Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

[1] On 29 June 2020, Mr Stephen Drew ("the Applicant") lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) ("the Act"). The Applicant claimed he was employed, by Reece Australia Pty Ltd ("the Respondent"), and that he commenced his employment with the Respondent on 1 November 1999. The Applicant claimed that he was notified of his dismissal on 15 June 2020, and that the dismissal took effect on 15 June 2020.

[2] The Respondent disputed the termination date recorded in the application, and asserted that the Applicant's employment was terminated by email and letter attachment on 8 May 2020. Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission ("the Commission") may allow. If the Respondent's contention regarding termination date is correct, the application would have been lodged outside of the time prescribed, and 31 days after the last day on which such an application could have been made.

[3] On 4 August 2020, directions were issued to program the manner in which the Applicant's application was to proceed ("the Directions"), requiring the filing of materials for the determination of whether the Applicant would be allowed an additional period within which to lodge his application ("the Application").

[4] The parties complied with the Directions. In Particular:

(a) On 11 August 2020, the Applicant filed an Outline of Submissions, and a Statement of the Applicant;

(b) On 18 August 2020, the Respondent filed an Outline of Submissions, a Statement of Mr Nick Maguire, the People Advisory Lead for the Respondent, and a Statement of Mr Mohammed Ali, the Branch Manager of the Rydalmere store where the Applicant was employed; and

(c) On 25 August 2020, the Applicant filed a Statement in Reply from the Applicant.

[5] On Tuesday 1 September 2020, the matter was heard by telephone. Each deponent of a statement in the matter was cross-examined, and each party supplemented their written submissions with further oral submissions.

[6] The relevant facts of the matter, as disclosed by the materials filed and the evidence adduced at the hearing of the matter, are as follows:

(a) On 18 March 2015, an email directing that all of the Applicant's payslips be directed to a certain email address ("the Gmail Email Address") was received by the Respondent.

(b) The Gmail Email Address that the Applicant provided Reece's payroll team was subsequently imported into "Workday" when that system was launched in 2017. The Respondent contended that Workday was introduced to all employees through Reece's internal communication channels, however the Applicant stated, and I accept, that while he was aware a new online system had been introduced, he had never accessed Workday, and did not know how to find or log in to the system.

(c) There was also an assertion by the Applicant that a further work email was created for the Applicant by Mr Ali, though that was denied by Mr Ali. Certainly, there was some contradiction of the Applicant's evidence regarding which emails were created and operative, and at what times. I do not consider, however, that such contradiction reflected adversely upon the Applicant's credit. Computers and email addresses are clearly foreign to his general understanding, and he did not understand how to use and operate an email account.

(d) On 22 January 2019, the Applicant sustained a shoulder injury when he slipped and fell at work. The Applicant attempted to continue working after his injury. Over time the Applicant's injury worsened and he subsequently ceased working as of June 2019. The Applicant submitted a claim for worker's compensation which was accepted.

(e) Whilst on workers compensation leave, the Applicant communicated with the Respondent's Human Resources team through his partner's email address ("the Partner's Email"). The Respondent would also send all communications to the Applicant through the Partner's Email.

(f) The Applicant was directed on both 12 March 2020 and 16 March 2020 to attend an independent medical examination (IME), to enable the Respondent to understand the Applicant's capacity to return to the workplace. The Respondent received the resulting IME report prepared by Dr Farhan Shahzad on 15 April 2020, that observed:

"In my opinion, due to the complication of the Workers' Compensation/medicolegal system and the current barriers presented by his treating providers, it is unlikely Mr Drew will ever be able to return to his pre-injury work capacity."

"In my opinion, it is unlikely in the near future that he would be able to return to work in light of his experience, expertise and qualifications, even if reasonable adjustments are provided at work"

(g) On 28 April 2020, the Respondent sent an email to the Gmail Email Address. That correspondence stated that, on the basis of the information provided by Dr Shahzad, the Respondent was considering terminating the Applicant's employment. The Applicant was invited to provide any further information for the Respondent to consider within seven days before a decision was made. The Applicant did not receive that email at the time it was sent.

(h) On 8 May 2020, the Respondent sent a further email to the Gmail Email Address advising that, as the Respondent had not received a response to the letter of 28 April 2020, the Applicant's employment was being terminated. That letter was incorrectly dated as being 28 April 2020, though the covering email was dated 8 May 2020. The Applicant did not receive that email at the time it was sent.

(i) On 15 May 2020, the Applicant was paid a separation payment of $34,420.58 into his nominated bank account.

