Teresa Delfino v Melbourne College of Hairdressing Beauty and Natural Medicine Pty Ltd
[2022] FWC 2181
•18 AUGUST 2022
| [2022] FWC 2181 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Teresa Delfino
v
Melbourne College of Hairdressing Beauty and Natural Medicine Pty Ltd
(U2022/5358)
| 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 Teresa Delfino (Applicant) for an unfair dismissal remedy (Application) pursuant to section 394 of the Fair Work Act 2009 (Act). Ms Delfino’s application was lodged on 19 May 2022, concurrently with applications by Ms Taverna 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 Delfino 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 Delfino 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 Delfino has met the minimum employment period required under section 383 of the Act.
Part 2 addresses whether Ms Delfino 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 Delfino commenced employment with the Respondent in the position of Trainer/Facilitator in July 2008.[1] It is uncontested that Ms Delfino was employed as a casual employee and that she was continuously employed by the Respondent from 2008 until her employment ceased.[2] The time at which Ms Delfino’s employment ceased is addressed later in this decision. Ms Delfino’s evidence is that for the period of her employment with the Respondent she has worked 4 days per week Tuesday to Friday inclusive, 6.5 hours per day, other than in periods of lockdown.[3] During lockdown her evidence was that whenever she was offered a class she would take it.[4] Her further evidence was that in some weeks in 2021 she worked less days because lockdowns were announced part way through the week.[5]
In approximately 2018 there was a change of ownership of the Respondent by way of share acquisition.[6] 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.[7] In late June/early July 2021, Mr Garai commenced as the Chief Executive Officer of the Respondent, replacing Ms Piva.[8]
Prior to 2022 the Respondent did not have semester breaks or otherwise operate on a tertiary or semester basis. Mr Garai’s evidence was that since the commencement of 2022 the Respondent has now divided the year into semesters and students have set regular holiday breaks based on the Victorian school holiday periods.[9] He agreed that this was not the case previously and that prior to 2022 students did not have regular holiday breaks and the year was not divided into semesters.[10] Ms Delfino’s evidence was that she worked throughout the entire year.[11]
The Respondent gave no evidence of Ms Delfino’s working arrangements prior to January 2021. However, it filed a document setting out the hours it says Ms Delfino worked between January 2021 and December 2021 (Document). [12] Mr Garai’s evidence was that he compiled the Document from timetables on file and student rolls.[13] The timetables are from January 2021 onwards only.[14] The Document provides that Ms Delfino worked 39 hours in January 2021, 52 hours in February 2021, 56.5 hours in March 2021, 58.5 hours in April 202, 13 hours in May 2021, 21 hours in June 2021, 30 hours in July 2021, 8 hours in August 2021 and no hours thereafter. On each occasion Ms Delfino worked in the period January 2021-May 2021 inclusive the Document provides that she worked 6.5 hours per day. The Document provides that in June 2021 Ms Delfino worked 2 days for 6.5 hours per day and 4 days for 2 hours per day. In July 2021 the Document provides that Ms Delfino worked 2 hours per day on 15 days in the month. In August 2021 the Document provides that Ms Delfino worked on 4 days for 2 hours per day.
Mr Garai’s evidence is that in lockdown classes changed to online delivery[15] and were no more than 4 hours and in some cases were not more than 2 hours.[16] 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. 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.[17] His evidence was that following his commencement with the Respondent in July 2021 timetables for Trainers were sent by an administrative employee of the Respondent, Natasha.[18] He said that prior to that “I can’t comment”.[19] His evidence was that timetabling was based on the availability and the capacity of the Trainer that was assigned to that timetable. [20]
Ms Delfino disputes that the Document accurately reflects the hours she worked in 2021.[21] Her evidence was that the hours earlier in the year were possibly correct although she had not checked and did not know.[22] Her evidence was however that they were definitely incorrect from at least July 2021 onwards.[23] Ms Delfino filed a number of payslips in support of her contention that the Document did not accurately reflect the hours that she worked in 2021. Payslips produced by Ms Delfino provide, amongst other things, that she was paid for 23 hours in May 2021, 44 hours in June 2021, 47 hours in July 2021, 24 hours in August 2021 and 24 hours in September 2021. The hours provided in the Document for any month after May 2021, therefore, do not reflect the hours for which Ms Delfino was paid in those months. I consider the payslips to be a more reliable source of evidence than the Document as to the hours worked by Ms Delfino after May 2021. Further, on the basis of the payslips, it is not the case that Ms Delfino did not perform work for the Respondent after 6 August 2021 as set out in the Document. Accordingly, I do not consider the Document accurately reflects the hours worked by Ms Delfino in 2021 and I prefer Ms Delfino’s evidence as to the hours and days she worked during this period.
