[2017] FWC 3323

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Xiomara Bohorquez Zaraza
v
Mais Que Nada Pty Ltd T/A Guzman and Gomez Mexican Taqueria
(U2017/3339)

COMMISSIONER RYAN

MELBOURNE, 21 JUNE 2017

Application for an unfair dismissal remedy – whether application out of time - when did dismissal take effect - application filed before dismissal took effect - exercise discretion under s.586(b) to waive the irregularity of the Applicant’s premature application and to allow the application to proceed.

[1] The Applicant filed an unfair dismissal application with the Commission on 28 March 2017 and identified the date of her dismissal as 27 November 2016. The unfair dismissal application was prima facie filed outside the 21 day time limit set by s.394(2)(a) of the Fair Work Act 2009 (the Act).

[2] The application in this matter was originally referred for conciliation before a Fair Work Conciliator. A Notice of Listing was issued to the parties on 29 March 2017 advising that conciliation would take place on 2 May 2017.

[3] The Respondent was contacted on 3 occasions in relation to the need for the Respondent to file a Form F3 Employer Response to the application. The first contact was by way of a standard letter to the Respondent on 29 March 2017 in which the Respondent was provided with a copy of a Form F3 and advised that the Respondent must complete the Form F3 and return it to the Commission within 7 days. The second contact was on 30 March 2017 when staff at the Commission responded to an email from the Respondent on 29 March 2017 in which the Respondent asked whether the Form F3 was required to be completed before the conciliation listed for 2 May 2017. The Respondent was advised that the Commission requested that the Form F3 be completed prior to the conciliation. The third contact was on 27 April 2017 when a letter was sent by email to the Respondent drawing attention to the letter from the Commission on 29 March 2017 and advising the Respondent that the Form F3 had not yet been received by the Commission. A blank Form F3 was again provided to the Respondent and the 27 April 2017 letter specifically requested that the Respondent “provide the required information to the Commission as soon as possible”.

[4] No Form F3 was ever filed by the Respondent.

[5] The conciliation listed for 2 May 2017 did not proceed due to the unavailability of the Respondent because of ill health. No further conciliation was planned as the Applicant sought to have her application referred to a member of the Commission for determination.

[6] On 12 May 2017 directions were issued to the parties and the matter was listed for an extension of time conference/hearing on 9 June 2017. The Applicant filed her material on 19 May 2017 and on 24 May 2017. The Respondent filed its material on 26 May 2017.

[7] A telephone conference was held on 9 June 2017 at which both parties were self-represented and a Spanish interpreter was utilised to assist the Applicant understand and participate in the conference. Neither party gave sworn evidence. Two issues emerged during the conference in relation to which the Commission required further evidence or submissions from the parties. The Respondent filed further material with the Commission on 15 June 2017 and the Applicant filed further material with the Commission on 19 June 2017.

Background

[8] The Applicant was employed as an Assistant Restaurant Manager at a Guzman Y Gomez Mexican restaurant operated by the Respondent as a Franchisee. The Applicant was a part-time employee working 15 – 20 hours per week. On 12 October 2016 the Applicant sent an email to Mr Craig Mangini, GM – RID Group (the senior management representative of the Respondent) advising him that she had bought tickets to travel to Columbia with a departure date of 22 November 2016 and a return date of 11 February 2017. The Applicant expressed her delight at having 2 months holidays and her hopes for opportunities to advance in her employment in the future.

[9] Mr Mangini responded to the email including saying “Thanks for letting me know.” Mr Mangini stated that he did not forward that email to the Applicant’s restaurant manager or to anyone else within the business.

[10] On 7 November 2016 Ms A. Pat, Accounts and Administration Assistant for the Respondent, sent an email to the Applicant enclosing an Annual Leave Form and with the message: “Hi Xiomy, Please complete the attached leave form and send it back to me.”

