Fair Work Act 2009

s.394 - Unfair dismissal

• [1] This decision concerns an application by Ms Maria Florencia Patrone (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act). The Applicant was employed by Unique Muscle Ltd (Respondent) as a full-time marketing specialist from 20 July 2020. In her F2 Application the Applicant asserted that she was notified of her dismissal on 30 September 2021, and that the dismissal took effect on 14 October 2021. The Applicant stated in the Form F2 that the application was filed within the 21-day period in s. 394(2) of the Act.

• [2] The Respondent filed a Form F3 Response objecting to the application on various grounds including that it was not lodged within 21 days of the dismissal taking effect as required by s. 394(2) of the Act and was therefore not made in accordance with the Act. In relation to the assertion that the application was filed outside the required 21 day period, the Respondent asserted that that the Applicant was dismissed on 30 September 2021, with immediate effect and that the Applicant was to be paid two weeks' wages in lieu of notice.

• [3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made "within 21 days after the dismissal took effect", or within such further period as the Commission allows pursuant to s 394(3). In the present case, there is a dispute as to when the Applicant's dismissal took effect. If the dismissal took effect on 14 October 2021, as claimed by the Applicant, the application was required to be made by midnight on 4 November 2021. As the application was made on 3 November 2021, it was made within time. If the dismissal took effect on 30 September 2021, as claimed by the Respondent, the application was required to be made by 21 October 2021 and the application was made 13 days outside the time required in s. 394(2) of the Act.

• [4] In light of the objection raised by the Respondent, the Associate to Vice President Catanzariti corresponded with the Applicant requesting that she provide submissions in relation to whether a further period for the application to be made is required, or alternatively, whether there are exceptional circumstances that warrant grant of an extension of time to file her application. The matter was allocated to me for determination.

• [5] On 13 December 2021 I conducted a hearing by telephone. The Applicant appeared on her own behalf and the Respondent was represented by Ms Charlie Ercan, Co-founder of the Respondent.. After considering the evidence and submissions of the parties I decided that the Applicant's dismissal took effect on 14 October 2021 and that the application was made within the required 21 day time period and gave oral reasons for that decision. I further determined that the lack of clarity in the Respondent's communication of the Applicant's dismissal would have been a significant factor weighing in favour of a further period in which to make the application being granted, in any event. After I had given my reasons orally, the Respondent's representative continued question my decision and was informed that this was not appropriate and that if a request for written reasons was made within seven days of the hearing, I would provide those reasons in due course. These are my reasons.

Approach to determining when a dismissal took effect

• [6] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[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).[2] In certain circumstances which are not relevant in this case, a dismissal can be communicated orally. Where the communication is in writing only, the communication must be received by the employee in order for the dismissal to be effective.[3]

• [7] A notice of termination may still be valid even if it is stated to take effect subject to a condition, such as a future date, provided that:

• the notice clearly expresses the condition
• the condition has been satisfied, and

• • the employee is in a position to know that the condition has been satisfied.[4]

• [8] Where payment in lieu of notice is made the dismissal usually takes effect immediately.[5]

• [9] The provisions of the FW Act in relation to unfair dismissal are concerned with the ending of the employment relationship. As Deputy President Saunders observed in Nathan Jackson v Mahmoud Hasan Abulamoun:[6]

"[40] Because the question of whether an employment relationship continues to exist is a question of fact, it is necessary to consider all the relevant circumstances to determine whether there has been a communication of a dismissal by words or conduct. The range of facts or factors which may need to be examined to answer the question of whether an employment relationship has ceased to exist by reason of the communication of a dismissal by words or conduct will be determined by the circumstances of a particular case, and may include, without limitation, whether the employee is being paid a wage or other benefits or entitlements, whether the employee is attending or performing work for the employer, whether the employee is being rostered to work or offered work, whether, in the case of a business employing casuals, the employer is rostering other employees to do work in the same role as the applicant in a particular case, whether the employer is exercising, or has the ability to exercise, control over the execution of work by the employee, whether either party has communicated to the other party a decision to terminate the relationship, and the terms of the employment contract.

[41] The question of whether an employment relationship has ceased to exist does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe."

• [10] While Jackson concerned the question of whether there had been a dismissal, the observations are also relevant to matters to be considered in determining when a dismissal took effect.

