Ms Kylie Hawkins v Vet Supersavers T/A Vet Supersavers

[2018] FWC 6027

[2018] FWC 6027

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Kylie Hawkins
v
Vet Supersavers T/A Vet Supersavers
(C2018/4067)

COMMISSIONER HUNT BRISBANE, 25 OCTOBER 2018

Application to deal with contraventions involving dismissal – extension of time – letter of dismissal posted to Applicant while on extended leave – dismissal not effected until Applicant had reasonable opportunity to read letter of dismissal – extension of time not required – application within time.

Introduction and Background

[1] Ms Kylie Hawkins was employed by Vet Supersavers from 6 January 2018. Ms Hawkins has made a claim pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that she was dismissed in contravention of the general protection provisions of the Act.

[2] In the application form completed by Ms Hawkins, she nominated that she had been dismissed on 5 June 2018, and later stated within the form:

“I was overseas on approved holidays when the letter was sent to my house. I was totally unaware I had been dismissed until I returned on the 16 July 2018.”

[3] The application was received by the Fair Work Commission (Commission) by email dated 24 July 2018.

[4] 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.”

[5] Ms Hawkins contends that she was not aware of the dismissal until 16 July 2018. If that contention is accepted, Ms Hawkins made her application within the 21 day statutory time period. If that contention is not accepted by the Commission, the application has been made 28 days outside of the 21 day time limit. An extension of time would need to be granted to allow the application to continue.

Respondent’s Objection

[6] Ms Leichelle McMahon is the proprietor of Vet Supersavers. Upon being served with Ms Hawkins’ application, Ms McMahon wrote to the Commission as follows:

“Hi

Kylie Hawkins was dismissed for serious misconduct – she was screaming at me, other staff and my mum – in front of other staff and customers

I wasn’t being spoken to in such a manner – and the damage it did to my business in front of customers – im sure they will never be back

There is no unfair dismissal here

Leichelle”

[7] The parties’ views were sought on the extension of time issue. Ms McMahon responded as follows:

“Sorry I don’t understand this whole thing – she’s been away for 12 weeks or more – said to our vet she wasn’t coming back and now this. Sorry you need my consent for?”

[8] Directions were issued for the filing of material, with a hearing scheduled for 21 September 2018. Ms McMahon appeared in person at the hearing. Ms Hawkins advised my Associate the morning of the hearing that she was unable to attend in-person due to a back injury. She sought leave to appear at the hearing by telephone and I granted this application.

Evidence and submissions of Ms Hawkins

[9] Ms Hawkins’ evidence is that before she accepted the role with Vet Supersavers, she informed the respondent that she had a lengthy overseas holiday planned. Ms McMahon informed Ms Hawkins that taking the leave ‘would not be a problem’ and Ms Hawkins understood that the leave was approved.

[10] It is Ms Hawkins’ evidence that she suffered an injury at work, aggravating a personal injury. A workers compensation claim was made, but rejected, Ms Hawkins contends, because of ‘false information’ provided by Ms McMahon to WorkCover. Ms Hawkins was upset that she wasn’t permitted to return to work with a medical clearance certifying her fit for light duties. Ms McMahon informed her she must have a complete clearance to return to work.

[11] Ms Hawkins left Australia on 31 May 2018 to holiday for a period of seven weeks. Evidence was provided demonstrating that she returned to Australia on 16 July 2018, arriving home at approximately 9.00pm. Being so late in the night, Ms Hawkins did not check her mail. She awoke at approximately lunch time on 17 July 2018 and opened all of the mail that had been collected for her by a friend. She viewed the letter sent from Ms McMahon dated 5 June 2018 which stated:

“Dear Ms Hawkins

Termination of your employment

I am writing to you about your employment at Vet Supersavers – at this time we have decided to terminate your probation effective immediately.

We consider that your conduct is unsatisfactory and have decided to terminate your employment for the following reasons:

● Your behaviour infringed serious misconduct behaviour on Monday May 21^st between 9am and 10am – in front of staff and customers – behaviour to run our reputation or profits to our business

● Deliberately behaving in a way that’s inconsistent with continuing your employment

Based on this serious misconduct your employment is terminated immediately

You will be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment. This includes the balance of any time off and superannuation.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them you can call 13 13 94 or visit their website at termination payments may give rise to waiting periods for any applicable Centrelink payments. If you need to lodge a claim for payment you should contact Centrelink immediately to find out if there is a waiting period.

Yours sincerely

Leichelle McMahon
Vet Supersavers”

Evidence and submissions of Vet Supersavers

[12] Ms McMahon stated the following in written evidence:

“Kylie Hawkins employment was terminated due to serious misconduct.

