Teresa Ha v Ikon Services Australia Pty Ltd

[2018] FWC 2754

[2018] FWC 2754

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Teresa Ha

v

Ikon Services Australia Pty Ltd

(U2018/66)

DEPUTY PRESIDENT DEAN SYDNEY, 8 JUNE 2018

Application for an unfair dismissal remedy – effective date of dismissal – extension of time.

1. On 2 January 2018 Ms Ha lodged an application pursuant to s.394 of the Fair Work Act 2009 claiming that she had been unfairly dismissed by Ikon Services Australia Pty Ltd (Ikon Services).

1. The matter was listed for hearing on 16 May 2018 to determine two matters. The first matter was the effective date of Ms Ha’s dismissal. Ms Ha contends that her dismissal took effect on 4 January 2018 when she received “the official termination letter”. Ikon Services contends that Ms Ha was dismissed on 8 December 2017 when she was escorted from her place of work for reasons of misconduct. Subject to the date Ms Ha’s dismissal took effect, the second matter for determination is whether her application was lodged within the statutory time limit and, if not, whether an extension of time should be granted pursuant to s.394(3) of the Act.

1. At the hearing, Ms Ha appeared on her own behalf, with the support of her husband. Ms Estelle Lewis appeared for Ikon Services.

Background

1. Ms Ha was employed by Ikon Services as a cleaner and her location of employment was Star Casino. Ikon Services’ only location to which it provides cleaning services in Sydney is Star Casino.

1. Ms Ha states that on 8 December 2017 she was escorted out of Star casino for alleged misconduct. Ms Ha maintains that, at that time, she was unsure if her employment had been terminated or not.

1. Ikon Services submits that on 8 December 2017, representatives from both Star Casino and Ikon Services conducted an investigation into an incident involving Ms Ha, the outcome of which was that Ms Ha was dismissed with immediate effect and notified of her dismissal orally at that time.

1. Ms Ha did not perform any work after 8 December 2017, and confirmed in her oral evidence that she knew not to attend for work after that date.

1. Ms Ha submits that she made numerous attempts to contact the human resources department at Ikon Services between 11 December 2017 and 2 January 2018.

1. In her written submissions dated 19 March 2018, Ms Ha said that:

• On 13 December 2017 she “called Pierre [the HR Advisor] and left message requesting termination letter”;
• On 28 December 2017 she emailed “HR Ikon for reason letter of termination”; and
• On a date prior to 2 January 2018, “We contacted Pierre from HR Ikon for a termination letter. Pierre said he will provide us. We informed Pierre that we wanted a termination letter”.

1. At the time of Ms Ha’s dismissal, Ikon Services’ HR Advisor was on leave. A letter of termination was subsequently provided to Ms Ha on 4 January 2018. Ms Ha’s final pay was banked on 20 December 2017.

When does a dismissal take effect?

1. A dismissal takes effect when it is communicated to the employee who is being dismissed,[1] and can be communicated orally.[2]

1. A termination at the initiative of the employer involves some action of the employer that is intended to bring the employment relationship to an end, or had that probable result.[3]

1. The term ‘dismissed’ for the purposes of the unfair dismissal jurisdiction is defined in s.386 of the Act. Section 386 provides that a person is dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative, or 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.[4]

1. In J Searle and Moly Mines Limited,[5] a full bench considered the meaning of termination at the initiative of the employer, and stated:

[22] Before turning to the facts of this case there is another issue which arose in the course of the submissions with which we should deal. That matter concerns the relevance of the principles governing the termination of a contract of employment. It is clear that the statutory test relates to termination of the employment relationship, not termination of the contract of employment. The difference is well illustrated by the following passage from the joint judgment of Brennan CJ and Dawson and Toohey JJ in Byrne and Frew v Australian Airlines Ltd[6]:

“It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson [(1946) 72 CLR 435 at 471]. As Latham CJ said (at 454):

“An employer terminates the employment of a servant when he dismisses him, though, as I say hereafter, such a dismissal does not put an end to the contract between the parties. An argument that a dismissal because wrongful was a nullity was raised and rejected in both Williamson's Case [Williamson v The Commonwealth, (1907) 5 CLR 174 at 185] and Lucy's Case [Lucy v The Commonwealth, (1923) 33 CLR 229 at 237, 238, 249, 252, 253].”