• [11] The chronology of events preceding the Applicant's dismissal can be summarised as follows. On 17 and 24 September 2021 the Applicant received formal warnings from the Respondent regarding her conduct. For present purposes it is not necessary to deal with the contents of those warnings. Material tendered by the Applicant indicates that on the morning of 27 September 2021, the Applicant sent an email to the Respondent's Director Mr Daniel Papanikolaou , attaching a medical certificate dated 24 September 2021 stating that she was unfit for work from that date until 29 September 2021. The email attaching the medical certificate alleged that the Applicant had been feeling anxious and suffering headaches as a result of the work environment. Mr Papanikolaou responded to the Applicant's email at 2.03 pm on 27 September 2021, stating that the Applicant's email was "very interesting" and alleging among other matters, that the Applicant's headaches had been ongoing and had become worse as she had blatantly refused to take time off work when sick. Mr Papanikolaou's email also attached a screen shot said to evidence further unprofessional conduct by the Applicant.

• [12] At 9.35 pm on 27 September 2021, the Applicant sent a further email to Mr Papanikolaou attaching a workers' compensation medical certificate indicating that the Applicant required treatment from 24 September to 8 October 2021 and would be reviewed again on 7 October 2021. The Applicant stated that she had made a claim for workers' compensation, made various allegations about her treatment at work and responded to the matters raised in Mr Papanikoaou's earlier email. On 28 September at 9.01 am, Mr Papanikolaou responded stating that workplace bullying is a serious matter and that as the Applicant had now made a WorkCover claim there was nothing further to discuss, and all evidence would be directed to WorkCover.

• [13] Also on 28 September 2021, Mr Papanikolaou, had an exchange with the Applicant via SMS message requesting that the Applicant return her laptop and anything else belonging to the Respondent from her home. An agreement was made whereby the Applicant arranged for the property to be collected from her housemate. In his messages to the Applicant Mr Papanikolaou requested that the Applicant note that the deletion of any necessary information or files was a legal matter and that all intellectual property belongs to the Respondent.

• [14] On 30 September 2021, the Respondent sent a letter to the Applicant by email advising her of the termination of her employment. Relevantly, the termination letter stated:

"...Based on your length of service, your notice period is 2 weeks. Therefore, your employment will end on the 14th of October 2021.

You will also be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment...

Please note, we will notify the Australian Government Department of Home Affairs of your change in work status today."

• [15] On 1 October 2021 the Respondent sent an email to the Applicant asserting confusion about when the Applicant was on sick leave and stating that before the medical certificate was sent, it had already been suggested that the Applicant take annual leave due to her conduct at work. The email asked the Applicant to clarify whether she was claiming both Friday and Monday as sick leave or Friday as sick leave and Monday as annual leave. The Applicant responded on 2 October as follows:

"Yes, I am claiming both Friday 24/09/2021 and Monday 27/09/2021 as sick leave. As per my Dr. medical certificate, I am also claiming personal leave for the Tuesday 28/08/2021 till Friday 8/10/2021. Please see attached medical certificate, I forgot to attach this certificate with the Work Capacity Certificate, my apologies for this.

I am unaware of your message you mention as I was not logged into the system due to not working since Friday 24/09/2021. On Tuesday 28/09/2021 morning around 07:30 you texted me and demanded to pick up the laptop from my house. I'm not sure why you were so demanding to pick the laptop as I was still working for the Company even though I was on personal leave recommended by my GP until I received your termination email/letter on Thursday 30/09/2021.

• [16] The Applicant also tendered a second work capacity certificate indicating that she required treatment from 7 October to 24 October 2021. According to the Respondent, the Applicant received her payment in lieu of notice on 7 October 2021and was paid her accrued entitlements and any outstanding pay on the last day of the notice period, being 14 October 2021. The Respondent submitted that the Applicant cannot claim that she was unaware of the payment in lieu of notice period as she did not make any attempts to continue working for the Respondent. Further, the Respondent relied on the fact that she had already returned her work equipment and her keys to the company office, as evidence that her dismissal took effect immediately upon receiving her termination letter.