[11] On 16 November 2016 the Applicant filled in a “Leave Form” in which she provided details of the period of her annual leave. The Applicant sought assistance from her manager to complete the form. The form identifies that the Applicant had, at the time of filling in the form, 103.46 hours of accrued annual leave. The form identified the first day of leave as being 21 November 2016 and the last day of leave as being 11 January 2017. The total number of days requested as holiday leave was 52. The form also identified that there were 3 public holidays within the leave period. The form also required the Applicant to identify a “Request Date” and the Applicant identified 12 October 2016 as the request date. The form also contained a text box titled “Instructions” which contained the following “Please submit to your RM a minimum 2 weeks prior to your leave for 1 – 2 weeks. Over 2 weeks leave requires GM or Training Managers approval at least one month before requested leave. Approved leave forms to be scanned and sent to RID HR.”

[12] The Applicant did not submit the Leave Form until late on the evening of 18 November 2016.

[13] The Applicant commenced her leave on 21 November 2016 and travelled to Columbia on 22 November 2016 and returned to Australia on 11 February 2017.

[14] On 29 November 2016 a payment was made to the Applicant and a pay record generated. The pay record identified that the pay period was from 29 November 2016 to 29 November 2016. The Applicant was paid all of her unused annual leave accrual of 103.46 hours less tax.

[15] On 1 December 2016 an email was sent to the Applicant. The email is as follows:

“From: <[email protected]> on behalf of "[email protected]" <[email protected]>

Reply-To: "[email protected]" <[email protected]>

Date: Thursday, 1 December 2016 at 12:10 AM

To: "(Applicant’s email address redacted)

Subject: Employee Exit Interview- We Want Your Feedback!

Dear XiomaraBohorquez,

Thank you for your contribution to GYG.

We hope you enjoyed working with us. As part of our continued drive for excellence, we would appreciate it if you could complete a confidential exit survey.

The survey will only take 5- 10 minutes of your time.

Please click the following link: feedback provided will be sent directly to Head Office HR and all feedback will remain confidential.

Muchas gracias for all your work! From all of us here at GYG, we wish you all the best with your future endeavours!

Sincerely,

VIVAGYG”

[16] On 16 February 2017, 5 days after the Applicant returned to Australia she sent an email to Mr Mangini and to a Ms C Smith. The email read as follows:

“Subject: Employee Exit Interview

Dear Courtney and Craig

I would like to thank you for the opportunity of having worked for GYG for about two years, thank you for giving me the trust and empowered me to take new challenges in the company.

As you both might know I was sent an email of Employee Exit Interview when I never resigned. My leave form was fully filled up, approved by the manager (Andrea), and sent by email to Adriana as requested. I respect the decision of firing me of my job, even when my holidays were approved. However, I had to write this email to express the lack of respect I felt as I did not have any chat about why I was fired.

Kind regards,

Xiomara Bohorquez.”

[17] Mr Mangini did not respond to this email until 20 March 2017 and his response email read as follows:

“Subject: RE: Employee Exit Interview

Hi Xiomara

Sorry for the delay in getting back to you, since Vats departure we are all doing a lot more.

The process of terminating you or anyone taking open-ended holidays is a GYG policy that we have implemented ... but I assure you it is a formality to ensure our employee bench simply reflects who we currently have and who are active.

As there was no return date in the system and it was known you would be away for several months, the correct action was to terminate you in the system.

But like any of our long term crew, we are all family and we would always do our best to find you a place back in our business if that is what you wish ... ?

Reading your note was the first I knew you were back, so trust you had a great break ... ?

Let me know directly if re-joining any of our GYG's is something you would like and I will work out some options with the RM's.

Cheers

Craig”

[18] The Applicant’s response to this email was to file an unfair dismissal application with the Commission on 28 March 2017.

[19] In making her unfair dismissal application and in her submissions and evidentiary material in support of an application for an extension of time the Applicant has considered that she was dismissed at the end of November 2016.

[20] The Respondent first identified its position in relation to the dismissal of the Applicant when on 26 May 2017 the Respondent filed its material opposing an extension of time.

