Peter Doherty v Frost Crane & Co
[2018] FWC 5675
•11 SEPTEMBER 2018
| [2018] FWC 5675 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Peter Doherty
v
Frost Crane & Co
(C2018/3910)
DEPUTY PRESIDENT KOVACIC | CANBERRA, 11 SEPTEMBER 2018 |
Application to deal with contraventions involving dismissal – extension of time – application made within time.
[1] Mr Peter Doherty (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 12 June 2018 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Frost Crane & Co (the Respondent) on 21 May 2018 in contravention of the general protections provisions of the Act.
[2] On 21 June 2018 the Commission wrote to Mr Doherty indicating that his application had been made outside the 21 day timeframe specified in s.366(1)(a) of the Act and advising that it would be seeking the consent of the Respondent to progress the matter to a conciliation teleconference in the first instance. Mr Doherty’s application had been lodged one day outside the statutory timeframe for lodgement. Mr Doherty responded to the Commission’s email on 22 June in the following terms:
“The last day for filing was 11 June 2018 which was a public holiday. It is the practice of the Commission to accept applications on the next working day if the day falls on a public holiday.”
[3] Also on 22 June 2018 the Respondent advised that it did not consent to the matter progressing to a conciliation conference and filed a revised Form F8A – Employer response to general protections application in which it raised a jurisdictional objection to Mr Doherty’s application on the basis that the application was lodged out of time.
[4] The extension of time issue was listed for mention and directions on 18 July and 6 August 2018 and for telephone hearing on 3 September 2018. At the telephone hearing, Mr Doherty appeared on his own behalf, while Mr Matthew Kaufmann appeared with permission for the Respondent.
[5] For the reasons set out below, I have concluded that Mr Doherty was dismissed with effect from 29 June 2018. Accordingly, it is not necessary to consider the extension of time issue. Mr Doherty’s application will now be listed for a conference aimed at resolving the dispute.
Background
[6] Mr Doherty commenced employment with the Respondent on 27 November 2017.
[7] On 21 May 2018 Mr Doherty was dismissed over the telephone. A chronology attached to Mr Doherty’s application includes the following:
“21 May 2018 Terminated by telephone whilst on sick leave instructed not to attend office any further except to collect personal belongings.
22 May 2018 Attend office to collect personal items
Computer access denied.
Email forwarded to Brad Jolly re confirmation of attendance at work to collect personal things and to confirm cessation of work”
[8] A copy of the email referred to in the abovementioned extract was also attached to Mr Doherty’s application. Mr Brad Jolly, a Director with the Respondent, responded to that email on 23 May 2018 1. Extracts from those emails are set out below, with Mr Jolly’s response in italics.
“Good Morning
Yesterday I was absent from work due to illness and advised you accordingly. In the afternoon I received a telephone call from you advising that I was not to attend the office any further except to gather my personal belongings. You indicated that I would be paid until the end of June 2018. Please acknowledge that I have interpreted your telephone call correctly by return email.
As I mentioned to you over the phone on Monday, it was decided by myself and other directors last Thursday evening, that you would not be required to work over the next 6 weeks in order to get paid. I was planning to inform you of this in person on Friday, however after giving it further thought why you are absent due to sickness on Friday and Monday, I realise the logistics of you coming to the office by your usual method of transport, which is public transport and having to carry your belongings (plants and tax legislations) on the bus and train would be a difficult task. Therefore, I phoned you Monday afternoon confirming we would pay you until end of June and that we would not require you to work for that period.
I confirm that Frost Crane Pty Ltd will continue paying you your wage and super for the period up until the end of June on the same dates we would have paid these amounts had you continued working.
As already discussed between yourself and I, I had already informed you that we would not be allocating any more client work to you for reasons discussed at the time (some of which are referred to throughout my response) and as a result, there would be minimal work for you to do over the next six weeks, with only administration tasks available. Therefore we feel it would be unfair to both parties should you turn up for work for the next 6 weeks.
It should also be noted at this point that you had already accepted that I was not satisfied with how you are progressing had asked me if you could have a position until end of June.
