Suk Ching Leung v Royal Freemasons Ltd

[2015] FWC 421

[2015] FWC 421

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Suk Ching Leung
v
Royal Freemasons Ltd
(U2014/15242)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 15 JANUARY 2015

Application for relief from unfair dismissal.

[1] Ms Suk Ching Leung alleged that the termination of her employment by Royal Freemasons Ltd was unfair.

[2] Royal Freemasons sent a letter to Ms Leung on 14 October 2014 advising that her position would be made redundant on 24 October 2014 if she did not provide an expression of interest in some specific positions or was not successfully redeployed. On 24 October 2014, Royal Freemasons sent a letter advising Ms Leung that her employment had been terminated effective 24 October 2014. Ms Leung’s application for an extension of time was lodged on 18 November 2014.

[3] It is not disputed that Ms Leung had applied for annual leave which commenced on 14 October 2014. Ms Leung was also absent from work the previous day due to illness.

[4] Ms Leung gave evidence that her overseas flight was scheduled to leave Melbourne at 10.35am on 14 October 2014 and that she was not at home when the letter of 14 October 2014 was delivered. Ms Leung did not return to Australia until 13 November 2014. It was then she read both the letter of 14 October and 24 October 2014.

[5] It was not contested that Ms Leung did not expect nor was she aware of the contents of the letter of 14 October 2014.

[6] Royal Freemasons objected to Ms Leung's application on the grounds that it was out of time and it was a genuine redundancy.

[7] This decision deals with the out of time objection.

[8] Ms Leung filed submissions in support of an extension of time and upon receipt of those submissions Royal Freemasons advised that it withdrew the out of time objection.

[9] The parties agreed that the application for an extension of time could be determined on the papers.
[10] As there are no factual disputes between the parties in relation to the extension of time it is not necessary to have a hearing.

Is an extension of time necessary?

[11] Central to the answer to this question is the determination of when the termination of Ms Leung’s employment took effect. Did it occur on 24 October 2014 as advised in the letters of 14 and 24 October 2014 or did it occur when Ms Leung received the letters when she returned to Australia?

[12] A Full Bench of the Australian Industrial Relations Commission considered this issue in Commonwealth of Australia (Australian Taxation Office v Wilson 1 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] In this case it is clear that Ms Leung did not receive the letter of 14 October or 24 October 2014 on the dates they were sent to her address. Royal Freemasons knew that Ms Leung was on annual leave when it sent the letters. There is no suggestion that it knew that Ms Leung was leaving Australia on 14 October 2014. In those circumstances, I find that as the letter of termination was not received until 13 November 2014, the termination of employment took effect on that date. As such Ms Leung’s application was lodged with 21 days of the termination taking effect.

[14] In the event that the termination did take effect on 24 October 2014, I find that there are exceptional circumstances that warrant granting Ms Leung an extension of time. These are my reasons.

[15] The Commission has the discretion to extend the time for lodging an unfair dismissal application. That discretion can only be exercised if the Commission is satisfied that there are exceptional circumstances. In deciding if there are exceptional circumstances the Commission must have regard to the following criteria.

The reason for the delay

[16] The reasons for the delay are twofold; one the lack of knowledge of the dismissal on 24 October 2014 and representative error.

[17] As set out above Ms Leung did not lodge her unfair dismissal application within 21 days because she did not become aware that her employment had been terminated until 13 November 2014. The next day she contacted her union and she was not able to speak to her representative until the afternoon. In addition she had difficulty forwarding the documents to her union.

[18] At that time her representative was not in her office. Her representative mistakenly formed the view that the effective date of termination was 14 October 2014 and that the application was out of time. In fact if the application been lodged on 14 November 2014 it would have been lodged in time.

[19] Ms Leung’s representative was not able to review the material until she returned to work on the Monday and she referred Ms Leung to the union’s lawyers who confirmed her instructions on 18 November 2014 and lodged the application the same day.

[20] The representative error was twofold. The representative thought that the 14 October 2014 was the effective date of termination. Further the representative having formed the view that the application was out of time did not tell Ms Leung to lodge an application promptly either by a telephone or other means. While the union may have procedures to deal with unfair dismissal applications, it should ensure that those procedures are modified to ensure that there is a prompt response to an out of time application. However Ms Leung acted promptly in pursuing her claim and the mistakes of her representative are not her mistakes.

[21] Ms Leung explanation for her delay weighs in favour of granting an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

[22] Ms Leung was not aware that she had been dismissed until 21 days after the dismissal took effect. This weighs in favour of granting an extension of time.

Any action taken by the person to dispute the dismissal

[23] As Ms Leung did not know of her dismissal she did not take any action to dispute her dismissal. Once she was aware of her dismissal she promptly contacted her union to obtain advice. This is a neutral consideration.

Prejudice to the employer (including prejudice caused by the delay)

[24] There is no evidence of any prejudice to the employer. This weighs in favour of granting an extension of time.

The merits of the application

[25] I am not able to make any assessment of the merits as there are factual disputes between the parties that have not been tested. However I am not able to conclude that Ms Leung’s application is without merit and this weighs in favour of an extension of time.

Fairness as between the person and other persons in a similar position

[26] It was submitted that other employees who were in a similar situation to Ms Leung (albeit not on leave at the time and outside of Australia), but who lodged their applications in time, were able to have their unfair dismissal claims considered. This weighs in favour of granting an extension of time.

Conclusion

[27] I have found that the application was lodged in time. However if an extension of time were necessary, I find that there are exceptional circumstances warranting an extension of time. In all the circumstances it would be unfair not to grant Ms Leung’s application for an extension of time and time is extended for Ms Leung to lodge her application to 18 November 2014. Should the parties consent the matter will be referred to conciliation and, if not, it will be referred for hearing and determination.

DEPUTY PRESIDENT

 1   PR901127.

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