Susan Porter v Ramdhas Poli Pty Ltd

[2019] FWC 5681

[2019] FWC 5681

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susan Porter
v
Ramdhas Poli Pty Ltd
(U2019/6043)

COMMISSIONER PLATT ADELAIDE, 11 NOVEMBER 2019

Application for an unfair dismissal remedy – minimum employment period – small business employer – relevant minimum employment period is one year – minimum employment period not met – application dismissed.

[1] On 31 May 2019, Ms Susan Porter (the Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Ramdhas Poli Pty Ltd (Ramdhas or the Respondent).

When is a person protected from unfair dismissal?

[2] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(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; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[3] Under s.396 of the Act, the Commission is obliged to decide whether the person was protected from unfair dismissal; before considering the merits of the application.

[4] There is a dispute as to whether the Applicant has met the requirement of s.382(a) of the Act to complete the minimum employment period. This decision deals only with that issue.

Background

[5] The uncontested factual background to the matter is as follows:

•  The Applicant was engaged as a lawyer by Ramdhas on 7 May 2018.

•  At the time of the dismissal Ramdhas was a small business employer within the meaning of s.23 of the Act.

•  The application was made within the time required by s.394(2) of the Act.

•  The applicable minimum employment period is 12 months.

[6] There is a contest as to whether Ms Porter completed the minimum employment period. There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing.

[7] I considered it appropriate to hold a hearing for the matter (s.399 of the Act).

Permission to appear

[8] The Applicant sought to be represented before the Commission by a lawyer. The Respondent objected to this request.

[9] Section 596(1) of the Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.

[10] Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:

(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

[11] Written submissions were provided by both parties.

[12] Having considered those matters, I determined that:

•  allowing the Applicant to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; and

•  it would not be unfair not to allow the Applicant to be represented taking into account fairness between the Applicant and other persons in this matter, in light of the Applicant’s short experience as a lawyer compared to Ramdhas’ internal representative.

[13] On 9 September 2019, I exercised my discretion to grant permission for the Applicant to be represented.

[14] At the hearing on 16 September 2019 the Applicant was represented Mr S. Edwards of counsel and the Respondent was represented by Ms S. Ramdhas of counsel who did not require permission.

Minimum employment period

[15] Ms Porter submitted a statement, 1 a supplementary statement2 and gave evidence. Her relevant evidence is summarised as follows:

•  Ms Porter completed a ‘Juris Doctor’ at Murdoch University in June 2016 and completed a Graduate Diploma of Legal Practice at the College of Law. Ms Porter secured employment with Paxman and Paxman Barristers and Solicitors at the end of her legal placement in December 2016.

•  On 7 May 2018, Ms Porter commenced employment with Ramdhas as a lawyer.

•  On Friday 3 May 2019, at about 5.00pm, Ms Ramdhas said that she wanted to have a conversation with Ms Porter. Ms Ramdhas said words to the effect of ‘I am going to let you work here for another 8 weeks until you can find another job.’ Ms Porter asked what was meant by this. A discussion ensued about Ms Porter’s work. Ms Ramdhas advised she did not believe that Ms Porter was coping with the workload like she used to, that she was not keeping up and had lost confidence. Ms Porter said ‘So you’ve made up your mind have you, you want me to go and you’re not even going to give me a chance.’ Ms Ramdhas said she would think about the conversation over the weekend.

•  Ms Porter also reflected on the conversation. At 7.23pm on Sunday 5 May 2019 Ms Porter sent Ms Ramdhas an email 3 which contained the word ‘Dismissal’ in the subject line. The email read “Dear Sharleen, On Friday afternoon you advised me that my employment with your firm was to be terminated. Please clarify this by putting it in writing by return email.’ Ms Porter contends that at no stage of the Friday meeting was her employment terminated or was she given notice and that she did not believe she was dismissed at the meeting on Friday, and the intention of the Sunday email was to clear the air after the bizarre conversation on Friday.

•  On Sunday 5 May 2019 Ms Ramdhas replied to Ms Porters email. The email states:

“I confirm that on Friday afternoon, 3 May 2019, I informed you that your employment was terminated.’ The email continues ‘Your notice period is the statutory requirement; however, I informed you that you could work for up to 2 months, at your election. If you wish to have that time to secure another job. You would be paid for the days that you work, however, if you elect not to work that period then you would not be paid other than your statutory requirements. So in the event that you do not wish to work for the period of 2 months then you will be paid out of statutory requirements or paid what ever period you wish to work (not exceeding 2 months). If this is the case please advise me and I will make the necessary calculations.”

•  Ms Porter unsuccessfully attempted to contact Ms Ramdhas on 6 and 7 May 2019.

