s.394 - Unfair dismissal

[1] By her application lodged on 4 December 2020, Miss Anna Barrett (Applicant) applies under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. The Applicant was employed by Nunawading Swimming Club Inc (Respondent) as a swim teacher on a casual basis from 27 May 2019 until her dismissal. The Respondent operates swimming pools across various locations in the eastern suburbs of Melbourne. Amongst the various services provided at its swimming pools, there are swimming lessons. The Applicant was employed in connection with those services.

[2] The date on which the Applicant's dismissal took effect is in dispute. The Applicant contends she was notified of her dismissal on 13 November 2020 and the dismissal took effect on the same day. The Respondent contends the Applicant's dismissal took effect on 24 April 2020. The resolution of this issue is relevant to assessing whether the application lodged by the Applicant on 4 December 2020 was lodged within the time prescribed in s.394(2) of the Act. If the Applicant is correct, the application was lodged in time. If the Respondent is correct, the application was lodged some 29 weeks or 203 days after the time for lodgement had passed. In that event the Applicant contends that a further period within which her application may be lodged should be allowed because there are exceptional circumstances.

[3] With the parties' consent, I decided to determine this matter on the papers. Although the date on which the dismissal took effect is in dispute the factual matters which are required to determine that dispute, are not. Thus, since the relevant facts the existence of which is not in dispute there is no requirement to hold a hearing or conference.[1]

[4] As noted above, the Applicant was employed by the Respondent as a casual swim teacher. On or about 27 May 2019, the Applicant signed a contract of employment and the employment commenced on that day.[2] The Applicant worked regular shifts on each Wednesday, Saturday and Sunday and she continued working those shifts (with some minor variability) throughout 2019 and during the first term of 2020 until the swimming pools operated by the Respondent were forced to close because of COVID-19 restrictions.[3]

[5] On or about 23 March 2020, the Deputy Chief Health Officer issued a direction the effect of which was to require the swimming pools operated by the Respondent to close.[4]

[6] The Respondent had on 15 March 2020, prior to the Deputy Chief Health Officer's direction, determined to close all of its swimming pools until further notice in response to the risks associated with COVID-19.[5] The decision was communicated to all staff including the Applicant by email correspondence in the early evening of 15 March 2020.[6] In that communication, casual employees were also told that they would be given a one-off goodwill payment as an emergency provision. This meant that they would be paid 50% of their agreed roster until 29 March 2020.[7]

[7] There can be little doubt that the Applicant was employed by the Respondent as a casual employee on a regular and systematic basis. Unfortunately for the Applicant, because she was not as at 1 March 2020, a long-term casual employee within the meaning of s.9 of the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020, (that is, she had not been employed by the Respondent on a regular and systematic basis during the period of 12 months that ended on 1 March 2020), she could not be nominated by her employer to participate in the Commonwealth's JobKeeper wage subsidy scheme (Scheme).

[8] The Scheme came into operation on or about 9 April 2020. It appears that sometime shortly after this time, the Respondent came to conclude that the Applicant was not entitled to participate in the Scheme.[8]

[9] On or about 15 April 2020, the Respondent came to the view that it could no longer continue to employ those casual employees who are not eligible to participate in the Scheme.[9]

[10] On or about 24 April 2020, the Applicant was sent an email attached to which was a letter, which the Respondent says advised the Applicant that her employment with the Respondent had ended with immediate effect.[10]

[11] The text of the letter in whole (excluding formalities) is reproduced below:

"Due to the Government direction of 25 March 2020, requiring that all swimming pools close with effect from 26 March 2020 to control the spread of coronavirus, Nunawading Swimming Club and Just Swimming was forced to cease operating indefinitely."

On the 9th April 2020, the Australian Government passed its Jobkeeper legislation. The Jobkeeper legislation enables eligible employers to pay eligible employees $1500 per fortnight until the 27th September 2020. Nunawading Swimming Club has now undertaken a review of the Club's eligibility and the eligibility of our employees, in order to progress the Club's application for the Jobkeeper program.

Unfortunately, you have been assessed as an ineligible employee, as you were not a long-term casual employee (employed on a regular and systematic basis for at least 12 months) as at 1 March 2020. This means that the Club is not in a position to provide support to you under the program.

