Ms Tracey Ashley v Michael Beamish Nominees Pty Ltd
[2020] FWC 3236
•19 JUNE 2020
| [2020] FWC 3236 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Tracey Ashley
v
Michael Beamish Nominees Pty Ltd
(U2020/1626)
COMMISSIONER CIRKOVIC | MELBOURNE, 19 JUNE 2020 |
Application for an unfair dismissal remedy – dispute as to effective date of dismissal – whether to extend time for lodging the application.
[1] On 14 February 2020, Ms Tracey Ashley (the Applicant) lodged an application with the Fair Work Commission (the Commission) alleging that the termination of her employment by Michael Beamish Nominees Pty Ltd (the Respondent) was unfair.
[2] The matter came before me to determine the Respondent’s jurisdictional objection. The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.
[3] The Applicant submits that her dismissal took effect on 31 January 2020. 1 The Respondent submits that the dismissal took effect on 10 January 2020.2
[4] If the dismissal took effect on 31 January 2020 then the application is filed within time. If the dismissal took effect on 10 January 2020 then the application was lodged 14 days outside of the statutory time period permitted by section 394(2)(a) of the Act.
[5] Written materials were filed by the parties and the matter was heard before me on 1 May 2020. Pursuant to section 596 of the Act, the Applicant was granted permission to be represented.
[6] For the reasons set out below, I find the Applicant’s dismissal took effect on 31 January 2020 and therefore was filed within the required statutory time frame. In the event that I am wrong as to the effective date of termination, I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under section 394(3) of the Fair Work Act (the Act).
Legislative scheme
[7] Section 394(2) of the Act provides that an application under section 394 must be made within 21 days after the dismissal took effect:
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
[8] In order for the Applicant’s unfair dismissal application to proceed, it is necessary for the Applicant to obtain an extension of time under section 394(3) to make the application. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
Effective Date of Dismissal
[9] On 18 December 2019, the Respondent issued the Applicant with a letter (the December Letter), providing as follows: 3
“We refer to our recent discussions regarding the future of your employment with Michael Beamish Nominees Pty Ltd t/as Frankston & Cranbourne Toyota (referred to in this letter as the “Company”) and confirm the following:
1. The Company sold its business as an ongoing operation to HFH Auto Group (referred to in this letter as the “New Owners”)
2. The date of settlement is 31st January 2020 and on that day your employment with the Company will come to its end.
3. The Company understands that the New Owners will offer you employment on terms and conditions of which the New Owners will advise you in writing shortly.
Accept employment from the New Owners – Annual Leave entitlements – Effective as of 31.1.2020
4. If you accept employment from the New Owners, the Company will advise you of your current accrued Annual Leave entitlement of 36.835 Hours that the Company will transfer to the New Owners who will honour the entitlements.
5. If you accept employment with the New Owners, your current sick leave entitlements of 33.418 hours will be transferred to and be honoured by the New Owners.
Should the settlement date of sale change, all accrued entitlements will be updated accordingly.
Not accept comparable employment offer from the New Owners
6. If you do not accept comparable employment offer from the New Owners, the Company will pay out your accrued unused Annual Leave at the end of your employment with the Company.
7. If you do not accept comparable employment with the New Owners, the Company will not pay out to you the accrued unused Personal (Sick/Carers) Leave entitlements that you might have at the termination of your employment.
8. If you do not accept comparable employment offer from the New Owners, the Company will not pay you redundancy money as it is not obligated to do so under current laws.
If the New Owners do not offer you employment
9. If the new Owners will not offer you employment, the Company will pay out your accrued unused Annual Leave, and you will receive redundancy payment in accordance with the National Employment Standards
10. If you want the Company to provide you a Statement of Service relating to your employment with us, please let our HR Department know immediately. A Statement of Service confirms your main employment details such as job title, length of service, your major area of work duties and that your employment came to its end with the Company due to sale of business.
Should the settlement date of sale change, sick leave or annual leave be utilised further then all accrued entitlements will be updated accordingly.”(own emphasis)
[10] On 22 January 2020, the Respondent issued the Applicant with a further letter dated 13 January 2020 (the Dismissal Notice) which provided the following: 4
“We regret to inform you of the termination of your employment with Michael Beamish Nominees Pty Ltd, T/as Frankston Toyota is effective 31.1.2020
Michael Beamish Nominees has been sold to HFH Auto Group and as a result your position as a Fleet Manager has become redundant and there is no other position within the company that we can offer you. I regret the situation; however, the decision is unavoidable with the sale of the business.
