Roman Sluga v SmartBill Pty Ltd / Id Plate Pty Ltd T/A Telestar Communications

[2015] FWC 8871

[2015] FWC 8871

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roman Sluga
v
SmartBill Pty Ltd / ID Plate Pty Ltd T/A Telestar Communications
(U2015/14277)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 23 DECEMBER 2015

Application for relief from unfair dismissal.

[1] Mr Roman Sluga alleged that the termination of his employment by SmartBill Pty Ltd was unfair. SmartBill objected to the application on the basis that the application was not lodged within 21 days of the date of dismissal and because Mr Sluga earned more than the high income threshold. At the hearing, SmartBill advised that it did not press the high income threshold objection.

[2] At the hearing, I granted permission to SmartBill to be represented by a lawyer. It was submitted that as the matter to be determined was a jurisdictional objection, the matter involved some complexity and granting permission to appear would allow the matter to be dealt with more effectively. I did not accept this submission. The matter in dispute was of limited compass. If resolved in favour of SmartBill, I would need to determine if I should grant Mr Sluga an extension of time. The matters to be considered in this extension of time hearing did not involve any particular complexity. SmartBill further submitted that it would be unfair not to permit SmartBill to be represented as it would not be able to effectively represent itself. It was submitted that the human resources staff member with carriage of the matter had only been appointed in September and she had no experience with matters before the Fair Work Commission. I accepted that submission and granted permission for SmartBill to be represented, despite Mr Sluga’s opposition to permission being granted.

[3] The parties are in dispute about when the termination of Mr Sluga’s employment took effect.

[4] It was not disputed that SmartBill sent Mr Sluga an email on 27 October 2015 advising him that his employment had been terminated. The email was sent at 2.32pm to Mr Sluga’s Gmail account. Attached to the email was a letter of termination dated 26 October 2015, which advised Mr Sluga that his employment had been terminated with immediate effect.

[5] At 10.18pm that night, Mr Sluga sent an email to SmartBill from his Yahoo email account attaching a medical certificate. At 11.51pm that night, SmartBill sent Mr Sluga a copy of the termination email to his Yahoo address.

[6] Mr Sluga gave evidence and was cross examined. SmartBill did not call any evidence. Mr Sluga gave evidence that he did not have internet access at his home address. It was his evidence that his phone was not working. It was his evidence that he went to his sister’s on 27 October 2015 and used his Yahoo account to send an email to SmartBill. He said he was having difficulty with his Gmail account. Mr Sluga said that after sending the email, he logged off.

[7] Mr Sluga in cross examination denied receiving the termination email either in his Gmail or Yahoo accounts on 27 October 2015. In that cross examination, it was put to Mr Sluga that his phone had been cut off by SmartBill on 27 October 2015 and that he was aware that it had be cut off. Mr Sluga denied knowing it was cut off on that date. Mr Sluga gave evidence that his phone was not working at this time because it was self-loading an updated version of android.

[8] It was put to Mr Sluga that he contacted SmartBill on 28 October 2015 about his mobile phone service being cut off. Mr Sluga could not recall when he contacted SmartBill about his phone. No evidence was called by SmartBill to support its contention that he contacted it on 28 October 2015.

[9] Mr Sluga said that he knew he had been dismissed when his phone was cut off. It was his evidence that his phone was faulty and he did not know it had been cut off until his friends tried to contact him on that phone number. He said he became aware of his dismissal on 29 October 2015.

[10] SmartBill submitted that the dismissal took effect on 27 October 2015 when the email was sent. It submitted that I should find that Mr Sluga received the email or was deliberately avoiding its receipt.

[11] SmartBill did not rely upon any authorities to support its contention that the dismissal took effect when the email was sent. It said it was unaware that this was in issue. It is difficult to see how this submission could be made. In his application, Mr Sluga clearly put SmartBill on notice that he did not become aware of the dismissal until after it took effect. 1

When does a dismissal take effect?

