Stefania Taverna v Melbourne College of Hairdressing Beauty and Natural Medicine Pty Ltd
[2022] FWC 2177
•18 AUGUST 2022
| [2022] FWC 2177 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stefania Taverna
v
Melbourne College of Hairdressing Beauty and Natural Medicine Pty Ltd
(U2022/5353)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 18 AUGUST 2022 |
Application for unfair dismissal remedy - jurisdictional objections - minimum employment period – no dismissal- extension of time – jurisdictional objections dismissed – extension of time granted
This decision concerns an application by Ms Stefania Taverna (Applicant) for an unfair dismissal remedy (Application) pursuant to section 394 of the Fair Work Act 2009 (Act). Ms Taverna’s application was lodged on 19 May 2022, concurrently with applications by Ms Delfino and Ms Hunt against the Respondent under section 394 of the Act for an unfair dismissal remedy (Other Applications).
The Respondent objected to the Application on the basis that Ms Taverna had not met the minimum employment period, had not been dismissed and, if she had been dismissed, had filed the Application outside the 21-day statutory time frame (collectively, Jurisdictional Objections). The Jurisdictional Objections were the subject of a hearing before me on 14 July 2022.
Ms Taverna appeared on her own behalf. Ms Danielle Gapes, Human Resources Advisor for the Respondent, appeared on behalf of the Respondent. Mr Fred Garai, Chief Executive Officer of the Respondent, gave evidence on behalf of the Respondent.
This decision is divided into three parts as follows:
Part 1 addresses whether Ms Taverna has met the minimum employment period required under section 383 of the Act.
Part 2 addresses whether Ms Taverna was dismissed for the purposes of section 386 of the Act.
Part 3 addresses whether the Application was lodged within 21 days as required by section 394(2) of the Act and, if not, whether an extension of time ought be granted under section 394(3) for the lodging of the Application.
Part 1 - Minimum employment period
Legislative provisions
It is useful to first set out the relevant legislative provisions in relation to the minimum employment period.
Minimum employment period
Section 382 of the Act, relevantly, provides as follows:
“A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period;
…”
Section 383 of the Act sets out the minimum employment period, and provides as follows:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i)the time when the person is given notice of the dismissal;
(ii)immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
Section 384 of the Act provides as follows:
“384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a)a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was as a regular casual employee; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”
Section 12 defines a regular casual employee as follows:
“regular casual employee: a national system employee of a national system employer is a regular casual employee at a particular time, if at that time:
(a)the employee is a casual employee; and
(b)the employee has been employed by the employer on a regular and systematic basis.”
Section 23 defines small business employer as follows:
“23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
Background and findings of fact
Ms Taverna commenced employment with the Respondent in the position of Trainer/Educator in September 2011.[1] It is uncontested that Ms Taverna was employed as a casual employee and that she was continuously employed by the Respondent from 2011 until her employment ceased.[2] The time at which Ms Taverna’s employment ceased is addressed later in this decision. Her evidence is that she initially commenced working 1 day per week, increasing to 2 days per week in the following year and that since around 2016 she has worked 3 days per week. Her evidence was that when working 2 days per week her work days were Monday and Wednesday each week and that since around 2016 she has worked Monday, Wednesday and Thursday 9.30 - 4.30 each week, [3] other than in periods of lockdown.[4] However, at hearing she said that there was also a period of time when she only worked 2 days per week due to her mother being unwell[5] and she was unsure if she was working 2 or 3 days in the first half of 2021.[6]
In approximately 2018 there was a change of ownership of the Respondent by way of share acquisition.[7] The management of the business did not change at that time, with the previous owner of the business, Ms Piva, remaining on as the Chief Executive Officer and Principal.[8] In late June/early July 2021, Mr Garai commenced as the Chief Executive Officer of the Respondent, replacing Ms Piva.[9]
Ms Taverna’s evidence is that throughout her employment the Respondent has operated year round. The Respondent did not have semester breaks or otherwise operate on a tertiary education term or semester basis. Student intakes occurred every month.[10] She says that she worked every month of the year other than January, when she took a family holiday and was not rostered on with the consent of the Respondent.[11] Mr Garai’s evidence was that since the commencement of 2022 the Respondent has divided the year into semesters and students have set regular holiday breaks based on the Victorian school holiday periods[12]. He agreed that this was not the case previously. Prior to 2022 students did not have regular holiday breaks and the year was not divided into semesters.[13]
Mr Garai’s evidence under cross examination was that he was unaware that Ms Taverna’s hours and days of work were Monday, Wednesday and Thursday 9.30 am - 4.30 pm prior to his commencement in approximately July 2021 and that the timetables on file “showed different hours and different days” to those stated by Ms Taverna.[14] The timetables on file produced to the Commission are from January 2021 onwards only.[15] Mr Garai filed a document setting out the hours the Respondent says Ms Taverna worked between January 2021 and December 2021 [16] (Document). Mr Garai’s evidence was that he compiled the Document from timetables on file and student rolls.[17] The Document provides that Ms Taverna did not work in the month of January. This is consistent with her evidence. The Document further demonstrated that in the months February 2021 to May 2021 inclusive, Ms Taverna worked 52 hours each month, other than in April when her hours were 45.5. On each occasion Ms Taverna worked in those months the Document provides that she worked 6.5 hours per day. The Document demonstrates that in this period Ms Taverna, generally, worked 2 days per week, on a Monday and a Wednesday, although there were occasional variations to this when the Document provides that she worked only 1 day in a week (being either a Monday or a Wednesday) or worked a Thursday in conjunction with working a Wednesday. I also consider this generally consistent with Ms Taverna’s evidence as to her days and hours of work.
