DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Reza Khoshkhoo
v
Information Management Integration Pty Ltd T/A Information Management Integration
(U2017/3096)

COMMISSIONER RYAN

MELBOURNE, 3 MAY 2017

Application for an unfair dismissal remedy – application was filed within the statutory timeframe specified in s.394(2)(a) – no extension of time required.

[1] The Applicant was notified on 15 February 2017 that he was being dismissed from his employment with the Respondent. The Applicant was given 14 days’ notice of his dismissal but did not work and was not required to work after 15 February 2017. The application in this matter was filed with the Commission on 21 March 2017. The Applicant contends that the dismissal took effect on 1 March 2017 at the end of the 14 day notice period and therefore the application was filed within the 21 day time limit specified by s.394(2)(a). The Respondent contends that the dismissal took effect on 15 February 2017 and that therefore the application was filed out of time. The Respondent opposes the Commission granting an extension of time to the Applicant.

[2] The first issue to determine is the date the dismissal took effect as this is the date from which time runs for the purpose of the 21 day time limit in which to file an unfair dismissal application.

[3] There is no dispute as to the fact that on 15 February 2017 the Applicant was informed that he was being dismissed.

[4] The Respondent in its Form F3 – Employer Response to Unfair Dismissal Application in answer to question 1.4 “What date did the dismissal take effect” provided the following answer:

“15 Feb 2017 (Page 58 Unfair Dismissal Benchbook)

[5] In its written submissions and evidence the Respondent did not expand on or clarify what it said in response to question 1.4 in the Form F3.

[6] Page 58 of the Unfair Dismissal Benchbook, to which the Respondent referred, contains the following:

“When does a dismissal take effect?

A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.¹¹⁶

A dismissal can be communicated orally.¹¹⁷

Where a payment in lieu of notice is made the dismissal usually takes effect immediately.¹¹⁸

Example

If an employee is given four weeks’ notice that they will be dismissed, and they work through the four week period—then the date that the dismissal takes effect will generally be at the end of that four week notice period.
HOWEVER, if an employee receives four weeks’ pay in advance in lieu of working and is NOT required to work through the four week notice period—then the date that the dismissal takes effect will generally be the last day worked unless the employer specifies a different date of dismissal.

________
¹¹⁶ Burns v Aboriginal Legal Service of Western Australia (Inc) (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 [24].
¹¹⁷ Plaksa v Rail Corporation NSW [2007] AIRC 333 (Cartwright SDP, 26 April 2007) [8]; citing Barolo v Centra Hotel Melbourne (AIRC, Whelan C, 10 December 1998) Print Q9605.
¹¹⁸ Siagian v Sanel Pty Ltd (1994) 122 ALR 333, 355.”

[7] The Applicant in its written submissions dealt with this issue as follows:

“10. The authority referred to on “Page 58 Unfair Dismissal Benchbook” in regards to the impact of periods of notice on the effective date of dismissal is the Wilcox CJ decision Siagian v Sanel. This decision is also referred to in the Applicant’s Form F2 at 1.3.

11. On page 352 of Siagian v Sanel, under the heading ‘The effect of payment on the date of termination’, Wilcox CJ stated:

“ […] 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.
The question whether a payment in lieu of notice immediately terminates the employment is always one of fact. In Leech at 196-197 Waite J said that the proper inference as to the sense in which the expression is used may turn upon "very subtle indications or nuances of wording which will have to be weighed carefully according to their context". The difficulty, of course, is that the parties will normally not have made the position clear. They will probably not have averted to the distinction made by Waite J. The Court will be left to put its own interpretation on their actions” (underlining added).

12. We submit that the Applicant in the current matter was simply “being given the full period of notice to which he is entitled by law but [was] 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”. As such, in accordance with Siagian, we submit that the effective date of dismissal was at the expiration of this period on 1 March 2017.” [references removed]

[8] The Applicant in his witness statement identifies that the payment for the two weeks’ notice was made to him “on 10 March 2017, 9 days after my notice period ended and 11 days before my unfair dismissal application was put in”.

[9] The Applicant also relied on the decisions both at first instance and on appeal in Mihajlovic v Lifeline Macarthur. 1 I have had regard to both of those decisions.

[10] What is clear is that the Respondent did not pay the Applicant two weeks’ pay in lieu of giving the Applicant two weeks’ notice. Rather the Respondent gave the Applicant two weeks’ notice and then after the notice period had expired and the employment had ended the Respondent paid the Applicant the amount of pay owing to him for the notice period.

[11] Both the giving of two weeks’ notice and the making of a payment to the Applicant after the notice period had ended was consistent with the terms of the contract of employment. The employment contract provided that it could “be terminated by either party by providing 14 days written notice.” The Respondent provided the Applicant with 14 days’ notice (although it was given orally and not in writing) and the Respondent did not require the Applicant to work the period of notice. After the period of notice had ended the Respondent paid to the Applicant the required amount of pay to cover the 14 day period.

[12] The conduct of the Respondent is consistent with the contention of the Applicant, that the effective date of dismissal was at the expiration of this period on 1 March 2017. The conduct of the Respondent is also consistent with the second example described by Waite J in Leech v Preston Borough Council 2and the conclusion drawn about this example by Wilcox CJ in Siagian v Sanel.

[13] The Commission is satisfied that the dismissal of the Applicant took effect at the end of the 14 day notice period, namely 1 March 2017. As the application in this matter was made on 21 March 2017 the application was made within the time frame required by s.394(2)(a). No extension of time is required. The application in this matter will now be dealt with in the usual manner.

COMMISSIONER

1 [2013] FWC 9804 and [2014] FWCFB 1070.

2 [1985] ICR 192 at 196.

Printed by authority of the Commonwealth Government Printer

Reza Khoshkhoo v Information Management Integration Pty Ltd T/A Information Management Integration

[2017] FWC 2431

3 MAY 2017

DECISION