Ms Louise Poole v Brisbane FM Radio Pty Ltd
[2021] FWC 2578
•6 MAY 2021
| [2021] FWC 2578 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Ms Louise Poole
v
Brisbane FM Radio Pty Ltd
(C2020/5899)
DEPUTY PRESIDENT LAKE | BRISBANE, 6 MAY 2021 |
Application to deal with a general protections dispute involving dismissal – application premature – no dismissal found – application dismissed.
Background
[1] This decision concerns an application by Ms Louise Poole (the Applicant) under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal. Section 366 of the Act requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.366(2).
[2] The Applicant was employed on the 21st May 2012 as an Announcer/Music Director on a fixed term contract which had a series of fixed term extensions with the most recent being from the 9 April 2018 to the 18 May 2020. Following the expiry of the latest contract she continued to perform work and be paid according to the pre-existing agreement.
[3] On 25 May 2020, the respondent sent an email with a draft contract Broadcast Services Agreement for a 12-month period. This agreement did have some differences to the previous one. After having gained advice from an Industrial Relations Officer, the Applicant indicated that she wished to take time to consider the new agreement. She wrote:
Hi Katherine and Barry,
I'm going to have to take some time to come back to you on this because it's different than the previous 1 page extension letters that have been offered to me and is an entirely new 32 page agreement. On initial read it appears to be to my extreme detriment and a lessening of conditions (than my previous 2012 contract and subsequent renewals) and I will need to seek further external professional advice. I am curious about why these changes in conditions have been requested. However, I would have no problem signing another extension of the original 2012 contract.
Cheers
Louise
[4] The respondent replied in the following manner:
Hi Louise,
I hope you're well.
Not a problem, we are happy to discuss anything you wish to change or if you require further clarity on. These are our standard templates and we no longer issue extension letters to anyone. For fixed term contracts for Announcers, the standard agreement is issued. We are open to discuss any changes you may wish to raise.
Your contract will rollover and continue for the next month to allow you more time to review.
Feel free to call myself or Duncan if you have any questions.
[5] On 4 June 2020, the Applicant had a conference call with her manager and the People and Culture representative to discuss various proposed changes that the Applicant sought.
[6] Following the discussions, the Respondent made a number of amendments (which were reviewed by the legal team) before issuing an amended agreement on 30 June 2020. The Applicant, upon reviewing the amended agreement, identified that there were still a number of conditions that the Applicant did not regard as reasonable. She wrote to them and her reply stated:
“Thanks for providing the updated BSA. After taking some time to consider it, I've decided that I can't agree to the additional hours conditions. I am disappointed that we can't come to a compromise, but my personal circumstances have changed since the original agreement of 2012 and I don't consider the 11 day fortnight arrangement to be reasonable additional hours, when I already work a 38 hour week between mon to fri. I understand that if this means that we can't come to terms on a new agreement and our employment relationship may come to an end. Let me know how you would like to proceed. Should you wish to terminate the relationship, I am obviously happy to serve out notice periods for the company.
All the best. Louise"
[7] The Applicant was advised that day that senior management would not make further changes to the proposed agreement. The following day, 8 July 2020, the Respondent sent an email purporting to accept the Applicant’s termination of employment as at 7 July 2020 and advising that her notice period would be four weeks and conclude on 4 August 2020. Later that day, the Applicant responded stating that she had not resigned, that the Respondent had terminated her employment and that she was still employed under the extension granted for the negotiation period.
[8] On 28 July 2020, the Applicant lodged a general protections application involving dismissal (Form F8) with the Commission.
[9] The Applicant continued to work out her notice period and her last day of work was 4 August 2020.
[10] There are two matters that need my attention in this matter. Firstly, I need to determine whether the application was made prematurely and whether I should correct it. Secondly, I need to determine if there was a dismissal.
When did the dismissal take effect?
[11] In Ayub v NSW Trains[2016] FWCFB 5500, the Full Bench stated that:
“[49] In relation to a dismissal with notice, drawing on the common law principles earlier identified, the dismissal would take effect upon the date of the expiration of the specified period of notice. It is necessary however for that date to be clearly identifiable. This would equally apply to a conditional notice of termination. In the case of a dismissal with a payment in lieu of notice, the dismissal would need to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed. There may also be an additional requirement that the payment in lieu of notice has actually been received by the employee.”
[12] Both the Applicant and Respondent attest that the last day of work for the Applicant was 4 August 2020, that was by agreement her last day of employment. If one were to identify a date of dismissal, which is still a matter to be considered in this decision, then it would be 4 August 2020.