[21] The Respondent in its written submissions opposing an extension of time identified that the Applicant “was terminated on 23 January 2017 for failing to be available for work from 11 January 2017 as noted on her unapproved annual leave form.” The Respondent explained events since November 2016 as follows:

“We have 2 key employee systems at GYG:

VivaGYG

Manages current restaurant bench of trained crew

Tracks training needs/actions of all employees

Communicates GYG current focuses

Zuus

○ Employee payroll and employment status

○ Employee availability

Both of these systems are fully open and interactive with all employees and whilst we (in the interest of the employee) deactivate employees in VivaGYG to stop the employee receiving daily notifications related to training needs while they are away, it also has the unintended effect of generating a system notification for an exit interview. This auto exit interview note was sent to Xiomara on 27 Nov 2016. But if Xiomara logged into Zuus the core employment portal, it would have been clear she was still employed by the business and there was no change to her status.

My intention was to issue a written warning to Xiomara when she returned to work on 12^th Jan (what her annual leave form indicated) for breaching our annual leave policy.

Attempts were made to contact her by the GYG Leederville RM via phone week commencing 9^th Jan, but after no response it was assumed she did not return to Australia. After many attempts to contact her on the phone Xiomara was terminated on Zuus on 23rd of January for failing to be available for work from 11th Jan as noted on her unapproved annual leave form, and presumed she had abandoned her role.”

[22] During the proceedings the Respondent was asked to clarify whether notice in writing of the dismissal had been given to the Applicant at any time after the decision was made to dismiss her on 23 January 2017.

[23] The additional material filed by the Respondent on 15 June 2017 contained the following:

“Was there an email from the Restaurant Manager (Erica Gomes) to Xiomara advising of her of her termination…?

No there was no email to Xiomara, Erica advised that given her frequent attempts to contact Xiomara on the phone and based on the response from the phone each time, it was obvious Xiomara was not in Australia … Erica assumed Xiomara’s plans changed.

As a matter of process Erica took Xiomara off Zuus which is our employee management system as it was assumed she was not returning.”

[24] Additionally the Respondent filed a witness statement from Ms Gomes the Restaurant Manager who made the decision to terminate the the Applicant which stated as follows:

“I tried to make contact with Xiomara via phone week commencing 9th Jan to book her on the roster, but after no response it I assumed she did not return to Australia.

After many attempts to contact Xiomara on the phone I assumed she had abandoned her role and terminated her on Zuus on 23rd of January for failing to be available for work from 11th Jan as noted on her annual leave form.”

Consideration

[25] The time for making an unfair dismissal application is within 21 days of the dismissal taking effect. In the present matter the Applicant has at all times approached the issue of her dismissal on the basis that the dismissal took effect on 27 November 2016 when the Employee Exit Interview email was sent to her. The Applicant’s understanding as to when the dismissal took effect was fundamentally wrong and her unfair dismissal application was similarly fundamentally flawed.

[26] As the Respondent makes very clear the decision to dismiss the Applicant was not made until 23 January 2017.

[27] A dismissal takes effect when it is communicated to the person being dismissed. This proposition was recently reaffirmed in the Full Bench decision in Ayub v NSW Trains. 1 After reviewing the case law the Full Bench concluded:

“[35] We see no reason to depart from the above line of authority insofar as it is consistent with the general principle at common law that a dismissal may not take effect prior to it being communicated to the employee. Neither party submitted otherwise. However two questions remain. The first is whether there are any exceptions to this principle, the existence of which are suggested but not identified in Makenja and WorkPac. The second is whether the mere receipt of a communication (whether a letter, fax or email) is sufficient to constitute the communication of the dismissal to the employee in circumstances where the employee has not read the communication immediately upon receipt.

[36] Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.”

