Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy; date on which dismissal took effect in dispute; application lodged before date dismissal took effect; whether to waive irregularity; irregularity waived; application referred to unfair dismissal case management team for further programming.

[1] Mr Ryan Licastro (Applicant) has applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. That application was lodged on 15 December 2017. The Applicant commenced employment with Patrick Robinson & Co (Respondent) on 20 March 2017[1] and was employed as a personal injury lawyer. The date on which the dismissal took effect is in dispute.

[2] The Respondent's reason for its decision to dismiss the Applicant from his employment was that of unsatisfactory performance. On 28 December 2017, the Respondent gave notice that it objected to the application on four jurisdictional grounds including that the Applicant's employment does not meet the minimum employment period, that the Applicant earned more than the high income threshold, that the dismissal was consistent with the Small Business Fair Dismissal Code and an 'other' reason which was unspecified. On 6 March 2018, the Respondent wrote to my chambers advising that it wishes to withdraw two (2) of the jurisdictional objections, those being, the high income threshold objection and that related to the Small Business Fair Dismissal Code. Given the Respondent's concession that it was not a small business, the jurisdictional objection relating to the minimum employment period also fell away as the Applicant's period of employment exceeded 6 months.

[3] The final outstanding jurisdictional objection was described without elaboration in the Form F3. However, on 21 February 2018, the Respondent sent correspondence to the Unfair Dismissal Case Management Team (UDCMT) contending that the Applicant had lodged the application prematurely, because he was still employed at that time, and thus the application was not valid.

[4] On 7 March 2018, the Respondent wrote to my chambers advising that it wanted to withdraw the 'other' jurisdictional objection. However, given the dispute as to the date on which the dismissal took effect I was not satisfied that the matter should be remitted back to the UDCMT for reallocation and my associate advised the parties that the matter would proceed as scheduled.

[5] The events leading up to the Applicant's dismissal do not seem to be in serious contest. The parties agree that on 22 November 2017, the Respondent advised the Applicant that he would be providing the Applicant with a written warning in relation to certain conduct and on 28 November 2017, the Respondent issued a written warning to the Applicant.

[6] The parties agree that on 12 December 2017, Mr Patrick Robinson (Principal of the Respondent) entered the Applicant's office and engaged in a discussion with the Applicant about his employment. However, the precise content of that discussion insofar as it relates to the date of dismissal, is in dispute.

[7] According to the Applicant, the effective date of dismissal is 12 December 2017.[2] He says that his understanding of the conversation that took place between himself and Mr Robinson on 12 December 2017, was that Mr Robinson was unsatisfied with his work performance and that "he said that I'd no longer be working for that firm, and that he'd be terminating my employment, and I left that night and didn't come back to the office".[3]

[8] The Applicant's evidence during the proceeding was that to the best of his recollection Mr Robinson gave him the option of leaving that night following the conversation and that was the choice that he made. The Applicant's evidence about the exchange between he and Mr Robinson is set out in the following extract of the transcript from the proceeding:

"Again I want you to tell me as best as you can recall the precise words that Mr Robinson used when dismissing you on the 12th?---What words?

Yes, as best as you can recall?---To the best of my recollection he said he's decided that he'd be terminating my employment and that he gave me the option of leaving that night and I took that option. It was pretty clinical and straightforward - - -

When you say he gave you the option the word "option" suggests there are at least two alternatives. So what was the other alternative?---To the best of my recollection, because it was a bit of a blur getting terminated on the spot, he said that I could either go that night or come in the next day - look, it's - it's a bit blurry, but my mind's really fixated on you can leave that night. The details of the conversation I can't really recall.

What did you understand from the option put that you could leave that night?---Well, it was pretty - pretty straightforward, you can leave that night, your employment's terminated, so I left. I took up my belongings and left."[4]

[9] The Applicant also relies on the separation certificate that he received from the Respondent's accountant to make good the point that his effective date of dismissal was 12 December 2017. The Applicant's evidence is that either on the night of the alleged dismissal or the following day, he contacted the Respondent's accountant and requested a separation certificate which he received attached to an email.[5] The separation certificate sets out that employment ceased on 12 December 2017.

[10] Mr Robinson's recollection of the conversation on 12 December 2017 is different to the Applicant's recollection. Mr Robinson's evidence is that after discussing the Applicant's work performance he said to the Applicant that he is terminating his employment and that he is giving the Applicant seven days' notice and that he could either attend the office and work out the seven day period or stay home.[6] Mr Robinson's evidence is that he realised that the Applicant would not be returning to work the following day when he did not show up to the office.[7]

[11] In relation to the separation certificate, Mr Robinson's evidence was that the Respondent's accountant requested Mr Robinson to fill in the section on the form concerning the reason for termination which he did and signed it.[8] He says that at the time he signed the separation certificate he did not look at the form properly and consequently, did not realise that the date of termination specified on the form stated 12 December 2017.[9]

[12] It is apparent from the evidence of both parties that there is a dispute concerning the effective date of dismissal and possibly whether there was a termination of employment at the employer's initiative.