[13] If this is the case, then the application made by the Applicant on 28July 2020 for a general protections claim under s.365 was made was prematurely and as such I need to consider whether the application is invalid.
[14] The mere fact that an application is premature does not necessarily make the application invalid and of no effect. The Commission has discretion under s.587 to dismiss a premature application under s.587(1)(a) on its own initiative or upon application. Alternatively, the Commission could exercise its discretion under s.586(b) which allows it to waive any irregularity in the form or manner in which an application was made. This can include the premature filing of an application.
[15] That said, in Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070 at [42], the Full Bench of the Commission found that an unfair dismissal application which was filed prematurely was not made in accordance with s.394(1) of the FW Act.
[16] That Applicant asserts that the Commission should exercise its discretion in this case. In support of that argument, the Applicant pointed to a number of factors, including the way in which notification of dismissal occurred, the merits of her application and the minimal prejudice to the Respondent that would occur. Turning to the first of these, the parties came to an agreement that last day of employment was to be 4 August 2020. There was no uncertainty or confusion. Both parties were clear on the agreed last day of work. The Applicant knew there was a notice period and agreed to work throughout this period.
[17] Following the Full Bench’s decision in Mihajlovic, the matter was remitted to Vice President Hatcher for determination of whether the discretion in s.586(b) should be exercised in particular circumstances of this case and if necessary to waive the irregularity in the manner in which the application was made. The Vice President, in his decision of Mihajlovic v Lifeline Macarthur[2014] FWC 1871, held that the Respondent had contributed to a confusion or uncertainty as to the effective dismissal date:
“[7] But for subsequent events, he could have easily discontinued it and filed a fresh application became confused when, in its response lodged on 6 September 2013, the respondent contended that the dismissal took effect on 7 June 2013 and that the application was out of time. That confusion was not resolved until my decision of 16 December 2013. By that time, Mr Mihajlovic was far beyond the time in which he could have filed a fresh application without obtaining an extension of time.”
[18] The Respondent had identified this matter in its employer response on 10 August 2020 which would have allowed the Applicant two weeks to correct the error, file a notice of discontinuance in relation to the original application and lodge a new application within time. The Applicant elected not to follow this correct course of action and maintained that the dismissal date was 8July 2020, despite having had the benefit of industrial relations advice.
[19] For the reasons that follow, I have decided that there was no dismissal. The employment came to an end following a period where the parties attempted to negotiate a new contract to replace a series of fixed term contracts that had been in place since 2012. Ultimately, negotiations concluded when the Applicant did not choose to accept the revised offer made by the Respondent and therefore rejected the continuation of her employment.
[20] The fact that Brisbane FM does not point to any particular prejudice, apart from the time and expense of dealing with an application not made in accordance with the Act and with which the Commission does not have jurisdiction to resolve, ought not satisfy the Commission to exercise its discretion. Such an approach would have the effect of reversing the onus and placing the burden of convincing the Commission not to accept a non-compliant application at the feet of the Respondent. Such an approach should be rejected.
[21] As the Application was premature, I determine to dismiss the Application under s.587(1)(a) of the Act, as it was not made in accordance with the Act. In the event that I have erred in so finding, I will consider the following question.
Was there a Dismissal?
[22] Applications brought under s.365 of the Act require that the person has been dismissed, in contravention of the general protections provisions. The meaning of dismissed is relevantly provided at s.386 of the Act as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[23] The Respondent argued that the Applicant’s employment came to an end at the conclusion of the fixed term agreed between the parties following a period of negotiations for a new contract which was not agreed to by the Applicant. If this is the case then the Applicant’s employment falls within s 386(2)(a) and, by operation of s 386(2), she was not “dismissed”.
[24] As an alternate argument, the Respondent submitted that the Applicant’s employment came to an end at the Applicant’s initiative and therefore is not a dismissal for the purposes of s.386(1) of the Act.
[25] At the hearing, in cross-examination, the Applicant’s evidence was as follows:
“Ms Bulut: And you understood what the parties had agreed to was that you would continue to be employed, continue to perform your work, until the new contract was either negotiated or the parties couldn't reach an agreement. Correct?
Ms Poole: Yes.
Ms Bulut: So if parties could not reach an agreement on the new contract, then you understood your employment would come to an end. Correct?