The Document provides that in June 2021, Ms Taverna worked on four occasions, for a total of 12.5 hours, being comprised of one 6.5 hour day and three days on which she worked for 2 hours each, in July 2021 Ms Taverna worked on seven days for 2 hours each for a total of 14 hours and in August 2021 Ms Taverna worked on one day for 2 hours. No hours are recorded as being worked after 2 August 2021. Mr Garai’s evidence is that in lockdown classes changed to online delivery[18] and were for no more than 4 hours and in some cases were not more than 2 hours.[19]
Ms Taverna disputes that the Document accurately reflects the hours she worked in 2021.[20] She agreed that the hours in the Document were likely correct for February 2021 – May 2021[21] but disputed that the hours after that period, which generally relate to hours worked during lockdown, were correct. Lockdowns in the second half of 2021 in Melbourne occurred from 28 May 2021-10 June 2021, 16 July 2021-27 July 2021 and 5 August 2021 to 21 October 2021. During the period of Victoria’s lockdowns Ms Taverna’s evidence was that she worked on any day of the week up to the amount of her Jobkeeper payments.[22] She says she went into the Respondent’s premises with an authorised worker permit to deliver classes online and to complete demonstrations[23] and when not delivering online classes undertook work reviewing the Respondent’s documentation and assessment tools.[24] Ms Taverna filed a number of payslips in support of her contention that the Document did not accurately reflect the hours she worked after May 2021. The Payslips filed by Ms Taverna provide that in the period 7 June 2021 to 4 July 2021 she was paid for 34.5 hours. In the period 5 July 2021 to 1 August 2021 Ms Taverna was paid for 21 hours. Payslips for the period 2 August 2021 to 29 August 2021 provide that Ms Taverna was paid for 28 hours work. In the period 30 August 2021 to 12 September 2021 payslips provided by Ms Taverna provide that she was paid for 4 hours. Payslips produced by the Respondent after the hearing at the request of the Commission demonstrate that Ms Taverna was paid for 10 hours in the period 13 September to 26 September 2021. Accordingly, Ms Taverna was paid for 14 hours work in September 2021. The hours provided in the Document for any month after May 2021, therefore, do not reflect the hours for which Ms Taverna was paid in those months. I consider the payslips to be a more reliable source of evidence than that Document as to the hours worked by Ms Taverna after May 2021. Further, on the basis of the payslips, it is not the case that Ms Taverna did not perform work for the Respondent after 2 August 2021. Accordingly, I do not consider that the Document accurately reflects the hours worked by Ms Taverna after May 2021 and I prefer the evidence of Ms Taverna as to the hours she worked during this period.
Mr Garai’s evidence is that the rostering arrangements for the lockdowns in 2021 were based on the rostering arrangements put in place for the lockdowns in 2020.[25] His evidence was that following his commencement with the Respondent in July 2021 timetables for Trainers were sent to Ms Taverna by an administrative employee of the Respondent, Natasha.[26] Under cross examination he did not agree that Ms Taverna was nominating the classes and units to be open to students; rather, he said that all Trainers were asked to advise of their availability so that online delivery could be scheduled.[27] Under cross examination he said that he was aware that Ms Taverna was assisting with the scheduling “up to a period of time.”[28] However he also agreed that classes were scheduled following discussions between Ms Taverna, Ms Delfino and Ms Hunt and that not all staff were involved in those discussions.[29] In response to questions from the Bench, he said that Natasha coordinated the Trainers to be able to deliver online training during the lockdown periods. He said that prior to that “I can’t comment”.[30] Ms Taverna filed an email dated 16 August 2021 “to validate my comment of scheduling classes for students”[31] (Scheduling Email). Whilst not expressly stated I consider it clear from Ms Taverna’s line of questioning of Mr Garai under cross examination, and the material filed by Ms Taverna, that she says she was actively involved in the scheduling of classes. The Scheduling Email is between Ms Taverna and Natasha and sets out a timetable proposed by Ms Taverna for the following two weeks for herself, Ms Delfino and Ms Hunt which is said to be following Ms Taverna “conversing” with Ms Delfino and Ms Hunt. I do not consider that the Scheduling Email is consistent with Mr Garai’s evidence that Trainers simply advised Natasha of their availability to enable her to co-ordinate online training delivery. I consider it consistent with Ms Taverna being actively involved in the determination of which classes would be open to students and the scheduling of those classes and I so find. Further, Mr Garai’s evidence was that he had no knowledge of these matters prior to his commencement with the Respondent in July 2021. Accordingly, I consider that Ms Taverna was actively involved in the determination and scheduling of classes prior to July 2021 also.