• [17] The Applicant maintained that she was not aware that her termination was to take effect immediately from 30 September 2021. The Applicant repeated that the termination letter stated that her employment was ending on 14 October 2021 and that there was no mention in the letter that her dismissal was effective immediately with her notice to be paid in lieu.

• [18] The Applicant is employed on a working visa. The Applicant stated that the Respondent confirmed with the Department of Home Affairs that her last day of employment was on 14 October 2021. In support of this assertion, the Applicant tendered an email she received from the Department of Home Affairs on 30 September 2021, stating:

We have been informed that you will be ceasing your employment with UNIQUE MUSCLE PTY LTD on 14 October 2021.

Your visa condition states that you cannot cease employment for more than 60 consecutive days. This will mean that you will need to find another employer to sponsor you and lodge a new nomination application form which must be approved before you can start work for another employer.

alternatively, if you no longer want to continue working in Australia you could consider applying for a different visa or departing Australia."

• [19] The Respondent's evidence is that the additional WorkCover and medical certificates referred to above, were never provided to, or communicated with the Respondent. Accordingly, the Respondent asserted that that the Applicant's claim that she was on personal leave during her entire notice period is false. The Respondent submitted that the Applicant made no reference to the rest of her notice period (after 8 October 2021) in her email on 2 October 2021 and made no attempts to clarify if she would work during this time, indicating that it was clear that the working relationship was to end immediately. The Applicant explained that the workers' compensation certificate was emailed directly to WorkCover as advised by her GP. The Applicant also said that she was under the impression that WorkCover would have forwarded the certificate to the Respondent. Further, the Applicant stated that her GP had advised her to cease communication with Mr Papanikolaou due to her anxiety.

• [20] In its submissions with respect to the date the termination of the Applicant's employment took effect, the Respondent made a number of assertions as follows:

• Ms Patrone is falsely claiming that she was on personal leave during her entire notice period (from 30/09/2021 to 14/10/2021).
• Ms Patrone was sent her termination letter on the 30th of September 2021.
• On the 1st of October 2021, Ms Patrone was asked to verify which dates she claimed as personal leave in order to correctly calculate her lump sum/final pay entitlements.
• On the 2nd of October 2021, after already being terminated, Ms Patrone sent Unique Muscle a doctor's certificate and said she wanted her personal leave to be calculated from 28/09/2021 till 8/10/2021 (please see attached proof of this communication). Ms Patrone made no reference to the rest of her notice period ending on the 14th of October or made any attempts to clarify if she would work during this time as it was clear to both parties that the working relationship was to end immediately. Ms Patrone was paid in lieu of notice after her termination.
• Ms Patrone has now attached new doctors certificates to her response to Fair Work which incorrectly attempts to extend this period despite none of these new certificates ever being sent to, communicated with or approved by Unique Muscle.
• The attached email from Ms Patrone also clearly proves in her language that she was aware that her employment ended with Unique Muscle upon receiving the termination letter, which was sent and received on the 30th of September 2021.
• Ms Patrone had taken personal leave and submitted a vexatious claim to Work Cover which was dismissed a short time after and concluded that "the injury arose out of reasonable management action". On the same day that her Work Cover claim was rejected (3rd of November 2021), Ms Patrone submitted her Fair Work claim, which was meant to be submitted within 21 days of the dismissal taking effect. Ms Patrone submitted her Fair Work claim 13 days late and failed to provide any reason for the late submission itself.
• Ms Patrone is not disputing the fact that she received the termination letter on the 30th of September 2021, she also does not dispute that she was not asked to work during her entire notice period and was paid during this notice period.
• Ms Patrone stated in her response "I had all intentions of returning to my normal working duties once I was cleared to return to work from my GP, before receiving my termination letter."
• Ms Patrone is not disputing that she did not intend to work or make any attempt to work after receiving her termination letter, thus further proving that she was aware her dismissal was to take effect immediately as she was already asked to return her keys and work equipment to the company owners days prior, something which has never happened during any of her previous leave entitlements, further illustrating the seriousness of the situation when terminating her employment.