At this stage, whilst no one can predict how long this crisis will continue, it is clear that when the Government lifts its current restrictions, our operations will be significantly affected. Unfortunately, we anticipate that it will take some time to rebuild the business, resulting in limited resourcing requirements when we are able to resume operating again.

Therefore, it is with deep regret that I further inform you that Nunawading Swimming Club/Just Swimming must cease your casual employment, with immediate effect.

We recognise that this is an immensely difficult and distressing time for everyone, so to support you and your families, the organisation will continue to provide you with access to our Employee Assistance Program for the next 6 months. I encourage you to reach out to Lifeworks for counselling and other support, as needs.

I also wish to take this opportunity to assure you that we are working very hard to finalise the HR Remediation Review project as soon as practicable and will keep you updated with its progress, by email. If you have any questions about the project, please contact hrreview@justswimming.com.au

We hope that the one-off emergency payment the Club made to you recently, was of some assistance. It was made in genuine appreciation of your contribution to the organisation. Please accept my heartfelt thanks for your dedication to swimming and for your support of Nunawading Swimming Club/Just Swimming, throughout your employment.

Take good care of yourself and your loved ones over the coming weeks/months, and please stay in touch with us.

Should you wish to discuss any matters raised in this letter, please do not hesitate to contact me."

[12] It is the content of this letter and that which it is communicating, which is central to resolving the question whether the Applicant was dismissed with effect on 24 April 2020 as the Respondent contends, or at a later date, on 13 November 2020 as the Applicant contends. I will return to this shortly.

[13] The Applicant says that she forwarded the email and the attached letter to her father, Mr Gavin Barrett, and that she asked him what the letter meant.[11]

[14] Mr Barrett reviewed the letter and his daughter's contract of employment; he concluded that his daughter had been stood down; and he advised the Applicant accordingly.[12]

[15] Mr Barrett came to this view because of the reference in the 24 April 2020 letter to the Applicant's employment "must cease" which he interpreted as a temporary stoppage of work akin to a standdown; the fact that the preponderance of the letter dealt with the Respondent's response to coronavirus and the Applicant's eligibility to participate in the Scheme; that there would be ongoing (for a period of six months) counselling available through the Respondent's Employee Assistance Program; and that the Applicant's employment contract provided that it was terminable on 4 weeks' notice but the cessation of work was of immediate effect with no payment in lieu of notice having been made.[13]

[16] Despite the invitation to do so in the concluding sentence of the 24 April 2020 letter, the Applicant did not contact the Respondent to discuss any matter set out in the letter about which she may have been uncertain.

[17] In late August and early September 2020, the Commonwealth government announced, and subsequently the Parliament enacted, an extension of the Scheme and changes to eligibility for participating employers and employees. When the Applicant learned of these changes (sometime in early November 2020), she considered that she now became eligible to participate in the Scheme and so she emailed the Respondent asking it to make an application for her participation in the Scheme.[14]

[18] By email dated 13 November 2020, the Respondent replied indicating amongst other things that the Applicant's employment "was ceased (terminated) on 24 April 2020 via a letter that was attached to the JobKeeper email".[15]

[19] The Applicant's essential proposition is that the use of the word "cease" in the 24 April 2020 letter was uncertain and did not clearly communicate that the Respondent was terminating the employment of the Applicant effective immediately. It can for present purposes be accepted that a notice terminating employment is not effective until it is communicated by employer to an employee and that it must clearly communicate the fact that employment is ending and when.

[20] The remainder of the Applicant's submissions concerning whether there was "a lawful termination", the effect of the notice provisions and the notes to s.117 of the Act, and the absence of notice as required by the employment contract, are respectfully misconceived.

