Natasha Flinos v Addictive Entertainment and Tours Pty Ltd T/A Bunyip Tours

[2018] FWC 7870

[2018] FWC 7870

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Natasha Flinos
v
Addictive Entertainment & Tours Pty Ltd T/A Bunyip Tours
(U2018/9777)

DEPUTY PRESIDENT CLANCY MELBOURNE, 24 DECEMBER 2018

Application for an unfair dismissal remedy – application not made in accordance with the Fair Work Act 2009 (Cth) – irregularity in the application waived.

[1] On 16 September 2018, Mrs Natasha Flinos made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). In her Form F2 – Unfair Dismissal Application (Form F2), Mrs Flinos alleged that Addictive Entertainment & Tours Pty Ltd T/A Bunyip Tours (Bunyip Tours) notified her of her dismissal on 27 August 2018 and that the dismissal took effect the next day on 28 August 2018.

[2] Bunyip Tours filed its Form F3 – Employer Response to Unfair Dismissal Application (Form F3) on 26 September 2018, which objected to Mrs Flinos’ application on the ground that her dismissal was a case of genuine redundancy. Furthermore, while Bunyip Tours did not dispute that Mrs Flinos was notified of her dismissal on 27 August 2018, it asserted at Question 1.4 of the Form F3 that the dismissal did not take effect until 24 September 2018.

[3] The matter was referred to conciliation on 19 October 2018 but did not proceed because Bunyip Tours declined to participate.

[4] On 24 October 2018, the Commission sent correspondence to the parties referring them to the decision of the Full Bench of the Commission in Mihajlovic v Lifeline Macarthur 1(Mihajlovic) as authority for the proposition that the Commission has discretion to amend the application pursuant to s.586(b) of the Act in “circumstances where an application has been filed before a dismissal has taken effect”. As such, the parties were directed to file and serve statements, submissions and any other relevant material in support of the date upon which they say the termination of Mrs Flinos’ employment took effect; and submissions as to whether or not the discretion in s.586(b) of the Act should be exercised to waive the irregularity in the manner in which the application was made in the event the Commission finds that the termination of Mrs Flinos’ employment took effect after 16 September 2018 (that is, the date the application was lodged).

Submissions of Mrs Flinos

[5] Mrs Flinos says she attended a meeting with Bunyip Tours on 27 August 2018 where she was advised that her position had been made redundant and that her employment would terminate with immediate effect. Further, she contends that she was also advised by Bunyip Tours that it required her to work minimal hours during the four week notice period.

[6] Mrs Flinos submits she received an undated letter via her email the same evening which confirmed that her position was no longer needed and that her employment would end on 24 September 2018.

[7] Mrs Flinos contends that by 29 August 2018, she had been denied access to all work and employment systems which had the effect of preventing her from performing duties of any kind, even at the reduced hours she understood Bunyip Tours had asked her to do during the four week notice period.

[8] Mrs Flinos provided in her material that she suffered a relapse of her ongoing chronic medical condition and had sought treatment from her medical practitioner, who provided a medical certificate for a period of two weeks up to and including 11 September 2018. She submits that the medical certificate was provided to Bunyip Tours, who responded on 3 September 2018 via an email to her husband stating:

“Given Natasha’s health situation, we have decided that we will not require her to work at all through her notice period.”

[9] Following this, on 12 September 2018, Mrs Flinos says she received a final pay advice slip for the period 29 August 2018 to 11 September 2018 which included pay for the notice period, redundancy, holiday and long service leave. Mrs Flinos asserts that upon receipt of this final pay advice, she believed her employment had been effectively terminated on 11 September 2018. The pay advice slip attached to the submissions of Mrs Flinos as Appendix B states that the employment ended on 10 September 2018.

[10] Finally, Mrs Flinos submits that at no point in the application process did Bunyip Tours object to her application on the ground that it had been made prior to the employment relationship ending.

Submissions of Bunyip Tours

[11] Bunyip Tours submits that at the meeting with Mrs Flinos on 27 August 2018, it had advised her of her redundancy and that she would have a four week notice period beginning on 28 August 2018, during which she would be required to work.

[12] Bunyip Tours submits that on 28 August 2018, Mrs Flinos contacted its HR manager to advise that she was unwell and was unable to work. A medical certificate was provided later the same day asserting that Mrs Flinos would not be available for work for a period of two weeks.

[13] Bunyip Tours contends that it decided to advise Mrs Flinos that she was no longer required to work through her notice period so that she could focus on her health. This was done through an email to Mrs Flinos’ husband on 3 September 2018. It submits that it considered this to be an act of good faith towards Mrs Flinos.

[14] Bunyip Tours further asserts that it consulted with the Fair Work Ombudsman, who advised that it was appropriate to pay out an employee’s remaining entitlements in alignment with the standard pay cycle in circumstances where the employee was not required to work through their notice period. Based on this advice, Bunyip Tours submits that it paid Mrs Flinos’ outstanding entitlements in the following pay cycle on 12 September 2018.

