Ms Melenie Barker v Gambaro Publishing Pty Ltd T/A Gold Coast Panache Magazine

[2013] FWC 1132

[2013] FWC 1132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Melenie Barker
v
Gambaro Publishing Pty Ltd T/A Gold Coast Panache Magazine
(U2012/14812)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 20 FEBRUARY 2013

Summary: application for an unfair dismissal remedy under s.394 – extension of time – Respondent caused confused circumstances about notice – reasons for delay exceptional circumstances – further consideration – objective fact discovered as to later date on which dismissal took effect – application within time.

[1] On 2 November 2012 Ms Melenie Barker made an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in relation to the termination of her employment byGambaro Publishing Pty Ltd T/A Gold Coast Panache Magazine (“the Respondent”).

[2] The Respondent objected to the application being heard for reason that the Applicant had lodged her application one day outside the statutorily permitted time period.

[3] After such time as the hearing had been concluded I issued a decision ex tempore. I now reduce that decision to writing for purposes of publication. Apart from some corrections to grammatical infelicities and some redaction in respect of redundancies, the decision effectively is as it was given in transcript on Thursday, 14 February 2013.

[4] Subsection 394(2)(a) of the Act requires that an application for an unfair dismissal remedy must be made within, for the purposes of this particular pre-1 January 2013 dismissal, 14 days of the dismissal taking effect.

[5] Subsection 394(2)(b) allows for the Fair Work Commission to allow the application in such other further period, as it may, pursuant to subsection 394(3) of the Act, which sets out various criteria about which the Commission must have regard for the purposes of reaching a view as to whether or not there are exceptional circumstances that would give it reason to allow a further period of time for the purposes of subsection 394(2)(b) of the Act.

[6] I will return to the various criteria under s.394(3) of the Act to which I need to have regard shortly.

[7] The relevant factual matrix arising from this application is as follows.

[8] On Thursday, 18 October 2012, the Applicant was notified by telephone by her immediate manager, Mr Jeffrey Keanalley that her position with the Respondent had been made redundant.

[9] At the time of this telephone call, the Applicant was on annual leave and was not expected to return from such leave until Monday, 22 October 2012.

[10] I add at this point that there is a contest between the parties (to which I will return later) concerning whether Mr Keanalley indicated at this time the Applicant was to be terminated immediately with her notice period paid in lieu or whether the Applicant was merely given two week’s notice as such.

[11] Correspondence was directed to the Applicant that day confirming the verbal communication. That correspondence was signed by the Respondent's Chief Executive Officer. The correspondence of 18 October 2012 was exhibit A to the Applicant’s materials. It stated:

Please be advised that your position with the company has become redundant. Pursuant to your contract, you are given two weeks' notice, which will be paid out to you along with all other entitlements.

[12] The correspondence from the Chief Executive Officer appears to indicate the notice period was to be paid in lieu, though the language employed is not precise.

[13] The application under s.394 of the Act was lodged on 2 November 2012. Accepting that the Applicant’s date of dismissal as being 18 October 2012, the Applicant’s application was one day out of time for the purposes of subsection 394(2)(a) of the Act.

[14] This however is not the end of the matter.

[15] On 18 October 2012, the Applicant also received correspondence from the company’s Chief Executive Officer, which was mistakenly dated 17 October 2012. That correspondence states, in part:

You will be required to assist in the orderly transfer of your magazine clients to other salespeople or suitably Aimee [who is a work colleague] with contact details and names so she can pass this information on to your successor.

[16] The Applicant attended work on Monday, 22 October in accordance with the direction of her employer and remained there from approximately 8.30am until, on the Applicant’s evidence at least, around 8pm that night.

[17] The Applicant appears to have completed the tasks required of her by her employer by way of the correspondence dated 17 October 2012, amongst other activities associated with the Respondent’s publication business.