[21] The first and the third elements in the preceding sentence are misconceived because the Applicant conflates unlawful termination of a contract of employment and the ending of the employment relationship that the contract regulates. It is well-settled that an employment relationship may be brought to an end even though the ending of the employment relationship occurred in circumstances that were contrary to or in breach of the contract of employment. Thus, dismissing an employee but failing to give notice under the contract of employment (or indeed as required by statute if the relevant provision applied) is nonetheless effective to end the employment relationship although the breach of contract or breach of statute, will sound in damages or the imposition of a pecuniary penalty as the case requires.[16]

[22] The second element is misconceived because as s.123(1)(c) makes clear, Division 11 of Part 2-2 of the Act (in which section 117 is to be found) does not apply to a casual employee and there is no dispute between the parties that the Applicant was a casual employee.

[23] Returning then to the question of whether the 24 April 2020 letter was effective to bring an end to the employment relationship.

[24] It seems to me that effective communication of a decision to dismiss an employee (that is to end the employment relationship) involves two elements. The first is to clearly inform the employee of the employer's decision to dismiss the employee. However, as the dismissal is an event, not merely a decision (it occurs when the employment relationship comes to an end), the communication must secondly inform the employee of the time when the employment relationship will come to an end, or at least make that time ascertainable.[17]

[25] The critical aspect of the 24 April 2020 letter on which both the Applicant and Respondent rely inform the Applicant as follows:

"Therefore, it is with deep regret that I further inform you that Nunawading Swimming Club/Just Swimming must cease your casual employment, with immediate effect."

[26] This notification is preceded by a sentence which advises that it will take some time to rebuild the business "resulting in limited resourcing requirements when we are able to resume operating again".

[27] It seems to me that the Respondent was clearly communicating that the employment relationship was ending at its initiative with immediate effect. The indication that the Respondent "must cease your casual employment" effectively communicates that it is the casual employment which must cease. The verb "cease" means to "come or bring to an end", thus the Respondent was communicating to the Applicant that the casual employment must come to an end, with immediate effect.

[28] The notion that the Applicant was merely being stood down is contrary to the words used in the letter and inconsistent with the basis upon which she was employed. There was no need to stand down the Applicant since she was a casual employee, with each engagement commencing at the beginning of each shift and ending at the completion of each shift and there was no obligation to provide work or ongoing employment. Indeed, the first paragraph of the casual employment contract under the heading "Your Role" makes this clear. It provides:

"You will be engaged on a casual basis in the position or positions set out in Schedule 2 or other positions as determined by the Club from time to time. This means that you will be offered a series of casual engagements, each engagement commencing at the beginning of each shift and ending at the completion of each shift, and being a minimum of 1 hour. With the nature of casual employment there is no guarantee of ongoing employment or a regular pattern of work."

[29] The construction for which the Applicant contends both as to the information communicated in the letter read alone or in combination with the casual employment contract is simply not open. In my view, the 24 April 2020 letter was effective to bring about the ending of the employment relationship because it communicated both that the employment relationship being casual in nature was ending and that it was ending with immediate effect.

[30] It follows that as the employment of the Applicant came to an end on 24 April 2020 her application for an unfair dismissal remedy lodged on 4 December 2020 was lodged outside of the time prescribed. It is therefore necessary to consider whether there are exceptional circumstances and if so, whether I should exercise my discretion to allow a further period within which the Applicant may lodge her application.

[31] 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.[18]

[32] 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.[19]

[33] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

[34] Section 394(3) allows the Commission to exercise a discretion to grant an extension of time, if the Commission is satisfied there are exceptional circumstances taking into account the following:

(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);

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

[35] 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.

[36] The Act does not specify what reason or reasons for delay might fall 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.[20]

[37] The Applicant says that the reason for the delay is the uncertain nature of the letter of 24 April 2020 communicating her dismissal. She says that as she was not able to attend for work since at least 15 March 2020 and because of an absence of consultation, she was unable to clarify the circumstances being communicated to her because the workplace had closed indefinitely. The Applicant also says that she had been in contact with the Respondent from 26 April 2020 to 28 April 2020 enquiring about eligibility for JobKeeper and that the Respondent did not say anything about her employment being terminated with the Applicant being ineligible for JobKeeper.[21]

[38] Dealing with the last matter first, it is unsurprising that the Respondent did not say anything about the termination of employment or the Applicant's eligibility for JobKeeper during the enquiries made between 26 and 28 April 2020. This is because both matters were addressed in the letter to the Applicant of 24 April 2020, namely, that she was not eligible for JobKeeper (paragraph 3 of the 24 April 2020 letter) and that her casual employment would come to an end with immediate effect (paragraph 5 of the 24 April 2020 letter). This does not provide an acceptable explanation for the delay.