The purpose of this letter is to confirm your termination entitlements which have been calculated up to 31st January 2020, which will be the date your employment with the company will be terminated.
The company will support you in taking any reasonable time off during your notice period to attend interviews to seek work.
Payout Entitlements
1. Notice of termination
As you have been with the Company for a more (sic) than 12 months and less than 2 years, you are entitled to four (4) week’s redundancy.
The following is a breakdown of your full payout entitlement that you will receive, calculated to 31st January 2020.
Pay Entitlement
Redundancy 4 x weeks’ notice period $5,384.60
1 x week in lieu - Already paid on 15/01/2020
Unused annual leave - Already paid on 15/01/2020
Your total Gross payment on 22/01/20 is: $5,384.60
I will also provide you with a statement of service and an Employment Separation Certificate. The Company regrets the circumstances which have led to your position being made redundant, but I would like to take this opportunity to acknowledge the work you have undertaken during your time with the Company and sincerely wish you well for the future.” (own emphasis added)
[11] On the same date, the Respondent issued the Applicant with a statement of service which provided the following: 5
“Friday, 31st January 2020
To Whom It May Concern,
STATEMENT OF SERVICE
This employment reference letter is to confirm that the following employee was employed on a Full-time basis by the employer: Michael Beamish Nominees Pty Ltd, T/As Frankston Toyota.
NAME: Tracey Ashley
POSITION: Fleet Manager
COMMENCEMENT DATE: 5th February 2019
TERMINATION DATE: 31st January 2020 (Redundancy)…”
[12] “Dismissal”, as used in section 394(2)(a), refers to the termination of the employment relationship (where no issue of resignation is involved). 6 It is uncontentious that the termination of the contract of employment and the termination of the employment relationship can occur at different times.7
[13] The initial question which must be answered in respect of the Respondent’s jurisdictional objection is whether the Applicant’s application was actually lodged after the prescribed 21-day time period. This requires identification of the date upon which the Applicant’s termination of employment took effect.
[14] In Ilves v Lawson Worldwide Forwarding Pty Ltd, 8 Deputy President Gostencnik observed that (at [37] – [40]):
“…In order to terminate an employment relationship, the party exercising the right to terminate must give clear and unequivocal notice that it no longer wishes to be bound by the employment contract. In other words, there must be no doubt in the mind of the party whose employment is being terminated that the employment relationship has come to an end. The law concerning the construction of notice is well established both generally and in the industrial relations context. Some of those established principles are outlined as follows.
[38] The principles governing the interpretation of contractual notices were summarised in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd. Although the notice in this case concerned the construction of a trust deed and notices under deed, the same principles of construction apply. Lord Steyn posited as follows:
“The question is not how the landlord understood the notices. The construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood the notices. And in considering this question the notices must be construed taking into account the relevant objective contextual sense. … the inquiry is objective: the question is what reasonable persons, circumstanced as the actual parties were, would have had in mind…” 60 [Emphasis added].
[39] More relevantly, as Hatcher VP observed in Ayub:
“The general principle is that to affect 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.”
[40] Finally, in order to take effect, notice of termination of an employment relationship must stipulate when that termination is to take effect, or it must at least be possible to determine that time.” (emphasis retained)
[15] It has also been observed by the Commission that in circumstances involving dismissal with payment being made in lieu of notice the employment will not ordinarily extend beyond the date of the payment to the subsequent date of the expiry of the notice. As a general rule, the date that the dismissal takes effect is the date on which the payment is made in lieu of the notice, and not the date of the expiry of the period of the notice. 9
[16] In the case before me, the Applicant was issued with the December Letter advising her that her employment would terminate on 31 January 2020. The December Letter was equivocal only in so far as the Applicant was provided with options involving potential employment offers from the new owners or changes in the settlement date in which case all “all accrued entitlements will be updated accordingly”. 10 As stated above, the Applicant was issued the Dismissal Notice. I consider that the terms of the Dismissal Notice are unequivocal and make it plain that the Respondent intended by that notice that the Applicant’s employment would terminate on 31 January 2020. I have also taken into account that the Applicant was issued with an employment separation certificate, set out at paragraph [11] above, confirming the effective termination date as 31 January 2019.
