s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] On 17 May 2024, Miss Kelly-Ann Manolas (the Applicant), filed an application pursuant to s.365 of the Fair Work Act 2009 (FW Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving an alleged dismissal under Part 3-1 of the FW Act. The Applicant alleges that her former employer, Australian Ears And Hearing Care Pty Ltd (the Respondent) contravened various provisions of Part 3-1 of the FW Act by dismissing her on 26 April 2024.

• [2] On 26 June 2024, the Respondent filed its Form F8A - Response to a general protections application involving dismissal, raising jurisdictional objections on the grounds that the Applicant was not dismissed within the meaning of s.386 of the FW Act, and that the application had been lodged outside the 21-day statutory timeframe.

• [3] Section 366 of the FW Act provides the timeframe for filing a s.365 application:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position."

• [4] Section 386 of the FW Act provides the meaning of 'dismissed' as follows:

(a) the person's employment with his or her employer has been terminated on the employer's initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer."

• [5] The Explanatory Memorandum to the Fair Work Bill (2008) states, in relation to the purposes of what became enacted as s.386(1) of the FW Act:-

"This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200).

Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign."

• [6] Where there is a dispute about whether a person was dismissed, the Commission is obliged to determine that point before exercising its powers under s.368 of the FW Act.[1] In the present matter, the Respondent contends that it did not dismiss the Applicant, rather, she chose not to continue working with the company. Further, the Respondent submitted that the Applicant's last pay run was up to 19 April 2024, and that she did not work the week ending 28 April 2024. The Respondent submitted, therefore, the application was filed out of time. The Applicant filed her application on 17 May 2024. If the Applicant was dismissed on 19 April, then her application was filed 7 days outside of the statutory timeframe. I am therefore required to determine:

1. Whether, if she was dismissed, the application was lodged out of time; and

1. If the application was lodged out of time, whether to extend time under s 366(2).

• [7] Due to adjournment requests made by the Applicant in this matter, Directions were issued on 21 October 2024 for the filing of jurisdictional materials.

• [8] The Respondent filed its jurisdictional materials as directed. The Applicant, however, elected not to file any formal submissions, instead relying on her detailed initiating application and annexures.

• [9] A hearing was scheduled to take place on Friday, 22 November 2024, which was adjourned due to the Applicant's unavailability. The hearing was rescheduled for Wednesday, 5 February 2025.

• [10] On 3 February 2025, the Applicant wrote to my Chambers advising that she was unavailable for the rescheduled hearing, and would not be available before March 2025. Due to the Applicant's lack of availability, and the fact that neither party sought to rely on any witness evidence, I wrote to the parties advising that the jurisdictional objections would be determined on the papers.

• [11] This decision determines the jurisdictional issues of whether the Applicant was dismissed and whether the application was lodged outside the statutory timeframe.

Submissions in relation to whether there was a 'dismissal'

• [12] In its Form F8A, the Respondent submitted that the Applicant had not been dismissed from her position, rather, the Applicant chose not to continue working with the Respondent. The Respondent submitted that the Applicant had been offered a casual position during her probation period, which she chose not to accept.

• [13] The Applicant annexed to her application a copy of correspondence from the Respondent dated 19 April 2024 which provided:

In accordance with our initial contract and business financial constraints, I am writing to inform you that this email serves as one week's notice of termination of your Part-time employment.

Additionally, we have finalised our contract with Wise Employment and are pleased to inform you that starting from the 29th, we would like to offer you a casual position. Kindly let me know if you would like to accept this offer.

We will process your annual leave as required for this week's wages.

If you have any additional questions, please don't hesitate to reach out to me via email.

• [14] Despite the earlier submissions of the Respondent in its Form F8A, in its formal jurisdictional submission, the Respondent submitted that:

"Kelly commenced employment with our company, with a contract that specified a probationary period of six months from the date of commencement. Due to financial constraints, we provided Kelly with one week's notice of termination, as per the terms outlined in her employment contract, dated 29.01.2024, and in compliance with the Fair Work Act 2009.

This decision was not based on performance or conduct, but on business needs. Kelly's employment was terminated due to financial constraints, a valid reason that falls within the scope of Section 387(a).

The termination was in accordance with Clause 2.2 of her employment contract, which clearly outlines the process during the probationary period."