The last day on which Ms Taverna performed work for the Respondent was 9 September 2021.
In light of the above matters, I find that in her employment with the Respondent Ms Taverna has worked first, 1 and then 2 or 3 days per week. Since approximately 2012 she has worked, for the most part, 2 or 3 days per week on a Monday, Wednesday and/or Thursday. On each day that Ms Taverna worked for the Respondent she worked for 6.5 hours per day. I find that this occurred throughout the year other than in the month of January, when Ms Taverna took a family holiday, and in periods of lockdown in Victoria throughout 2020 and 2021. During the periods of lockdown in Victoria I find Ms Taverna worked whenever rostered and necessary to enable online delivery of course content to students and in line with Jobkeeper entitlements.
Consideration
Is the Respondent a small business employer?
The definition of when an employer will be a small business employer for the purposes of the Act is set out at paragraph [10] above.
In its Form F3 the Respondent says that it employed 7 employees.[32] In its Outline of Submissions it says that when Ms Taverna was employed by the Respondent it employed 8 employees.[33]
In her materials Ms Taverna says that based on Zoom meetings and her last attendance at the Respondent’s premises the Respondent employed 13 employees.[34]
At hearing the Respondent submitted that that it was a small business employer as defined in the Act and that it had not employed 15 or more employees in the period October 2021 until June 2022.[35] At hearing Ms Taverna said that she believed the Respondent employed less than 15 employees but that she didn’t know.[36] However, Ms Taverna ultimately agreed that the Respondent’s status as a small business employer was not in dispute.[37]
In the directions issued in this matter on 24 May 2021 the Respondent was directed to file submissions and evidence in support of its contention that it was a small business employer, including payroll and employment records. It did not do so. At hearing the Commission again sought that the Respondent produce payroll, employment, and other records to establish that it was a small business employer as it contended.[38] In response to this, following the hearing the Respondent filed a document entitled “Staff payroll list October 2021 to May 2022” (List). For reasons set out later in this decision, I have concluded that Ms Taverna was dismissed by the Respondent sometime between 9 December 2021 and 16 December 2021 and it is therefore this period that is the relevant period for determining whether the Respondent was a small business employer for the purposes of the Act.
The List provides that at December 2021 the Respondent employed 14 employees, noting that the date Ms Gapes commenced employment in December 2021 is not specified. Further, the List does not provide specific dates when other employees commenced employment and is vague and general in its terms. Notwithstanding that, on the basis of the material before me, it appears that the Respondent employed 14 employees immediately prior to Ms Taverna’s dismissal. This is considerably more than the 7 employees stated in the Form F3[39] and 8 employees stated in the Respondent’s Outline of Submissions.[40] Notwithstanding that, I proceed on the basis that the Respondent is a small business employer for the purposes of the Act in that it had 15 or fewer employees at the time Ms Taverna’s employment ceased. However, in light of my conclusion regarding Ms Taverna’s period of employment, which is set out below, I do not consider anything turns on this.
Has Taverna met the minimum employment period?
Section 383
Section 383 of the Act provides that the minimum employment period for a small business employer is 1 year.
Respondent’s submissions
In is written submissions the Respondent submits that Ms Tavena has not met the minimum employment period.[41] It submits that Ms Taverna’s employment was not on a regular and systematic basis and that she did not have a reasonable expectation of continuing employment on a regular and systematic basis.[42]
However, at hearing the Respondent conceded, correctly in my view, that Ms Tavena’s employment as a casual employee was as a regular casual for the purposes of section 384(2)(a)(i).[43] It submitted, however, that Ms Taverna’s period of service as a casual employee did not count towards her period of employment for the purposes of section 384(2)(a)(ii) because as an education facility the Respondent is dependent on enrolments and classes are determined in light of enrolments.[44] It says that students enrol in courses for a term and Trainers are provided with their teaching timetables on a week to week and month to month basis based on those enrolments.[45] Once a course concludes future hours of work will depend on enrolments for future courses to be offered. As such, it submits that Ms Taverna could not have had a reasonable expectation of continuing employment. Further, the Respondent submitted that Ms Taverna had not been engaged for a 12-month period between January 2021 and May 2022.[46]
Applicant’s submissions
Ms Taverna submits that she has met the minimum employment period under the Act. She submits that she has been continuously employed since 2011. She submits that her work pattern over a period of approximately 10 years demonstrates that her employment was regular and systematic and that she had a reasonable expectation of continuing employment on a regular and systematic basis.[47] She submits that during 2021 her employment was regular and systematic and that she had a reasonable expectation of continuing employment on a regular and systematic basis and that she continued to work during Melbourne’s lockdowns.[48] She submits that the provision of Jobkeeper payments to her during the lockdown periods reflects the fact that she had a reasonable expectation of continuing employment.[49]
Minimum employment period
The Respondent concedes that during her employment Ms Taverna was a regular casual, that is, that she was employed on a regular and systematic basis. At issue, therefore, is whether during the period of her employment with the Respondent Ms Taverna had a reasonable expectation of continuing employment by the employer on a regular and systematic basis. For the following reasons I find that she did.