[17] The Respondent submits that the Applicant was verbally advised on 10 January 2019 that her employment would terminate that day and that subsequent payments to the Applicant of one weeks’ notice of termination and accrued annual leave entitlements (purportedly made on 15 January 2020) and 4 weeks redundancy (made on 22 January 2020) support the Respondent’s submission. 11
[18] The Applicant disputed the contents of this discussion and submits that:
• She was not informed at the meeting on 10 January that her employment would end immediately; 12
• The December Letter, the Dismissal Notice and the Statement of Service each represent that the Applicant’s termination as taking effect on 31 January 2020; 13
• In or around late January 2020, she received a telephone call from Ms Heveren of the Respondent who among other things, “confirmed…. that the Applicant was still in her notice period”; 14
• She was not informed, in writing or otherwise, that her employment was terminated on a date earlier than 31 January 2020; 15 and
• Although Mr Bould, may have been under the “misapprehension” that the dismissal took effect on 10 or 13 January 2020 this was not communicated to the Applicant and this “subjective belief” is immaterial to the question of when the dismissal was effected. 16
[19] On the basis of the material before me, I have determined that the Applicant’s dismissal took effect on 31 January 2020. As to the evidentiary contest between the parties with respect to the 10 January 2019 conversation, I prefer the evidence of the Applicant. I observe that the Applicant was not cross examined, that her evidence was clear, cogent and consistent and the written material referred to above, supports the position advanced by the Applicant.
[20] The Respondent submits that payments for notice as well as leave entitlements were made on 15 January 2020 and payment for redundancy pay was made on 22 January 2020. 17 The Applicant neither accepted or objected to this characterisation.18 There is limited evidence before me as to the making of or receipt of these payments. Neither the Applicant nor the Respondent advanced a case that the effective date of termination was either 15 January or 22 January 2020. If I were to accept that the payments were made on the 15 January and 22 January 2020 as posited by the Respondent and conclude the date of termination was either of these dates, the effect of this would be that the Application would be made out of the statutory time limit.
[21] In the event that my findings above are incorrect and the date of termination is either 10 January, 15 January or 22 January 2020 I will now turn my attention to the factors outlined in section 394(3) of the Act which are set out at paragraph [8] above.
(a) the reason for the delay;
[22] The Act does not specify what reason for delay might tell in favor of granting an extension however decisions of the Commission have referred to an acceptable 19 or a reasonable explanation.20 In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd a Full Bench of the Commission noted that the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favor, however all of the circumstances must be considered.21 The period of the delay is the period commencing immediately after the time for lodging an application expired, and ending on the day the application was lodged. However, the circumstances from the date on which the dismissal took effect can be considered in assessing the explanation for the delay.
[23] The Applicant submitted that she was informed by the Respondent that her employment was terminated effective from 31 January 2020 and on this basis formed a reasonable belief that this was her date of termination. 22 On this basis, the Applicant believed her application was lodged within the time prescribed by the rules.
[24] I have detailed at paragraphs [9] to [19], the circumstances surrounding the termination of the Applicant’s employment. As stated above, the Applicant had before her several written communications from her employer indicating her termination would take effect on 31 January 2020. On this basis, in my view, it was reasonable for the Applicant to form this belief.
[25] I am satisfied that a reasonable and credible explanation for the delay exists. This weighs in favor of a finding that there are exceptional circumstances.
(b) whether the person first became aware of the dismissal after it had taken effect;
[26] The circumstances surrounding the Applicant’s date of dismissal are detailed above at paragraphs [9] - [19]. Based on the material before me, I am satisfied that it was reasonable for the Applicant to believe that she was dismissed on 31 January 2020.
[27] In this matter, I consider this a neutral factor.
(c) any action taken by the person to dispute the dismissal;
[28] Action taken by an employee to contest a dismissal other than lodging an unfair dismissal application may favor the granting of an extension of time. 23
[29] There is no evidence that the Applicant took any steps prior to 14 February 2020 to dispute her dismissal. The Respondent does not specifically address this factor.
[30] In this matter, I consider this factor to be a neutral consideration.
(d) prejudice to the employer (including prejudice caused by the delay);
[31] The Respondent submitted that there was prejudice to it if the extension of time was granted based on it placing the Respondent in an “adverse position”. 24 This submission was not fully developed.
