent subsequently pressed an objection on the basis that Ms Lee was still employed at the time of filing and her application was not made within 21 days “after” her dismissal took effect in accordance with s.394(2) of the Act. Accordingly, the parties were directed to file materials in relation to this preliminary question and the matter was referred to me for determination.

Consideration

[8] To determine whether the application was filed prematurely it is necessary to first identify the effective date of dismissal.

[9] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed, though it may be communicated orally. 1 In identifying the effective date of a dismissal that was communicated orally regard may be had to factors such as the date of any final payment made.2

[10] In this case, the real reason for Ms Lee’s dismissal and the fairness of her dismissal are strongly disputed and, being an interlocutory proceeding, yet to be fully tested. I make no finding in this regard.

[11] As to the effective date of dismissal, it is not contentious that Ms Lee did not work for the month of January 2020 and was not paid her usual salary for this period. There is no evidence before the Commission of any attempt by the employer to contact Ms Lee during the month of January 2020 and inquire as to her whereabouts. Ms Lee accepted that the termination letter was sent on 31 January 2020. That is, 18 days after the Commission served WeBoost with Ms Lee’s unfair dismissal application. By their undisputed conduct, it would appear that the parties respectively behaved as though Ms Lee’s employment came to an end prior to or during January 2020. However, on the materials before the Commission, the only clear communication of a dismissal is the termination letter which states the effective date of dismissal was 31 January 2020.

[12] Accepting that the effective date of termination was not until 31 January 2020, it follows that the application filed on 6 January 2020 was premature in that it was not filed after the dismissal took effect in accordance with the language of s.394(2).

Should a waiver be granted?

[13] The Act does not evince a purpose to render an application automatically invalid and of no effect. 3 Rather, the Commission is conferred with a discretionary power to waive any irregularity in the form or manner in which an application is made to the Commission under s.586(b) of the Act.

[14] Statutory provisions like s.586(b), although not in identical terms, have been directed towards ameliorating the effect of a failure to comply with procedure specifically stated in the Act or Rules so that the Commission can proceed to deal with the real dispute between the parties without the limitations of procedural defects. 4 That principle remains apt for s.586(b), having regard to the statutory limitations on the exercise of the Commission’s powers and functions under the Act.5

[15] I am satisfied that this is an appropriate case to exercise the discretion at s.586(b) in favour of Ms Lee and waive the irregularity in this case. Ms Lee acted to pursue her claim without delay. WeBoost’s contentions as to why the Commission should not exercise the discretion in this case go to the merits of the substantive claim which are as yet untested. Further, there has been no suggestion that the employer is prejudiced by the early filing of the application, in contrast to the detriment that Ms Lee would suffer if not able to pursue her claim due to having filed early.

[16] Having regard to my findings above, pursuant to s.586(b), I waive the irregularity of the form or manner in which the Applicant made her 6 January 2020 application for an unfair dismissal remedy. Accordingly, the Commission is required to deal with the application pursuant to s.394 of the Act and the matter will now be programmed for determination.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24] and Plaksa v Rail Corporation NSW [2007] AIRC 333 (Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne Print Q9605 (AIRC, Whelan C, 10 December 1998).

 2   Siagian v Sanel Pty Limited [1994] IRCA 2 (27 May 1994), (1994) 122 ALR 333 at page 355.

 3   Mihajlovic Lifeline Macarthur [2014] FWCFB 1070.

 4   Chandra Gupta Narayan v MW Engineers Pty Ltd [2013] FWCFB 2530.

 5   Ibid, and see ss.577 and 578 of the Act for scope of the Commission’s powers and functions.