Vera Ilievska v Adirel Consolidated Pty Ltd T/A Surgiplas Medical

[2016] FWC 8720

[2016] FWC 8720

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vera Ilievska
v
Adirel Consolidated Pty Ltd T/A Surgiplas Medical
(U2016/11770)

DEPUTY PRESIDENT KOVACIC CANBERRA, 7 DECEMBER 2016

Application for relief from unfair dismissal – jurisdictional objection - application lodged out of time – effective date of dismissal found to be 13 September 2016 with application lodged within time.

[1] On 23 September 2016 Ms Vera Ilievska (the Applicant) filed an application under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by Adirel Consolidated Pty Ltd T/A Surgiplas Medical (the Respondent) on 17 August 2016 was unfair.

[2] In its Form F3 – Employer Response to Unfair Dismissal Application the Respondent raised two jurisdictional objections, first that the application was made outside the 21 day timeframe specified in s.394(2) of the Act and second, that the Applicant had not been dismissed but had resigned.

[3] The extension of time issue was heard by the Fair Work Commission (the Commission) on 18 November 2016. At the hearing, Mr Angus Mackenzie appeared for the Applicant, while Ms Rebecca Best appeared with permission for the Respondent. Neither party led any witness evidence in support of their respective submissions.

[4] For the reasons set out below I have found that the Applicant’s employment ended on 13 September 2016 at the expiration of her four week notice period and that her application was therefore made within the 21 day statutory timeframe.

Background

[5] The Applicant commenced employment with the Respondent as a Business Development Manager on 31 July 2013.

[6] On 5 July 2016 the Applicant was provided with her June 2016 sales report 1 which would be used to determine her commission. On 1 August 2016 the Applicant was advised that there had been an error with the previously provided sales report and was provided a revised report2. The revised report saw the Applicant’s sales figure revised down by $13,000.

[7] The Applicant states in her application that she questioned the Respondent as to why this had occurred. In the absence of any data to substantiate the revised sales figures she made her own inquiries of her clients, adding that as a result of this Mr Seeto, the Respondent’s Managing Director, turned on her.

[8] Material before the Commission indicates that the Applicant was advised by a Ms Sue Pearce of the Respondent on 2 August 2016 that:

“The June report for Victoria had to be redone due to me including nearly 20 previous sales from May in with the June sales, which amounted to $13,381. Sorry about this. That is why the June sales figure dropped.” 3

[9] The Applicant responded to Ms Pearce later on 2 August 2016 stating “Thank you for explaining it.” 4

[10] The Applicant asserts that Mr Seeto’s hostile behaviour towards her continued through the first half of August, including while she was absent due to illness. The Applicant contends that on 15 August 2016 when she returned to work after her illness, she repeatedly requested a meeting with Mr Seeto but that he indicated he was too busy to meet. On 16 August 2016 the Applicant sent Mr Seeto an email which read as follows:

“Please find attached my notes regarding the meeting we were meant to have today.” 5

[11] The attached notes stated:

“Dear Doug,

Over the last couple of days I have repeatedly asked you for a meeting as I have some very important issues to discuss regarding my employment.

You keep avoiding the situation and keep telling me that you are too busy to do so.

Please find the following information is what I wanted to talk about face-to-face:

Over the last couple of weeks (since Tuesday 2nd August) You [sic] have completely changed the way you have been treating me.

Since this date you have not only been treating me differently and unfairly, but also more importantly you have crossed the line legally as my employer.

I have no idea why have been acting this way. I have documented everything that has been going on between yourself [sic] and I since that date.

I have also informed my GP, more than one Lawyer and Fair work Australia.

According to the above I have a strong case for the following:

Bullying

Harassment

Stalking

…

Some examples of the above include the following behaviours that have been documented:

Bullying:

Yelling at me, pointing your finger at my face while holding a pen in your hand, putting your hand up in front of my face when I was trying to speak with you. Verbally attacking me, not addressing me by my name, yelling out at me from across the room, making accusations about whether I know how to do my job properly. Repeatedly yelling out Surgeons names without any context to try and make me feel as though I am doing something wrong. Singeling [sic] me out (from my colleague) by suddenly and repeatedly giving me tasks that I have never seen before and not giving the same tasks to my colleague. Sudden, unreasonable and repeated acts of micromanagement. Changing my desk without discussing it with me or informing me of the changes before doing so.

Harassment: repeatedly contacting me while I was on sick leave, via text, phone calls and voicemail, threatening to come to my home. Then a voicemail telling me you are at the front of my house. Demanding that I give the phone back. Making up new policies that have never been talked about or outlined regarding rules around what happens to our phones when we are on leave.