[18] On that same day, 22 October 2012, correspondence was forwarded to the Applicant from Mr Jeff Keanalley advising that the Applicant was not required to work during the two weeks that followed as the wages would be paid in lieu of notice.

[19] The Respondent indicated that on 29 October 2012, the Applicant forwarded various medical certificates it. Correspondence in reply was forwarded to the Applicant indicating that there was no requirement for her to forward medical certificates as she was not required to work in the notice period.

[20] The difficulty in this matter arises from the nature of the correspondence directed to the Applicant on 22 October 2012 and also in the correspondence dated 17 October 2012.

[21] I draw attention first of all to Mr Keanalley’s correspondence of 23 October 2012.

[22] That correspondence reads, in part:

You have two weeks' notice from last Friday and are not required to work out any more of those two weeks at the magazine than you have already done.

[23] It appears to me to follow from Mr Keanalley’s correspondence that there seemed to have been a confusion within the ranks of the employer as to the precise terms of the notice period applying to the Applicant.

[24] Mr Keanalley's correspondence is predicated on, firstly, the notice period commencing on Friday, 19 October 2012 and secondly, it is predicated upon the Applicant having been working within that period of notice up until the time of that correspondence, which was 23 October 2012. That is, implicitly, Mr Keanalley’s correspondence presumes that the Applicant attended for work on 22 October 2012. I say this because the correspondence states that the Applicant was no longer required to work any more of the two-week notice period than she had already done to that date.

[25] The Applicant contends that Mr Keanalley’s correspondence was consistent with his comments to her on Thursday, 18 October, in which he indicated he was giving her two weeks’ notice and with no reference being made to an immediate termination of work and payment in lieu of notice. Mr Keanalley’s correspondence of 23 October 2012 is consistent with the Applicant’s evidence in this regard.

[26] If Mr Keanalley had stated on Thursday, 18 October 2012 that the Applicant had been dismissed immediately, his understanding of the situation had changed dramatically between then and the correspondence of 23 October 2012, which is not predicated on an immediate dismissal having taken effect.

[27] I have also found that Mr Keanalley’s evidence to be generally somewhat confusing as to the precise detail of what it was that he stated in actuality in the conversation with the Applicant on Thursday, 18 October 2012. He seemed to have lost confidence at times in the course of giving his evidence in his recollection as it was adduced in questioning.

[28] It appears to me in circumstances where the communications are confused that it is reasonable to consider the conduct of the Applicant in the appropriate context. I add that this is even more so the case, taking into account the correspondence dated “17 October 2012,” in which the Chief Executive Officer stated that she required the Applicant to attend to various other tasks at a subsequent period of time.

[29] They were the matters that were attended to on Monday, 22 October 2012. It would have been reasonable in these circumstances, to my mind, for the Applicant to have reached the view that, on the basis of Mr Keanalley’s correspondence and the Chief Executive Officer’s correspondence dated “17 October 2012”, the date of her dismissal was at least or no earlier than 23 October 2012, which was the date after which she was no longer required to perform any duties for the employer.

[30] In my view, the correspondence of 23 October 2012 also reflected the fact that Mr Keanalley had simply given the Applicant two weeks’ notice on Thursday, 18 October 2012.

[31] The Applicant clearly construed the correspondence of “17 October 2012” in the context of Mr Keanalley’s remarks on 23 October 2012 to the effect that her employment had not been immediately or abruptly terminated on 18 October 2012.

[32] I add to this that when the Respondent required the Applicant to perform various duties for it subsequent to the notice of redundancy, this again, as I have mentioned earlier, strongly implies that the employer had given the Applicant an expectation that the employment relationship had not come to an end immediately, that is, on 18 October 2012.

[33] None of this, I add, may have been the Respondent's actual intent. The Chief Executive Officer’s correspondence and interventions at times proffered a different view. But notwithstanding, the Applicant, however, formed a view on the variety of materials before her that had emanated from the Respondent that the period within which she was required to lodge her application under section 394 of the Act did not commence on 18 October 2012 but at some other date, and that this impression or understanding arose because of the differing advices she had received and indications she had received from the communications and conduct of her employer.

