Olivia Beet v dormakaba Australia Pty Ltd
[2022] FWC 784
| [2022] FWC 784 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Olivia Beet
v
dormakaba Australia Pty Ltd
(C2021/8002)
| DEPUTY PRESIDENT CROSS | SYDNEY, 8 APRIL 2022 |
General protections dismissal dispute – whether application filed out of time – discretion to extend time for filing.
On 25 November 2021, Ms Olivia Beet (the Applicant) lodged an application (the Application) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant stated she had been employed by dormakaba Australia Pty Ltd (the Respondent), and that she commenced her employment with the Respondent on 19 August 2019. In the Application, the Applicant initially claimed that she was notified of her dismissal on 3 November 2021, and that the dismissal took effect on that date.
In response to the Application, the Respondent raised the jurisdictional objection that the Application was filed out of time. Pursuant to s.366(1) of the Act. General Protections applications involving dismissal must be made within twenty-one (21) days after the dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. If the Applicant’s original contention regarding the termination date is correct, the Application has been lodged outside of the time prescribed, and one day after the last day on which such an application could have been made.
On 25 February 2022, directions were issued to program the manner in which the
Application was to proceed (the Directions). The Directions required the filing of materials for the determination of whether the Applicant was out of time, and if so, whether she would be allowed an additional period within which to lodge the Application.
The parties complied with the Directions. In particular:
(a) On 4 March 2022, the Applicant filed an Outline of Submissions, and a
Statement of the Applicant;(b) On 16 March 2022, the Respondent filed an Outline of Submissions, a Statement of Ms Carol Shaw, the Senior HR Business Partner of the Respondent, and a Statement of Mr Luke Gilbert, the Victorian Service Sales Manager of the Respondent; and
(c) On 23 March 2022, the Applicant filed an Outline of Submissions in Reply.
On 28 March 2022, the matter was heard. No deponents of statements in the matter were required for cross-examination, and each party supplemented their written submissions with further oral submissions.
Relevant Facts
The relevant facts of the matter, as disclosed by the materials filed and the evidence
adduced at the hearing, are as follows:
(a) On 19 August 2019, the Applicant commenced employment with the Respondent as a Service Sales Consultant. The Applicant executed a contract (the Contract) that relevantly provided:
(i) That her duties were as outlined in Schedule B to the Contract;
(ii) Regarding termination on notice:
“Except in the case of summary dismissal, your employment may be terminated by either party giving the amount of written notice listed in Item 11 of Annexure A. The Company may, at its discretion, make payment in lieu, in full or in part, of notice.”
(iii) Item 11 provided for one month’s notice; and
(iv) Regarding return of property:
“Upon termination of your employment for any reason whatsoever you will return each item of the Company’s property, including, but not limited to, keys, usb sticks, computers, access cards and each vehicle owned or leased by the Company (or any related body corporate), in your possession or control, and if requested provide written confirmation of same.”
(b) On 10 August 2021, Mr Gilbert received an email from the Applicant in which she alleged that she was being bullied and harassed by several of her colleagues.
(c) On 11 August 2021, Ms Shaw contacted the Applicant and notified the Applicant that she was commencing an investigation into the allegations (the Bullying Investigation).
(d) On 13 August 2021, Ms Shaw met with the Applicant in connection with the Bullying Investigation. Following the Bullying Investigation, Ms Shaw concluded that the Applicant’s allegations were unsubstantiated, but also formed the view that the Applicant’s behaviour at times was inconsistent with the standard of behaviour the Respondent expects of its employees.
(e) The Applicant engaged the services of a Barrister, Mr Bruce Shaw (the Barrister) on 2 September 2021, and first met with him on 8 September 2021. Thereafter, up to the termination of employment, the Applicant met with the Barrister on 6, 14 and 27 October 2021, and the Barrister sent correspondence on the Applicant’s behalf.
(f) Ms Shaw met with the Applicant on 6 October 2021, to discuss the outcome of the Bullying Investigation, provide the Applicant with a letter that outlined concerns about the Applicant’s behaviour, and invite her to attend a further meeting on 8 October 2021.
(g) The meeting scheduled on 8 October 2021 did not proceed as the Respondent received a letter from Dwyer Vlahos Legal on behalf of the Applicant on 7 October 2021, requesting further information in advance of the scheduled meeting.
(h) The Respondent wrote to the Applicant on 13 and 19 October 2021 seeking responses to certain allegations and the Applicant responded on 18 and 20 October 2021.