She entered Vet Supersavers I think it was 21^st May at 9am – kylie’s behaviour was in line with serious misconduct – I said to her something she didn’t like – that she couldn’t be at work with out full clearance – she only had clearance for light duties – I was concerned her due to be on a plane the next week for the uk – she would try and hurt herself and claim workers comp. She stormed out the back door and proceeded to ring fair work – in which she must have been outside on the phone to them about 30 mins – they backed me on what I had said

Then she proceeded to continue her tanty like a 2 year old – come in slammed doors – there was 3 other staff and a client in the consult room – she proceeded to yell and scream and swear at me – which echoed through the surgery – she then said reprehensible comments – to which she could never come back – this is infront of others. I rang fair work and they advised this conduct is not acceptable – it is considered serious misconduct – other staff will testify and I can contact poor client that was in consult room

……………….. behaviour like this in front of clients – was ruining our reputation – and certainly the client wouldn’t be back. And they said I had to write a letter – in which I did - as per their website – in which kylie had house sitters looking after her affairs at home……………

……

The letter was written and posted a day or 2 later……….all entitlements were paid out. That should be the end of it. She does not need any extension of any kind – it is not unfair dismissal – her behaviour is her undoing.”

[13] During the hearing Ms McMahon gave evidence that she recalled posting the termination letter on or around 7 June 2018. She decided to post the letter (as opposed to emailing it) after contacting the Fair Work Ombudsman. She agreed that it was probably delivered to Ms Hawkins’ home around 13 June 2018.

[14] I asked Ms McMahon relevant questions during the hearing. Towards the end of the hearing she suggested that she may have said enough during the conversation of 21 May 2018 to have dismissed Ms Hawkins on 21 May 2018. The following conversation occurred:

McMahon: I thought she’d be smart enough to know that her behaviour wasn’t going to be tolerated. ummmm…

Commissioner: Perhaps you should have told her that before she left overseas on a holiday?

McMahon: I said to her at the time when it happened, this, this isn’t on. I said, this is….not ..not tolerable.

Commissioner: Yes, well then, if you thought there was a dismissal then you wouldn’t have bothered dotting your i’s and crossing your t’s and sending a letter on 5 June.

McMahon: I thought just in case it wasn’t clear I’d send a letter.

Commissioner: Are you going down that line are you, that she was dismissed on the 21 May?

McMahon: No, no, I backed it up with the letter.

Commissioner: Well, do you say she was dismissed on 21 May?

McMahon: The incident happened on 21 May.

Commissioner: Do you contend that she was dismissed on 21 May?

McMahon: Not in writing. And Fair Work, that’s why I was talking to Fair Work, Fair Work said it had to be in writing.

Commissioner: Well, it doesn’t necessarily have to be in writing. So do you contend on 21 May you said enough words that she would understand that she was dismissed?

McMahon: I’m not 100% sure on that, to be honest, I said that her behaviour….

……..

……..

Commissioner: So it’s not a dismissal?

McMahon: Probably not.

[15] On 24 September 2018, a few days after the hearing, Ms McMahon wrote to my chambers as follows:

“Just running over things in my head – from the past and Friday, wheather (sic) I had indicated to kylie about termination on the last time I saw her – I know I said to her – her behaviour was unacceptable – I had asked her to return keys and shirt via email and it was about may 28 kylie messaged and confirmed she had returned keys and shirt – via the other nurse – she didn’t come into the surgery herself…..”

[16] The following correspondence was sent to Ms McMahon by my Associate:

“The Commissioner has considered your correspondence below.

Your evidence at the jurisdictional hearing of this matter on Friday, 21 September 2018 was that you did not consider that you had dismissed the Applicant from her employment on 21 May 2018…….”

[17] Ms McMahon was directed to produce relevant emails that she stated could assist her assertion that the dismissal had occurred on 21 May 2018.

[18] The emails produced demonstrate the following correspondence between the parties:

(a) 21 May 2018 @ 10.39am Hawkins to McMahon:

Hi Leichelle

Please find attached my timesheet for immediate payment today.

Regards

Kylie

(b) 21 May 2018 @ 5.26pm McMahon to Hawkins:

Just trying to look at your time sheet –

Its just got nothing other than normal hours here – which you were not here so Thursday 3/5 you left about 9.30/10am?

So 7.5 of that day was sick,

4/5 sick

7/5 ”

8/5 ”

9/5 ”

10/5 ”

11/5 sick

So I calculate 24hrs normal

45.5 hours sick

You have 22.04 hours personal leave – which I can substitute

Leichelle

(c) 21 May 2018 @ 5.50pm Hawkins to McMahon:

No I have 10 days sick leave that I am entitled to so you have to pay me my nirmal (sic) hours which is 76 hours. The Friday is the 11^th day that I don’t get. Please finalise my pay immediately.