[34] I have considered these matters in the context of the other issues in respect of which I must have regard. The matters to which I just had regard refer to the reasons for the apparent delay in the lodging of the application for the purposes of s.394 (3)(a) of the Act.

[35] I will now turn to the other matters to which I need to have regard.

[36] No issue arises for the purpose of section 394(3)(b) of the Act.

[37] For the purposes of section 394(3)(c) of the Act, the Applicant appears to have taken no other action other than by way of her application to dispute or challenge the dismissal (other than by making the application before me).

[38] For the purposes of section394(3)(d) of the Act, there does not appear to me to be any prejudice to the employer, including any prejudice caused by the delay that might be caused by this matter being allowed in an alternative period of time other than that stipulated in section 394(2)(a) of the Act.

[39] For the purposes of section 394(3)(e) of the Act, I note that I have not heard the evidence in relation to the various claims that might be made in respect of the merits of the matter, and any consideration in this regard must be of neutral effect on the exercise of my discretion as a consequence.

[40] No other person appears to have been relevant for the purposes of section 393(3)(f) of the Act.

[41] I therefore give no weight to any consideration in that regard.

[42] Taking all of the above into account I note the confused circumstances in which the Applicant found herself between 18 October 2012 and 23 October 2012 (which arose because of the absence of consistent clarity provided by her employer as to the precise date on which her attendance at work was no longer required and the precise details of the manner in which it intended the notice period to operate.)

[43] Where the employer’s conduct gives rise to confused circumstances of this kind, in my view, the application for an extension of time under s.394 (2)(b) of the Act should be exercised in favour of the Applicant as the circumstances constitute exceptional circumstances.

[44] In the event, therefore, that the Applicant’s application is one day out of time, I therefore allow for the application in an alternative period of time because of the delay arising from the exceptional circumstances.

[45] But more follows from the evidence in this matter than this conclusion, which you will note that I have made conditional.

[46] As a matter of object fact, it appears to me that the dismissal did not take effect until after the conclusion of the duties by the Applicant on 22 October 2012.

[47] The Chief Executive Officer had required the Applicant to assist in the orderly transfer of magazine clients and so forth, and this required the Applicant to attend work on Monday, 22 October 2012 to perform those various duties. Mr Keanalley’s correspondence that day also gives a strong indication that the employer had not, in its mind, terminated the Applicant’s employment until the end of that day, when the Applicant had completed her duties as required.

[48] As a matter of fact, therefore, I am of the view that the Applicant’s employment was not terminated or that the dismissal did not take effect - that is, the dismissal arising from the alleged or claimed redundancy - until 23 October 2012.

[49] At this time, the Respondent made clear to the Applicant that her employment had ceased and that the residual of the notice period would be paid in lieu. Monday, 22 October 2012 was also the last day on which the Applicant performed duties at the direction of the Respondent.

[50] Because I have reached this view as to the date on which the dismissal took effect as an objective fact, the Applicant’s application is therefore not inconsistent with the requirements of subsection (2)(a) of section 394 of the Act.

[51] That is, the application was made within time and no application for extension of time is required. This is because, again, the date that the dismissal took effect was after such time as the Applicant has ceased to perform duties on Monday 22 October 2012 (and not Thursday 18 October 2012 as the Respondent alleges).

[52] It is not therefore necessary that I exercise a discretion under section 394(2)(b) of the Act to allow the application in another period other than that stipulated at subsection (2)(a) of section 394 of the Act.

[53] By way of a post script to this decision, I indicate that the application was subject to a conciliation conference at the conclusion of the jurisdictional hearing and the delivery of the above decision. The application was discontinued thereafter on the basis that the parties agreed to an arrangement.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms M. Barker, Applicant

Mr B. Tiplady, Agent, for the Respondent

Hearing details:

2013.

14 February.

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