(i) On 26 October 2021, the Respondent sent the Applicant a letter seeking that she show cause as to why her employment should not be terminated (the Show Cause Letter), and the Applicant responded to that letter on 28 October 2021.
(j) On 3 November 2021 at 2:09 pm, Ms Shaw left a voice message for the Applicant confirming that the Respondent had decided to terminate her employment “effective today”, and that the reasons for termination were contained in a letter that would be sent by email later in the afternoon.
(k) At 5:10 pm on 3 November 2021, Ms Shaw sent the Applicant an email that attached a termination letter dated 3 November 2021 (the Termination Letter). The Termination Letter commenced with the following two paragraphs:
“I refer to my voice message to your private phone today at 2.09pm. At that time, I notified you that your employment with dormakaba Australia Pty Ltd (dormakaba) would terminate effective immediately by reason of misconduct.
The purpose of this letter is to formalise your termination and provide reasons for our decision.”
(l) The Termination Letter concluded with the following regarding termination of employment:
“Consequently, we have decided to terminate your employment for reason of misconduct as the substantiation of the Allegations amounts to:
·a breach of your Employment Agreement;
·a breach of the dormakaba Code of Conduct; and
·a breakdown in the employment relationship between you and dormakaba due to a loss of trust and confidence.
dormakaba will provide you with two weeks’ payment in lieu of notice in accordance with the National Employment Standards. Your notice payment and any outstanding entitlements will be paid to you following the return of any company property in your possession. We ask that you please return all company property including, but not limited to, company vehicle, company credit card, computer monitors, company desk chair, power leads to the laptop and ipad and iphone to dormakaba by no later than 12:00 noon on Thursday, 4 November 2021 to David Hyams – Service Manager, Vic. You are also required to return all originals and copies of all documents belonging to dormakaba. This includes confidential information, intellectual property and any other dormakaba document that is in your possession or control. Please delete any copies of dormakaba electronic data from any computer or device that you may have such information stored on.”
(m) The Applicant was not required to work out the two-week notice period. The Respondent elected to pay two weeks’ payment in lieu of notice, however such payment was not received until 15 November 2021.
(n) The Applicant returned the Respondent’s property to David Hyams at the Respondent’s office at 11:00 am on 4 November 2021.
(o) Subsequent to the termination of her employment, the Applicant met with the Barrister in preparation and furtherance of her application to be made to the Fair Work Commission on 9, 11, 18 and 21 November 2021.
(p) In addition, the Applicant and the Barrister had detailed telephone discussions in relation to the termination and the Application on 3, 4, 9, 11 and 17 November 2021. These calls were supplemented by SMS text messages on 3, 4, 8, 9, 10, 12, 17, 21, 23 and 24 November 2021.
(q) On 24 November 2021, being the last day of the 21 day time period for the filing of the Application, the Applicant had a conversation with the Barrister. The Applicant’s evidence regarding that conversation was as follows:
“On 24 November 2021 Mr Shaw advised me that he had, after much consultation with me, completed the application to his satisfaction, but as preparation and collation of the application documents and the attachments had been very tiring and as we had one day up our sleeve, he would reprepare the documents the following morning to ensure that they were collated correctly before being filed electronically with the Fair Work Commission. On 25 November 2021 Mr Shaw copied me into the email by which he lodged the FWC form f8 Application at 10:58 am.”
(r) The Application which was filed on 25 November 2021, specified both the date the Applicant was notified of the dismissal, and the date the dismissal took effect, as 3 November 2021.
Consideration Regarding Date of Dismissal
The Respondent submitted that the date of dismissal was 3 November 2021, due to the unambiguous contents of the Termination Letter, which the Applicant conceded she received on the date it was sent.
The Applicant’s primary submission was that the termination occurred on 4 November 2021. The Applicant submitted this was so because she was subject to the control of the Respondent on 4 November 2021, having been directed to return company property by 12.00 noon on that day.
The Applicant’s secondary submission was that, by law her termination could not take effect until payment in lieu of notice was received on 15 November 2021. Section 117(2)(b) of the Act specifies that an employer must not terminate an employee unless the employer “has paid” the time in lieu of notice to the employee.
To be effective, a notice of termination must be received by the recipient. As Keely J
observed in Transport Workers Union v National Dairies Limited[1] a matter involving a
notice of termination posted by an employer to an employee:
“In my opinion the mere posting of a letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee.”