• [21] In my view, the evidence clearly establishes that the Applicant's dismissal took effect on 14 October 2021. The Respondent's submission to the contrary, relying on the decision of Wilcox J in Siagian v Sanel Pty Limited[7], is misconceived. Given the submission of the Respondent's representative that I should apply that case in accordance with the Commission's Unfair Dismissal Benchbook, and the suggestion that I had failed to do so after giving my oral reasons for rejecting the Respondent's argument, it is necessary that I explain what was established in that case and that I have followed it. It is also necessary to explain why that case does not assist the Respondent's argument.

• [22] In Siagian v Sanel, the parties agreed that the Respondent had terminated the applicant's employment but differed as to whether the termination took effect before or after the commencement of certain provisions of the Industrial Relations Act. The Respondent (Sanel) asserted that the termination of employment took effect on 29 March 1994 and the Applicant (Mr Siagian) asserted that it took effect on 15 April 1994. The significance of the date the termination took effect, was that certain provisions of the Industrial Relation Act 1988, which commenced operation on 30 March 1994, and Mr Siagian could not make a claim pursuant to those provisions if the termination of his employment was effective on 29 March 1994.

• [23] The facts as recorded in the judgement of Wilcox J were that on 29 March 1994, Mr Siagian was informed that he was being "let go" and a manager of the Company handed him a piece of paper setting out computations headed "Statement of earnings on termination" and a cheque for an amount comprising his wages up to 15 April 1994 and accrued entitlements. Mr Siagian was not provided with a letter advising of the termination of his employment, but was escorted to his office to pack his personal belongings, was required to return the key to the Company's premises and was escorted to his vehicle after being informed that his employment was terminated.

• [24] One of the arguments advanced on behalf of Mr Siagian was that the notice given on 29 March 1994 was effective to terminate his contract of employment, but the employment did not come to an end until the date to which the payment was made - 15 April. Leaving aside the question of the distinction between the termination of the contract of employment and the employment relationship, which was considered by the Court and is not presently relevant, Wilcox J observed that the conduct of the Respondent's manager in delivering the cheque, escorting Mr Siagian from the premises and repossessing his key, "admit of no ambiguity" and effectively terminated the employment relationship.

• [25] With respect to the argument that employment did not end until the date to which the payment to Mr Siagian was made, Wilcox J observed that the term "payment in lieu of notice" is ambiguous and cited the judgement of Waite J in Leech v Preston Borough Council[8] to the effect that the expression is regularly used throughout industry in two different senses. The first 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 the employee would have received if given the notice to which the employee is entitled by law. The second is when the term is used to tell an employee that he or she is being given the full period of notice to which the employee is entitled by law but is at the same time excused from any duty (and refused any right) that he would otherwise have under his employment contract to attend at the workplace during the notice period. 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 was made. To this analysis I would add that there are also cases where an employee is informed that employment is to end at the expiration of a notice period and the employee is required to work during that period. After observing that the question whether a payment in lieu of notice immediately terminates the employment is always one of fact, Wilcox J stated:

"It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase 'payment in lieu of notice'; it accords with common sense. An employer who wishes to terminate an employee's services, and is prepared to pay out a period of notice without requiring the employee to work, will surely usually wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment related costs, such as workers' compensation insurance, payroll tax, liability for leave payments etc. The employer also incurs the risk that some new burden will be imposed in respect of the employment during the period.

I see nothing in the present case to suggest that Sanel intended that its employment relationship with Mr Siagian should continue until 15 April. The statement of account given by Mr Bryant to Mr Siagian was headed 'Statement of Earnings on Termination'. His key was taken from him. Mr Bryant had no thought that Mr Siagian might be called back to work before the expiration of the period of notice. Mr Bryant supplied a separation certificate on 31 March, an action that would have been premature if the employment had not then terminated."

• [26] In the present case, the letter of 30 September 2021 advising of the Applicant of the termination of her employment, clearly states that the Applicant's employment will end two weeks later, on 14 October 2021. I do not accept that the Applicant should have known, based on the information in that letter, that her employment had been terminated, with immediate effect. The fact that the Applicant was asked to verify which dates she claimed as personal leave, in order to clarify the payment of her entitlements on termination, or that she asked for personal leave to be paid during the notice period, does not establish that the Applicant knew that her employment had ended on 30 September 2021.

