Monaliza Hailu v Toll Holdings Pty Limited
[2023] FWC 587
•21 MARCH 2023
| [2023] FWC 587 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Monaliza Hailu
v
Toll Holdings Pty Limited
(U2023/967)
| COMMISSIONER BISSETT | MELBOURNE, 21 MARCH 2023 |
Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – payment in lieu of notice – section 117 of Fair Work Act 2009 – requirements for notice to be given – minimum employment period not worked – objection upheld – application dismissed
Mrs Monaliza Hailu has made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act).
Mrs Hailu made her application to the Commission on 7 February 2023. In that application Mrs Hailu said that she commenced employment with Toll Holdings Pty Ltd (Toll) on 20 July 2022 and that her employment was terminated on 10 January 2023. She says she queried a matter in the letter of termination and the letter was reissued to her on 19 January 2023. On the dates provided by Mrs Hailu she had been employed by Toll for 10 days short of 6 months if she was dismissed with effect from 10 January 2023 or 1 day short if the dismissal was effective 19 January 2023.
Section 382 of the FW Act states that, to be protected from unfair dismissal (that is, to be eligible to make an application for unfair dismissal) a person must have completed the minimum employment period of at least 6 months service (if the business is not a small business. It is accepted in this case that Toll is not a small business) and 12 months otherwise.
On the information provided by Mrs Hailu she has not completed the 6 month minimum employment period and therefore is not eligible to make an application for unfair dismissal.
On 8 February 2023 a Commission staff member in the client services team contacted Mrs Hailu and asked that she confirm her employment dates with Toll. The minimum employment period was explained to Mrs Hailu and she was told that whether the dismissal was 10 or 19 January 2023 she had not served the minimum employment period of 6 months. Mrs Hailu apparently indicated that she understood this.
A letter was subsequently sent to Mrs Hailu by the client services team on 8 February 2023. She was asked to confirm her employment commencement date and the date her dismissal took effect. The letter said that if she had not worked the minimum employment period the Commission did not have the power to deal with her case.
On 10 February 2023 Mrs Hailu contacted the Commission by email. Her email said:
Hi, I was asked to produce documents on my dismissal so I’ve attached a screenshot from my employer confirming that my dismissal was received and given to me on January 19 2023.
Attached to the email was a screen shot of a message to Mrs Hailu from a Mr Troy Anderson from Toll. The message was sent on 19 January 2023 and said:
See attached amended termination letter and remittance advice
Please advise your availability tomorrow ASAP so our courier can collect the company’s assets and property at a time that best suits.
The unfair dismissal application was subsequently referred to me to determine the next steps.
On 14 February 2023 my chambers sent an email to the Mrs Hailu in which I:
· Informed that the Commission could not deal with an application if the minimum employment period was not met
· Advised that, on the information provided by Mrs Hailu, she had not worked the minimum employment period
· Advised it was my preliminary view that her application should be dismissed as it had no reasonable prospect of success
· Noted that, in any event, she had not filed the filing fee necessary for an application to proceed.
Mrs Hailu was asked, given this information, if she still wished to proceed with her application.
Mrs Hailu replied to the email from my chambers on 16 February 2023 and said:
The 2009 Fair Work Act states that an employer may not terminate an employee's employment unless the time between giving the notice and the day of termination is at least the period (the minimum notice period), which in my case was a month time so instead of giving me a month notice as per the 2009 Fair Work Act they gave me only one day please pass this message to the commissioner as my employment contract states a one month notice should be given not one day.
Yes, I would still like to move forwards with my case. My employer Toll terminated me a day prior to the end of my 6-month probation.
Please send the Commissioner this message so that they can thoroughly consider my case.
In regards to payment I couldn’t find a way to pay it could you please advise how I can pay the fee. Thanks.
Mrs Hailu also paid the filing fee for her application.
As a result of Mrs Hailu’s insistence that her matter by heard I issued directions in which I required the Applicant to file and serve submissions and evidence in support of her claim that she had served the minimum employment period.
I also requested that Toll file with the Commission and serve on the Applicant its Form F3 – Employer response to an application for unfair dismissal (Toll had not been required to complete an F3 prior to this date).
I also sent with the directions a copy of the decision in Metropolitan Fire and Emergency Services Board v Duggan which deals with minimum employment issues and requested the parties have regard to it.