•  On 10 May 2019 Ms Porter received a text message from Ms Ramdhas which included a statement that she was worried about her and had sent her an email. The email contained a letter dated 10 May 2019 4 titled termination of employment. Ms Porter understood the latter stated her employment was terminated on 3 May and that the termination became effective on 10 May 2019. The letter stated:

“I write in relation [sic] the termination of employment with Ramdhas Poli Pty Ltd trading as Sharleena Ramdhas Barrister and Solicitor on 3 May 2019. On 3 May 2019, I offered you the possibility to work for 2 months whilst you obtained alternate employment. I asked you to consider this and advise me whether or not you wished to elect to work for the 2 months. I confirmed this with you by email on 5 May 2019. Since 3 May 2019 you have not returned to work. You informed me on 7 May 2019, that you had a medical certificate, however I have not heard further from you again, specifically you have not communicated to me whether you elect to work for a further 2 months. In light of the above, your last day of service will be Friday, 10 May 2019. Sharleena Ramdhas Barrister and Solicitor is classed as a small business. Based on your length of service, your notice period is one week. Therefore, your employment will end of 10 May 2019….”

•  Ms Porter contends she should have been given 2 weeks’ notice as she worked for over 12 months.

•  Ms Porter prepared the Form F2 Unfair Dismissal Application and contends that the statement contained therein that her termination date was 5 May 2019 was made in error and that the date she was notified of the termination was 10 May 2019.

•  Ms Porter contended that it was agreed at the 3 May 2019 meeting that if she could commit to keep up with the increased workload she could stay employed at the firm. 5

•  In cross examination Ms Porter agreed that on 3 May 2019 Ms Ramdhas said to her, words to the effect, ‘I am going to let you go’ 6 and that ‘she was not keeping up’.7

•  Ms Porter contended Ms Ramdhas said she could continue working whilst she looked for another job if she wanted to, 8 and could not recall a reference to working for two months.9

•  Ms Porter did not respond to the 5 May 2019 email which said her employment was terminated. 10

[16] Mr Ramdhas submitted a statement, 11 a supplementary statement12 and further statement13 and gave evidence. Her relevant evidence is summarised as follows:

•  Ms Ramdhas is the sole director and shareholder of the Respondent.

•  On 7 May 2018, Ms Porter commenced employment with the Respondent as a lay Associate and a Restricted Legal Practitioner shortly thereafter.

•  On 3 May 2019, Ms Ramdhas verbally dismissed Ms Porter during a conversation which lasted about an hour and canvassed a range of issues including Ms Porter’s work performance, ability to cope with the current and upcoming workload, discussion in relation to the length of the notice period. Ms Porter asked Ms Ramdhas ‘so you have made your mind up about letting me go?’ to which Ms Ramdhas replied ‘well, yes.’

•  Ms Porter did not attend work after 3 May 2019.

•  At 7.23pm on 5 May 2019 Ms Porter sent Ms Ramdhas an email (the contents are detailed above).

•  Ms Porter responded to that email at 9.49pm on 5 May 2019 (as detailed above).

•  Ms Porter did not advise Ms Ramdhas that she wished to take up the 2 months’ notice offer.

•  On 10 May 2019, Ms Ramdhas emailed a letter to Ms Porter (the contents are detailed above).

•  I have ignored references to the Commission’s Conciliation proceeding contained in Ms Ramdhas’ second statement.

[17] In cross examination Ms Ramdhas rejected the suggestion that it was agreed with Ms Porter on 3 May 2019 that if she would commit to an increased workload she could remain in her job. 14

Submissions

[18] Ms Porter filed written submissions as to the jurisdictional challenge.

[19] Ms Porter contends that the conversation of 3 May 2019 did not constitute the giving of notice of the dismissal.

[20] Ms Porter contends that she was not given notice of her dismissal before 10 May 2019.

[21] A notice of dismissal for the purposes of ending employment must be clear and unambiguous, and only takes effect when it is communicated to the employee, and must specify a time when the termination is to take effect - Ayub v NSW Trains (Ayub). 15

[22] Although the unfair dismissal jurisdiction operates around the termination of employment rather than the termination of the employment contract, the reasoning in Ayub applies.

[23] Ramdhas contends that provided the notice of dismissal was made prior to 6 May 2019 Ms Porter will not have completed the MEP.

[24] Ramdhas contended that the notice was given at the meeting on 3 May 2019 and in the alternative 5 May 2019.

[25] Ramdhas did not specifically address the alleged legal defects on the notice as submitted by Ms Porter.

Observations as to Credit

[26] Ms Porter was a less than impressive witness.

[27] A review of the transcript together with my impressions of how the witnesses gave their evidence reveals that Ms Ramdhas had a detailed recollection of her discussions with Ms Porter and in particular the 3 May 2019 meeting.

[28] Ms Porter’s recollection of the detail of her conversations with Ms Porter was much poorer. Ms Porter’s evidence as to whether she was told on 3 May 2019 that she was being ‘let go’ varied between accepting the statement had been made 16 then suggesting that the statement was not made.17 Ms Porter’s evidence as to why she did not accept that the 5 May 2019 communication did not dismiss her was unconvincing.18

[29] Ms Porter accepted that her statement that Ms Ramdhas no longer attended Court at paragraph 20 in her statement dated 14 August 2019 was not correct, and that Ms Ramdhas had attended Court as counsel on approximately 50 occasions. Ms Porter explained the error as a generalisation.

[30] I have determined to prefer the evidence of Ms Ramdhas over Ms Porter where it conflicts.