Firstly, as set out above, Ms Taverna worked regular days and hours for the Respondent over a period of 10 years, with variation as required during periods of lockdown. Secondly, Ms Taverna worked throughout the entirety of each year, other than in the month of January. Thirdly, Ms Taverna was actively involved in the determination of classes opened to students and the scheduling of those classes. Fourtly, during periods of lockdown Ms Taverna received Jobkeeper payments. In light of these matters, I consider that Ms Taverna had a reasonable expectation of continuing employment on a regular and systematic basis. As to the submission that because the Respondent is an educational institution and therefore dependant on enrolments Ms Taverna cannot have had a reasonable expectation of employment, I reject that submission. The evidence is that during Ms Taverna’s employment there were no semesters or term breaks and the Respondent operated year round, other than for a break at Christmas. Ms Taverna’s uncontested evidence is that prior to Mr Garai commencing employment, new students were enrolled each month. Accordingly, while the timetables may have only been set fortnightly or monthly in advance, that occurred in the context of a continuous year round operation and one in which new students enrolled each month and in respect of which Ms Taverna (and Ms Delfino and Ms Hunt) was actively involved in the determination, scheduling and timetabling of classes. Accordingly, I consider that Ms Taverna had a reasonable expectation of continuing employment on a regular and systematic basis.
I therefore find that Ms Taverna’s entire period of employment with the Respondent from approximately 2011 until December 2021 counts towards her period of employment for the purposes of section 382 of the Act. That period is a period of approximately 10 years.
Finally, as to the Respondent’s submission that Ms Taverna had not been employed for 12 months between January 2021 and May 2022,[50] I consider this submission to be misconceived. Section 382 provides that for an employee to be protected from unfair dismissal the employee must have completed a period of employment of at least the minimum employment period. I have found that Ms Taverna’s period of employment for the purposes of section 382 is approximately 10 years. Pursuant to section 383 the minimum employment period for a small business employer is 1 year. Accordingly, at the time of her cessation of employment in December 2021 Ms Taverna had met the minimum employment period under section 383 of the Act.
Finding
Accordingly, I find that Ms Taverna has met the minimum employment period under section 383 and is therefore a person protected from unfair dismissal for the purposes of section 382 of the Act.
Part 2 – Dismissal
Legislative Provisions
Part 3-2 of the Act contains the statutory scheme concerning access to remedies for unfair dismissal. Section 394(1) of the Act provides that “A person who has been dismissed may apply to the Commission for an order under Division 4 granting a remedy.” Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied as to four specified matters, the first of which is that “the person has been dismissed”.
Section 386(1) of the Act, relevantly, defines when a person has been dismissed as follows:
“Section 386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
…”
Background and factual findings
Ms Taverna’s evidence is that in August 2021 her accountant informed her that her hourly rate of pay may not be correct.[51] She raised this query with the Respondent in writing on 4 September 2021 and again on 15 September 2021. She says that as she had not received a response by 29 September 2021 she contacted the Fair Work Ombudsman (FWO) for assistance.[52]
On 5 October 2021 Mr Garai’s evidence is that he was contacted by the FWO advising that Ms Tavena, Ms Delfino and Ms Hunt had made a claim for unpaid wages (Claim). He says that the FWO directed that he meet with Ms Taverna, Ms Hunt and Ms Delfino regarding the Claim. [53]
It is uncontested that a Zoom meeting was held on 12 October 2021 with Mr Garai, Ms Taverna, Ms Delfino and Ms Hunt (Meeting). Mr Garai’s evidence is that at the Meeting Ms Taverna said that she was not prepared to take on any more training classes until she is paid the rate that she believes she is entitled to under the applicable Award. His evidence is that based on this “I assumed that Mrs Stefania Taverna… had resigned...”.[54] Ms Taverna’s evidence is that at the Meeting she said that she had been advised not to take any further classes until she was paid the correct rate of pay. She says that at no time did she state she wanted to terminate her employment with the Respondent or resign.[55]
As set out above, the last day Ms Tavena worked for the Respondent was 9 September 2021.
Ms Tavena’s evidence is that she, Ms Delfino and Ms Hunt participated in five meetings with Mr Garai seeking to resolve the Claim.[56] It appears that certain proposals to resolve the Claim were exchanged between the parties,[57] as on 18 November 2021 Mr Garai wrote to Ms Taverna, Ms Delfino and Ms Hunt by email saying, relevantly:
“Hello Teri, Stefanie & Karlee
Thank you for replying to us. The figures we have sent you do address what you have raised as concerns.
