Rebecca Lill v Australian Pilot Training Alliance Pty Ltd

[2022] FWC 2794

[2022] FWC 2794

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rebecca Lill
v

Australian Pilot Training Alliance Pty Ltd

(U2022/7928)

COMMISSIONER MCKINNON SYDNEY, 4 NOVEMBER 2022

Application for an unfair dismissal remedy – extension of time – whether dismissed – effective date of dismissal – extension of time not required

1. Ms Rebecca Lill was employed by the Australian Pilot Training Alliance Pty Ltd (APTA) as a flight instructor from 18 November 2020 until her promotion to General Manager in October 2021 and subsequent appointment to the role of Chief Executive Officer (CEO). On 29 July 2022, Ms Lill applied for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (Act), alleging that she was dismissed by APTA on 8 July 2022.

1. APTA denies that it was the employer of Ms Lill on 8 July 2022. It submits that Ms Lill was not dismissed by APTA, and that if she was, the dismissal occurred on 3 March 2022 and her application is out of time.

1. It is uncontroversial that an application for an unfair dismissal remedy can only be made by a person who has been dismissed. Under section 386(1)(a) of the Act, a person has been dismissed if their employment has been terminated on the employer’s initiative. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or if there are exceptional circumstances, such further period as the Commission allows.[1]

1. I find that Ms Lill was dismissed by APTA on 8 July 2022. It is not necessary to decide whether to allow additional time for Ms Lill to make her application because the application was made within 21 days of the effective date of dismissal.

1. These are my reasons.

Relevant chronology

1. Between 1 February 2022 and 8 July 2022, Mrs Zebaida Sada was the sole Director and Secretary of APTA. Mrs Sada and her son Mr Omar Sada were majority shareholders. Until March 2022, Mr Naser Qushair was the CEO of ATPA and Ms Lill was its General Manager, reporting to Mr Qushair.

1. On 3 March 2022 (4 March 2022 in San Diego, California):

   1.   Mr Qushair and Mr Sada had a disagreement,

   2.   APTA (through Mr Sada) purported to suspend Mr Naser Qushair as CEO pending an investigation, with Ms Lill to remain as General Manager and Peter Kestle as the “standby CEO”,

   3.   APTA (through Mr Kestle) wrote to the Civil Aviation Safety Authority (CASA) notifying of an interim change in CEO, and

   4.   Mr Qushair (from San Diego) suspended Ms Lill as General Manager and directed her not to contact or disclose or cooperate with Mr Sada in any form or shape.

1. On 7 March 2022, APTA applied to CASA to change its CEO from Mr Qushair to Ms Lill.

1. On 8 March 2022, Mr Sada asserted his appointment as the authorised representative of Mrs Sada. Ms Lill subsequently received a direction from Mr Sada on behalf of Mrs Sada that she not comply with the direction from Mr Qushair.

1. On 11 March 2022, APTA terminated the employment of Mr Qushair. APTA submits that it then ceased air operations until 18 March 2022 when CASA approved the appointment of Ms Lill as CEO in place of Mr Qushair. The appointment was approved on 18 March 2022 and on the same day, Ms Lill entered into a contract of employment with APTA for the CEO role.

1. Ms Lill was paid in accordance with her contract of employment for the position of CEO from 18 March 2022 until 26 June 2022. Her last pay day was 29 June 2022. On 14 July 2022, Ms Lill received a payslip for wages purportedly paid on 13 July 2022, although she received no payment.

1. On 8 July 2022, Mrs Sophia Qushair was appointed as sole director of APTA. She wrote to Ms Lill directing her to “stand down immediately” on the basis that Mr Qushair had been reinstated to the role of CEO. The letter was sent to Ms Lill by email from Mr Qushair at 11.17pm that night, with a covering email confirming that the “order to stand down” was “effective at once” and that she was “to hand over all property and details immediately”. The letter advised Ms Lill that her earlier suspension as General Manager on 3 March 2022 was “still relevant and active”. The letter also required Ms Lill to “hand over all company properties and all relevant company information immediately”.

1. On 9 July 2022, Ms Lill sent emails to staff of APTA to say goodbye, advising that this was her “last day”.

1. Ms Lill submits that she was dismissed when APTA repudiated her contract of employment by failing to pay her salary for the period on or after 26 June 2022 and she accepted the repudiation by making this application. This is one way of making sense of what unfolded in late June and early July of 2022. However, the better view is that Ms Lill was dismissed on 8 July 2022 when she was directed to stand down immediately from her role as CEO on the basis that she had been replaced. Once removed from her role, there was no other role for Ms Lill to perform, and none was offered. On the contrary, Ms Lill was required to cease work and return all company property immediately. She did not know it yet, but she was also no longer being paid. I find that Ms Lill knew when she received the letter of 8 July 2022 that she had been dismissed. This is clear from her email communication with staff the following day to say goodbye and to advise that it was her “last day”.

1. I reject the submission that Ms Lill was not dismissed. The directions issued to her on 8 July 2022 and their practical effect cannot be understood in any other way. I also reject the submission that Ms Lill was dismissed on 3 March 2022. Ms Lill was suspended by Mr Qushair on 3 March 2022 but continued in the employment relationship on full pay. She was subsequently promoted to the role of CEO of APTA on 18 March 2022, in which she remained until she was dismissed.

1. It is not necessary for the purposes of this decision to resolve the various allegations of unlawful conduct or impropriety made by the parties against the other. It is a separate matter that one or more actions taken by a party might have been an offence under the common law, the Crimes Act 1958 (Vic) or civil aviation law or regulations, or in breach of relevant company policies and procedures, or in breach of APTA’s constitution or company rules. The evidence does not allow a finding that the actors in relation to actions described in the chronology above had no actual or apparent authority to do what they did at the relevant times.

1. The one possible exception in this respect is whether the suspension of Ms Lill on 3 March 2022 was a matter within the capacity of Mr Qushair at the time that it occurred. However, it is not necessary to resolve the question because it would not alter the outcome. There would still be no basis for asserting that Ms Lill was dismissed on 3 March 2022.

Conclusion

1. I find that Ms Lill was dismissed on 8 July 2022. While she continued to perform work on 9 July 2022, she was not authorised by APTA to do so. The effective date of dismissal is 8 July 2022.

1. The application for an unfair dismissal remedy was made on 29 July 2022, which was the last day of the 21‑day filing period. As a result, the application was made in time and it is not necessary to consider whether additional time should be allowed. The jurisdictional objection brought on this basis is dismissed.

1. Directions will issue separately in relation to the further programming of the matter.

COMMISSIONER

Appearances:

S Ingui on behalf of the applicant.
N Qushair for the respondent.

Hearing details:

2022.
Sydney (by video):
October 18.

[1] Fair Work Act 2009 (Cth), s 394(2).

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