(j) On 18 May 2020, the Applicant emailed to Ms Laura McSpadden from the Partner's Email a further certificate of fitness. Ms McSpadden was the Assistant Manager at the store in which the Applicant usually worked. Ms McSpadden responded "Thank you! Hope all is well".

(k) On 4 June 2020, the Applicant received a physical copy of his May 2020 bank statement in the post. he reviewed the bank statement and noticed a sum of $34,420.58 had been deposited by the Respondent with the description "WAGES". The Applicant was confused by the deposit as he was not expecting income of that amount from the Respondent. He assumed that the Respondent had made an error and transferred another employee's wages to him.

(l) On 5 June 2020, the Applicant telephoned Ms Amanda Moore, the Respondent's People Experience Projects Lead, twice, to inquire about the payment made into his account. The Applicant left messages requesting for Ms Moore to call him back, however Ms Moore did not return his calls.

(m) On 9 June 2020, after receiving no return telephone call from Ms Moore, the Applicant telephoned Mr Marvi Sabang, another employee of the Respondent, to inquire about the $34,420.58 deposit. Mr Sabang had organised the Applicant's IME. Mr Sabang and the Applicant had a conversation to the following effect:

Applicant: "I've had a lot of money deposited into my bank account, do you know what it's for?"

Mr Sabang: "I don't know anything about it, I'll ask and get back to you."

(n) By 15 June 2020, the Applicant had not received a response from Mr Sabang. The Applicant telephoned Mr Sabang again and had a conversation to the following effect:

Applicant: "Does anyone know what the payment is about?"

Mr Sabang: "I don't know, but I'll get someone to call you back".

(o) Following some telephone calls from the Applicant, Mr Maguire spoke with the Applicant on 15 June 2020, and informed him that two pieces of correspondence regarding his employment with Reece, being the attachments to the emails of 28 April and 8 May 2020, had been sent to the Gmail Email Address. At the Applicant's request, Mr Maguire forwarded this correspondence to the Partner's Email.

(p) On 29 June 2020, the unfair dismissal application was filed.

(q) In early 2020, Mr Ali had informed Mr Maguire that the primary method of contacting the Applicant was by telephone. Mr Ali's evidence in the hearing was as follows[1]:

"When did you explain to Mr Maguire or if there was more than one occasion, the time frame, that the primary method of contacting the applicant was by telephone?---It was earlier on this year, myself and Nick [Mr Maguire] had conversations, that there was no way for me to get in contact with Stephen, it was always just by phone call."

(a) Applicant's Submission Regarding Date of Dismissal

[7] The Applicant noted that it is well established that a dismissal cannot take effect until it is communicated to the employee who is being dismissed. If a dismissal is to be communicated only in writing, the communication must be received by the employee in order for the communication to be effective.[2]

[8] The Applicant noted that in circumstances where an employee is dismissed via email, the Full Bench in Ayub v NSW Trains held[3] (Ayub"):

"There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal."

(b) Respondent's Submission Regarding Date of Dismissal

[9] The Respondent noted that it employs close to 5,000 employees across Australia and New Zealand, and uses the "Workday" system to store and maintain personal and contact information of each employee.

[10] The Respondent submitted that it was incumbent on the Applicant to ensure that his contact details were correctly stored in Workday and that the Respondent should be able to assume such details are current. The email address listed for the Applicant in Workday was the Gmail Email Address, an email address that the Applicant provided to the Respondent of his own volition. The Respondent sent its correspondence to the Gmail Email Address and had no reason to believe that it was not being used by him.

[11] The Respondent submitted that brief email exchanges between the Applicant's Assistant Manager (Laura McSpadden) and the Applicant's partner through the Partner's Email, and the further emails to the Partner's Email regarding the instruction to attend an IME sent by Reece's Injury Management Team, do not warrant justification for the Respondent to believe that was the primary email address of the Applicant.

[12] Further, the Respondent's support staff, including Mr Maguire and its People Advisory department, were working remotely throughout Victoria as a result of the ongoing COVID-19 pandemic. It was not appropriate nor safe for the Respondent to mail the Applicant a physical copy of his termination paperwork.

[13] The Respondent submitted that it acted reasonably in communicating with the Applicant through the Gmail Email Address, and that the Commission should assume the Applicant to have received these communications when they were sent to the Gmail Email Address. The Applicant's date of termination should consequently be found to be 8 May 2020. Such finding would be consistent with the legislative position established by s 14A of the Electronic Transactions Act 1999 (Cth). It was submitted to also be consistent with the Full Bench authority that the Applicant references of Ayub, which held that "a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal."