…From the advice we have maintained, the ombudsman may not be able to schedule a mediation date until 2022, which would hold up the settlement for a further period of time which we do not want to see happen as we would like to see this matter and your continued employment resolved quickly.
…”[58] (18 November Email).
Further emails were exchanged between Ms Taverna, Ms Delfino and Ms Hunt and Mr Garai regarding the Claim throughout November 2021.[59]
On 9 December 2021 at 2.37 pm, the Respondent sent an email to students (9 December Email). The email is sent from [email protected] and the signatory to it is Mr Garai. The 9 December Email, relevantly, provides as follows:
“Hello hairdressing students,
I know that 2021 has not been a good year for many of you, the imposed Covid lockdowns this year have affected your academic progress to completing your qualification. There was also a change of management which was not managed as well as it could have been. With the change of management came a change of trainers who had been a part of your academic life since the time you commenced your learning journey.
Teri, Stefanie and Karlee will not be returning to MCOHB, they have decided to take another path in their lives, because of their absence we have been left short of suitable trainers to work with you to complete your learning journey. Sun Young Kong joined the college after we returned form lockdown and has brought her knowledge and experience with her to train and assess students for their future.
…”[60]
Ms Taverna’s evidence is that the 9 December Email was forwarded to her by a student[61] and on 16 December 2021 she, on behalf of herself, Ms Delfino and Ms Hunt, emailed the owners of the Respondent in the following terms:
“Employment status?
Good afternoon Alysia and Peter,
We hope our email finds you well. We have been advised to contact you directly as you are our employer.
We would like for you to confirm for us our employment status.
It has been bought to our attention that an email sent out to all MCOHB students, on the 9th of December 2021, notifying them: that we are taking “another path in their lives” and as a result “we have been left short of suitable trainers to work with you to complete your learning journey.”We would have thought that this matter would have been addressed with us, prior to students being notified.
Until now, we have kept all correspondence private and confidential, regardless of the matter at hand.
We request that you address this matters as quickly as possible.
..” [62] (16 December Email).
Ms Taverna’s evidence is that no response was received to the above email.[63]
The Claim has not been resolved and on 17 May 2021 the FWO issued the Respondent with a Compliance Notice[64] in respect of unpaid minimum casual wages and unpaid superannuation entitlements.[65]
Consideration
Respondent’s submissions
The Respondent submits that Ms Taverna was not dismissed.[66] The Respondent submits that at no point did it issue or communicate that the employment had ended.[67] Rather, it says that Ms Tavena resigned and withdrew her services on 12 October 2021.[68] Further, in relation to the 9 December Email, it says that under its obligations as a registered training organisation (RTO) it was required to notify students of a change in Trainer.[69]
Applicant’s submissions
Ms Taverna submits that it was upon the FWO issuing the Compliance Notice to the Respondent that it “became very evident to me that my hope for continued employment was one sided”.[70] Accordingly, Ms Taverna submits that the date of her dismissal was 17 May 2022.[71]
Did Taverna resign?
I reject the Respondent’s submission that Ms Taverna resigned. Firstly, it is clear, even on the Respondent’s evidence of the Meeting, that at no stage did Ms Taverna expressly say that she resigned from her employment or that she did not want to continue her employment with the Respondent. Secondly, Mr Garai’s evidence is that he “assumed” Ms Taverna resigned. Mr Garai’s assumption as to this does not make it so and, further, I do not consider that assumption to be objectively reasonable in all the circumstances. Thirdly, I do not consider that Ms Taverna’s statement that she was not prepared to take on any more classes until she is paid the rate she believed she was entitled to under the applicable Award, amounts to a resignation or a statement that she no longer wishes to remain employed by the Respondent. I consider the statement is a conditional statement that Ms Tavena is unavailability for work until she is paid in accordance with the Award; it is not a statement that she will not at any time perform further work for the Respondent. Fourthly, I consider Mr Garai’s email of 18 November 2021 to be inconsistent with the Respondent believing that Ms Taverna had resigned on 12 October 2021. Accordingly, I find that Ms Taverna did not resign on 12 October 2021.
Was there a termination at the initiative of the employer?
Section 386(1) is set out above.