Submissions of Mrs Hailu
Mrs Hailu’s submissions can be stated in brief:
· The FW Act Div 11 Subsection A – which deals with notice of termination and redundancy – makes it “clearly unlawful for companies to terminate an employee without providing the minimum notice time”
· The notice period in her contract of employment with Toll is one month
· Her letter of termination said that she would only be paid 1 weeks notice
· She was issued with an amended letter of termination dated 19 January 2023 which amended her notice period to 1 month
· The error in the notice period was deliberate and was done to “prevent [Toll] from having to extend [her] probation, and even if they did, they would effectively be unable to do so because the FW Act only permits probationary periods of no longer than six months”
· Her employment was terminated a day before the end of her 6 month probation which was premeditated and deliberate
· Toll threatened to call the police (for the return of property) which was an attempt to intimidate her
· By virtue of s.117 of the FW Act the Respondent could not terminate her employment without giving her 1 months’ notice as specified in her contract. It failed to do so and, had it done so, her employment would not have been terminated until at least 19 February 2023 in which case she would have completed 6 months and be eligible to have her application for unfair dismissal heard.
Toll submissions
In its Form F3 – Employer response to application for unfair dismissal Toll says that the Commission does not have jurisdiction to deal with the application for unfair dismissal as Mrs Hailu had not completed the minimum employment period of 6 months at the time of the termination of her employment.
Toll says:
· Mrs Hailu commenced employment on 20 July 2022
· On or around 5 October 2022 Mrs Hailu was advised her 3 month probationary period was to be extended. This extension was due to concerns as to Mrs Hailu’s work performance in her job
· Mrs Hailu did not demonstrate improved performance and on 10 January 2023 she was advised by telephone of the termination of her employment. A letter of termination was issued to Mrs Hailu on 10 January 2023 at about 11.55am. That letter clearly said her employment would end on 10 January 2023
· The letter of termination indicated termination of employment with payment of one weeks’ notice. Mrs Hailu contacted Toll on 16 January 2023 querying the one weeks’ notice. On review of her contract of employment Toll confirmed that the Applicant should have received a payment of 1 months’ notice. An amended letter was provided to Mrs Hailu confirming the correct notice payment. This amended notice confirmed that employment would end effective 10 January 2023.
· Toll had attempted to contact Mrs Hailu to confirm receipt of the 10 January 2023 letter and to arrange for the return of company property on 11 January 2023 and again, in respect of the return of property, on 16 January 2023
· The re-issued letter of termination on 19 January 2023 did not alter the decision to terminate Mrs Hailu’s employment in any way
· Mrs Hailu’s contention that her employment was terminated outside the 6-month probationary period is without foundation. Absent a contrary intention where an employer’s communication is clear and unambiguous payment in lieu of notice will result in the immediate termination of the contract of employment when that dismissal is communicated to the employee
· Despite an error in the notice period the letter of termination issued on 10 January 2023 shows a termination effective on that date and this resulted in the immediate termination of Mrs Hailu. The error in the letter with respect to the period of payment in lieu of notice does not change this
· Notice of termination was given at least 8 days prior to the end of the 6-month probationary period and 10 days prior to the end of the qualifying period to make an application for unfair dismissal
· Mrs Hailu therefore has not met the minimum employment period and her application for unfair dismissal must fail
Further Submissions
The hearing on 3 March 2023 was cut short near its conclusions due to technical difficulties. Both parties were invited to submit anything further they wished to add to the submissions already filed should they wish to do so. Toll elected not to provide anything further.
Mrs Hailu provided further submissions on 15 March 2023 which reiterated the requirements under s.117 of the FW Act. She drew particular attention to the term “must not” as used in s.117(1) (“An employer must not terminate an employee’s employment unless the employer has first given the employee written notice…”) describing the notice as obligatory. She submitted that her rights, well protected by the FW Act, had been violated.
Consideration
I am satisfied that Mrs Hailu commenced employment with Toll on 20 July 2022. To meet the minimum employment period specified in the FW Act she would need to have remained in employment with Toll on 20 January 2023.