Stalking:

Coming to my home while I was on sick leave. Especially after I said no. Then peering over my gate. Making repeated demands.

Moving forward, one of 3 things will occur:

1. I proceed with Legal [sic] action
2. I resign and give you 4 weeks [sic] notice, however I do not do any administration from the office I do it from home. And no legal action takes place.
3. I resign and finish on the spot. However you pay me my 4 weeks [sic] notice and anything else that is owing. And no legal action takes place.

Please let me know which one would suit you best.” 6

[12] An hour after sending the above email, the Applicant sent Mr Seeto a further email which stated:

“With regard to the previous email, may I please have an answer by COB tomorrow Wednesday 17 th August.” 7

[13] On 17 August 2016 after unsuccessfully attempting to send an email to Mr Seeto, the Applicant sent Mr Seeto a text message tendering her resignation. The text message read as follows:

“To Doug Seeto,

I wish to inform you that I am resigning from Surgiplas Medical.

I am giving you 4 weeks [sic] notice as per my contract.

My last working day at Surgiplas will be Thursday 15th September.” 8

[14] Mr Seeto subsequently sent the Applicant two text messages, with the second stating:

“Tuesday the 13/9 is four weeks [sic] notice and will be the termination date.” 9

[15] On 18 August 2016 Mr Seeto sent the Applicant a further text message which read:

“Please set a time to come into the office today for handover of all business property, handover of all outstanding work and removal of all personal items. Letter of resignation, 4 weeks from yesterday is requested. You will not be required to serve the 4 week notice period, but are required to do a professional and comprehensive handover notes.” 10

[16] On 25 August 2016 the Applicant’s then representative wrote to the Respondent alleging that the Respondent had contravened Part 3-1 of the Act when it had terminated the Applicant’s employment by cancelling her access to her work email on or around 16 August 2016 11.

[17] The Respondent’s representative responded to that correspondence on 2 September 2016. Among other things, the response:

• stated that in the light of the Applicant’s emails of 16 August 2016 it was appropriate for the Respondent to protect its interests by blocking the Applicant’s access to its information technology systems;



• indicated that the Respondent had communicated with the Applicant after her resignation to confirm that she was not required to work out the notice period, adding that it was clear that both parties intended for the four week notice period to operate from the date on which the Applicant gave notice of her resignation (i.e. 17 August 2016); and



• requested the return of company property by 5 September 2016 12.

[18] The Applicant contends in her written submissions that on 2 September 2016 her then representative wrote to her stating, among other things, that:

“You may wish to confer with us on Monday, 5 September 2016 next week so that we can discuss with you personally your wishes and strategy going forward as the final date for your claim to be lodged is Tuesday, 6 September 2016.” 13

[19] The Applicant further contends that she sought to contact her then representative on 5 and 6 September 2016, adding that it was only on 21 September 2016 that she was advised by her then representative that the time limit for lodging her application based on the Respondent’s view of the termination date had passed 14. As previously noted, the Applicant lodged her unfair dismissal application on 23 September 2016.

[20] In other developments, on 13 September 2016 the Applicant received her final payment. The Pay Advice described the payment period as “Termination Pay Due to Resignation on 17/8/16 Pay in lieu of notice Unused Annual Leave” with pay in lieu of notice calculated on the basis of “(20 days less 11 days paid on 15/8/16)” 15. The previous Pay Advice, dated 15 August 2016, was for the payment period 1/8/16 to 31/8/1616.

[21] By way of background, the Applicant’s contract of employment provides at clause 11 that “Payment in lieu of notice can be made at the discretion of the employer.” 17

On what date did the Applicant’s employment cease?

[22] The threshold issue to be determined in this case is the date the Applicant’s employment ceased. If it was 13 September 2016 as contended by the Applicant then her application was lodged within the 21 day statutory timeframe. If however the date of dismissal was 17 August 2016 as contended by the Respondent, the Applicant’s application was lodged 16 days outside the 21 day statutory timeframe and the Commission will need to determine whether there are exceptional circumstances as per s.394(3) of the Act warranting the Commission extending the time for Ms Ilievska to make her application. Should the application not be dismissed, the Commission will need to relist the matter to deal with the Respondent’s second jurisdictional objection, i.e. that the Applicant was not dismissed but resigned from her employment.