Regards

Kylie

(d) 24 May 2018 @ 9.50am McMahon to Hawkins:

Can you please drop off keys and shirt today for new nurse

Thanks

(e) 24 May 2018 at 10.07am Hawkins to McMahon:

Leichelle

Please advise of my employment status by 5pm today with consideration of the following:

1. Removal of my administrative rights to the Vet Supersavers Facebook Page

2. Removal from both the Vet Supersavers Memo Page and the Vet Supersavers OCC Page

3. Removal from the Vet Supersavers Bee Free Log In

4. Late payment of wages

5. Advertisement on Facebook for a replacement nurse

6. Request for me to return my keys

7. Request for me to return my Vet Supersavers shirt

8. The employment of a replacement nurse

9. Your refusal to allow me to return to work

Your request for my keys and shirt as well as the other items insinuates my dismissal as an employee. Please advise.

Regards

Kylie Hawkins

(f) 24 May 2018 @ 12.05pm McMahon to Hawkins:

Your certificate covers 2 weeks then you are away for like 2 months on holiday – your (sic) not in so I need the keys and shirt back for staff.

I have said since you were off you need full clearance to work – which you do not have

Please return this arvie so I can get next week sorted

Thank you

Leichelle

(g) 24 May 2018 @ 12.10pm Hawkins to McMahon:

Leichelle

You have not clearly stated what I have asked. Please clarify as requested.

Regards

Kylie

(h) 24 May 2018 @ 1.13pm McMahon to Hawkins;

I did answer what you asked

Return the keys tonight

Leichelle

[19] In written submissions, Ms McMahon stated that Ms Hawkins referred to her ‘final pay’. Ms McMahon stated that Ms Hawkins organised with ‘Melissa’ to provide to Melissa a shirt. She stated that she didn’t want to see Ms Hawkins after her ‘behaviour’.

[20] Further emails were sent as follows:

(a) 31 May 2018 @ 11.44pm Hawkins to McMahon:

Leichelle

I have asked for my accrued annual leave to be paid and to date it has not been done. Please pay immediately. Thank you.

Regards

Kylie

(b) 1 June 2018 @ 12.04am McMahon to Hawkins:

Up until yesterday you have been on unpaid sick leave I do believe your holidays start today

(c) 22 June 2018 @ 1.43am Hawkins to McMahon:

Leichelle

I have emailed you several times niw (sic) and you continue to ignore me and not reply. I do not see what purpose this serves as when I return in a few weeks you will not be able to ignore me. Please pay me immediately.

Kylie

Ms Hawkins’ reply

[21] Ms Hawkins denies the contents of [12] but for making contact with ‘Fair Work’.

[22] Relevant to Ms McMahon’s contention that Ms Hawkins had house sitters during her extended holiday, Ms Hawkins did not inform Ms McMahon that she had house sitters. Her contention is that even if she did, they were not authorised to open her mail. Ms Hawkins contends that Ms McMahon knew that Ms Hawkins would not know about her dismissal until her return from holidays in mid-July 2018.

[23] Despite Ms McMahon’s assertion at [12] that she wrote the termination letter one or two days after the 21 May 2018 incident, Ms McMahon’s evidence is that she wrote it on 5 June 2018 and posted it some days later. Ms Hawkins did not leave Australia until 31 May 2018. She contends that Ms McMahon deliberately left writing the letter until Ms Hawkins had left the country to ensure that Ms Hawkins would be outside of the 21 day time limit. Ms McMahon rejected such a proposition and during the hearing stated that she did not know an employee had a 21 day time limit to bring any such claim.

[24] Ms Hawkins was not aware while overseas that she had been dismissed. Ms Hawkins sent an email to Ms McMahon during her holidays (referred to at [20(c)]) asking for her holiday pay to be paid, and Ms McMahon did not reply to inform her that she had been dismissed.

[25] Ms Hawkins contends that the earliest she could have known of her dismissal was 16 July 2018, and accordingly, that is when the dismissal occurred. She submitted that if the Commission were to agree, an extension of time would not be necessary as she would be within time.

Applicable Case Law – date of termination

[26] In Ayub v NSW Trains 1, a Full Bench of this Commission stated:

“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd as follows:

“[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable. The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties”” [citations omitted]

[27] In considering how a dismissal may be effected pursuant to the Fair Work Act, when considering the common law general principle, a Full Bench in Commonwealth of Australia (Australian Taxation Office) v Wilson 2 determined that generally, a dismissal may not take effect prior to it being communicated to the employee.

[28] Relevant to how to treat s.394(2)(a) of the Act, the Full Bench said: 3

“…..the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal……if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document.”

