Nicole Te Riini v Cambio Group Financial Planning T/A Cambio Group

[2020] FWC 3475

[2020] FWC 3475

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicole Te Riini
v
Cambio Group Financial Planning T/A Cambio Group
(U2020/4649)

COMMISSIONER SIMPSON BRISBANE, 2 JULY 2020

Application for unfair dismissal – Jurisdictional objection - Whether application was filed out of time – Whether Applicant resigned in January 2020 – Application within time – No extension of time required.

[1] On 14 April 2020, Ms Nicole Te Riini filed an application for unfair dismissal remedy in accordance with section 394 of the Fair Work Act 2009 (the Act) alleging her employment with Cambio Group Financial Planning T/A Cambio Group (the Respondent) was terminated unfairly.

[2] Part 1.4 of the Form F2 application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Ms Te Riini answered on the Form F2 “Yes.” Ms Te Riini filed a second Form F2, also on 14 April 2020 and again answered this question “Yes”. In both versions of the Form F2, Ms Te Riini said that the date of her dismissal was 11 April 2020.

[3] On 18 May 2020, the Respondent lodged a Form F3 – Employer response to unfair dismissal application and objected to the application on the basis it was made outside the time required in s.394(3) of the Act and that Ms Te Riini was not dismissed. The Respondent submitted that Ms Te Riini’s employment came to an end on 29 January 2020.

[1] The Respondent provided details of its objection that the application was filed out of time as follows:

1. The Applicant has formally stated in previous claim she brought against the respondent (and subsequently withdrew) that she intended not to return to her position previously held prior to her maternity leave.

2. The Applicant declared “I do not want to return”, in writing on 29 January 2020.

3. The Applicant then had until 19 February 2020 to bring an Unfair Dismissal or General Protections claim against the Respondent – the Applicant decided to pursue a General Protections claim against the Respondent which yielded no compensation for her.

4. The Applicant then provided a notice of discontinuance in April 2020, emailed a notice of resignation to her employer, and is now attempting to mislead the respondent and the Commission as to the date her employment ended in order to bring about a new claim.

5. The Respondent presents that the decision of the Applicant to resign is reflected in her written declaration submitted to the Commission, that she did not intend to return to her role, and the latest possible date she can claim her resignation was effective is 29 January 2020.

[2] On 18 May 2020, correspondence was sent from the Fair Work Commission (the Commission) to Ms Te Riini and the Respondent noting the jurisdictional objections and requesting the Respondent advise the Commission if it wished to participate in a conciliation conference.

[3] On the same day, the Respondent’s representative sent correspondence to the Commission advising the Respondent did not wish to attend a conciliation conference, and instead have the jurisdictional objections dealt with in the first instance.

[4] On 5 June 2020, Ms Te Riini provided a written response to the Respondent’s jurisdictional objection that the application was filed out of time. Ms Te Riini submitted she was aware of the 21-day time frame and that her application was not in breach of this.

[5] Ms Te Riini submitted her employment did not end until she provided a resignation letter on the 11 April 2020. Ms Te Riini said she remained on maternity leave, an employee, until a decision or agreement could be made – whether that was a resignation, part time position agreed upon or a termination. Ms Te Riini submitted therefore the subsequent application made to the Commission on 14 April 2020 was within time.

[6] Ms Te Riini said she was of the view that the Respondent has chosen to interpret a resignation to suit their timing objection. Ms Te Riini said that in her earlier F8C general protections application, she provided the following response to the question asked 2.1 What outcome is the Applicant seeking by lodging this application:

“Seeking remediation by way of a redundancy package or settlement. I do not wish to return to Cambio after being treated with such contempt and adversity during this process, I would not feel comfortable and do not think it would be okay for my mental wellbeing going forward.”

[7] Ms Te Riini submitted that her answer to this question was a suggested outcome that could be achieved as result of seeking assistance to deal with her claim. She submitted it was not a statement of resignation. Ms Te Riini submitted the response did not include resignation wording, including her position, effective date, or any further details that would be conclusive with a resignation notice. Ms Te Riini submitted it is not clear, unambiguous or closed to interpretation and should not have been concluded as a resignation notice by the Respondent.

[8] Ms Te Riini submitted that if the Respondent did truly believe that her F8C submission constituted her resignation, a logical step would be to seek further clarification, which the Respondent did not. She submitted the Respondent could have contacted her to confirm a resignation date and effective date, which it did not. Ms Te Riini submitted that after receiving the Notice of Listing from the Commission the Respondent could have completely declined participation or offered an agreement on the basis that it believed she had already resigned, which it did not. Ms Te Riini also submitted the Respondent did not send her a letter detailing that it accepted a resignation.