[12] In Commonwealth of Australia (Australian Taxation Office) v Wilson, 2 a Full Bench of the Australian Industrial Relations Commission considered when a notice of dismissal was effective and held as follows:

“[11] Counsel for the Commonwealth referred us to a number of authorities but conceded that there are few on point. One decision which appears to us to bear directly on the issue is Transport Workers' Union of Australia v National Dairies Limited (1994) 57 IR 183. In National Dairies Keely J, sitting in the Industrial Relations Court of Australia, was required to decide whether the employment in question terminated before or after the date on which legislation providing statutory remedies for unfair dismissal commenced to operate. In the course of his judgment His Honour said:

"It was accepted by the respondent's counsel, for the purpose of the present hearing, that the employer's letter of purported termination was not received by the applicant until 30 March 1994. In my opinion the mere posting of the 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. I am unable to uphold the respondent's submission that the intention of the legislature was to make it a contravention of the Act for an employer to perform actions "pursuant to which the employer seeks to terminate an employee even if that wish is never communicated to the employee ie even if a letter of termination posted by an employer is never received by the employee.""

With respect we agree with His Honour's conclusion. Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee. Those circumstances did not, however, exist in this matter and we therefore refrain from further discussion of the point.” [Emphasis added]

[13] The Fair Work Act 2009 (the Act), which provides at s.394(3)(b) that one of the matters the Commission must have regard to when deciding whether to extend time is whether a person only become aware of the dismissal after it took effect, suggests that there may be circumstances where a person did not became aware of the dismissal after it took effect. There is however no indication in the Explanatory memorandum that Parliament intended that the inclusion of s.394(3)(b) in the Act was intended to overturn the common law proposition that termination of employment does not generally take effect until it is communicated to the employee. So much is evident from the decision of the Full bench in WorkPac Pty Ltd v Bambach, 3 which endorsed the decision in Commonwealth of Australia (Australian Taxation Office) v Wilson.

[14] Commonwealth of Australia (Australian Taxation Office) v Wilson dealt with circumstances where a letter of termination was sent. It determined that the termination took effect when the letter was received.

[15] In Kelly v Jetstar Airways Pty Ltd, 4 Commissioner Bull considered when an email was received in light of this authority and determined that the email was received when the applicant in that matter personally became aware of the email. He did accept that if the applicant had been deliberately avoiding receipt of the communication, he would have reached a different conclusion.

[16] I accept that termination by email, like termination by letter, does not take effect until it has been received. I do not accept that an email has been received just because it has been sent or that it has arrived in the recipient’s inbox. To be received, the recipient must either have a smart phone which enables the recipient to be alerted to the email when it arrives or be logged onto an internet provider.

[17] An employer may effectively terminate an employee orally, by text, by email or by letter, however, in each case, the Commission must determine on the evidence before it when the notice of termination was received.

[18] On the basis of the matters put by SmartBill to Mr Sluga his phone service had been disconnected on 27 October 2015. No evidence was given as to whether it was disconnected prior to or after the termination email was sent. However, it was Mr Sluga’s evidence that his phone was not working. It was Mr Sluga’s evidence that he did not have home internet access and that he was only able to send an email using his sister’s internet access. It was his evidence that he was not able to access his Gmail account. It was his evidence that having sent the email to SmartBill, he logged off and did not receive the termination email.

[19] Given the sworn evidence of Mr Sluga, I find that he was unaware of the termination email on 27 October 2015. I am unable to find that he was deliberately avoiding finding out that his employment had been terminated. I find that the earliest date Mr Sluga became aware of his dismissal was 28 October 2015. I find on the evidence before me that he did not become aware of the letter of termination until 29 October 2015. As such, the termination took effect on that date.

[20] As a result, his application lodged on 18 November 2015 was lodged within 21 days and therefore he does not require an extension of time.

[21] As a consequence, Mr Sluga’s application will be referred to conciliation and if the matter is not resolved, to a determination of the merits of Mr Sluga’s claim.

DEPUTY PRESIDENT

Appearances:

R Sluga on his own behalf.

M De Carne on behalf of the Respondent.

Hearing details:

2015.

Melbourne and Sydney (video link):

December 16.

 1   Exhibit A2.

 2   PR901127.

 3   [2012] FWAFB 3206.

 4   [2012] FWA 6257 at [16].

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