As to the timetabling and rostering arrangements, Ms Delfino agreed that timetables came out generally two weeks in advance.[24] Her evidence was that prior to Mr Garai commencing with the Respondent the timetables were organised by the then Vice Principal Suzi Kibble.[25] As to her specific working arrangements the following exchange occurred between the Bench and Ms Delfino:
“And did you have to advise her as to your availability for any particular periods? How did that work? She would – because I was on like a constant four days a week she would say, ‘These are the classes. Are you in agreeance?’ And then like, you know, I would say, ‘Yes, that’s what they’re up to.’ But she would just tell me these. She would basically tell me what the students – what they have finished, what they’re going on to and that’s what she said what we’d be talking about the actual classes, not if I am available. The only time she ever asked if I was available is if I had to do an extra day. Like if someone wasn’t working she would say, ‘Teri, are you available on this day?’ ‘Yes.’ And I don’t think I’ve ever said no. So like it was – I would just say yes. That was the only time she communicated if I am available for the extra time.”[26]
That evidence is uncontested and I accept it.
As to rostering once classes moved to online delivery during lockdown Ms Delfino’s evidence was as follows:
“When did the online classes start? August. So August 5th – the lockdown – there were no classes organised and because two of the admin staff had resigned and Natasha, who was admin staff was left to do most of this work. So myself and my two colleagues got together and organised classes for the students. We informed Natasha what they’re up to. This is what classes they need. There’s some units that the new students just starting their course shouldn’t be doing. And we advised Natasha, ‘No, that’s not right for them to do that course because they haven’t done any studies at all.’ So we were communicating in ways like which what units to open and that email was sent on the 16 August and then we did classes after that. So it would have been after the 16 August that classes began.”[27]
The 16 August 2021 email (Scheduling Email) is between Ms Taverna and Natasha and sets out a timetable for the following two weeks for Ms Delfino, Ms Taverna 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 Delfino evidence as to her active involvement in scheduling classes and determining what was required to be delivered to students and how this could best be facilitated.
Ms Delfino did not perform any work for the Respondent after 9 September 2021.[28]
In light of the above matters, I find that in her employment with the Respondent Ms Delfino regularly worked 4 days a week for 6.5 hours per day, other for occasional variations and in periods of lockdown. During periods of lockdown I find that Ms Delfino worked whenever rostered and necessary to enable online delivery of course content to students.
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 above.
In its Form F3 the Respondent says that it employed 7 employees.[29] In its Outline of Submissions it says that when Ms Delfino was employed by the Respondent it employed 8 employees.[30]
In her materials Ms Delfino says that as at 5 August 2021 the Respondent employed 14 employees.[31]
At hearing the Respondent submitted that it was a small business employer as defined in the Act and that it has not employed 15 or more employees in the period October 2021 until June 2022.[32] At hearing Ms Delfino agreed that the Respondent employed less than 15 employees and that its status as a small business employer was not in dispute.[33]
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.[34] In response to this, following the hearing the Respondent filed a document entitled “Staff payroll list October 2021 to May 2021” (List). For reasons set out later in this decision, I have concluded that Ms Delfino 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 Delfino’s dismissal. This is considerably more than the 7 employees stated in the Form F3 and the 8 employees stated in the Respondent’s Outline of Submissions. 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 Delfino’s employment ceased. However, in light of my conclusion regarding Ms Delfino’s period of employment, which is set out below, I do not consider anything turns on this.
Has Delfino 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 Delfino has not met the minimum employment period.[35] It submits that Ms Delfino’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.[36]
However, at hearing the Respondent conceded, correctly in my view, that Ms Delfino’s employment as a casual employee was as a regular casual for the purposes of section 384(2)(a)(i).[37] It submitted, however, that Ms Delfino’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.[38] 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.[39] Once a course concludes future hours of work will depend on enrolments for future courses to be offered. As such, it submits that Ms Delfino could not have had a reasonable expectation of continuing employment. Further, the Respondent submitted that Ms Delfino had not been engaged for a 12 month period between January 2021 and May 2022.[40]
Applicant’s submissions
Ms Delfino submits that she has met the minimum employment period under the Act. She submits that she has been continuously employed since 2008. She submits that her work pattern over a period of approximately 13 years demonstrates that she had a reasonable expectation of continuing employment on a regular and systematic basis.[41]
Minimum employment period
The Respondent concedes that during her employment Ms Delfino 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 Delfino has a reasonable expectation of continuing employment by the employer on a regular and systematic basis. For the following reasons I consider that she did.