…
I am obviously disappointed that my association with Frost Crane & Co. is to cease as I enjoyed working at the firm and had intended to continue for several years.
I am disappointed as well. When I hired you, I had the same intention. It’s good to hear you enjoyed your time working at the firm. We wish you the very best.” (Underlining added)
[9] The chronology attached to the Respondent’s Form F8A included the following:
“14/05/2018 Meeting with Peter. Peter had asked to see me in the meeting room. He began by saying that he had been looking for positions and said there’s not much out there. He then said ‘he understood that I had lost faith in him so would it be okay if I stay here until 29/6/18. I said that would likely be okay, but I would double check. He then asked if I would be able to sign a taxation form for the experience he gained at Frost Crane. I said I would be happy to based on the facts, but mentioned I would need to see the tax agent form first. He mentioned that he would like to stay at our firm until 29/6/18 because that would give him exactly one year’s experience in providing tax agent services which would allow him to obtain a tax agent certificate. I then made the comment, the Tax practitioner board will look at your level of experience before issuing you with a tax practitioner license. I said we’ll take a look at the form & go from there.
…
17/05/2018 Meeting with another director. Considering Peter’s request to stay on for 6 weeks as opposed to just paying him the obligated 4 weeks. We agree to pay him for the next 6 weeks until end of June. We also discussed what it would mean for us and Peter if he worked in the office for the next 6 weeks. We came to the conclusion that it would be best inform him that he would not be required to turn up to the office for the next six weeks, given the decision we have made to remove him from client work, the unlikelihood that he would return to client work for reasons we discussed in meeting with Peter, the fact there is nowhere near enough admin tasks to keep him occupied for a whole day and to avoid potential embarrassment in the office having to stay around only to leave at the end of June. The intention is to inform Peter tomorrow in person.
…
21/05/2018 Phoned Peter to inform him of our decision to pay him until end of June and that he is not required to come in and work for the reasons listed in entry dated 17/5/18. I said he may come and collect his things at his convenience. He accepted this news. I told him I would confirm in writing that we would pay him until end of June 2018.” 2
[10] On 26 June 2018 the Commission wrote to the Respondent’s representative, Mr Kaufmann, raising an issue regarding the date of termination. The Commission’s email included the following:
“... The Deputy President is currently assessing the jurisdictional objection raised in the attached Form F8A Employers Response filed with the Commission on 22 June 2018 (the second F8A). An initial Form F8A Employer Response was filed by the Respondent on 19 June 2018.
The Deputy President notes that in both F8A’s at Q2.2 and Q5.1 (at point 10) the Respondent contends that the Applicant’s dismissal is to take effect on 29 June 2018. The Respondent then contends in the second F8A at Q6.1 that the dismissal occurred on 21 May 2018 and raises the out of time objection.
In light of the above, the Deputy President requests a response by close of business on Thursday, 28 June 2018.” (Emphasis as per original)
[11] Mr Kauffman responded on 28 June 2018 as follows:
“I set out the following points to clarify the date of dismissal:
1. On 21 May 2018, Mr Jolly, a director of the Respondent, telephoned the Applicant and informed the Applicant that although the Respondent would pay the Applicant his usual wage until 29 June 2018, the Respondent requested that the Applicant not attend work, except to collect his belonging.
2. On about 15 June 2018 the Respondent made the final wage payment to the Applicant, in accordance with the Respondent’s normal pay cycle.
3. The Respondent submits that as it notified the Applicant on 21 May 2018 that the Applicant was to no longer attend work, the date of dismissal is 21 May 2018, with the Applicant being given 6 weeks pay in lieu of a notice period.”
[12] At the initial mention and directions hearing on 18 July 2018, Mr Doherty disputed that he had received his final payment. More specifically, Mr Doherty contended that he had a letter from the Respondent’s paymaster 16 June 2018 which stated that his final payment would be made on 15 July 2018. The Commission requested that Mr Doherty provide a copy of that correspondence. Mr Doherty subsequently provided a number of payslips to the Commission on 24 July 2018 and at the directions hearing of 6 August 2018 stated that he was mistaken when referring to correspondence from the Respondent’s paymaster. In terms of the payslips provided by Mr Doherty, the payslip dated 16/05/2018 is annotated “Hi Peter, your final pay will be made on June 15th in the usual way … Helen.” That payslip also included the following “Date Super Paid 21/5/18.” The subsequent payslip is dated 16/06/2018 and specifies the pay period start and end as 31/05 2018 and 30/06/2018 respectively.