Ms Poole: Yes.” 1
[26] The evidence continued:
“Ms Bulut: Well, that's consistent with the answer you gave me earlier, which was that you had accepted that if your employment would continue (indistinct) negotiations to continue and that the old contract would come to an end when the negotiations finished. The negotiations would finish either because there was agreement or because there was no agreement. Correct?
Ms Poole: Yes.”
[27] Further, Ms Poole’s evidence was that:
“Ms Bulut: But you acknowledge in the last sentence that the previous extension had been rolled over for a finite period, that is, to allow for negotiations, which were unsuccessful. Correct?
Ms Poole: Yes, as they told me that the previous contract wouldn't exist anymore, so the rollover period was all we had if this new contract didn't get signed.” 2
[28] The Applicant’s own evidence supports the contention that the fixed term agreement was being extended in order to finalise a new contract of employment and the employment relationship would continue until the outcome of the negotiations. The parties ultimately did not agree to the terms of an agreement. Having not reached agreement, negotiations ended on 7 July 2020. The employment relationship came to an end once negotiations proved fruitless and a future agreement could not be reached. The parties agreed to a notice period of four weeks that concluded, as did the Applicant’s employment, on 4 August 2020.
[29] The Respondent further submitted that this matter could be distinguished from the majority of the Full Bench in Saeid Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162, where the majority found that a failure to offer a new contract to an employee, who had previously had a series of rolling fixed term contracts, could be regarded as a “dismissal”.
[30] In considering the interpretation of s.386(1) in Navitas, 3 Deputy President Coleman pointed to the decision in Victoria v Commonwealth, in which the High Court stated ‘as a matter of ordinary language, an employer does not terminate an employee’s employment when his or her term of employment expires’.4 That is, that where there exists a fixed term agreement and that agreement expires by the effluxion of time, there has been no dismissal but rather an expiration of the agreement between the parties.
[31] The evidence before me demonstrated that both parties began discussions with the intention that the employment relationship would continue. Indeed, the parties agreed to extend the fixed term contract by a further period to enable negotiations to occur. The Respondent amended the proposed new agreement to take into account some of the concerns raised by the Applicant. However, the terms offered by the Respondent were not agreeable to the Applicant and no new agreement was reached. Further, at the time the Applicant indicated she was unwilling to be employed on the terms offered, she also indicated that the parties had failed to agree on the terms of further engagement. Accordingly, when the original agreement between the parties expired, the employment relationship ended. The Respondent did not terminate the employment relationship. There was no dismissal. Rather, the agreement expired due to the effluxion of time and there was no new agreement between the parties to continue the employment.
[32] There was no failure on the part of the employer to offer a new term of employment and the Respondent’s revised agreement was to offer the Applicant a contract in substantially the same terms as her previous fixed term contracts. The Applicant did not agree to the terms, as was her right.
[33] There are no vitiating factors which would negate the genuine agreement reached by the parties.
[34] For the reasons outlined above, I have determined that the Applicant’s employment was not terminated at the employer’s initiative, nor was the Applicant dismissed. Further, there is no evidence before the Commission that the Applicant was forced to resign because of the conduct, or a course of conduct, engaged in by the employer.
[35] On that basis, I find there was no dismissal for the purposes of sections 365 and 386 of the Act, and accordingly, the Applicant’s application is not capable of proceeding.
[36] However, for completeness I have considered the matter to be determined regarding the correcting the date of application. Given the Applicant had been provided with professional advice during the renegotiations from an Industrial Relations Advisor, she would have been aware that the application had been made prematurely and therefore now would require extension of time for filing.
[37] The time limit that applies to the exercise of a person’s right to bring an application under s.365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
[38] Having regard to all the matters I am required to take into account under s.366(2), I am not satisfied that the requisite exceptional circumstances exist here. There is no acceptable or reasonable explanation for the delay in filing the application. None of the factors in s.366(2) weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together, so as to support an extension of time being granted for the Applicant to make her application.
Conclusion
[39] For the reasons set out above, in respect of the question of dismissal, I have determined that no dismissal occurred and therefore this matter cannot proceed. Regarding the extension of time, I find that even if a dismissal had occurred, I would decline to grant an extension of time under s.366(2).
[40] For these reasons, the Applicant’s application under s.365 of the Act is dismissed.
[41] I order accordingly.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR729620>
1 PN 301, 302, 363.
2 PN 400
3 Saeid Khayam v Navitas English Pty Ltd t/a Navitas English[2017] FWCFB 5162.
4 [1996] HCA 56, (1996) 187 CLR 416.
0
5
0