In order for an employee to have been dismissed for the purposes of section 386(1) the employee’s employment must have been terminated at the initiative of the employer. In Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 (Navitas) the Full Bench found that termination at the initiative of the employer in section 386(1)(a) did not, on its ordinary meaning, refer to termination of a contract of employment. Rather, the Full Bench found that that a termination of employment at the initiative of the employer for the purposes of section 386(1)(a) occurs where the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.[72] In NSW Trains v Mr Todd James[2022] FWCFB 55 (NSW Trains) the Full Bench, in the context of a case concerning demotion, found that that the expression ‘employment … has been terminated’ in s.386(1)(a) means termination of the employment relationship and/or termination of the contract of employment.[73]
The general contractual characteristic of casual employment is that a person who works over an extended period of time as a casual employee is engaged under a series of separate contracts of employment on each occasion the person undertakes work.[74] There are some, albeit rare, cases where a casual employee has been found to have been engaged under a single continuing contract of employment, but the accepted orthodoxy of casual employment is that each engagement is under a separate contract, rather than a continuing contract of employment.[75] In its material the Respondent contends that Ms Tavena was currently engaged pursuant to a written casual contact of employment.[76] I reject that contention. The term of the contract relied upon is expressed to be “the Term of 6 months this runs from 3 July 2017 to 21 December 2017”.[77] Accordingly, the Term of the contract expired some four years ago. Accordingly, on each occasion that Ms Taverna worked for the Respondent, at least since 2018, there was a separate contract of employment entered into between the parties.
The last day worked by Ms Taverna was 9 September 2021. I therefore accept that there was no employment contract on foot between the parties following the completion of Ms Taverna’s last shift on 9 September 2021. However, in the present circumstances, consistent with the decisions in Navitas and NSW Trains, a termination of employment at the initiative of the employer for the purposes of section 386(1)(a) occurs where the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.
Although I accept that upon the issuing of the Compliance Notice the prospect that Ms Taverna would be offered further employment with the Respondent was likely greatly reduced, I reject the Applicant’s submission that the issuing of the Compliance Notice was the action which brought about the termination of her employment. The action of issuing the Compliance Notice was not an action of the Respondent; rather, it was an action of the FWO. It could not bring the employment relationship to an end.
However, I consider that the 9 December Email did bring the employment relationship between the parties to an end. In the 9 December Email, the Respondent says that Ms Taverna “will not be returning” and that she has “decided to take another path in [her life].” Accordingly, the 9 December Email provides that Ms Taverna will not continue to participate in employment with the Respondent and I consider that no other conclusion can be reached than that the 9 December Email brought about the end of the employment relationship. I reject the Respondent’s submission that the Email was simply to comply with its obligations as a RTO. Firstly, if the Respondent was required to advise students as it contends, it is entirely unexplained as to why it did so in December 2021 when it says that Ms Taverna resigned on 12 October 2021 and Ms Kong commenced in the role of Trainer. Secondly, Ms Taverna delivered no classes after 9 September 2021 but the alleged notification was not until 9 December 2021. Thirdly, Mr Garai’s evidence is that in January 2022 the Respondent was required to notify students that Ms Taverna, Ms Delfino and Ms Hunt were not returning. As already set out, the Email is dated 9 December 2021.[78] I consider it more likely that the 9 December Email reflects the fact that the Respondent’s proposals to resolve the Claim had been rejected by Ms Taverna (and Ms Delfino and Ms Hunt).
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[79] Further, the general principle is that an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated.[80] In Ayub v NSW Trains[2016] FWCFB 5500 a Full Bench of the Commission held that where a dismissal occurs without notice the dismissal cannot not take effect until an employee knows, or at least has a reasonable opportunity to find out, that they have been dismissed.[81] It is in that sense the dismissal is regarded as having been communicated to the employee.[82] I consider that upon Ms Taverna becoming aware of the 9 December Email she knows, or had a reasonable opportunity to find out, that she has been dismissed. Her evidence was that it was upon the issuing of the Compliance Notice that she became aware that her employment with the Respondent would not continue. For my part, I am unable to see how that was not apparent upon receiving the 9 December Email. Further, I consider this to be evidenced by Ms Tavena sending the 16 December email enquiring as to her employment status.
Accordingly, I consider that the 9 December Email brought about the termination of the employment relationship and thereby the termination of Ms Taverna’s employment with the Respondent. The 9 December Email was the principal contributing factor which brought about the end of the employment relationship. That termination was therefore on the Respondent’s initiative. I therefore find that Ms Taverna was dismissed by the Respondent and that the dismissal was effective on the date that she became aware of the 9 December Email. On the evidence before the Commission this was sometime between 9 December 2021 and 16 December 2021.
Finding
Accordingly, I find that Ms Taverna’s employment was terminated at the initiative of the employer. I therefore find that she was dismissed as that term is defined in section 386(1)(a) of the Act.
Part 3 -Extension of time
Legislative context
As set out above, I have found that Ms Tavena was dismissed by the Respondent at some time between 9 December 2021 and 16 December 2021.
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). The period of 21 days ended at midnight on 30 December 2021 at the earliest and midnight on 6 January 2022 at the latest. The application was therefore filed somewhere between 134 days and 141 days outside the 21 day period.
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[83] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[84]
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.