Firstly, as set out above, Ms Delfino worked regular days and hours for the Respondent for a period of approximately 13 years, with variation as required during periods of lockdown. Secondly, she worked throughout the entirety of each year. Thirdly, I consider that the manner in which Ms Delfino’s hours of work were determined when Ms Kibble was responsible for timetabling, and her subsequent involvement in the determination and scheduling of classes following Mr Garai’s commencement with the Respondent, to support the conclusion that she had a reasonable expectation of continuing employment on a regular and systematic basis. In light of these matters, I consider that Ms Delfino 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 Delfino cannot have had a reasonable expectation of employment, I reject that submission. The evidence is that during Ms Delfino’s there were no semesters or term breaks and the Respondent operated year round. 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, in respect of which Ms Delfino (and Ms Taverna and Ms Hunt) was actively engaged in determining, scheduling and timetabling classes. In these circumstances, I consider that Ms Delfino had a reasonable expectation of continuing employment on a regular and systematic basis.
Accordingly, I find that Ms Delfino’s entire period of employment with the Respondent from approximately 2008 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 13 years.
Finally, as to the Respondent’s submission that Ms Delfino had not been employed for 12 months between January 2021 and May 2022, 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 Delfino’s period of employment for the purposes of section 382 is approximately 13 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 Delfino had met the minimum employment period under section 383 of the Act.
Finding
Accordingly, I find that Ms Delfino 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 Delfino’s evidence is that on 15 September 2021 she emailed Mr Garai inquiring about her hourly rate.[42] Upon learning of a pay discrepancy she informed Mr Garai that she would like to be paid the correct rate under the Award.[43]
On 5 October 2021 Mr Garai’s evidence is that he was contacted by the FWO advising that Ms Delfino, Ms Tavena and Ms Hunt had made a claim for unpaid wages (Claim).[44] He says that the FWO directed that he meet with Ms Delfino, Ms Taverna and Ms Hunt regarding the Claim. [45]
It is uncontested that a zoom meeting was held on 12 October 2021 with Mr Garai, Ms Delfino, Ms Taverna and Ms Hunt (Meeting). Mr Garai’s evidence is that at the Meeting Ms Delfino was in agreement with Ms Taverna who 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.[46] On 14 October 2021 at 2.10 pm Mr Garai sent an email to Ms Delfino in the following terms:
“Hi Teri,
I understood that you were still OK with continuing training of the cohort of students that you have been training for the past couple of weeks, Natasha has advised me that you will not be training the hair braiding students now. Please confirm your intentions as I have to organise alternative training arrangements for the students?
Thanks & Regards
Fred Garai
CEO
Director of Studies”[47]
Ms Delfino replied at 3.16 pm saying “After this morning’s meeting with Alysha, there has been another meeting scheduled on Tuesday 19/10/21”[48]
Mr Garai replied at 3.20 pm saying:
“Hi Teri
I understand this however I would like a straight answer from you as to whether you are or are not going to continue training the group of student that you have been training.”[49]
Ms Delfino responded at 9.59 pm saying:
“Hi Fred
To assist with the confusion, I am unavailable for classes.”[50] (9.59 pm Email)
Mr Garai’s evidence is that based on this “I assumed that… Ms Teresa Delfino… had resigned...”.[51]
Under cross examination Ms Delfino’s evidence was that she did not resign in the 9.59 pm Email but that she was not agreeable to taking classes until she was being paid in accordance with the applicable Award. Under cross examination she said “No way did I say “I do not want to work” it was just in regards to being paid accordingly.”[52]
It appears uncontested that Ms Delfino, Ms Taverna and Ms Hunt participated in a number of meetings with Mr Garai seeking to resolve the Claim. It appears that certain proposals to resolve the Claim were exchanged between the parties, 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.
…”[53](18 November Email).
It also appears uncontested that further emails were exchanged between Ms Delfino, Ms Taverna and Ms Hunt and Mr Garai regarding the Claim throughout November 2021.
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.
…”[54]
On 16 December 2021 Ms Taverna, 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.
..”[55] (16 December Email).