And as Dixon J said [Automatic Fire Sprinklers Pty Lt v Watson at 545]:

“there is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve.” ”

[23] In the case of wrongful dismissal, as the passage shows, the employment is terminated by the employer even though the contract continues until the employee accepts the repudiation, thereby bringing the contract to an end. In applying the statutory test it is the termination of the employment relationship which is important.

1. I find that the employment relationship ended at the time Ms Ha was summarily dismissed on 8 December 2017 for the following reasons:

• Ms Ha was a permanent employee who had rostered shifts after 8 December 2017. That Ms Ha knew not to attend for these shifts suggests that she knew she had been dismissed;
• In Ms Ha’s application, she provided a dismissal date of 8 December 2017;
• Her written submissions filed in the proceedings made numerous references to her seeking a written termination letter prior to 4 January 2018; and

• The statement of Veronica Coronel (Ms Ha’s Ikon Services Supervisor) who confirmed that she had been present during the investigation process.

1. It follows and I find that the effective date of dismissal was 8 December 2017. As Ms Ha’s application was filed on 2 January 2018, her application has not been made within the 21 day time limit prescribed by the Act. It is therefore necessary for me to consider whether Ms Ha should be granted an extension of time.

Extension of time

1. Section 394(3) of the Act provides:

(3)       The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

1. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the Applicant.

1. The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[7] where the Full Bench said:

“[13] In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

1. I now deal with each of the provisions of s.394(3) of the Act.

Reason for the delay

1. In her written submissions and oral evidence, Ms Ha stated that the main reason for the delay in making her application was that she had been waiting for a letter of termination from Ikon Services.

1. Having considered all of the evidence and submissions, I find that the matters addressed by Ms Ha as reasons for the delay in lodging this application cannot be considered “exceptional”. This weighs against the granting of an extension of time.

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

1. Ms Ha’s evidence was that she was first aware that she had been dismissed when she received the termination letter via email on 4 January 2018. I do not accept this, for the reasons set out above, I have already found that the date of her dismissal was 8 December 2017.

1. I find that this weighs against the granting of an extension of time.

Any action taken by the person to dispute the dismissal

1. Ms Ha submits that she made numerous attempts to speak with the HR Advisor of Ikon Services between 11 December 2017 and 2 January 2018. I find that Ms Ha had made numerous attempts to contact Ikon Services who did not return her calls or emails. This weighs in favour of granting an extension of time.

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

1. There is no evidence of prejudice to Ikon Services if I were to grant an extension of time.

1. I am not persuaded that Ikon Services would suffer prejudice if the extension of time were granted. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

The merits of the application

1. For the purpose of determining whether to grant an extension of time for Ms Ha to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’[8]

1. While the broad factual circumstances that led to Ms Ha’s dismissal are not in dispute, the motivation for Ms Ha’s actions are disputed. On the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.

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

1. Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[9] considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’[10]

1. I do not consider that there are other relevant persons in a similar position to Ms Ha, I therefore find this to be a neutral consideration.

Conclusion

1. Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances as to warrant my granting an exception to the statutory time limit for the lodgement of this application.

1. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

T Ha, on her own behalf.
E Lewis, for the respondent.

Hearing details:

2018.
Sydney:
May 16.

<PR607144>

[1] Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, 21 November 2000) print T3496.

[2] Plaksa v Rail Corporation NSW[2007] AIRC 333.

[3] Searle v Moly Mines Limited [2008] AIRCFB 1088 at para 2.

[4] Section 386 of the Act.

[5] [2008] AIRCFB 1088.

[6] (1995) 185 CLR 410 at 427.

[7] [2011] FWAFB 975.

[8] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

[9] [2015] FWC 8885.

[10] Ibid at [29].

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