Virma Ninon v Metropolitan Taxi Club Inc

[2017] FWC 6617

[2017] FWC 6617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Virma Ninon
v
Metropolitan Taxi Club Inc
(U2017/10565)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 11 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] Ms Virma Ninon alleged that the termination of her employment by Metropolitan Taxi Club Inc was unfair. Metropolitan Taxi denies the allegation.

[2] At the hearing, I granted permission for both parties to be legally represented because I accepted that neither party would be able to represent themselves effectively.

[3] There is a dispute about the date of the dismissal. Mr Daniel Agenge gave evidence 1 that he told Ms Ninon on 23 August 2017 that he intended terminating her employment and that he would get his lawyers to write to her to inform her that her position would be terminated. Ms Ninon denied that this conversation took place.

[4] Even if I accepted that the conversation took place, I do not accept that Mr Agenge terminated Ms Ninon’s employment on 23 August 2017. Advising an employee that you intend terminating his or her employment is advising the employee of a future intention. It does not terminate the employment.

[5] Mr Agenge sent a letter of termination by registered post on 29 August 2017 advising Ms Ninon that they confirmed the decision to terminate her employment for dishonesty. She was advised that she was summarily dismissed and that she was not entitled to notice. Further, it advised that she was required to leave the premises immediately. This was a curious inclusion as Ms Ninon was not at work on 29 August 2017.

[6] It was Ms Ninon’s unchallenged evidence that she did not receive the letter until 6 September 2017. She was not at home when Australia Post attempted to deliver the letter on 1 September 2017 2 and provided a reasonable explanation about why the letter was not collected until 6 September 2017.

[7] Termination of employment cannot generally take effect until it is communicated to the employee.

[8] In Commonwealth of Australia (Australian Taxation Office) v Wilson, a Full Bench of the Australian Industrial Relations Commission considered when a notice of dismissal was effective and held as follows:

“[11] Counsel for the Commonwealth referred us to a number of authorities but conceded that there are few on point. One decision which appears to us to bear directly on the issue is Transport Workers' Union of Australia v National Dairies Limited (1994) 57 IR 183. In National Dairies Keely J, sitting in the Industrial Relations Court of Australia, was required to decide whether the employment in question terminated before or after the date on which legislation providing statutory remedies for unfair dismissal commenced to operate. In the course of his judgment His Honour said:

"It was accepted by the respondent's counsel, for the purpose of the present hearing, that the employer's letter of purported termination was not received by the applicant until 30 March 1994. In my opinion the mere posting of the letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee. I am unable to uphold the respondent's submission that the intention of the legislature was to make it a contravention of the Act for an employer to perform actions "pursuant to which the employer seeks to terminate an employee even if that wish is never communicated to the employee ie even if a letter of termination posted by an employer is never received by the employee.""

With respect we agree with His Honour's conclusion. Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee. Those circumstances did not, however, exist in this matter and we therefore refrain from further discussion of the point.” [Emphasis added]

[9] There is nothing to suggest that Ms Ninon deliberately avoided receipt of the termination letter. Accordingly, I am satisfied the dismissal took effect on 6 September 2017. Accordingly, the application should have been filed on 27 September 2017. As it was filed on 28 September 2017 it was not lodged within the 21 days of the dismissal.

[10] The Fair Work Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances, can it then exercise its discretion to decide whether to extend time.

[11] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd 3 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." [Endnotes not reproduced]

(a) the reason for the delay;

[12] Mr Ayman Aden contacted Unfair Dismissal Experts Pty Ltd on Ms Ninon’s behalf to discuss her case. On 13 September 2017, Ms Ninon spoke to a staff member of Unfair Dismissal Experts about her claim. On the same day, she received an email from Unfair Dismissal Experts which advised her that it would pay the filing fee and advised her to use their online service to enter a retainer agreement.

[13] On 15 September 2017, Ms Ninon used the online system and signed the online authorization for Unfair Dismissal Experts to act on her behalf and on 17 September 2017 she submitted the necessary forms.

[14] On 19 September 2017, she sent an email to Unfair Dismissal Experts and asked about the progress of the matter and on the same day she was asked to confirm the date of her dismissal and she was asked to call them. She then sent an email to Unfair Dismissal Experts advising that she had received a letter of termination dated 29 August 2017 but she had not collected it until 6 September 2017. She then received a further email asking her to provide her contact telephone number. In that email she was advised that Unfair Dismissal Experts was “concerned about the exact date of your dismissal. If you were verbally notified before you were sent the dismissal letter then this may result in your dismissal taking effect at an earlier date and risks placing you outside the 21 day time limit.” She was asked to advise if she had received verbal notice of termination earlier. Later that evening Unfair Dismissal Experts sent a further email advising that they had not received her instructions to proceed with lodging the application. That email noted that “during our telephone conversation on Wednesday 13 September 2017, I advised that your claim needs to be lodged imminently particularly as it is unclear precisely when your dismissal took place. On the basis that your dismissal took place on 29 August 2017 your last day to lodge the claim is today.” She was advised that they were prepared to do the necessary work that night but she needed to contact them immediately. She was advised that if she did not contact them before 10pm that day they would not be able to proceed with lodging her claim. 4