[39] For the reasons already given I do not consider that the communication to the Applicant of 24 April 2020 was uncertain or unclear. The letter clearly communicated that the casual employment would end and when it would end. The content of the letter of 24 April 2020 does not provide an acceptable explanation for the delay.

[40] As to the inability to communicate and clarify, this explanation is without merit because firstly, on her own material the Applicant says in proffering an explanation that she did communicate with the Respondent between 26 and 28 April 2020. Secondly, there was nothing to prevent the Applicant from communicating by email, a mode of communication she used to communicate with the Respondent in early November 2020. The letter of 24 April 2020 clearly invites communication to discuss any matter raised in the letter. This invitation could have been undertaken by email, perhaps even after the Applicant's father proffered his opinion that the letter was communicating a standdown. If there was genuine subjective concern about the meaning and effect of the letter of 24 April 2020, then the authoritative source for clarifying that meaning and effect is its author, not the Applicant's father. But as I have already indicated I do not consider the letter to be unclear. This does not provide an acceptable explanation for the delay.

[41] There is also no explanation given by the Applicant for the delay in lodging the application following the email she received from the Respondent on 13 November 2020 advising that her employment "was ceased (terminated) on 24 April 2020 via a letter that was attached to the JobKeeper email". At the very least this correspondence ought to have alerted the Applicant to the fact that the Respondent would contend that her dismissal took effect on 24 April 2020. Whatever else the Applicant might have thought about this issue, prompt action was required or at least an explanation for this delay ought to have been provided. However, for reasons that remain unexplained the Applicant did not lodge the application until 4 December 2020. This this was some three weeks after she had been told that the Applicant maintained that it had dismissed her from employment almost 7 months earlier.

[42] In the circumstances I am not persuaded the Applicant has provided an acceptable explanation for the whole of the period of the delay. The absence of such an explanation weighs against the applicant.

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

[43] Objectively, the Applicant was notified of the dismissal on 24 April 2020, the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. That this is so weighs against the Applicant because she had the benefit of the full 21-day period to lodge an application.

[44] There is no evidence that the Applicant took any step to dispute the dismissal beyond lodging the application on 4 December 2020. The Applicant says that she lodged an application "as soon as" she became aware of the date on which she contended the dismissal took effect which on her case was said to be 13 November 2020.[22] This is plainly not correct since she did not lodge the application until 4 December 2020. On no view can this be regarded as taking action "as soon as" she became aware of her contended for date of dismissal. The absence of any action to dispute the dismissal also weighs against the Applicant.

[45] The Respondent does not contend that the Applicant's delay in filing the application gives rise to prejudice to the Respondent. It does not contend that it would otherwise be prejudiced. In these circumstances the absence of prejudice is a matter that weighs in favour of the Applicant.

[46] I am required to take into account the merits of the application in considering whether to extend time. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory. Indeed, as s.396(a) makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application. Nonetheless, an assessment of the merits is required. It is appropriate therefore that I make an assessment about the merits of the case based on the limited material that is available.

[47] The Applicant contends that the application has merit because she had received no warning of the dismissal, was not provided with any notice, was not given a chance to respond to the reason for her dismissal to ask questions and was not given an opportunity to request a support person.[23] For the present purposes all of this is accepted but it does not follow that the merits are particularly strong. It is to be remembered that the Applicant was a casual employee, engaged for a relatively short period, with each engagement ending at the conclusion of each shift, with no obligation to provide further shifts or ongoing employment, in circumstances where the Respondent was at the time of the Applicant's dismissal required to keep closed its swimming pool operations in connection with which the Applicant was employed. It is in my view likely that on a hearing of the substantive application there will be a conclusion that the Respondent had a valid reason for dismissal. The Respondent was prohibited from operating its business and the Applicant was not eligible to participate in the Scheme. The valid reason seems to me to be the employer was unable to provide work to, and had no use for, the Applicant in her capacity as a casual swim teacher. Against this it must be said that the contract of employment required the provision of 4 weeks' notice in the circumstances. Thus, it is not implausible that an unfairness finding might be made. Nevertheless, I consider that the merits of the Applicant's claim to be arguable but not particularly strong. In the circumstances this factor weighs only slightly in favour of the Applicant.