The Applicant’s case regarding the date her employment ceased

[23] The Applicant submitted that her employment was terminated by her resignation with four weeks’ notice on 17 August 2016, adding that the termination took effect at the end of the four week notice period on 13 September 2016. The Applicant also submitted that the only two relevant events that could support an argument that the Respondent terminated the Applicant’s employment on 17 August 2016 on the basis of a payment in lieu of notice were:

• Mr Seeto’s text message of 17 August 2016 citing 13 September 2016 as the termination date; and



• the payment in lieu of notice.

[24] However, the Applicant disputed that either of these events supported the Respondent’s argument because:

• the text message of 17 August 2016 did not refer to either an earlier termination date or any payment in lieu of notice; and



• payments in lieu of notice were made on 15 August and 13 September 2016, with the first payment not capable of being characterised as a payment in lieu of notice as it predated the Applicant’s notice of resignation and the second payment made on the day the notice period expired which was a considerable time after notice was given by the Applicant.

[25] Relying on the decisions in Mihajlovic v Lifeline Macarthur (Mihajlovic) 18 and Siagan v Sanel Pty Ltd (Siagan)19the Applicant submitted that where an employee resigns by giving notice of termination, the employment can only be brought to an end by the employer on a date earlier than the date on which the notice expires if the employer exercises a power conferred on it which brings the employment to an end earlier. The Applicant further relied on Gillies v Downer EDI Pty Ltd (Gillies)20 to submit that an effective notice to terminate employment conveys its message clearly and distinctly to a reasonable reader in the position of the recipient of the notice, adding that the reasonable recipient of the notice must be in no doubt that the right is being exercised.

[26] At the hearing, the Applicant submitted, inter alia, that:

• whether the employment relationship ends with a payment in lieu of notice or at the expiry of the notice period is a question of fact;



• where an employee is directed to work during the notice period the employment relationship terminates at the expiry of the notice period;



• in this case the Applicant was not required to “serve” during the notice period but was to provide a handover, characterising the situation as the Applicant being on “gardening leave”;



• Mr Seeto’s text message of 17 August 2016 caused the employment relationship to end on 13 September 2016;



• the Respondent could only have brought the employment relationship to an end earlier with the agreement of the Applicant, adding that there was no indication of any such agreement being reached after the text message exchange between the Applicant and Mr Seeto on 17 August 2016;



• the Applicant was paid an amount as pay in lieu of notice on 13 September 2016, i.e. the day the period of notice expired; and



• Mr Seeto’s text message of 18 August 2016 did not show an intention to immediately bring an end to the employment relationship via a payment in lieu of notice.

[27] The Applicant also relied upon the decision in Colledge v Bakersfield Holdings Pty Ltd ATF Separovic Family Trust (Colledge) 21to support its submission that in the absence of agreement it was not possible for either party to the employment relationship to unilaterally vary an agreement regarding the period of notice22.

The Respondent’s case regarding the date the Applicant’s employment ceased

[28] The Respondent submitted that the effective date on which the Applicant’s employment ceased was 18 August 2016 when the Respondent advised her by text message that she would not be required to serve the four week notice period. The Respondent further submitted that that view was reinforced by the requirement for the Applicant to attend the office that day for a “handover of all business property, handover of all outstanding work and removal of all personal items.”

[29] At the hearing, the Respondent among other things:

• pointed to the correspondence between the parties’ legal representatives of 25 August and 2 September 2016 which cited 16 or 17 August 2016 as the date the termination of employment relationship took effect and Item 1.3 of the application which stated 17 August was the date the dismissal took effect to support its contention that the employment relationship ceased on 18 August 2016;



• highlighted that the Applicant’s contract of employment did not provide for “gardening leave”;



• submitted that the letter of 2 September 2016 from its representative to the Applicant’s then representative confirmed the payment of “salary in lieu of notice” 23;

contended that it was common for employees not to be paid in lieu of notice on the day that the employment ceases, pointing to the reference to Adams v GKN Sankey Ltd 24 in Siagan to support that contention25; and

submitted that the circumstances in this case were different to those which existed in both Mihajlovic and Siagan.

Consideration of the issues

[30] An analysis of the material before the Commission indicates that:

• the Applicant’s email of 17 August 2016 gave 4 weeks’ notice of her resignation and stated that 15 September 2016 would be her last working day;



• Mr Seeto’s text message of 17 August 2016 cited 13 September 2016 as the day when the 4 week notice period ends and stated that it “will be the termination date”;



• Mr Seeto’s text message of 18 August 2016 makes no explicit reference to pay in lieu of notice or to the previously specified termination date being brought forward, though it does state that the Applicant will not be required to “serve” the notice period;



• the Applicant’s contract of employment provided at clause 11 that “Payment in lieu of notice can be made at the discretion of the employer”;



• the letter of 2 September 2016 from the Respondent’s representative to the Applicant’s then representative states that:

“… Our client will pay your client’s contractual and statutory entitlements as set out below, …

• Salary in lieu of notice to 14 September 2016;” 26; and

• the Applicant’s Pay Advice of 13 September 2016 refers to payment in lieu of notice.