Ms Delfino’s evidence is that no response was received to the above email.[56]
The Claim has not been resolved and on 17 May 2021 the FWO issued the Respondent’s with a Compliance Notice[57] in respect of unpaid minimum casual wages and unpaid superannuation entitlements.[58]
Consideration
Respondent’s submissions
The Respondent submits that Ms Delfino was not dismissed.[59] The Respondent submits that at no point did it issue or communicate that the employment had ended.[60] Rather, it says that Ms Tavena resigned and withdrew her services on 12 October 2021.[61] 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.[62]
Applicant’s submissions
Ms Delfino submits that it was upon the FWO issuing the Compliance Notice to the Respondent that she “realised [the Respondent] had no intention of me continuing my employment.” Accordingly, Ms Delfino submits that the date of her dismissal was 17 May 2022.[63]
Did Delfino resign?
I reject the Respondent’s submission that Ms Delfino resigned. Firstly, it is clear, even on the Respondent’s evidence of the Meeting, that at no stage did Ms Delfino expressly say that she resigned from her employment or that she did not wish to continue her employment with the Respondent. Secondly, Mr Garai’s evidence is that he “assumed” Ms Delfino 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. Thirdly, I do not consider that Ms Delfino’s agreement with 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, or the 9.59pm Email 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 Delfino is unavailable 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 Delfino had resigned on 12 October 2021. Accordingly, I find that Ms Delfino 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.[64] 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.[65]
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.[66] 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.[67] In its material’s the Respondent contends that Ms Delfino was currently engaged pursuant to a written casual contact of employment.[68] I do not consider that to be the case. Firstly, the contract is incomplete, leaving blank the 6 month period in which the contract is to apply. I consider it at least arguable that the contract is therefore void for uncertainty. However, if that be wrong, and 6 month period is to be ascertained from other terms of the contract, that term has expired. Accordingly, on each occasion that Ms Taverna worked for the Respondent, at least since mid-June 2020, there was a separate contract of employment entered into between the parties.
Ms Delfino last worked for the Respondent on 9 September 2021 and I therefore accept that there was no employment contract on foot between the parties following that time. 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.
Whilst I accept that upon the issuing of the Compliance Notice any possibility that Ms Delfino 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 Delfino “will not be returning” and that she has “decided to take another path in [her life].” Accordingly, the 9 December Email provides that Ms Delfino 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 when it says that Ms Delfino resigned on 12 October 2021 and Ms Kong commenced in the role of Trainer. Secondly, Ms Delfino delivered no classes after 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 Delfino, Ms Taverna and Ms Hunt were not returning. As already set out, the Email is dated 9 December 2021. 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 Delfino (or Ms Taverna or Ms Hunt).[69]
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[70] 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.[71] 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.[72] It is in that sense the dismissal is regarded as having been communicated to the employee.[73] I consider that upon Ms Delfino 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 the 16 December Email, enquiring as to the employment status of Ms Delfino, Ms Taverna and Ms Hunt.
Accordingly, I consider that the 9 December Email brought about the termination of the employment relationship and thereby the termination of Ms Delfino’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 Delfino 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 Delfino’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 Delfino 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.[74] 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.[75]
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.[76]
Ms Delfino says that the delay in lodging the Application was because she has at no time been provided with notice of dismissal. She says that it was not until the FWO issued the Compliance Notice to the Respondent on 17 May 2022 that she became aware that her employment would not continue. Her understanding of the 18 November Email was that she would restart work once the underpayment case was settled.[77] She says that the 18 November Email said that “we would have ongoing employment once the underpayment case was settled”. [78] Further, she says that as there was no response to the 16 December Email she assumed her employment was ongoing. [79]
I accept that Ms Delfino was not provided with notice of dismissal. I also accept that the Claim has been the subject of lengthy discussions from September 2021 until May 2022. However, the Claim is a separate and distinct matter. As to not becoming aware that her employment would not continue until the Compliance Notice was issued, I am unable to see how that is the case. Firstly, the 18 November Email does not say that Ms Delfino will have ongoing employment once the underpayment case was settled. Secondly, upon becoming aware of the 9 December Email, which states that Ms Delfino will not be returning to the Respondent and has taken a different path in life, I do not consider that she could have reasonably believed that her employment was continuing, irrespective of what she believed the 18 November Email said. Whatever might have been said in the 18 November Email was clearly overtaken by the 9 December Email. I do not consider this is altered by the failure of the Respondent to reply to the 16 December Email. Whilst I consider this unreasonable, rather than leave any doubt as to whether Ms Delfino is still employed by the Respondent, I consider the absence of a response reinforces that she is not.