[9] Ms Te Riini submitted that although she believed the application was made within the required time frame, in the event the Commission did not make this finding, it could determine there were exceptional circumstances due to both parties holding such contradictory positions on the effective date of termination.

[10] Ms Te Riini submitted the Respondent has chosen to interpret a resignation to suit its objection and said that there is no way to know for sure what they were or are thinking at any time. Ms Te Riini submitted the course of events has been out of the ordinary.

[11] On 6 June 2020, the Respondent emailed the chambers of Vice President Catanzariti with responses to Ms Te Riini’s submissions.

[12] The Respondent submitted in response to Ms Te Riini’s submission she was on maternity leave that her period of maternity leave had come to an end. The Respondent submitted that for Ms Te Riini to “remain on maternity leave” she must have submitted a request for approval by the Respondent to commence a new period of maternity leave, after she had exhausted her initial period. The Respondent submitted this never occurred.

[13] The Respondent submitted that Ms Te Riini’s employment came to an end, and she declared to the Respondent that she would not be returning to work in her previous fulltime position. The Respondent submitted it had no other positions or options available to offer, and this was detailed in writing to Ms Te Riini. The Respondent submitted that Ms Te Riini outright refused to work, and never returned to work in her position in any capacity whatsoever at the end of her maternity leave period and submitted Ms Te Riini effectively abandoned her employment.

[14] The Respondent submitted it communicated extensively, in writing and verbally. The Respondent submitted that it quite concisely, rejected Ms Te Riini’s demands to change her employment terms and conditions, and even provided written business case explanations as to why her requests could not be agreed to. The Respondent submitted Ms Te Riini consistently refused to accept anything but her requests and refused to return to work at all.

[15] The Respondent submitted it even attempted to put Ms Te Riini into contact with another business that could provide her with a position in line with the terms and conditions she requested. The Respondent submitted there was never any ambiguity of its position, nor was Ms Te Riini ever unclear about her intentions of not returning to her position. The Respondent submitted the end of employment cannot be disputed. Ms Te Riini filed a brief response to the Respondents submissions on 7 June 2020.

[16] The matter was listed for hearing of the discrete jurisdictional question of whether the application was filed out of time and if so whether an extension of time was required. On that basis it was necessary to determine whether the alleged resignation on 29 January 2020 occurred or not, which was the Respondents primary argument, and also the alternative proposition that Ms Te Riini had abandoned her employment and that this had brought the employment to and end at some time prior to the act of Ms Te Riini tendering a resignation on 11 April 2020.

[17] To be clear this decision does not deal with the question of whether the resignation of 11 April was a termination at the initiative of the employer or employee, and the parties were advised that matter would be addressed at a later stage if the application proceeded beyond this first jurisdictional issue.

[18] At the hearing on 29 June Ms Te Riini represented herself, and the Respondent was granted leave to be represented by Mr Tim Dive, an Industrial Relations Consultant from Bizo Pty Ltd.

[19] The parties elected not to call evidence as such but relied on the submissions filed. In her oral submissions Ms Te Riini repeated her written submission that the language included in the earlier Form F8C general protections application was directed to seeking assistance to resolve a dispute over a flexible working arrangement. Ms Te Riini relied on another part of the same application form where she explicitly said that she had not resigned her position and raised a proposal for redundancy to resolve the dispute as she said that part of her role had been outsourced. Ms Te Riini said the language she used indicating that she did not wish to return to the Respondent was in that context, a proposed resolution of the general protections claim. Ms Te Riini said the employment did not end until she tendered her resignation.

[20] Mr Dive referred to correspondence between the parties exchanged in late 2019 concerning the prospect of Ms Te Riini returning on a part time basis. Mr Dive also said on 21 January 2020 the Respondent explained to Ms Te Riini that the position she was returning to could not be part time and asked her to advise by 4 February 2020 if she would be returning. Ms Te Riini responded saying the Respondent’s email was ambiguous. A subsequent email from the Respondent indicated she was not being terminated, her position was available, however if she did not return she would be resigning.

[21] The s.372 general protections application was filed by Ms Te Riini on 29 January 2020. The Respondent filed its response to this application on 5 February 2020. Ms Te Riini was due to return from maternity leave on 20 February 2020. On 26 February the Respondent paid out Ms Te Riini’s accrued annual leave of about 5 or 6 hours’ pay. Ms Te Riini said the conciliation of the s.372 general protections application occurred on 11 March before Deputy President Lake and the matter was not resolved.