[13] As previously mentioned, Mr Doherty filed his general protections application on 12 June 2018.
The Statutory framework
[14] Section 366 of the Act provides:
“366 Time for application
366(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person 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 person and other persons in a like position.”
On what date was Doherty dismissed?
[15] Mr Doherty in his submissions stated that he had not received a termination letter from the Respondent. As to the date of deemed termination Mr Doherty submitted that Mr Jolly called him on 21 May 2018 and advised him not to attend the workplace but to collect his personal items from the office. Mr Doherty also referred to his abovementioned email of 22 May 2018 and Mr Jolly’s response on 23 May 2018 (also referred to above). Against that background, Mr Doherty contended that there were three alternative readings of the correspondence:
1. he had not been dismissed as the correspondence only refers to him not attending the workplace between 22 May and 29 June 2018; or
2. in the alternative, the date of dismissal was 23 May when the Respondent confirmed that he was not to attend the workplace; or
3. in the alternative 29 June 2018 on the basis this was the date which the Respondent specified he would be paid until.
[16] Mr Doherty in his submissions also acknowledged that in his application he had nominated 21 May 2018 as the date of termination. However he sought leave to withdraw that date based inter alia on the nebulous nature of the correspondence received from the Respondent.
[17] In short, the Respondent contended in its submissions that it was clear from the facts that:
• it intended the date of dismissal to be 21 May 2018;
• Mr Doherty understood his employment to have been terminated on that date; and
• it would pay Mr Doherty until 30 June 2018 being a six week payment in lieu four weeks notice.
[18] In support of its contentions in this regard, the Respondent referred to the underlined text in Mr Doherty’s email of 22 May 2018 (see paragraph [9] above) and also submitted that Mr Doherty’s conduct in collecting his personal belongings from the workplace on 22 May 2018 indicated that he understood that his employment had been terminated on 21 May 2018.
In support of its submissions the Respondent relied on the decision in Siagian v Sanel Pty Ltd 3 (Siagian). As to the issue of payment in lieu of notice, the Respondent noted in its submissions that it:
• paid Mr Doherty on 16 May 2018 for the period 1 to 30 May 2018 on the basis of two weeks in arrears and two weeks in advance, highlighting the handwritten annotation on the payslip (see paragraph [12] above); and
• made the final payment to Mr Doherty on 16 June 2018 in accordance with its usual pay cycle, adding that the fact that the final payment in lieu of notice was made on 16 June 2018 is irrelevant when determining the date of dismissal.
[19] The parties largely reiterated their respective written submissions regarding the date of dismissal at the mention and directions and telephone hearings, with the Commission asking several questions as to whether Mr Doherty was paid in lieu of notice.
[20] As mentioned above, Mr Doherty sought to withdraw that aspect of his application which cited 21 May 2018 as the date of his dismissal given the nebulous nature of the correspondence he received from the Respondent. I am not willing to agree to Mr Doherty’s request for several reasons. First, the nature of the correspondence was known to him when he filed his application. Second, the fact that Mr Doherty collected his personal belongings from the office on 22 May 2018 does not suggest any misunderstanding by him as to the meaning of what Mr Jolly had said to him in their telephone conversation the previous day.
[21] The decision in Siagian, which was relied upon by the Respondent, among other things explored the issue of the effective date of dismissal in circumstances where the applicant in that case, Mr Siagian, was told that the “partners have decided you have to go” 4 and at the same time given a cheque as payment in lieu of notice. Below is an extract from the Siagian which considers the issue of payment in lieu of notice:
“Counsel’s second argument is that, because of the payment in lieu of notice, the termination did not occur on 29 March but at the date of expiration of the period for which payment was made, 15 April. If this argument is correct, s 170EE orders are available.
