Sharon Margaret Payne v Gateway Training Academy Pty Ltd

[2025] FWC 716

[2025] FWC 716

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sharon Margaret Payne
v

Gateway Training Academy Pty Ltd

(U2024/14968)

COMMISSIONER SIMPSON BRISBANE, 13 MARCH 2025

Application for an unfair dismissal remedy – jurisdictional objection - out of time - disparity over dismissal dates – dismissal effective date determined – jurisdictional objection dismissed

1. On 11 December 2024, Ms Sharon Margaret Payne (Ms Payne / the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with Gateway Training Academy Pty Ltd (the Respondent). The Respondent objected to the application as it said the Applicant’s application was filed outside of the 21-day statutory timeframe. The matter was listed for jurisdictional hearing on the out of time issue on 5 March 2025. Directions were issued for the filing of submissions and parties filed further material.

1. The Applicant was represented by Mr Mark Elliott of the Independent Education Union (IEU). Mr Greg Lind of the Respondent’s parent company appeared on behalf of the business.

Background

1. On 19 November 2024, the Applicant attended a meeting to discuss her performance. A Teams video recording of the meeting was provided to the Commission as an attachment to the statement of Mr Lind which was admitted into evidence.[1] The Applicant also provided a statement that was admitted into evidence.[2] The Respondent submitted that it was at the 19 November 2024 meeting that the Applicant was advised that her employment would be terminated that day.

1. On 20 November 2024, the Applicant emailed Mr Lind noting:

“…at the end of the meeting you offered me you the opportunity to resign and be given a payout of 4 weeks salary (and a reference), and if not, be terminated and to provide you with my decision by COB WST today.
…
It is evident that the correct process hasn’t been followed and after seeking legal advice in relation to the way this has been handled, I will not be resigning from my position.

I also note that you immediately removed email, Hubspot, Monday board and all other system access at the end of the meeting.

Please provide a letter of termination so that I can provide this to my legal professionals.”

1. On 21 November 2024, the Applicant received a letter confirming that her employment was terminated effective from 21 November based on her capacity. The covering email stated:

“…Further to the Performance review meeting held via Microsoft Teams held on Tuesday 19th November 2024. The attached letter is to confirm the outcome of the meeting as advised to you on Teams by Mr Lind.”

1. The letter set out:

“Mr Lind then explained that your employment was to come to an end, not based particularly on the established Misconduct but rather on the grounds that you do not have the capacity to perform the job, further he raised the issue of his duty of care to ensure a safe workplace in particular relating to the stressors you were encountering trying to perform a role you do not have the capacity or capability of performing. He indicated that he could not in good conscience allow you to continue in a job that could, or would affect your mental health, he touched on the legal responsibilities we as an employer have in this regard.

In summary the decision to Terminate your employment was informed by your lack of Capacity to perform the role, the duty of care requirement to ensure your health and safety coupled with Misconduct.

For those reasons your employment comes to an end Today’s date.”

1. On 11 December 2024, the IEU filed the application with the Commission.

1. A Centrelink Separation Certificate prepared by the Respondent on 15 January 2025 indicates a cessation date of employment of 21 November 2024.

1. The IEU submitted that the termination date is 21 November 2024, and the Respondent submitted that the termination date is 19 November 2024. If the Respondent is correct, then the application is 1 day out of time.

Evidence and Submissions

1. The IEU submitted that a dismissal is not considered to have taken effect unless and until it is communicated to an employee who is being dismissed.[3] Further, s.117(1) of the Act states that “(a)n employer must not terminate an employee’s employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).”

1. The Respondent submitted that during the meeting on 19 November 2024, the Applicant was advised by Mr Lind that her employment would be terminated that day. They referred to two specific points in the meeting, specifically at 15:00 minutes remaining or thereabouts, when Mr Lind said:

“it’s not appropriate that you stay with us”,

1. Further, at 05:53 minutes remaining of the meeting Mr Lind said:

“your employment is going to end today”

1. The Respondent contended that at the cessation of the meeting of 19 November 2024 the employment relationship was completely severed. Further, the Applicant’s access to all company systems, email and the like were shutdown as a consequence of the employment relationship ending.

1. The IEU submitted that whilst the Applicant was given the option at the 19 November 2024 meeting to resign her employment or face termination, the Respondent gave her until the end of the following day to provide her response to that offer, and she had no cause to believe that her dismissal was effective as of that day, let alone that meeting.

1. The Respondent noted that the Applicant did not attend work on 20 November 2024 but was not on approved leave or notified of any sick leave or otherwise. The Respondent submitted that this was because the Applicant knew that her employment had ended the previous day, and all access was revoked.

1. The Respondent submitted that the termination letter was dated the day it was sent however at the time termination of the employment relationship had already occurred as evidenced by the Teams Video recording.

1. In cross examination, Mr Lind was referred to the second last sentence of the termination letter of 21 November 2024 signed by Mr Gregory. Mr Lind said he drafted the termination letter himself on 19 November 2024, and sent it to Mr Gregory for execution, and asked that they “hold off” on it, to see if the Applicant would make a decision as whether she wanted Mr Lind to go ahead and effect the termination at the initiative of the Respondent, or whether she wished to resign as there were some benefits to her in resigning rather than the dismissal being at Mr Lind’s hand.

1. Mr Lind also said the date on the letter was populated on the day that it was opened by Mr Gregory. Mr Lind said that would ordinarily be appropriate, however in this case this crosses purposes with the intent of the letter, as the letter itself said that it was intended to confirm the outcome of the meeting as advised on Teams, which he said was that the Applicant’s employment was ended that day.

1. In relation to the separation certificate, Mr Lind said the date on the separation certificate prepared by staff simply reflected the date on termination letter.

