Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal.

[1] Ms Magdalena Kot alleged that the termination of her employment by Health Axis Pty Ltd was in breach of the general protections provisions of the Fair Work Act 2009. Health Axis denies the allegation.

[2] The parties are in dispute about the date of the dismissal and hence whether Ms Kot requires an extension of time to lodge her application.

[3] On 2 November 2017, Ms Kot was told by Mr Jackson Oppy that she did not need to attend work on 3 November 2017 and she could have a paid day off.[1] As a consequence, she went to Rye where she did not have an internet connection. She returned home on 5 November 2017 and checked her emails.

[4] The letter of termination sent to Ms Kot, by email, on 3 November 2017 advised that her employment was terminated due to her position no longer being required. The letter noted that:

"Based on your length of service, your notice period is 4 weeks. Therefore your employment will end on 4 December 2017. You will not be required to attend work during this notice period.

You are also entitled to 16 weeks redundancy pay. This will be paid with your final fortnight's salary on the 13 December 2017. You will also be paid your accrued entitlements including superannuation, up to an including your last day of employment."

[5] Health Axis submitted that Ms Kot was paid four weeks' pay in lieu of notice. It submitted the letter of termination was written by a lay person and is not an accurate statement of law.

[6] Health Axis relied upon the decision of Wilcox CJ in Siagian v Sanel Pty Limited[2] which held that Mr Siagian's employment was terminated on the last day he worked, being 29 March 1994, and that the payment in lieu of notice did not extend the employment until 15 April 1994.[3]

[7] Mr Siagian was told on 29 March 1994 that "the partners have decided you have to go". He was handed a piece of paper with a cheque for $10,753.85 attached. It was headed Statement of Earnings on Termination. It set out a computation that includes pay for the periods endng 1 April and 15 April and the cash value of Mr Siagian's annual leave and long service leave. Mr Siagian was asked to hand back his key and he was escorted to collect his belongings and then to his car.[4]

[8] As Wilcox CJ found in Siagian in quoting Waite J in Leech v Preston Borough Council[5]:

"the expression 'payment in lieu of notice' is regularly used throughout industry in one or other of 2 quite distinct senses. The first, which is the grammatically correct one, is when it is used to describe the payment to an employee whom it is proposed to dismiss summarily of a lump sum representing compensation for the wages or salary which he would have received if he had been given the notice to which he is entitled by law. The second, which is the colloquial and grammatically incorrect one is when the term is used as a convenient shorthand way of telling an employee that he is being given the full period of notice to which he is entitled by law but is at the same time excused any duty (and refused any right) that he would otherwise have under his employment contract to attend the workplace during the notice period."

[9] Wilcox CJ then said "although Waite J did not spell out the result that flowed from each meaning, it is clear from other decisions that, in the first case, the employee's employment terminates upon the date of payment of the lump sum. In the second case, the employment extends until the expiration of the period for which the payment is made."[6]

[10] What is distinguishable in Ms Kot's case was that she was not told she was being paid in lieu of notice. She was told that her employment would end on 4 December 2017 and that she was not required to attend work during the notice period. There was no subsequent communication to Ms Kot that her employment had been terminated on a date prior to 4 December 2017. Other than an assertion in the submission there was no evidence called to support a finding that the letter did not say what Mr Oppy intended to say namely Ms Kot's employment would terminate on 4 December but she was not required to attend work during her notice period..

[11] I am also not satisfied that Ms Kot was paid in lieu of notice. Ms Kot received payments on 14 November 2017 and 29 November 2017 and on 14 December 2017 she was advised that the final pay would not be paid until 20 December 2017. During that period, her sick leave and annual leave continued to accrue. It was put that this is not determinative of the question of when the termination took effect and I agree. However it is evidence which supports Ms Kot's contention that her employment ended in accordance with the letter on 4 December 2017.

[12] I am therefore satisfied that Ms Kot's application made on 22 December 2017 was made within 21 days of the dismissal taking effect and therefore Ms Kot does not require an extension of time to lodge her application.

[13] The objection lodged by Health Axis is dismissed and a certificate will be issued as I am satisfied that the all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful.

[2] [1994] IRCA 2; (1994) 122 ALR 333

[5] [1985] ICR 192 at 196

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