[13] At the conclusion of the hearing, I advised the parties that based on the evidence there were three possible scenarios or conclusions that could be drawn from the disputed facts. I summarised those scenarios as follows. First, that Mr Robinson gave the Applicant the option to leave on 12 December 2017 or to work out the notice period.[10] The Applicant opted to leave on 12 December 2017 premised on the understanding that the former option meant that the employment ended on that day.[11] Secondly, that Mr Robinson gave the Applicant two options. One option was to work out the notice period and the other option was to not attend for work but still remain employed and the Respondent would pay the Applicant his notice period entitlements.[12] Mistakenly believing that the not attend for work option meant immediate termination on 12 December 2017, the Applicant opted for this option. Thirdly, that Mr Robinson gave the Applicant the option of continuing to work during the notice period or not attending for work during the notice period and the Applicant chose to leave immediately, notwithstanding that Mr Robinson wanted the employment relationship to continue[13] during the period of the notice.

[14] The Applicant and Respondent were afforded an opportunity to make written submissions which can be shortly summarised.

[15] In his final submissions, the Applicant contends that his understanding of the conversation that took place on 12 December 2017 was that his employment had been terminated and that he could leave that night.[14] As outlined earlier, the Applicant's evidence is that to the best of his recollection, Mr Robinson gave him the option of leaving that night (as in 12 December 2017) and he took that option.[15] When the Applicant was asked what he meant by "option" his response was that Mr Robinson said to him that he could "go that night or come in the next day" but that he can't really recall "the details of the conversation".[16] The Applicant says that his understanding of the option that was being put was that he could leave that night and that his employment was terminated, so he collected his belongings and left.[17] The Applicant contends that he cannot recall Mr Robinson advising him that his employment would finish on 19 December 2017.[18]

[16] The Applicant makes good his contention that the employment relationship ended on 12 December 2017 by reference to the separation certificate that he received from the Respondent's accountant. The Applicant's evidence is that the night of or the day after his alleged dismissal, he contacted the Respondent's accountant and requested that he be sent a separation certificate.[19] At some point after that request was made, the Applicant received a scanned copy of the certificate by email. [20]

[17] The separation certificate states that the employment ceased on 12 December 2017. The separation certificate is signed by Mr Robinson and dated 15 December 2017. It is the Applicant's submission that the separation certificate demonstrates that the Respondent intended for the employment relationship to end on 12 December 2017.

[18] The Applicant also relies on a number of payments made by the Respondent into his bank account following the alleged dismissal to support his contention that the effective date of dismissal is 12 December 2017. On 14 December 2017, 3 payments were made into the Applicant's bank account with the description titled "Salary PATRICK ROBINSON PR WAGES." He contends that taking into account the normal inter-bank processing times, these payments must have been made on either 12 December 2017 or 13 December 2017 and demonstrates that the Respondent had terminated his employment on 12 December 2017.

[19] Mr Robinson contends that during the discussion with the Applicant on 12 December 2017, he gave the Applicant the option of continuing to work until 19 December 2017 or to stay at home. Mr Robinson's evidence is that he said to the Applicant "I'm terminating your employment and I'm giving you seven days' notice. You finish next week, but you can come in and work the files and put them in order for your successor, or alternatively it's up to you, you can stay home."[21] Mr Robinson says that he learned the Applicant would not be returning to work the following day because he did not show up and that he has not had any discussions with him since that day.[22]

[20] The Respondent submits that the Applicant's evidence cannot be relied on because the Applicant appears to have changed his position with respect to the conversation that took place on 12 December 2017. The Respondent first points to an exchange in the transcript, where the Applicant said that Mr Robinson told him that he could either go that night or come in the next day.[23] The Respondent then points to the Applicant's final submissions where he contends that he does not recall the Respondent giving him the option of finishing the following week.[24] The Respondent submits that the Applicant's evidence given under oath was a "true and spontaneous response" to the question that had been posed to him and that after having the benefit of reviewing the transcript, the Applicant changed his story to better align with the conclusion he wishes the Commission to make. [25]

[21] Mr Robinson submits that it was never his intention to summarily terminate the Applicant's employment.[26] He says that based on the evidence that is before the Commission, the Applicant has determined independently to treat the discussion that took place on 12 December 2017 as a summary dismissal despite having been given the option to work out his notice period.[27]