[32] I cannot identify any particular prejudice that would accrue to the company if an extension of time were to be granted. Some decisions of the Commission view the absence of prejudice to the employer as a factor weighing in favour of granting an extension of time. In my view, in this case at least, it is a neutral factor. However, if the absence of prejudice should be properly be treated as telling in favour of an extension of time, I would attribute it little weight in the consideration of whether there are exceptional circumstances in the present case.
(e) the merits of the application;
[33] The Commission notes that for the purpose of determining whether to grant an extension of time to the Applicant to file his application it should not embark on a detailed consideration of the substantive case. 25
[34] The Applicant is challenging her dismissal on the grounds that it was not a genuine redundancy. The Respondent submits that the dismissal was a genuine redundancy.
[35] A highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient. 26 However, the Commission cannot make any findings on contested matters without hearing evidence. Evidence on the merits is rarely called for the purposes of determining an extension of time application. As a result, the Commission should not embark on a detailed consideration of the substantive application.27 I have not done so.
[36] Accordingly, I am not able to make a final assessment of the merits as there are factual disputes between the parties that have not been tested. I find this criterion to be neutral.
(f) fairness as between the person and other persons in a similar position.
[37] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral factor.
Conclusion
[38] As outlined at paragraph [19] above, I have determined that the date of termination of the Applicant was 31 January 2020.
[39] In the event that I am wrong, I have considered the matters prescribed by section 394(3) of the Act. In the circumstances, I am satisfied having regard to all of the matters, that on balance, there are exceptional circumstances in this case that would warrant the granting of an extension of time.
[40] Given my findings at [19] above, the application is determined to have been made within the statutory time frame and the jurisdictional objection of the Respondent is dismissed.
[41] Directions will be issued in due course to progress this matter.
COMMISSIONER
Appearances:
Mr T. Hancock of McDonald Murholme for the Applicant
Mr H. Bould for the Respondent
Hearing details:
1 May 2020 (by telephone)
Printed by authority of the Commonwealth Government Printer
<PR720351>
1 Applicant’s Outline of Argument Objections dated 30 April 2020 (Applicant’s Outline) at [18].
2 Form F3 dated 14 March 2020.
3 Witness Statement of Tracey Ashley dated 30 April 2020 (Ashley Statement) at TA-2.
4 Ashley Statement at TA-4.
5 Ashley Statement at TA-4.
6 Section 386(1)(a) of the Act.
7 Mihajlovic v Lifeline Macarthur[2013] FWC 9804 at [4] citing Visscher v Giudice (2009) 239 CLR 361 at [53]. See also Kulas v Prosegur Australia Pty Limited t/a Prosegur [2018] FWC 803 at [32].
8 [2017] FWC 2993.
9 Siagian v Sanel Pty Limited (1994) 54 IR 185 at 352. See also Mihajlovic v Lifeline Macarthur [2013] FWC 9804 at [8].
10 Ashley Statement TA-2.
11 Transcript PN158 – PN160, PN17-.
12 Applicant’s Outline at [2] – [3].
13 Applicant’s Outline at [15].
14 Ashley Statement at [29].
15 Applicant’s Outline at [15].
16 Applicant’s Outline at [16].
17 Transcript PN168, PN263.
18 Transcript PN335 - PN337.
19 Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974 at [9].
20 Roberts v Greystanes Disability Services; Community Living [2018] FWC 64
21 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
22 Applicant’s Outline at [22] – [23].
23 Rabiee v the Trustee for Doncaster European Unit Trust t/a Doncaster Volkswagen[2019] FWC 8367 at [25]
24 Transcript PN290.
25 Bradford Corunna v BHP Billiton Iron Ore Pty Ltd T/A BHP Iron Ore[2016] FWC 5239 [29] – [30] citing Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]. See also Steve Sinclair v BlueScope Distribution Pty Ltd t/a BlueScope Steel[2015] FWC 5849 at [22], [25].
26 Haining v Deputy President Drake (1998) 87 FCR 248, 250.
27 Bradford Corunna v BHP Billiton Iron Ore Pty Ltd T/A BHP Iron Ore[2016] FWC 5239 [29] – [30] citing Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]. See also Steve Sinclair v BlueScope Distribution Pty Ltd t/a BlueScope Steel[2015] FWC 5849 at [22], [25].
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