[22] Ms Te Riini said after the conference on 11 March she did not know what to do as no agreement was reached, and as the general protection’s application did not involve dismissal the Commission had no power to arbitrate the matter. Ms Te Riini said she sought some free legal advice from several sources and through those discussions and her own research she decided to send correspondence to the Respondent on 3 April proposing a resolution because the Respondent indicated that it may be open to further discussions. The Respondent declined her proposal. The Respondent’s letter of 9 April to Ms Te Riini said that Ms Riini’s position had remained open to her until 20 February 2020, and also said that it was open for Ms Te Riini to have returned to her full-time position at any time up to the time of mediation before the Commission on 11 March 2020.

[23] However, at a later point in the same letter of 9 April the Respondent adopts a view that by Ms Te Riini saying within the body of the s.372 application that she did not wish to return to the Respondent that Ms Te Riini effectively resigned by filing the s.372 application (on 29 January 2020). Ms Te Riini withdrew her s.372 application on 11 April 2020 and tendered her resignation the same day and filed this unfair dismissal application on 14 April 2020.

[24] Mr Dive accepted that the Respondent did not confirm in writing that the employment was at an end. Mr Dive confirmed the Respondent’s view that it had never terminated Ms Te Riini, and the employment was ended by Ms Te Riini herself, by filing the s.372 application. Mr Dive also relied on the failure of Ms Te Riini to return to work after 20 February 2020 to support the Respondents submission that Ms Te Riini had resigned. Ms Te Riini repeated in her response to this submission, that the language in the s.372 application was a suggested resolution, not an intention to end her employment.

Legislation

[25] Section 394 of the Act provides:

“(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWCC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exertional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect;

(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.

[26] Section 386 of the Act sets out when a person has been dismissed from their employment and states:

“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.”

[27] I have concluded on the basis of the material before me that Ms Te Riini did not resign on 29 January 2020. It was apparent she wished to dispute the Respondent’s reasons for not agreeing to her request to return to work on a part time basis. Ms Te Riini is a self-represented applicant and prepared the Form F8C application herself. I accept her submission that the language she included in her s.372 application was an attempt to propose a resolution to her dispute, and she did not intend, and nor did the application have the effect of bringing her employment to an end at her own initiative.

[28] The other matter that needs to be addressed is the Respondent’s submission in the alternative that Ms Te Riini brought the employment relationship to an end by not returning to work after the end of a period of maternity leave on 20 February 2020. From 30 January 2020 the Respondent was aware that Ms Te Riini, as a mother of infant twins was disputing the Respondent’s decision not to accept her request for a flexible working arrangement. The matter was not resolved before Deputy President Lake at a conference on 11 March, 2020 and remained unresolved.

[29] In a Full Bench decision in the matter of Bienias v Ipex Pipelines[2017] FWCFB 38 the Full Bench concluded as follows:

“[43] Thus termination of employment by abandonment as set out in the third paragraph of clause 21, though said to operate as from the date, relevantly, of the last attendance at work, cannot operate at all until the employer reached the conclusion that it is not satisfied that the employee was absent for reasonable cause, and decides to act. Therefore, it is not the unauthorised absence of the employee which causes the employment to terminate, nor is it the deeming of the unauthorised absence to be an abandonment. Rather, it is the act of the employer that brings about the termination of the employee’s employment.”

[30] In this case there was no act on the part of the Respondent to seek to bring Ms Te Riini’s employment to an end in the period following her failure to report to work after the end of a period of maternity leave. I accept the Respondent’s submission that Ms Te Riini did not make an application to extend her period of maternity leave, and despite Ms Te Riini indicating she believed she was on an extended period of maternity leave this was not the case. However, I am not satisfied that Ms Te Riini brought the employment relationship to an end by not attending for work in the relevant period.

[31] Whilst the Respondent never took the point itself, I am also not satisfied that the act of the Respondent either paying to Ms Te Riini an additional 5 or 6 hours of accrual annual leave on 26 February 2020, or Ms Te Riini becoming aware that other employees had been told that she would not be returning, had the effect of terminating Ms Te Riini’s employment. It is well settled that a termination of employment does not have effect until it is communicated, and neither of these things are sufficient to establish that the Respondent had communicated to Ms Te Riini that she was terminated.

[32] The submissions of the parties point to the conclusion that while Ms Te Riini was not fulfilling the terms of her employment contract by not reporting to work, that failure to report to work after the expiry of the period of maternity leave did not have the effect of bringing the employment relationship to an end, and the relationship remained on foot until 11 April 2020 when Ms Te Riini submitted a resignation.

[33] Having determined that the employment relationship did not end until 11 April 2020, the application is within time and it is unnecessary to consider whether to extend time. The matter will be relisted for programming and directions in regard to the remaining jurisdictional and substantive matters.

COMMISSIONER

Appearances:

Ms N. Te Riini appearing on her own behalf
Mr T. Dive of Bizo Pty Ltd appearing for the Respondent

Hearing details:

2020,
Brisbane:
July 29

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