[29] An example was provided in the decision of an employee on an approved period of annual leave, holidaying away from home when a dismissal letter is delivered; the date of dismissal would not be the date of delivery of the letter, but when the employee returns home and first has a reasonable opportunity to read the letter.

[30] It was held in Ayub that Mr Ayub was not aware of his dismissal until the first reasonable opportunity Mr Ayub had to read the letter of termination, and the earlier date of 14 January 2016 was rejected by the Full Bench. Accordingly, Mr Ayub made his application within 21 days of the date that he read the letter, and no extension of time under s.394(3) was required.

Consideration

[31] I accept Ms McMahon’s evidence that the first she knew an employee had 21 days to bring an application before the Commission was when I advised her so during the hearing.

[32] I reject Ms McMahon’s assertion at [19] that Ms Hawkins asked for her ‘final pay’ on 21 May 2018. She did not. She emailed, “Please finalise my pay immediately.”

[33] If Ms McMahon objectively reviewed the material before the Commission, I would hope that it would be clear to her that the employment remained on foot beyond 21 May 2018.

[34] Ms McMahon has, at times during the proceedings asserted an alternative set of purported facts that Ms Hawkins walked out of her employment, and therefore there has not been a dismissal at the initiative of the respondent, and that it is out of time.

[35] The Full Bench of the Commission in Hewitt v Topero Nominees⁴ makes it clear that when dealing with s.365 applications, the Commission need not be satisfied that the applicant has been ‘dismissed’ from their employment before holding a s.368 conference. The Full Bench said:

“It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.”⁵

[36] Accordingly, whether there has been a dismissal or not at the initiative of the employer is not a consideration for the Commission in this type of application.

[37] None of the evidence supports Ms McMahon’s assertions relevant to whether Ms Hawkins left her employment before she left for her holiday, or the earlier submission that Ms McMahon dismissed Ms Hawkins on 21 May 2018. Ms McMahon’s arguments and submissions lack credibility, and this should be plainly visible to Ms McMahon on examination of the emails exchanged by Ms Hawkins and Ms McMahon.

[38] At [6], Ms McMahon first stated that Ms Hawkins had been dismissed by the respondent. This was repeated at [12].

[39] On 24 May 2018, in response to Ms Hawkins’ request to learn if she has been dismissed, Ms McMahon at [18](f) informed Ms Hawkins that her medical certificate covers her for 2 weeks, and she is then away for two months; she is not in, so Ms McMahon requires the keys and shirt for staff.

[40] On 1 June 2018 Ms McMahon responded by email:

“Up until yesterday you have been on unpaid sick leave I do believe your holidays start today”

[41] Ms McMahon’s email confirms that as at 1 June 2018, Ms Hawkins remained an employee and was on annual leave. Her employment was on foot. Ms McMahon had not, at this point, prepared a termination letter, nor sent it. Ms McMahon’s submission that she effected termination on 21 May 2018, or when she asked for the shirt to be returned is rejected.

[42] On Ms McMahon’s evidence she did not post the termination letter dated 5 June 2018 until around 7 June 2018.

Conclusion

[43] Ms McMahon did not dismiss Ms Hawkins on 21 May 2018.

[44] In accordance with the Full Bench authority in Ayub, and exactly per the example provided at [42] of the Ayub decision, the earliest Ms Hawkins could have known about the termination of her employment was on her return to Australia on 16 July 2018. Ms McMahon may have attempted to have dismiss Ms Hawkins on or around 5 June 2018, but she failed to communicate the purported dismissal. There was no explanation provided by Ms McMahon as to why she could not have emailed the termination letter to Ms Hawkins as well as mailing it to her home. In any event, she did not do so.

[45] I determine that the dismissal took effect on 16 July 2018, the first reasonable opportunity that Ms Hawkins had to open her mail and read the letter of dismissal. The application having been made on 24 July 2018 is within the 21 day time limit, and no extension of time is necessary.

[46] The respondent’s jurisdictional objection is dismissed.

[47] The parties will be invited to participate in a telephone conference before a staff conciliator of the Commission. If the matter is unable to be resolved between the parties, it is likely that a certificate will then be issued for Ms Hawkins to pursue her application in a relevant court of competent jurisdiction.

COMMISSIONER

Appearances:

Ms Kylie Hawkins for the Applicant

Ms Leichelle McMahon for the Respondent

Hearing details:

21 September 2018, Brisbane

Printed by authority of the Commonwealth Government Printer

<PR700855>

 1   [2016] FWCFB 5500.

 2   [2001] AIRC 163.

 3 Ibid at [42].

4 [2013] FWCFB 6321;

5 Ibid at [50].