In light of all the above, I do not consider that Ms Delfino 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 9 December Email, Ms Delfino 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 Delfino 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 Delfino 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 Delfino 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. She also contends that her dismissal was unfair as she was not notified of it.
Whilst the merits have not been fully tested, on the material before me I consider Ms Delfino’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 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 Delfino 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.[80] Thirdly, the Claim was on-going and unable to be resolved. Fourthly, I have found that Ms Delfino 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 Delfino raising these matters and the Respondent ceasing to offer her further work. Sixthly, it is uncontested that the Respondent did not notify Ms Delfino of her dismissal; rather, it advised students that she was not returning and informed them, incorrectly and without any basis, that Ms Delfino 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 Ms Delfino had resigned in October 2021.
Accordingly, I consider this weighs 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 Delfino 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 Delfino further work, the false information provided to students in the 9 December Email, the failure to notify Ms Delfino 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:
T Delfino for the Applicant
D Gapes for the Respondent
Hearing details:
14 July 2022
Melbourne (by Microsoft Teams)
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[1] Form F2 at q.1.1
[2] Transcript PN 331, PN 668
[3] Ibid 586-588
[4] Ibid 595
[5] Ibid 598
[6] Ibid 275
[7] Ibid 274
[8] Ibid 270
[9] Ibid 272, PN 308
[10] Ibid PN 272
[11] Witness Statement of Teresa Delfino, Court Book (CB) pg 71
[12] CB pg 65
[13] Transcript PN 312
[14] Ibid 255
[15] Ibid 286
[16] Ibid 289
[17] Ibid 286
[18] Ibid 257
[19] Ibid 270
[20] Ibid 270
[21] Ibid 602
[22] Ibid 607
[23] Ibid 609
[24] Ibid 611
[25] Ibid 612
[26] Ibid 613
[27] Ibid 616, Witness Statement of Teresa Delfino, CB pg 73
[28] CB pg 121
[29] Form F3 at q.1.7
[30] Respondent’s Outline of Submissions at [6], CB pg 38
[31] CB pg 72
[32] Transcript PN 84
[33] Ibid 82
[34] Ibid 97
[35] Respondent’s Outline of Submissions at [1], CB pg 36
[36] Ibid at [4], CB pg 37
[37] Transcript PN 141
[38] Ibid 145, PN 650
[39] Respondent’s Outline of Submissions at [4], CB pg 37
[40] Transcript PN 644
[41] CB pg 71-72
[42] Witness Statement of Teresa Delfino, CB pg 74
[43] Ibid
[44] Witness Statement of Fernando Garai, CB pg 66
[45] Ibid
[46] Ibid CB pg 67
[47] CB pg 69
[48] Ibid
[49] Ibid 68
[50] Ibid
[51] Witness statement of Fernando Garai, CB pg 67
[52] Transcript PN 568
[53] CB pg 103
[54] Ibid
[55] CB pg 102
[56] Form F2 at q.1.3,1.4; Applicant’s Outline of Argument, CB pg 71; Applicant’s Outline of Argument, q.5, CB pg 95; Witness Statement of Teresa Delfino, CB pg 100
[57] CB pg 120
[58] Ibid 120
[59] Respondent’s Outline of Argument at [9], CB pg 38
[60] Ibid at [11], CB pg 106
[61] Form F3 at q.1.3; Respondent’s Outline of Argument at [9], CB pg 38; Transcript PN 124
[62] Respondent’s Outline of Argument at [16], CB pg 106
[63] Applicant’s Outline of Argument, q.1, CB pg 94 and q.4, CB pg 95
[64]Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [50]
[65] NSW Trains v Mr Todd James[2022] FWCFB 55 at [45]
[66] City of Sydney RSL & Community Club Limited v Balgowan [2018] FWCFB 5 at [24]
[67] Ibid at [24]
[68] Respondent’s Outline of Submissions at [3], CB pg 36
[69] CB pg 103
[70] Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24]; MohammedAyub v NSW Trains[2016] FWCFB 5500 (Hatcher VP, Wells DP, Johns C, 30 September 2016)
[71] 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]
[72] Ayub v NSW Trains[2016] FWCFB 5500 at [48] and [49]
[73] Ibid at [48]
[74] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13]
[75] Ibid.
[76] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[77] Applicant’s Outline of Submissions at q.4, CB pg 95
[78] Ibid
[79] Applicant’s Outline of Submissions at q.1, CB pg 94
[80] CB pg 120
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