[15] Finally, Bunyip Tours noted that Mrs Flinos had been offered a position within its reservations team, which was declined via an email from her husband on 4 September 2018.

Consideration

[16] The validity of unfair dismissal applications filed on a date before the dismissal has taken effect was considered by the Full Bench in Mihajlovic, where it said:

“Section 394(1) is, we consider, a procedural provision which identifies who may make an application, similar to the statutory provision considered in Emanuele v Australian Securities Commission. It does not go to the jurisdiction of the Commission to grant an unfair dismissal remedy under Part 3-2 of the Act. An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose to render any such application automatically invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made. We consider that Mr Mihajlovic’s premature filing of his application constituted an irregularity in the manner in which he made his application capable of waiver under s.586(b).” 2

[17] In Mihajlovic, the Full Bench remitted the matter back to Vice President Hatcher to determine whether the discretion in s.586(b) of the Act should be exercised. 3 In subsequently exercising his discretion to waive the irregularity, the Vice President stated:

“[6] The practical position in the matter before me is that there is no doubt that Mr Mihajlovic is, and has been since 5 September 2013, a person who has been dismissed within the meaning of that expression in s.386 of the Act. The Commission therefore has, subject to any separate jurisdictional objection, jurisdiction to entertain his claim for an unfair dismissal remedy. There is no suggestion that the fact the application was filed prematurely has caused any prejudice to the respondent. It has necessarily been on notice at all times since his dismissal took effect that Mr Mihajlovic contested his dismissal and sought an unfair dismissal remedy. This is not a situation whereby “exceptional circumstances” have to be demonstrated in order for a waiver to be granted, by contrast to an extension of time application under s.394(3). Prima facie, there is a strong case for the waiver to be granted.

…

[8]I am not prepared to conclude that his application is without merit. Its grounds are not confined to the issue of the payment of statutory entitlements; he contends for example that there was no valid reason for his dismissal and that he was (in substance) denied procedural fairness.” 4

[18] I intend to have regard to similar considerations in determining whether to exercise my discretion to waive the irregularity in the manner in which Mrs Flinos’ application was made.

[19] In the circumstances of this case, there is no dispute between the parties that Mrs Flinos was notified of her dismissal on 27 August 2018. The undated redundancy letter sent to her on the same day clearly stipulated that Mrs Flinos’ employment would terminate with effect on 24 September 2018. There is also no dispute that Mrs Flinos was asked by Bunyip Tours to continue working through her four week notice period. However, it would seem that further advice and arrangements put in place after the termination was notified led Mrs Flinos to believe that her termination had taken effect earlier. In this regard, Mrs Flinos received advice that she was no longer required to work through her notice period on 3 September 2018 and her final pay was processed on 11 September 2018, consisting of payment of all her outstanding entitlements and a pay advice slip stating that her employment ended on 10 September 2018. Moreover, Mrs Flinos said that she had been denied access to all her work and employment systems, preventing her from performing any duties during the notice period.

[20] As to the merits of the application, Mrs Flinos has filed material which addresses the genuineness of her redundancy, the reason given by Bunyip Tours for her termination. I am not prepared to conclude, based on the material currently at hand and without a fulsome response, that Mrs Flinos’ application is without merit.

[21] Finally, I note there is no suggestion by Bunyip Tours that Mrs Flinos’ filing of her unfair dismissal application eight days early has caused it any prejudice. It made no submissions in relation to the question as to whether the discretion under s.586(b) of the Act ought to be exercised in Mrs Flinos’ favour. I have had regard to the fact that Bunyip Tours has been on notice since the application was filed and am not persuaded that it would suffer an injustice if the application was to proceed. In considering Mrs Flinos’ position, I have been guided by the consideration outlined by Vice President Hatcher in Mihajlovic:

“If I were to dismiss Mr Mihajlovic’s current application, he would be compelled to make an application under s.394(3) of the Act for a further period in which to file the same application a second time. Such an application would undoubtedly be opposed by the respondent, and might well not succeed given the necessity to demonstrate exceptional circumstances. Further proceedings involving effort, inconvenience and cost to both parties would be necessary, and might result in a significant injustice being done to Mr Mihajlovic, for no discernible public policy reason. I consider this would be a perverse outcome, and that the discretion in s.586(b) should be exercised in Mr Mihajlovic’s favour.” 5

[22] In all of the circumstances of this application, which bear a sufficient element of confusion, I consider the discretion in s.586(b) of the Act should be exercised in Mrs Flinos’ favour.

[23] Pursuant to s.586(b) of the Act, I waive the irregularity in the manner in which Mrs Flinos made her application for an unfair dismissal remedy. The matter will now be referred for further programming for its further disposition. Noting a conciliation conference has not yet taken place in this matter, it is open to the parties to consider participating in one now. This is a course I would recommend in the circumstances of this case.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   [2014] FWCFB 1070.

 2   [2014] FWCFB 1070 at [42].

 3 Ibid at [44].

 4   [2014] FWC 1871.

 5 Ibid at [9].