In Ayub v NSW Trains[2] the Full Bench addressed circumstances involving email communications. The Full Bench held:
“We see no reason to depart from the above line of authority insofar as it is consistent with the general principle at common law that a dismissal may not take effect prior to it being communicated to the employee. Neither party submitted otherwise. However two questions remain. The first is whether there are any exceptions to this principle, the existence of which are suggested but not identified in Makenja and WorkPac. The second is whether the mere receipt of a communication (whether a letter, fax or email) is sufficient to constitute the communication of the dismissal to the employee in circumstances where the employee has not read the communication immediately upon receipt.
Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.”
There is no issue that the Applicant received the Termination Letter on 3 November 2021. The Termination Letter was abundantly clear in advising that the Applicant’s employment would “terminate effective immediately by reason of misconduct.” Accordingly, the date of dismissal of the Applicant was 3 November 2021. That was the date on which the Applicant was notified of her dismissal.
The Applicant attending to the return of company property on 4 November 2021 did not extend the dismissal date until that date. The Applicant was not performing any of the duties of her employment as outlined in Schedule B to the Contract. She was simply returning company property after dismissal, as also provided for in her Contract.
I also reject the Applicant’s secondary submission that, as the Applicant did not receive the payment in lieu of notice until 15 November 2021, by law her termination could not take effect until 15 November 2021. Deputy President Gostencnik dealt comprehensively with a similar submission in Ishan D’Souza v Henry Schein Halas[3] (D’Souza) where an applicant had argued:
(a) The prohibition of termination of an employee’s employment unless the employer has relevantly paid to the employee an amount in lieu of notice that is found in s. 117(2)(b) of the Act; and
(b) The proposition that at common law a notice of termination is invalid and will not operate to end the contract of employment.
It was submitted in D’Souza that termination of the employment on the day of notification was a nullity and the termination of the Applicant’s employment took effect on a later day, being 27 May 2014, the date on which payment in lieu of notice was actually made to the Applicant.
In D’Souza the Deputy President found:
“[29] With respect, these submissions have no substance. They misunderstand the effect on the employment relationship of an unlawful act. They misunderstand the distinction between the contract of employment and the relationship of employment under that contract. Section 117(2) prohibits an employer terminating the employment of an employee without giving notice or making payment in lieu of notice before effecting termination.
[30] If an employer terminates the employment of an employee without notice and without making payment in lieu of notice before effecting termination, the result is that the employer has acted unlawfully. It does not invalidate the termination of the employment. An employee’s remedy is to apply for a penalty for a contravention of that provision by reference to a breach of s. 44(1) of the Act which provides that:
An employer must not contravene a provision of the National Employment Standards.
[31] The note makes clear that that provision is a civil remedy provision. But the
employment nevertheless has ended notwithstanding the unlawful act. The Applicant’s
employment came to an end on 21 May 2014. …”
I accept and adopt the above analysis. The failure to pay the Applicant in lieu of notice until 15 November 2021 did not affect the fact that the dismissal occurred on 3 November 2021.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
Was the Application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[4]
As I found above, the dismissal took effect on 3 November 2021. The final day of the 21 day period was therefore 24 November 2021, and ended at midnight on that day. The Application was made on 25 November 2021. The Application was made one day late.
As the Application had not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the Application to be made.
Was the Application made within such further period as the Commission allows?
Under section 366(2) of the FW Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the Applicant to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the Applicant and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[5]
I set out my consideration of each matter below.
Reason for the delay
For the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 24 November 2021. The delay is the period commencing immediately after that time until the filing of the Application, although circumstances arising prior to that delay may be relevant to the reason for the delay.[6]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[7]
The Applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[8]
The Applicant’s submission was that the sole cause of the error was representative error. The Barrister had advised the Applicant on 24 November 2021, the last day on which the Application could be filed in time, that “…as preparation and collation of the application documents and the attachments had been very tiring and as we had one day up our sleeve, he would reprepare the documents the following morning to ensure that they were collated correctly before being filed electronically with the Fair Work Commission”.
The Respondent submitted there existed a paucity of evidence about the circumstances that contributed to the misapprehension as to dates, and that there had been numerous interactions between the Applicant and the Barrister.
The relevant principles of representative error were established in Clark v Ringwood Private Hospital (Clark);[9]. In Davidson v Aboriginal & Islander Child Care Agency (Davidson);[10] a Full Bench of the Australian Industrial Relations Commission summarised the principles of representative error as follows:
“In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:
(i)Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
(ii)A distinction should be drawn between delay properly apportioned to an applicant’s representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
(iii)The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant’s efforts to ensure that the claim is lodged.