[15] On 21 September 2017, Ms Ninon sent an email to Unfair Dismissal Experts advising that she had called the previous day and left her phone number. She advised that she had very limited access to her email. On the same day, Unfair Dismissal Experts advised that given she had not responded to the email of 19 September 2017 and had not provided a telephone number as requested the application had not been lodged and the last day for lodging the application was that day. She was advised to contact her local community legal centre. Ms Ninon said she read this email on 25 September 2017 and tried to contact Unfair Dismissal Experts. Eventually she spoke to someone who told her to speak to a lawyer. She spoke to a lawyer that day and the application was lodged the next day.

[16] Ms Ninon said she had advised Unfair Dismissal Experts on 13 September 2017 of her telephone number. It was also her evidence that she had limited access to email.

[17] I am satisfied that Ms Ninon had a reasonable explanation for the delay. She contacted a company that advertises its expertise in unfair dismissal matters. I am satisfied that Ms Ninon instructed Unfair Dismissal Experts to lodge her application. I accept that her communications with that firm were restricted due to her intermittent access to email. I accept that she had provided them with her telephone number and it is not clear why they did not use this number to contact her particularly as they formed the view that the dismissal took effect on 29 August 2017. I am satisfied that Ms Ninon proactively followed up her application with Unfair Dismissal Experts. I am also satisfied that Ms Ninon acted promptly when she became aware that Unfair Dismissal Experts had not lodged her application. This weighs in favour of a finding that there are exceptional circumstances.

(b) Whether the person first became aware of the dismissal after it had taken effect:

[18] I am satisfied that the dismissal took effect on 6 September 2017 and Ms Ninon was aware of the dismissal. She had the full 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.

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

[19] Ms Ninon did nothing to dispute her dismissal other than lodge this application. This weighs against a finding that there are exceptional circumstances.

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

[20] Metropolitan Taxi did not give any evidence of any prejudice it would suffer if time were extended. It submitted that any delay would cause it prejudice because it was entitled to rely on strict compliance with the 21 day time limit. I am not satisfied that Metropolitan Taxi will suffer any prejudice. While a lack of prejudice to the employer alone does not support a finding of exceptional circumstances, a lack of prejudice weighs in favour of a finding of exceptional circumstances.

(e) the merits of the application;

[21] In the matter of Kornicki v Telstra-Network Technology Group 5 the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit." 6

[22] For the purpose of determining whether to grant an extension of time to the applicant to file his application, the Commission “should not embark on a detailed consideration of the substantive case." 7 

[23] Ms Ninon was dismissed for misconduct because she miscalculated her long service leave and annual leave entitlements and was overpaid. Ms Ninon accepts that she made an error when calculating her long service leave entitlements but said that she did this in conjunction with Mr Agenge and she had not done so dishonestly. It submitted that her conduct did not warrant summary dismissal.

[24] Metropolitan Taxi says it is a small business and relies on the Small Business Fair Dismissal Code. It however submitted that it would not be appropriate on the limited evidence at this hearing to determine that Ms Ninon’s claim is without merit.

[25] I am not able to make an assessment of the merits of the application because there are factual disputes between the parties that have not been tested. However as Ms Ninon’s claim is not without merit, this weighs in favour of a finding of exceptional circumstances.

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

[26] There were no submissions that there were any persons in a similar position.

Conclusion

[27] I am satisfied that there are exceptional circumstances. Ms Ninon has a reasonable explanation for the delay and her case is not without merit. There is a lack of prejudice to the employer and the only factors against such a finding are that she did not dispute the dismissal and that she had the full 21 days to lodge the application.

[28] I am prepared to exercise my discretion to extend time. Ms Ninon was a long standing employee and apart from the allegations made in the dismissal letter and a claim that on one occasion she had been rude to a club member she had a good employment record. I note that while it was said that the warning letter was attached to Mr Agenge’s witness statement it was not. Even if she had been warned for rudeness, the reasons for termination was serious misconduct and Ms Ninon should have the opportunity to defend herself.

[29] Accordingly an order extending the time for Ms Ninon to lodge her unfair dismissal application will issue with this decision.

DEPUTY PRESIDENT

Appearances:

M. Kenneally of Counsel for the Applicant.

M. Paszkiewicz of Counsel for the Respondent.

Hearing details:

2017.

Melbourne:

8 December.

 1   Exhibit R1 at [15] and [17]

 2   Exhibit A1 at [1]

 3   [2011] FWAFB 975

 4   Exhibit A1 at [11]-

 5   Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C

 6   Ibid

 7   Kyvelos v Champion Socks Pty Ltd, Print T2421 [14]

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