Consideration
Reason for the delay
The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[85]
Ms Taverna says that she did not lodge the Application prior to 19 May 2021 because of the lengthy delays and continued obstacles with the Claim. She says that she was under the impression that her employment would continue as stated in the 18 November Email. [86]
Whilst I accept that the Claim has been the subject of lengthy discussions from September 2021 until May 2022, I do not consider this provides a reasonable or acceptable explanation for the delay. Firstly, the Claim is a separate and distinct matter. Secondly, I consider that upon becoming aware of the 9 December Email Ms Taverna could not have continued to hold the belief that her employment would continue. Whatever might have been said in the 18 November Email, or Ms Taverna’s understanding of that, it was clearly overtaken by the 9 December Email. Thirdly, her evidence at hearing was that after becoming aware of the Email, she spoke to the Commission “for enquiry about the dismissal and I just contacted them more or less regarding the email that had gone out to students”[87] and subsequently JobWatch,[88] and it was upon the advice of JobWatch that she sent the 16 December Email.[89] Her evidence was that she spoke to JobWatch on the same day she sent the 16 December Email and the advice of Jobwatch was also, amongst other things, to file a Form F2 for an unfair dismissal remedy.[90] Fourthly, whilst the Application was not filed until 19 May 2022, it is dated 25 February 2022, indicating, in my view, that Ms Taverna knew she was able to make an application for an unfair dismissal remedy but chose not to do so, pending the potential resolution of the Claim.
In light of all the above, I do not consider that Ms Taverna has provided a reasonable or acceptable explanation for the delay in lodgement. This weights against the grant of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
I have found that upon being provided with the Email, Ms Taverna had a reasonable opportunity to know that her employment had ended. Notwithstanding that, it is uncontested that the Respondent did not at any time advise Ms Taverna that her employment had ended or that it would not offer her any further engagements. I consider this weighs in favour of granting an extension of time.
Action taken to dispute the dismissal
There is no evidence that Ms Taverna took any action to dispute her dismissal. This weighs against the grant of an extension of time.
Prejudice to the employer
There is a not insignificant delay between the dismissal and 19 May 2022 when the Application was lodged. However, I cannot identify any particular prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this a neutral consideration.
Merits of the application
An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
Ms Taverna contends that she was dismissed because she sought to be paid the applicable rate under the Award and raised concerns regarding a failure of the Respondent to make superannuation contributions required under the Award.[91] She also contends that her dismissal was unfair as she was not notified of it. The Respondent says it made a decision not to re-engage Ms Taverna in January 2022 as she had not shown or communicated she wanted to be re-engaged by it. The Respondent also says that it did not re-engage Ms Taverna due to lack of enrolments and the absence of available casual shifts,[92] however it led no probative evidence in support of this submission.
Whilst the merits have not been fully tested, on the material before me I consider Ms Taverna’s contention that she was unfairly dismissed to have substantial merit and a significant prospect of success. I have not made this finding lightly. This is essentially an interlocutory matter. All of the available evidence is not necessarily before me, nor has it been fully heard or tested in the context of a hearing as to the merits of the Application. However, for the following reasons I consider that the Application has considerable merit. Firstly, that Ms Taverna raised with the Respondent that she did not believe she was being paid the relevant rate of pay under the Award is not contested. Secondly, that she was not paid the correct rate of pay under the applicable Award nor provided with her correct superannuation entitlements appears, prima facie, to be supported by the issuing of a Compliance Notice by the FWO in respect of these matters. [93] Thirdly, the Claim was on-going and unable to be resolved. Fourthly, I have found that Ms Taverna did not resign or withdraw her services unconditionally in the manner contended for by the Respondent. Fifthly, there is a strong chronological nexus between Ms Taverna raising these matters and the Respondent ceasing to offer her further work. Sixthly, it is uncontested that the Respondent did not notify Ms Taverna of her dismissal; rather, it advised students that she was not returning and informed them, incorrectly and without any basis, that Ms Taverna had decided to take another path in her life. Seventhly, the Respondent’s complete failure to respond to the 16 December Email and confirm its view that she had resigned on 12 October 2021.
Accordingly, I consider this weighs strongly in favour of the grant of an extension of time.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind generally turn on their own facts. The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Ms Taverna and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
The time limit that applies to the exercise of a person’s right to bring an application under section 394 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the parties, I satisfied that there are exceptional circumstances. In my view, when all the various circumstances are considered together, they are exceptional. In particular, I consider the combination of the Claim and its nature, the chronological nexus between the Claim and the failure to offer Ms Taverna further work, the false information provided to students in the 9 December Email, the failure to notify Ms Taverna of her dismissal or respond to the 16 December Email and the merits of the Application overall, are circumstances which, when taken together, are out of the ordinary course, unusual, special or uncommon. As such, I am satisfied that there are exceptional circumstances.
Accordingly, I grant an extension of time under s 394(3) for the lodgement of the Application until 19 May 2022.
The matter will now be programmed for the filing of materials and listed for hearing.