[22] In respect of the separation certificate, the Respondent submits that the Applicant's request for the separation certificate was a deliberate act on the Applicant's behalf to corroborate his version of events.[28] Mr Robinson's evidence is that a few days after the discussion on 12 December 2017, the Respondent's accountant brought the separation certificate to him and asked him to fill in the section relating to the reason for termination and to sign it which he did.[29] He says that he did not look at the form properly and missed the section of the form where it states the date that the employment ceased.[30]

[23] The Respondent says that the Applicant ended his employment on his own accord by leaving on 12 December 2017 and not returning the following day. In the alternative, the Respondent says that the Applicant was employed by the Respondent until 19 December 2017 and consequently the Applicant's application must fail because it was submitted prematurely.[31]

[24] It seems to me clear that the Applicant appears to have misunderstood the options posited by Mr Robinson on 12 December 2017. He regarded the second option as involving the immediate termination of his employment. It did not. In this regard, I prefer Mr Robinson's evidence about the conversation. The Applicant's evidence of the conversation was vague on detail. On his own account his recollections was "a bit blurry" and his mind was "fixated on you can leave that night".[32]

[25] I do not regard the Applicant's decision to elect to take the option on which his mind fixated as evidence that he left employment on 12 December 2017 of his own accord. He wrongly believed that the second option involved immediate termination of employment. Nor did Mr Robinson give evidence that he believed that the Applicant left on 12 December 2017 of his own accord. It seems to me, on a proper analysis of the evidence, on 12 December 2017 Mr Robinson told the Applicant that his employment would be terminated on 19 December 2017, that he could work out his notice period by updating files for his successor or he could stay at home during the notice period. I accept Mr Robinson's evidence about the erroneous date that employment ended contained in the separation certificate. It was prepared by the Respondent's accountant after a conversation with the Applicant, and more likely than not the date in the separation certificate is a reflection of what the Applicant told the Respondent's accountant about the conversation between he and Mr Robinson on 12 December 2017. In this respect, the evidence supports a conclusion consistent with the second option earlier discussed. The Applicant's employment with the Respondent therefore ended on 19 December 2017. It is not in contest that the Applicant was paid wages until 19 December 2017. The Applicant's unfair dismissal remedy application lodged on 15 December 2017 was therefore prematurely lodged.

[26] The question therefore arises whether the irregularity in the application should be waived. There is little doubt that the Commission has discretionary power under s.586(b) to waive any irregularity in the formal manner in which an application has been made and that the premature filing of an application in respect of an unfair dismissal remedy is an irregularity in the manner in which such an application is made and thus capable of a waiver under s.586(b).[33]

[27] It seems to me that this is clearly a case where I should exercise my discretion to waive the irregularity. It is uncontroversial that the Respondent intended to bring about the termination of the Applicant's employment. I have accepted that the Respondent gave notice that the Applicant's employment would end on 19 December 2017. I have also concluded that the Applicant misunderstood the second option posited by Mr Robinson during the conversation in which Mr Robinson gave the Applicant notice of termination. Mr Robinson's second option involved the Applicant not attending for work during the week of the notice period. The employment relationship would nevertheless continue during this period. The Applicant believed that the second option involved the immediate termination of his employment. He acted on that belief by lodging his application on 15 December 2017. The Applicant's absence from work during the notice period did not terminate the employment relationship as the absence was contemplated by the second option posited by Mr Robinson on 12 December 2017. The Applicant should not be prejudiced by acting promptly on a mistaken belief that his employment had ended earlier than it did. The termination of employment will have come as a shock, that is to say, will have been unsettling to the Applicant. In those circumstances given the two options posited it is unsurprising that the Applicant misunderstood the second option is ending his employment immediately. There is no real prejudice that would be suffered by the Respondent if I were to waive any irregularity and none was asserted by the Respondent.

[28]

In the circumstances I propose pursuant to s.586(b) of the Act to waive the irregularity, that is the premature lodgement of the application for an unfair dismissal remedy. Accordingly, the application is validly made. The application will be referred to the UDCMT for further preparation for the hearing of the merits of the application and allocation.

Applicant's Final Submissions dated 12 March 2018 and Reply Submissions 17 March 2018.

Respondent's Final Submissions dated 16 March 2018.

[1] Form F2 - Unfair Dismissal Application dated 15 December 2017 at question 1.1

[2] Transcript dated 8 March 2018 at PN6

[14] Applicant's Final Submissions dated 12 March 2018 at [2]

[18] Applicant's Final Submissions dated 12 March 2018 at [3]

[23] Ibid at PN45 and Respondent's Final Submissions dated 16 March 2018 at [3]

[31] Respondent's Final Submissions dated 16 March 2018 at [12] - [14]

[33] See Mihajlovic v Macarthur [2014] FWCFB1070 at [42]

Printed by authority of the Commonwealth Government Printer