Rodica Felea v KM & BZ Group Pty Ltd t/a Priceline Pharmacy

[2021] FWC 2028

[2021] FWC 2028

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rodica Felea
v
KM & BZ Group Pty Ltd t/a Priceline Pharmacy
(U2021/2432)

DEPUTY PRESIDENT MANSINI MELBOURNE, 23 APRIL 2021

Application for an unfair dismissal remedy – application lodged within time – extension of time not required.

[1] This decision concerns an application by Ms Rodica Felea (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined that the application was filed within the statutory timeframe permitted by the Act and accordingly the claim will now proceed. The reasons for this decision follow.

Procedural context

[3] In her application filed 23 March 2021, the Applicant identified that she was dismissed on and effective 28 February 2021 and that the application was not lodged within the 21 day statutory timeframe for filing. Other information indicated that the Applicant was unsure as to when her dismissal was effective because she was not given a termination letter.

[4] On 25 March 2021, the Commission emailed a copy of the application to the KM & BZ Group Pty Ltd t/a Priceline Pharmacy (Respondent), identified that jurisdiction to deal with the claim would be determined by a Member of the Commission. The Respondent was also invited to file a response to the claim.

[5] The matter was then allocated to me and a program was set for determination of the effective date of the Applicant’s dismissal and whether to extend the time for filing. The Applicant was directed to file a signed witness statement addressing the relevant matters and the Respondent was invited (but not required) to respond. The directions noted that any failure of a party to comply with the directions or to attend the hearing may result in the Commission proceeding to determine the matter in the absence of that party, based on the material before the Commission.

[6] The Applicant filed a witness statement with a number of attachments. No materials were filed on behalf of the Respondent and there was no request for an amendment to the program or indeed any communication from the Respondent.

[7] The Respondent was not able to be reached by telephone at the commencement time of the hearing. Accordingly, the jurisdictional hearing proceeded in the absence of the Respondent. The Applicant gave evidence at the hearing and I assessed her as an honest and credible witness, including in response to the Commission’s inquiries.

[8] At the time of publication, there has been no communication from the Respondent to my chambers. Accordingly, this determination proceeds on the materials before the Commission.

Was the application filed late?

[9] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3).

[10] A dismissal on notice takes effect upon the date of the expiration of the specified period of notice where this is clearly identifiable. 1 In the case of a dismissal with a payment in lieu of notice, the dismissal needs to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed. There may also be an additional requirement that the payment in lieu of notice has actually been received by the employee.2

[11] The Applicant’s evidence was, relevantly:

•  On 28 February 2021, she returned to work at the Respondent’s Priceline Pharmacy (Bentleigh East store) in her role as Pharmacy Assistant, after 3 weeks’ leave.

•  After closing on 28 February 2021, the Co-Owner (a Mr Benny Zhao) and the Pharmacy Manager (a Ms Betty Lee) met with the Applicant. There was a discussion about customer feedback and the financial position of the Respondent.

•  During the 28 February 2021 discussion, Mr Zhao informed the Applicant that he was “severing professional ties” with her but would continue to pay her for “another couple of weeks” and she would be paid her accumulated annual leave.

•  On 12 March 2021, the Applicant sent an email to the Respondent in which she referenced the 28 February 2021 discussion and confirmed she was yet to receive a notice of termination. That email also claimed an entitlement to 4 weeks’ notice and 7 weeks’ redundancy pay. The Applicant did not receive a response to that email.

•  On 18 March 2021, the Applicant sent another email to the Respondent in which she requested a response to her 12 March 2021 email.

•  On 30 March 2021, the Applicant received an email from the Respondent’s third party accounts provider (signatory going by the name of Lucy), marked with the subject line “From KM & BZ Group Pty Ltd”. It attached a payslip from the Respondent marked with a payment date of 30 March 2021 which included amounts for: “time in lieu of notice paid out”, “annual leave pay”, “long service leave accrual” and “superannuation guarantee”.

•  On 31 March 2021, the Applicant responded to Lucy’s email and requested a payslip for the period 1-14 March 2021. That same day, Lucy responded: “You actually don’t have any pay available for the fortnight 01/03-14/03. Your last pay run was from 15/02-28/02” and “Your normal shifts ended by 28-02-21 so your last pay run was for 15-02-21 to 28-02-21. Then as per Benny’s instruction we paid out all your annual leave and two weeks’ notice of time in lieu yesterday and this fell into the fortnight 15-03-21 to 28-03-21”.

•  The exchange on 31 March 2021 between the Applicant and Lucy ended with Lucy requesting that Mr Zhao respond to the Applicant’s requests for clarification. According to the Applicant, she did not receive any response from Mr Zhao.

[12] The Applicant’s evidence included the emails and payslip referred to above.

[13] Although the dismissal was orally communicated, and there was no written notice of termination, I accept the Applicant’s evidence that she clearly understood from the discussion on 28 February 2021 that her employment was terminated on 2 weeks’ notice and that she was not required to work the notice period. The email exchange with the Respondent’s accounts provider supports such finding in that it confirms that the Applicant was paid wages up until 28 February 2021 and notice to the value of 2 weeks’ pay.

[14] The question remains as to when the dismissal was “effective”. This is not a case where the Applicant was paid in lieu of notice immediately such that it may be argued that the employment relationship had in fact come to an end at the time the communication was made to the employee or upon the payment in lieu of notice being made to the employee. That the Applicant did not work during her 2 week notice period does not alter the conclusion that the dismissal was not effective until the end of that 2 week notice period. I also do not consider the date on which the notice was paid (being after the end of that 2 week period) to alter that conclusion in the particular circumstances of this case.

[15] On the materials before the Commission, I find that the Applicant’s dismissal was notified on 28 February 2021 and effective 2 weeks later on 14 March 2021. The application was filed on 23 March 2021. The period of 21 days ended at midnight on 4 April 2021. The application was therefore filed within the 21 day time period prescribed by s.394(2).

[16] For completeness, even if the Applicant’s dismissal was not effective until the date of final payment (30 March 2021) then the application was in that case premature, in that it was not filed after the dismissal took effect in accordance with the language of s.394(2). I note that I would in any event consider this an appropriate case to exercise the discretion at s.586(b) in favour of the Applicant and waive the irregularity in the form or manner in which the application was made.

Conclusion

[17] For the above reasons, the application was filed within the statutory timeframe and the application will now proceed to conference before the Commission.

DEPUTY PRESIDENT

Appearances:

R. Felea for herself.

No Appearance for the Respondent.

Hearing details:

2021.
Melbourne (By Telephone).
14 April.

Printed by authority of the Commonwealth Government Printer

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 1   Mohammed Ayub v NSW Trains[2016] FWCFB 5500 at [49]; Mr Peter Mihajlovic v Lifeline Macarthur[2013] FWC 9804 at [4]-[7].

 2   Ibid.