DEPUTY PRESIDENT
Appearances:
S Taverna for the Applicant
D Gapes for the Respondent
Hearing details:
14 July 2022
Melbourne (by Microsoft Teams)
Printed by authority of the Commonwealth Government Printer
<PR744858>
[1] Court Book (CB), pg 133 at [8]
[2] Transcript PN 284-285, PN 668
[3] Ibid 253, PN 439
[4] Transcript PN 440
[5] Ibid 440, PN443
[6] Ibid 442
[7] Ibid 275,
[8] Ibid 274
[9] Ibid 270
[10] Ibid 439
[11] Applicant’s Outline of Argument at [4], CB pg 72-73
[12] Transcript PN 272, PN 308
[13] Ibid 272
[14] Ibid 254
[15] Ibid 255
[16] CB, pg 64
[17] Transcript PN 312
[18] Ibid 286
[19] Ibid 289
[20] Ibid 430
[21] Ibid 463, PN 464
[22] Applicant’s Outline of Argument at [4], CB pg 73-74
[23] Ibid
[24] Ibid
[25] Transcript PN 286
[26] Ibid 257
[27] Ibid 262
[28] Ibid 261
[29] Ibid 263
[30] Ibid 270
[31] CB pg 85
[32] Form F3 at q.1.7
[33] Respondent’s Outline of Submissions at [6], CB pg 38
[34] Applicant Outline of Argument at [5], CB pg 73
[35] Ibid 84
[36] Ibid 54
[37] Transcript PN 76
[38] Ibid 97
[39] Form F3, q.1.7
[40] Respondent’s Outline of Submissions at [6], CB pg 38
[41] Ibid at [1], CB pg 36
[42] Ibid at [4], CB pg 37
[43] Transcript PN 141
[44] Ibid 145, PN 650
[45] Respondent’s Outline of Submissions at [4], CB pg 37
[46] Transcript PN 644
[47] Applicant’s Outline of Argument at [4], CB pg 73, Transcript PN 153
[48] Applicant’s Outline of Argument at [6], CB pg 74
[49] Ibid at [7], CB pg 74
[50] Respondent’s Outline of Argument at [7], CB pg 38
[51] Witness Statement of Stefania Taverna, CB pg 95
[52] Witness Statement of Stefania Taverna, CB pg 75, Applicant’s Outline of Argument at [1], CB pg71, CB, pg 100-101
[53] Witness Statement of Fernando Garai, CB pg 66
[54] Ibid 67
[55] Witness Statement of Stefania Taverna, CB pg 75, Applicant’s Outline of Argument at [2], CB pg 72
[56] Witness Statement of Stefania Taverna, CB pg 75
[57] Also see CB, pg 86
[58] CB pg 13-14, Applicant’s Outline of Argument at [2], CB pg 72
[59] CB pg 102, PN 103
[60] Ibid 105
[61] Ibid 9
[62] Ibid 106
[63] Form F 2 at q.1.3,1.4, Applicant’s Outline of Argument at [3], CB pg 72, Witness Statement of Stefania Taverna, CB pg 96
[64] Witness Statement of Stefania Taverna, CB pg 75, CB pg 87, Witness Statement of Stefania Taverna, CB pg 96
[65] CB pg 132
[66] Respondent’s Outline of Argument at [9], CB pg 38
[67] Respondent’s Outline of Argument at [18], CB pg 119
[68] Form F3 at q.1.3, Respondent’s Outline of Argument at [9], CB pg 38, Transcript PN 124
[69] Respondent’s Outline of Argument at [19], CB pg 119
[70] Applicant’s Outline of Argument at [1], CB pg 71
[71] Applicant’s Outline of Argument, Q.3, CB pg 92
[72] Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [50]
[73] NSW Trains v Mr Todd James[2022] FWCFB 55 at [45]
[74] City of Sydney RSL & Community Club Limited v Balgowan [2018] FWCFB 5 at [24]
[75] Ibid
[76] CB pg 54
[77] Ibid 55
[78] Witness Statement of Fernando Garai at [4], CB pg 67
[79] Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24]; Ayub v NSW Trains [2016] FWCFB 5500 (Hatcher VP, Wells DP, Johns C, 30 September 2016)
[80] Plaksa v Rail Corporation NSW [2007] AIRC 333 (Cartwright SDP, 26 April 2007) at para. 8; citing Barolo v Centra Hotel Melbourne, Print Q9605 (AIRC, Whelan C, 10 December 1998); Mohammed Ayub v NSW Trains[2016] FWCFB 5500 (Ayub) at [17], [48] and [49]
[81] Ayub v NSW Trains[2016] FWCFB 5500 at [48] and [49]
[82] Ibid at [48]
[83] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[84] Ibid
[85] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[86] Applicant’s Outline of Argument at q.5, CB pg 92
[87] Transcript PN 427
[88] Ibid 423
[89] Ibid 423
[90] Ibid 423
[91] Applicant’s Outline of Argument at q.7, CB pg 93
[92] Respondent’s Outline of Argument at [7], CB pg 117
[93] CB pg 132
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