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

[48] 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 will generally turn on their own facts. The Applicant relies on subsequent letters of dismissal issued to other employees in about July 2020 which use the term "employment will terminate" and specify a date. The difference in terminology is a distinction without a difference. The effect of the use of the word "cease" as opposed to "terminate" in the context of the letter of 24 April 2020 is the same. The verb "terminate" means to bring to an end. The verb "cease" has the same meaning. Nothing turns on the different usages and certainly does not impact upon the fairness consideration.

[49] Neither party brought to my attention any other relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

[50] For the reasons earlier stated the Applicant's employment with the Respondent came to an end on 24 April 2020.

[51] Statutory time limits that are applicable to the exercise of a person's right to bring an unfair dismissal remedy application are an expression of the Parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise, except in exceptional circumstances, the right to bring the action will be lost.

[52] Having regard to the matters I am required to take into account under s.394(3), I am not satisfied that there are exceptional circumstances in this case. In my view, this is so, whether the various circumstances are considered individually or together. There is no satisfactory explanation for the delay. Taking into account the length of the delay and the unexplained period following 13 November 2020, this factor weighs significantly against a conclusion that there are exceptional circumstances. In the circumstances of this case, the absence of a reason for the delay outweighs the merits matter pointing slightly the other way. Although the absence of prejudice consideration weighs in the Applicant's favour, the other matters which I am required to take into account either weigh against a conclusion that there are exceptional circumstances or are neutral for the reasons stated. When I consider each of the matters set out in s.394(3), in the context of the evidence in this case, attribute weight as I have done and look at those circumstances individually and collectively, I am not satisfied that there are exceptional circumstances.

[53] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to consider exercising my discretion to allow an extension of time. I decline to allow a further period under s.394(3). The application to allow a further period within which to lodge the application is dismissed. The substantive application for an unfair dismissal remedy must also be dismissed.

[54] As I have earlier noted, the Applicant's casual employment contract required the Respondent to give the Applicant a minimum of 4 weeks' notice of termination if her casual position was no longer required. It is uncontroversial that the Respondent did not give such notice. Seems to me that the circumstances envisaged by the contract where notice of termination was required were engaged. Thus, the Respondent is likely to have breached its obligations under the contract. To avoid prospect of any further litigation or disputation, I recommend the Respondent consider making a payment to the Applicant equivalent to 4 weeks' pay based on her agreed roster in operation immediately prior to the Respondent closing its pool facilities on 15 March 2020.

[1] See Fair Work Act 2009 s.397.

[2] Applicant's statement at [4] and schedule 1 to the "Casual Employment Contract".

[3] Applicant's statement at [5] - [6].

[4] Statement of Nicole Webster, Executive General Manager of the Respondent at [7] and annexure NW - 2 thereto.

[5] Statement of Nicole Webster at [10] and annexure NW - 3 thereto.

[8] Statement of Nicole Webster at [11].

[9] Statement of Nicole Webster at [13].

[10] Statement of Nicole Webster at [14] - [17]; Applicant's statement at [14] - [15].

[12] Statement of Gavin Barrett at [6]-[17].

[13] Statement of Gavin Barrett at [7], [9] - [16].

[14] Applicant's statement at [25] - [26].

[15] Applicant's statement, attachment AB - 10.

[16] See for example Metropolitan Fire and Emergency Services Board v Garth Duggan [2017] FWCFB 4878 at [32].

[17] See Ayub v NSW Trains [2016] FWCFB 5500 at [17], applying Fardell v Coates Hite Operations Pty Ltd [2010] NSWSC 346; (2010) 201 IR 64 at [82].

[18] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[20] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[21] Submissions of the Applicant at [30]-[39].

[22] Submissions of the Applicant at [47]

[23] Submissions of the Applicant at [44].

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