Mrs Hailu was dismissed from her employment with Toll with effect from 10 January 2023. While her initial termination letter indicated that she would receive 1 weeks’ pay in lieu of notice she received a second letter on 19 January 2023 which indicated that her employment would end effective 10 January 2023 but that she would receive 1 months’ pay in lieu of notice. The amended notice of termination did not alter the date of effect of the termination of her employment but rather rectified an error with respect to her contracted period of notice.
The relationship between a notice which terminates the employment relationship and the significance of a failure to comply with the notice period in s.117 of the FW Act was considered in Metropolitan Fire and Emergency Services Board v Duggan[1] where the Full Bench of the Commission said:
[30] Turning now to the particular features of the relevant provisions of the Act, s.383(a)(i) of the Act does not make any reference to s.117 of the Act, nor does it state that the notice has to be in writing or inform the recipient of the notice “of the day of the termination” (as required by s.117). These matters tell against s.383(a)(i) being read and construed as incorporating the requirements for notice provided for by s.117.
[31] Also telling is that the purpose of s.117 of the Act is quite different to that of s.383(a) of the Act. The purpose of s.117 is to ensure that employees are given clear and adequate notice, or payment in lieu thereof, of the termination of their employment by their employer. In contrast, we consider the policy and purpose of ss.382(a) and 383(a)(i) is to provide an employer with a period of time to assess a new employee and for the employee to know by the end of the six or 12 month period (depending on whether the employer is a small business employer) whether, on the one hand, their employment will be ongoing and they will be protected from unfair dismissal or, on the other hand, their employment is to be terminated and when such termination will occur. The provisions enable an employer to decide whether or not to dismiss an employee during their minimum employment period without the risk of being subjected to an unfair dismissal claim. Equally, if an employee is not dismissed or given notice of their dismissal during the minimum employment period, the employee knows that they will be afforded the protection of the unfair dismissal provisions of the Act.
[32] 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.
[33] Accordingly, a notice of termination which does not comply with s.117 of the Act may be effective to bring about the termination of the employment relationship and may constitute “notice of the dismissal” within the meaning of s.383(a)(i) of the Act. Construing the Act in this way is consistent with the purpose of the relevant provisions, as set out above.
[34] We therefore are persuaded that the Commissioner was wrong to conclude that a notice of dismissal for the purpose of s.383(a)(i) of the Act must also meet the requirements of s.117 of the Act.
…
[37] For reasons earlier explained, the “notice” required by s.383(a)(i) of the Act is of the termination of the employment relationship, not the employment contract. Accordingly, we do not accept that s.383(a)(i) of the Act requires that a person be given notice in accordance with their contract of employment.
[Footnotes omitted, emphasis added]
That is, while there may be an obligation under s.117 of the FW Act to provide notice of termination of employment consistent with the contract, this is not the same “notice” referred to in s.383(a)(i) in relation to determination of whether the minimum employment period has been completed.
The employment relationship between Mrs Hailu and Toll ended on 10 January 2023 when her employment was terminated at the initiative of Toll and she was advised of this. That the notice of termination of employment was re-issued on 19 January 2023 does not alter the date of effect of the termination. For it to be otherwise would imply that the employment relationship is put back on foot whenever some error is made in final payments for outstanding leave etc that might be quickly rectified by an employer when brought to their attention.
Should Mrs Hailu believe some breach of s.117 of the FW Act because she was not given the notice specified therein by the actions of Toll, these are separate matters not relevant to the matter I must decide and do not effect the date of dismissal for the purposes of the unfair dismissal provisions of the FW Act. Should Mrs Hailu wish to pursue matters associated with a breach of s.117 of the FW Act she is free to do so but this is not a matter for the Commission bust rather a court of law.
Mrs Hailu’s date of termination at the initiative of the employer was therefore 10 January 2023.
Mrs Hailu’s reliance on the requirement in s.117 of the FW Act to provide notice is misplaced for the reasons given in Duggan.
I am therefore satisfied that Mrs Hailu was not employed for a period of at least 6 months. She therefore has not served the minimum employment period and is therefore not eligible to make an application for unfair dismissal.
The application of Mrs Hailu is therefore dismissed. An order[2] to this effect will be issued today.
COMMISSIONER
Appearances:
M. Hailu on her own behalf.
D. Russell for the Respondent.
Hearing details:
Melbourne, by video.
10 March 2023
Final written submissions:
15 March 2023
[1] [2017] FWCFB 4878
[2] PR760464.
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