Factual Findings

[31] I find that on 3 May 2019 Ms Ramdhas advised Ms Porter that her employment would cease and that the only issue remaining was the length of the notice period. The default position was one week but if Ms Porter wanted to she could have a longer period of notice to allow her to find work.

[32] I find that the 5 May 2019 communication from Ms Porter confirmed the dismissal. I note that this is also the date of the dismissal Ms Porter detailed in her Form F2 Unfair Dismissal Application she personally completed. Ms Porter is a lawyer with some experience, who had sought some advice from an employment lawyer prior to lodging her application. 19 I am not convinced by Ms Porter’s contention that this date was a mistake made in a rush to submit the application. Ms Porter deliberately used the title ‘dismissal’ on her email of 5 May 2019 to Ms Ramdhas to get her attention.20 This tends to suggest she was aware of her dismissal by that time.

Applicable law

[33] Section 382 of the Act sets out when a person is protected from unfair dismissal, relevantly it states:

“When a person is protected from unfair dismissal

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; and …”

[34] Section 383 of the Act defines the minimum employment period as follows:

“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.”

[35] Section 386 of the Act defines when a person has been dismissed. As this matter does not relate to a resignation by an employee, the relevant subsection of s.386 of the Act is as follows:

“(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 …”

[36] The Full Bench in Metropolitan Fire and Emergency Services Board v Duggan 21 stated:

“[21] … The expression “termination on the employer’s initiative” is concerned with the termination of the employment relationship, not the employment contract. The employment contract and the employment relationship are related but distinct.” (citations omitted)

[37] The distinction between termination of the employment relationship and the employment contract is important. The Full Bench continued:

“[22] A notice, whether oral or in writing, which is ineffective to terminate the employment contract may nonetheless be effective to terminate the employment relationship …”

[38] The Full Bench in Duggan also held that a “notice of dismissal” for the purposes of s.383(a)(i) of the Act, does not need to comply with the requirements of s.117 of the Act. Therefore, s.383(a)(i) of the Act does not require, as is the case in s.117 of the Act, that the notice be in writing, informing the recipient of the day of the termination.

[39] The parties referred me to the case of Ayub v NSW Trains. 22 However, Ayub concerned the interaction between s.394(2)(a) of the Act, which requires an unfair dismissal application to be made within 21 days after the dismissal took effect, and s.117(1) of the Act, which concerns the notice of termination or payment in lieu requirements. The Full Bench in Duggan considered the relevance of Ayub, and noted:

“[29]The Full Bench in Ayub did not consider the relationship, if any, between the notice requirements in s.117(1) and a notice of dismissal in accordance with s.383(a)(i) of the Act. The Full Bench did, however, draw on common law principles to determine when a dismissal with notice would take effect. There is no suggestion in the reasons of the Full Bench in Ayub that a dismissal with notice would not take effect unless the notice, or payment in lieu thereof, complied with s.117 of the Act.” (citations omitted)

Consideration

[40] Ramdhas contends that provided that Ms Porter was given notice of her dismissal not later than 6 May 2019 the minimum employment period will not have been met. I accept that position.

[41] From the evidence before me I find that Ms Porter was given notice by Ms Ramdhas that her employment was to be terminated on 3 May 2019 and again (in writing) on 5 May 2019.

[42] As Ramdhas is a small business employer, the relevant minimum employment period in this case is one year ending at the time when Ms Porter was given notice of the dismissal. Earlier in this decision I made the factual finding that Ms Porter was verbally notified of her dismissal on Friday 3 May 2019. Consistent with Duggan, the verbal notice of dismissal on 3 May 2019 was effective to terminate the employment relationship at this time. In any event, notice of the dismissal was confirmed unambiguously in writing by Ramdhas in its email to Ms Porter dated 5 May 2019. It should not be taken that I have construed s.383(a)(i) of the Act as incorporating s.117 of the Act, however; should there have been any doubt as to the notice of dismissal, it was removed by Ramdhas’ email of 5 May 2019.

[43] I am therefore not satisfied that, at the time of dismissal, Ms Porter was an employee who had completed a period of employment with the Respondent of at least the minimum employment period. The Applicant is thus not protected from unfair dismissal, and as a result her application must be dismissed.

[44] An Order 23 reflecting this decision will be issued.

COMMISSIONER

Appearances:

S. Edwards of counsel appeared on behalf of the Applicant.

S. Ramdhas of counsel appeared on behalf of the Respondent.

Hearing details:

2019.

Adelaide:

September 16.

Printed by authority of the Commonwealth Government Printer

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 1   Exhibit A1

 2   Exhibit A2

 3   Exhibit R1, attachment SR1

 4   Exhibit R1, attachment SR3

 5   PN136

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 7   PN176

 8   PN257

 9   PN251

 10   PN282

 11   Exhibit R1

 12   Exhibit R2

 13   Exhibit R3

 14   PN93

 15   [2016] FWCFB 5500

 16   PN166, PN309

 17   PN128

 18   PN282-285

 19   PN294

 20   PN307-308

 21   [2017] FWCFB 4878

 22   [2016] FWCFB 5500

 23   PR711356