This argument also raises a complex problem. The problem arises because of the ambiguity inherent in the words “payment in lieu of notice”. The ambiguity was pointed out by Waite J, in Leech v Preston Borough Council (1985) ICR 192 at 196:
... it is clear from the authorities cited to us, ... all of which are confirmed by the experience of our lay members, that the expression “payment in lieu of notice” is regularly used throughout industry in one or other of two quite different senses. The first, which is the grammatically correct one, is when it is used to describe the payment to an employee whom it is proposed to dismiss summarily of a lump sum representing compensation for the wages or salary which he would have received if he had been given the notice to which he is entitled by law. The second, which is the colloquial and grammatically inaccurate one, is when the term is used as a convenient shorthand way of telling an employee that he is being given the full period of notice to which he is entitled by law but is at the same time excused any duty (and refused any right) that he would otherwise have under his employment contract to attend at the workplace during the notice period.
Although Waite J did not spell out the result that flowed from each meaning, it is clear from other decisions that, in the first case, the employee’s employment terminates upon the date of payment of the lump sum. In the second case, the employment extends until the expiration of the period for which the payment was made.” 5 (Underlining added)
[22] In this case the material before the Commission points inter alia to Mr Doherty:
• being advised on 21 May 2018 that his employment was to be terminated, that he would be paid until the end of June 2018 and that other than coming into the office to collect his belongings he would not be required to attend work; and
• continuing to be paid in accordance with the Respondent’s normal pay cycle as opposed to being paid an amount in lieu of notice.
[23] Beyond that the chronology attached to the Respondent’s Form F8A suggests that the Respondent was prepared to continue to employ Mr Doherty until Friday, 29 June 2018 at Mr Doherty’s request as this would be of assistance to him in seeking registration as a tax agent (see the entries for 14 and 17 May 2018 in particular). The chronology further suggests that while the Respondent was prepared to pay Mr Doherty until the end of June for the reasons outlined in the entry relating to 17 May 2018 it also decided not to require Mr Doherty to attend word during that period.
[24] In other words, the circumstances in this case appear to reflect the second sense of the term payment in lieu of notice referred to in the above extract from the decision in Siagian (see the underlined text in the passage from Leech v Preston Borough Council referred to in Siagian). As stated by Chief Justice Wilcox in Siagian “In the second case, the employment extends until the expiration of the period for which the payment was made.” 6
[25] Drawing on the decision in Siagian, the above analysis supports a finding that Mr Doherty’s dismissal took effect on 29 June 2018. As Mr Doherty’s application was received on 12 June 2018, i.e. before his dismissal took effect, it is therefore unnecessary to deal with the extension of time issue.
[26] This scenario raises the question of whether or not Mr Doherty’s application was made in accordance with the Act given that s.366(1)(a) of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect. The issue of whether or not the Commission needs to determine whether an employee has been dismissed before convening a conference under s.368 of the Act was considered by the Full Bench in Hewitt v Topero Nominees Pty Ltd 7 (Topero).Specifically the Full Bench in Topero determined as follows:
“[50] For the reasons given we do not accept that the Commission needs to be satisfied that the applicant has been ‘dismissed’ from their employment before holding a s.368 conference. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.” 8
[27] Against that background, Mr Doherty’s application will now be referred to the Commission’s General Protections Team to schedule a conference in accordance with s.368 of the Act.
Conclusion
[28] For all the above reasons, I have concluded that Mr Doherty’s was dismissed with effect from 29 June 2018. As such, it is not necessary to deal with the extension of time issue.
[29] Consistent with the decision in Topero, Mr Doherty’s application will now be listed for a conference aimed at resolving the dispute.
Appearances:
P. Doherty on his own behalf.
M. Kaufmann for the Respondent.
Telephone Hearing details:
2018.
Canberra and Sydney:
September 3.
1 Annexure to the Respondent's Form F8A
2 Ibid
3 (1994) 122 ALR 333
4 Ibid at 336
5 Ibid at 352
6 Ibid
7 [2013] FWCFB 6321
8 Ibid at [50]
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