(iv)Error by an applicant’s representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be considered.”[11]
It is clear from the principles of representative error that an assessment of the conduct of the Applicant will be a central consideration, particularly whether the Applicant is blameless for the delay occasioned. I consider the delay in this matter can be wholly apportioned to the Applicant’s representative. The Applicant had made herself available to the Barrister for preparation of the Application on numerous occasions in person and by telephone.
The Applicant followed the Barrister’s fundamentally flawed advice on the evening of 24 November 2021, that she had a further day to file the Application. I do not consider such reliance on professional advice as unusual.
Having regard to the above, I am satisfied that the Applicant has provided an acceptable explanation for the delay, and that is a factor that weighs in favour the Applicant in this matter.
What action was taken by the Applicant to dispute the dismissal?
The Applicant submitted that her actions between 10 August 2021 and her dismissal on 3 November 2021, wherein she raised bullying complaints and responded in a detailed way to allegations made against her, constituted significant action to dispute the dismissal.
This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. In all the circumstances, I do not find that the Applicant took any action to dispute the dismissal after it occurred. I consider this factor is a neutral consideration.
What is the prejudice to the employer (including prejudice caused by the delay)?
The Respondent did not suggest any significant prejudice would be caused to it in the event the Commission extended the time for the Application to be made. It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice is not necessarily a factor which weighs in favour of the Applicant for an extension of time. I consider this factor is also a neutral consideration.
What are the merits of the Application?
Having examined the materials, it is evident to me that the merits of the application turn on contested points of fact. It is well established that “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).”[12]
It is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.
In the circumstances, I find that it is not possible to make an assessment of the merits of the Application. I therefore do not consider this factor relevant to my determination.
Fairness as between the Applicant and other persons in a similar position
The Applicant contended that fairness had no relevance in the context of a one-day delay and as such there was no utility addressing that factor. The Respondent disagreed with that assessment, referring to Ainslie v Groot Eylandt Mining Company Proprietary Limited[13](Ainslie), wherein the Commission characterised Ms Ainslie as not being blameless in a one day delay, having done very little in the 15 days after the termination of her employment, and ultimately being found responsible for the stagnation of her Application.
The circumstances of the Applicant stand in stark contrast to those of Ms Ainslie. The evidence is unchallenged that the Applicant met with the Barrister in preparation and furtherance of the Application on 9, 11, 18 and 21 November 2021, and had detailed telephone discussions in relation to the termination and the Application on 3, 4, 9, 11 and 17 November 2021, with those calls supplemented by SMS text messages on 3, 4, 8, 9, 10, 12, 17, 21, 23 and 24 November 2021. Far from stagnating her Application, the Applicant was vigorously advancing that Application.
Nonetheless, neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[14] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[15]
It is clear that the factor that has been accorded significant weight in this matter is the presence of an acceptable reason for the delay. While there were numerous references in the hearing to the Application being “only one day late,” I note that such a small length of time does not obviate the need for acceptable explanation of the delay, and that numerous decisions of the Commission have refused to allow a one day extension in time to file an application.[16]
Having regard to all of the matters listed at s.366(2) of the FW Act, I am satisfied that there are exceptional circumstances.
Conclusion
Being satisfied that there are exceptional circumstances, I may consider whether to allow a further period for the Application to be made.
Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[17] I am satisfied that it is appropriate to extend the period for the Application to be made to 25 November 2021.
DEPUTY PRESIDENT
Appearances:
B Shaw of Counsel for the applicant.
J Nichols for the respondent.
Hearing details:
2022.
Sydney (via videoconference):
March 28.
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[1] (1994) 57 IR 183, 184-185.
[2] [2016] FWCFB 5500, [35], [36].
[3] [2014] FWC 5864.
[4] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Shaw v Australia and New Zealand Banking Group Ltd[2015] FWCFB 287, [12] (Watson VP and Smith DP).
[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[9] Clark v Ringwood Private Hospital (1997) 74 IR 413.
[10] Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1.
[11] Davidson v Aboriginal & Islander Child Care Agency (1988) 105 IR 1, 6.
[12] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[13] [2022] FWC 304.
[14] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[15] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[16] See for example. Obel v Central Desert Regional Council [2021] FWCFB 167; Thompson-Jackson v Hillside Pty Ltd [2021] FWC 530.
[17] Fair Work Act 2009 (Cth) s 577.
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