[28] The Full Bench in Ayub also noted the interrelationship between s.394(2)(a) and s.117 as follows:

“[39] At least in relation to dismissals on notice, support for the conclusion that s.394(2)(a) is to be read as requiring the communication of a dismissal to the employee for it to take effect is derived from s.117(1), which is part of the National Employment Standards provisions concerning termination of employment and redundancy. It provides (underlining added):

Notice specifying day of termination

(1) An employer must not terminate an employee's employment unless the employer has given the employee written notice of the day of the termination (which cannot be before the day the notice is given).

Note 1: Section 123 describes situations in which this section does not apply.

Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a notice may be given. In particular, the notice may be given to an employee by:

(a) delivering it personally; or

(b) leaving it at the employee's last known address; or

[40] Section 117(1) prohibits a termination of employment to which it applies taking effect before the day on which notice of the termination is given. Section 123 has the effect of excluding from the operation of s.117(1), among other things, employees dismissed for serious misconduct and casual employees. These exceptions are ones in relation to which the common law does not require a period of notice of termination to be provided. However s.117(1) establishes that a termination of employment cannot occur by way of a retrospective notice.”

[29] In the present matter the Respondent concedes that nothing in writing was given to the Applicant notifying her of the decision to dismiss her from her employment with the Respondent. Nor was the Applicant ever told verbally that she had been dismissed on 23 January 2017.

[30] Whilst the Respondent provided an explanation to the Commission on 26 May 2017 for the issuance to the Applicant of the Employee Exit Interview email of 27 November 2016, the same explanation was not given to the Applicant when she contacted Mr Mangini in February 2017.

[31] I note that the Respondent’s explanation in relation to the issuing of the Employee Exit Interview does not explain why the pay slip for 29 November 2016 was issued.

[32] Mr Mangini’s response to the Applicant on 20 March 2017 was highly misleading. It made no attempt to clarify to the Applicant that she had not been dismissed in November 2016. It made no attempt to advise the Applicant that she had been terminated “on 23rd of January for failing to be available for work from 11th Jan as noted on her annual leave form.” The very first time that the Applicant could have become aware that she had been dismissed on 23 January 2017 for failing to attend work on 11 January 2017 was on 26 May 2017 when the Respondent’s submissions were filed with the Commission and emailed to the Applicant. Consistent with the decision in Ayub the dismissal of the Applicant took effect on 26 May 2017, the day she was given written notice of her dismissal on 23 January 2017. The Applicant had in accordance with s.394(2)(a) 21 days after the 26 May 2017 in which to file her unfair dismissal application.

[33] In the present matter the Applicant filed her unfair dismissal application nearly 2 months before the dismissal took effect. Rather than an extension of time being required to be granted to the Applicant the present matter requires the Commission to consider a premature application.

[34] When an unfair dismissal application is made before the dismissal takes effect the Commission has a discretion to either dismiss the application or to accept the application. The nature of the Commission’s power was clearly articulated by a Full Bench in Mihajlovic v Lifeline Macarthur:

“Section 394(1) is, we consider, a procedural provision which identifies who may make an application, similar to the statutory provision considered in Emanuele v Australian Securities Commission. It does not go to the jurisdiction of the Commission to grant an unfair dismissal remedy under Part 3-2 of the Act. An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose to render any such application automatically invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made. We consider that Mr Mihajlovic’s premature filing of his application constituted an irregularity in the manner in which he made his application capable of waiver under s.586(b).” 2

[35] In all of the circumstances of the present matter it is appropriate for the Commission to exercise its discretion under s.586(b) to waive the irregularity of the Applicant’s premature application and to allow the application to proceed.

[36] The file in this matter will be referred back to the unfair dismissals case management team for further processing.

COMMISSIONER

1 [2016] FWCFB 5500.

2 [2014] FWCFB 1070 at [42].

Printed by authority of the Commonwealth Government Printer

Xiomara Bohorquez Zaraza v Mais Que Nada Pty Ltd T/A Guzman and Gomez Mexican Taqueria

[2017] FWC 3323

21 JUNE 2017

DECISION

Background

Consideration