[31] As noted above, Mr Seeto’s text message of 18 August 2016 does not refer to the previously specified termination date (i.e. 13 September 2016) being brought forward. The Respondent submitted at the hearing that the reference in that text message to the Applicant coming into the office that day “for handover of all business property, handover of all outstanding work and removal of all personal items” indicated that the Applicant’s employment had been terminated with immediate effect. However, that interpretation is not explicit either on the face of the text message or, more particularly, when the text message is read in conjunction with Mr Seeto’s text message of 17 August 2016 which stated that 13 September 2016 was the termination date.

[32] Even if the intent of Mr Seeto’s text message of 18 August 2016 was to indicate to the Applicant that she would be paid in lieu of notice such that her employment terminated immediately, given his earlier advice that the termination date would be 13 September 2016, this entailed a unilateral variation of the notice period. Both Mihajlovic and Colledge make it clear that that a notice of termination once given cannot be unilaterally varied. The following extract from the decision in Colledge clearly sets that out:

“[29] It was noted by Hatcher VP in the initial Mihajlovic v Lifeline Macarthur decision that:

“…A notice of termination of employment, once sent, cannot unilaterally be withdrawn. It follows that neither can it unilaterally be varied in a way which changes its effect. The notice takes effect in accordance with its terms, properly construed.” (References omitted)

[30] The Vice President cited the decision of Gray J in Birrell v Australian National Airlines Commission (Birrell), in which His Honour endorsed the principle that unilateral withdrawal of a notice of termination of a contract of employment is not possible. These authorities make it clear that when an employee is terminated with notice, the employment relationship ends when that period expires, unless there is mutual agreement to vary the agreement. While Bakersfield sought to vary the agreement that had been made regarding the notice period and handover, I find that mutual agreement to this variation was lacking.” (References omitted)

[33] The provision in the Applicant’s contract of employment that the employer has the discretion to make payment in lieu of notice does not entitle the Respondent to unilaterally vary the previously specified notice period in the absence of the Applicant’s agreement. In this case, there is no evidence of any such agreement by the Applicant to the termination date being brought forward.

[34] I also note that in Mihajlovic, Vice President Hatcher observed that the payment in lieu of notice which in that case was not made until three weeks after Mr Mihajlovic had been dismissed was “not consistent with an intention to terminate without notice on the basis of a payment in lieu of notice” 27. That observation is particularly apt in this case where the payment in lieu of notice did not occur until the same day as the four week notice period expired.

[35] In summary, the material before the Commission supports a finding that the employment relationship ceased on 13 September 2016 with the expiry of the notice period. Accordingly, the Applicant’s unfair dismissal application was made within the 21 day statutory timeframe.

Conclusion

[36] For all the above reasons I find that the Applicant’s unfair dismissal application was made within the 21 day statutory timeframe. Accordingly, the Respondents jurisdictional objection is dismissed. The Commission now needs to deal with the Respondent’s remaining jurisdictional objection, i.e. that the Applicant had not been dismissed but had resigned. The Commission will list the matter for mention to program the hearing of the remaining jurisdictional objection.

Appearances:

A Mackenzie for the Applicant

R Best for the Respondent

Hearing details:

2016.

Canberra–Melbourne:

November 18.

 1   Respondent’s Document List – Document 12

 2   Ibid – Document 13

 3   Ibid – Document 14

 4   Ibid

 5   Ibid – Document 4

 6   Ibid

 7   Ibid

 8   Ibid – Document 5

 9   Ibid – Document 6

 10   Ibid

 11   Ibid – Document 7

 12   Ibid – Document 9

 13   Applicant's Revised Outline of Argument in Favour of Extension of Time at paragraph 28

 14   Ibid at paragraphs 29-35

 15   Respondent’s Document List – Document 11

 16   Ibid

 17   Ibid – Document 1

 18   [2013] FWC 9804

 19 (1994) 122 ALR 333

 20 (2011) 218 IR 1 at [150]

 21   [2016] FWC 6707

 22   Ibid at [30]

 23   Respondent’s Document List – Document 9

 24   [1980] IRLR 416

 25 (1994) 122 ALR 333 at 353

 26   Respondent’s Document List – Document 9

 27   [2013] FWC 9804 at [12]

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