• [27] The email exchange on these matters occurred on 1 and 2 October - after the Respondent asserts that the employment had ended. None of the email responses from the Company in relation to leave state to the Applicant that her employment had ended on 30 September 2021. Nor do I accept that the SMS exchange on Tuesday 28 September 2021 supports the Applicant's employment being terminated with effect from 30 September. It is obvious that the SMS exchange occurred before the termination letter was sent to the Applicant. While the SMS exchange may have given the Applicant reason to be concerned that the Respondent was considering terminating her employment, it is not relevant to when the termination took effect.

• [28] Whether or not the Applicant was on personal leave at the time of the termination letter being sent to her or had provided medical certificates for such period is also irrelevant. The termination letter specifically states that the Applicant's employment will not end until 14 October 2021 and it is hardly surprising that she would have provided medical certificates for part of this period, particularly when she had also made a claim for workers' compensation. Further, the statement in the Applicant's email of 2 October 2021 that she was on personal leave recommended by her GP until the termination letter was received, does not establish that the Applicant knew that her employment had been terminated with effect from 30 September 2021. That statement simply indicates that once the termination letter was received, the Applicant was being paid in lieu of notice, and whether she was on personal leave was irrelevant.

• [29] That the Applicant did not make herself available for work in the period from 8 October until the notice period expired on 14 October does not establish that her employment ended on 30 September. The Respondent had the right to excuse her from work while paying her for the notice period and the Applicant was entitled to assume that it had done so, in circumstances where the date her employment would end had been clearly communicated as 14 October 2021. I also note that the Applicant had medical certificates indicating that she did not have capacity to work from 7 October until 24 October 2021, a period that extended beyond the notice period. Further, the Respondent did not pay the Applicant for her notice period until 7 October 2021 and her accrued entitlements were not paid until 14 October 2021, the date that she had been informed would be the effective date of her dismissal. Contrary to the Respondent's submission, these payments to the Applicant would not have alerted her to the possibility that her employment had ended on 30 September 2021.

• [30] Finally, the Applicant tendered advice from the Department of Home Affairs, dated 30 September 2021, stating that the Department had been informed that the Applicant's employment would be ceasing on 14 October 2021. The email from the Department of Home Affairs was received by the Applicant on 30 September 2020, the same date as the Applicant received the letter from the Respondent advising that her employment would end on 14 October 2021. The terms of the email make it clear that this advice was not provided to the Department by the Applicant. It is more probable than not that the Respondent copied the Department into the Applicant's termination letter, or at least provided the same advice as it had provided to the Applicant of the date the termination of her employment would take effect. The Respondent did not dispute that it had advised the Department of Home Affairs of the termination of the Applicant's employment or provided evidence of the advice it provided.

• [31] In circumstances where the Department of Home Affairs believed, based on information provided by the Respondent, that the Applicant's employment would end on 14 October 2021, it is entirely reasonable that the Applicant would understand that this was the case. The facts in this case bear no resemblance to those in Siagian v Sanel.

• [32] For these reasons, I found that the termination of the Applicant's employment took effect on 14 October 2021 and that the application was filed within the time required in s. 396(2). of the Act. It is not necessary to grant a further period for the application to be made. I am also of the view that if it was necessary to grant a further period for the application to be made, the conduct of the Respondent in advising the Applicant and the Department of Home Affairs that the Applicant's employment ended on 14 October 2021, would weigh in favour of a further period being granted. This is because the Applicant had reasonable grounds to believe that her employment ended later than the Respondent asserts and it is an exceptional circumstance that an employer makes statements to an employee and a Government Department, with respect to the date that a termination of employment took effect, and then seeks to depart from those statements to defeat an unfair dismissal application.

• [33] Accordingly, I dismissed the jurisdictional objection of the Respondent in relation to the application being made outside the time required in s. 396(2) and issued Directions for the hearing and determination of the merits of the application.

[1] Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C,

[2] Fair Work Act 2009 Section 117(1)

[3] Ayub v NSW Trainsy [2016] FWCFB 5500 at [17]

[5] Siagian v Sanel Pty Limited [1994] IRCA 2 (27 May 1994), [(1994) [1994] IRCA 2; 122 ALR 333 at p. 355]

[6] [2020] FWC 4056

[7] [1994] IRCA 2 (27 May 1994).

[8] [1985] ICR 192 at 196:

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