Submissions in relation to whether the Commission should grant an 'extension of time'

• [15] The Respondent submitted that the Applicant's last pay run was up to 19 April 2024, and that the Applicant did not work the week ending 28 April 2024. Therefore, the Respondent contended that the Applicant's employment ended on 19 April 2024, and as a result the Applicant filed her application outside the 21-day statutory timeframe when she filed it with the Commission on 17 May 2024.

• [16] However, in correspondence of 19 April 2024 in which the Respondent advised that it was dismissing the Applicant from her role, the Respondent provided one week's notice of termination:

In accordance with our initial contract and business financial constraints, I am writing to inform you that this email serves as one week's notice of termination of your Parti-time employment.

Additionally, we have finalised our contract with Wise Employment and are pleased to inform you that starting from the 29th, we would like to offer you a casual position. Kindly let me know if you would like to accept this offer.

We will process your annual leave as requested for this week's wages.

If you have any additional questions, please don't hesitate to reach out to me via email.

• [17] The Applicant's 'dismissal date' was further confirmed in email correspondence from the Respondent dated 3 May 2024, which provided:

Thank you for returning the uniform and you were questioning why you hadn't been paid in regards to your sign on bonuses during our conversation prior to you commencing your permanent part time role on 29 January 2024.

Vimal and I agreed to pay you $150,000.00 (tax free) for use of your ear tattoos both left and right along with the right to use your name and story for life. Whilst I took photos of your left and right ear, we retain the right to use them in the future and intend to do so.

As you are aware we recently changed the name to Australian Ears and Hear Care and new ear logo, we still intend to use your unique ear tattoos in future advertising by media and print. We are still updating our printed material and email accounts and website.

Vimal and I agreed to provide to you the latest Oticon hearing aids with the view of same model but the latest model that is currently available. This cost around $12,000 and you accepted this without providing you with free maintenance and batteries and you pay the on going cost as a private client not under the Hearing Services Program should you have issues with your hearing aid/s.

Vimal and I agreed to pay you in cash $50 per client you book using the booking sheet. So far you have brought 35 new clients but feel you could do better.

Vimal and I agreed that we pay you $25 a week for petrol to visit appropriate businesses and medical centres to bring in more clientele.

The reason why you haven't been paid is because we terminated your contract 26 April 2024 because you kept asking when your sign on bonuses we going to be paid and going to Wise Employment because you felt we were violating your rights and emailing your payslips that you say we don't have consent yet we are a business and you don't understand. We don't need your consent. You have to understand this is a business and your sign on bonuses have become null and void because you're not a employed by the business anymore.

I have to make it clear that you are not employed by the business therefore no sign on bonuses will be paid to you but instead we have paid out your last bit of annual leave owing to you.

I hope you can understand that your sign on bonus are not going to be paid as we changed our mind and due to financial constraints but retain the right to use pictures of your ear tattoos.

We hope you understand and that we are disappointed that you're not accepting our offer of casual position at the permanent rate we paid you at $23.97. You stated that is not correct as casual employees get higher rate. We do not want to argue with you but we reserve the right to pay you what is appropriate.

If you have any questions, please do not hesitate to contact me and wish you the best for the future.

• [18] This is not an unfair dismissal application. Whether or not the Applicant was dismissed within her probation period and provided with appropriate notice are irrelevant considerations for the purpose of this decision. I have taken this into account.

• [19] The relevant issues for the Commission are whether the Applicant was dismissed and whether the Applicant filed her application within the 21-day timeframe in accordance with the FW Act. Relevantly, the Respondent sent an email to the Applicant on 3 May 2024 which stated: "we terminated your contract 26 April 2024" (see paragraph [17] of this decision). I have taken this into account.

• [20] The Applicant filed her general protections application on 17 May 2024. This was 21 days after her termination on 26 April 2024. I have taken this into account.

• [21] It is obvious from the email correspondence from the Respondent on 3 May 2024 that the Applicant was terminated by the Respondent on 26 April 2024. As a result, I am satisfied and find that:-

a) The Applicant was terminated by the Respondent in accordance with s.386(1)(a); and

b) The Applicant filed her application within the 21-day timeframe in accordance with s.366(1)(a).

• [22] For these reasons, the jurisdictional objections raised by the Respondent are dismissed.

• [23] A Conference will be convened in accordance with s.368 of the FW Act in the near future.

[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; Ahmad v MPA Engineering Pty Ltd [2020] FWCFB 5365.

Printed by authority of the Commonwealth Government Printer