1. Mr Lind was asked about what was said starting at 1 hour 31 minutes and 9 seconds on the transcript of the Teams meeting, where Mr Lind said words to the effect that if he did not hear from the Applicant by 5pm then he will go ahead and instruct that the termination of the Applicant’s employment be recorded as termination based on capacity at the Respondent’s initiative, and she would be instructed to return property. It was put to Mr Lind that if the Applicant was dismissed on 19 November 2024, why was she not instructed to return property that day. Mr Lind said he had already told the Applicant by that point of the meeting that her employment was ending that day.

1. It was put to Mr Lind that if a termination had already occurred, why would he have to instruct the payroll staff to record the termination as being at the Respondent’s initiative the following day (which was going to be contingent on what the Applicant advised her decision regarding the two alternative options was by 5pm the following day). Mr Lind’s response was in summary that the two alternative options provided to the Applicant did not change the date of termination, they only changed how the termination would be recorded.

1. There is some inconsistency in what Mr Lind said to the Applicant during the meeting on 19 November 2024. Starting at about 1 hour 27 minutes and 52 seconds in the recording, Mr Lind said the words to the Applicant that her employment was to end that day, however he then went on to say he was not going to make an official record just yet, and he would let the Applicant think about it overnight. If she chose to resign she could provide a resignation. This proposal entailed, as I understand from the recording, that if the Applicant decided to provide a resignation before 5pm on 20 November 2024, Mr Lind wanted the resignation to state that it would be effective from 19 November 2024, which would of course be the day before it was provided. Mr Lind went on to make clear that if the Applicant decided to provide a resignation by 5pm the following day, the termination of the employment relationship would be recorded as a resignation.

1. Mr Lind also provided an incentive to the Applicant to take up the second option. The proposal from Mr Lind, which the Applicant was given until by 5pm on 20 November 2024 to accept or reject, was that if she agreed to provide a resignation, she would receive a sum of four weeks’ pay, however if she did not, she would receive two weeks’ pay.

1. Mr Lind gave evidence that his approach in telling the Applicant her employment was ending that day, and proceeding to discuss the Applicant resigning after that, was because he was mindful to avoid a ‘constructive dismissal’, and his intent was to attempt to assist the Applicant for future purposes by not having the ending of the employment recorded as dismissal.

Consideration

1. I am inclined to accept Mr Lind’s evidence that it is was his intention and objective to terminate the Applicant in the meeting on 19 November 2024, however, also leave open the option for the Applicant to advise the following day whether she wanted her termination recorded that way or alternatively recorded as a resignation. I am also inclined to accept Mr Lind’s explanation that this was done in the Respondent’s view for the benefit of the Applicant, both financially and in terms of her future employment prospects.

1. The Respondent’s case is that both parties understood the notion of the Applicant resigning was a fiction, and despite the use of the language of resignation in the option put to her at the meeting on 19 November 2024, as a matter of fact and law, she was dismissed by the Respondent on 19 November 2024. Further, the proposal for her to resign was only intended to be a label to be presented to the outside world, and not what both parties had understood had occurred at the meeting on 19 November 2024.

1. Having weighed the evidence, the overall picture that emerges from the meeting on 19 November 2024 does not support the conclusion that the Applicant’s employment was terminated that day. The evidence points to the conclusion that despite what Mr Lind said about the Applicant’s employment ending that day at one particular point during the course of the meeting, the effect of his subsequent language during the same meeting altered the earlier stated decision and made termination having effect conditional on her response by 5pm the following day. This is because he advised the Applicant that a final decision to formally terminate the employment relationship was held over until the Applicant had been given an opportunity to take up an alternative offer to resign instead.

1. Mr Lind’s language was sufficiently ambiguous to prevent it from ending the employment relationship on 19 November 2024.

1. I have taken into account that the Respondent also relies upon the fact that it blocked the Applicant’s access to its internal IT systems immediately after the meeting, however that act of itself does not tip the balance in favour of a finding that a dismissal had occurred in light of the offer made to the Applicant.

1. Mr Lind communicated to the Applicant that if she did not take up the resignation proposal by 5pm on 20 November 2024, the Respondent would at that point (and from the language used it would reasonably be apprehended not before), formally terminate the employment relationship which it ultimately did, by written correspondence on 21 November 2024, which is also the date recorded in the termination letter itself, that the termination was to have effect from, which is consist with the separation certificate provided by the Respondent in January 2025.

Conclusion

1. On the basis on the conclusions above, the application was filed within time and is within jurisdiction. The application will proceed.

1. I would add for the benefit of the parties that given the above conclusion, it is strictly unnecessary to refer to the considerations regarding extending time. However, I can say that had I concluded that the termination did occur on 19 November 2024, I would have found there were exceptional circumstances justifying the granting of a one-day extension of time.

1. The circumstances here would amount to exceptional circumstances given the ambiguous messaging from the Respondent during the meeting of 19 November 2024, and two separate and subsequent termination documents being the termination letter, and the separation certificate both stating that the termination had effect from 21 November 2024, not 19 November 2024. It would be completely reasonable for the Applicant to have understood from the Respondent’s own actions, that her dismissal had effect from 21 November 2024, even if
   that were not the case.

COMMISSIONER

Appearances:

M Elliott, for the Applicant
G Lind, of the Respondent

Hearing details:

5 March
Brisbane (by video)
2025.

[1] Exhibit 1 Witness statement of Mr Greg Lind. 

[2] Exhibit 2 Witness statement of Ms Sharon Payne.

[3] Beverly Jean Burns and Aboriginal Legal Service of Western Australia (Inc.) Print T3496 [2000] AIRCFB Williams SDP, Acton SDP, Gregor C, 21 November 2000) at para. 24.

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