[14] In the event that the Commission were not to find dismissal occurred on 8 May 2020, the Respondent submitted in the alternative that the Commission should conclude that the Applicant must have been aware of his dismissal by 4 June 2020 when he received his physical bank statement and noticed the $34,420.58 deposited into his bank account.

[15] To be effective, a notice of termination must be received by the recipient. As Keely J observed in Transport Workers Union v National Dairies Limited[4] in a matter involving a notice of termination posted by an employer to an employee:

"In my opinion the mere posting of a letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee."

[16] In Ayub, the Full Bench addressed circumstances involving email communications. The Full Bench held:[5]

"We see no reason to depart from the above line of authority insofar as it is consistent with the general principle at common law that a dismissal may not take effect prior to it being communicated to the employee. Neither party submitted otherwise. However two questions remain. The first is whether there are any exceptions to this principle, the existence of which are suggested but not identified in Makenja and WorkPac. The second is whether the mere receipt of a communication (whether a letter, fax or email) is sufficient to constitute the communication of the dismissal to the employee in circumstances where the employee has not read the communication immediately upon receipt.

Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of "exceptional circumstances" required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application."

[17] The Full Bench concluded, specifically dealing with emails, as follows:[6]

"In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee's usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal."

[18] I accept the Applicant's evidence that he did not become aware of his dismissal until 15 June 2020. I note that on 18 May 2020, some ten days after the alleged dismissal, the Applicant emailed to Ms Laura McSpadden from the Partner's Email a further certificate of fitness. That communication was clearly indicative of the Applicant's understanding at that time that he was still employed. That understanding could only have been confirmed by Ms McSpadden's response of "Thank you! Hope all is well".

[19] It is significant that both the Applicant and the Respondent, in their communications immediately preceding the dismissal, were communicating by way of the Partner's Email, and not the Gmail Email Address. It would not be unreasonable for the Applicant to expect further communications through the Partner's Address.

[20] I reject the Respondent's submission that at least by 4 June 2020, when the Applicant reviewed his bank statement and noticed a sum of $34,420.58 had been deposited by the Respondent with the description "WAGES", that the Applicant must have been aware he had been terminated. I accept that the Applicant did not know why the payment had been made and promptly made enquiries to ascertain why the payment was made. The following day the Applicant telephoned Ms Amanda Moore, the Respondent's People Experience Projects Lead, twice. Despite the Applicant leaving messages, Ms Moore did not respond. The Applicant then telephoned Mr Sabang on 9 and 15 June 2020, but Mr Sabang could not explain the payment. It was not until Mr Maguire told the Applicant he had been terminated that the Applicant understood that the "WAGES" payment was in fact his termination payment.

[21] I do not accept that the mere receipt of the emails of 28 April and 8 May 2020, constituted a reasonable opportunity to become aware of a dismissal. That was partially due to the fact that the Applicant and the Respondent, in their communications immediately preceding the dismissal, were communicating by way of the Partner's Email and not the Gmail Email Address. However, a further, and significant reason for my conclusion that the emails did not constitute a reasonable opportunity to become aware of the dismissal was that the primary method of the Respondent contacting the Applicant during employment was by telephone. The evidence of Mr Ali, the Branch Manager of the Rydalmere store where the Applicant was employed, was clear. Mr Maguire was informed by Mr Ali that "...there was no way for me to get in contact with Stephen, it was always just by phone call."

[22] I consider the facts in this matter constitute circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal as identified by the Full Bench in Ayub.

[23] Further, and while not directly relevant to the question of whether the emails constituted a reasonable opportunity to become aware of the dismissal, I note that in light of the conversations between Mr Ali and Mr Maguire regarding contacting the Applicant by telephone, the evidence of Mr Maguire as to why he did not attempt to telephone the Applicant was unacceptable. Mr Maguire gave the following responses in the hearing:[7]

"Do you retain employees' telephone numbers? We do, yes.

Why don't you just phone them up, if you don't hear from them? We do send many pieces of correspondence a day to individuals and if we were to correspond with each individual we send an email to, via phone call, again that would consume a large amount of time.

Phone someone up saying did you receive the email? Given the volume of correspondence that we send via email, in addition to the fact that there was no reason for us to believe that the correspondence sent via email, particularly on this instance was not received."

[24] It would have taken Mr Maguire no more than one to two minutes to telephone the Applicant to confirm whether he had received the email correspondence. It would not have consumed a large amount of time as he asserted.

[25] The dismissal of the Applicant occurred on 15 June 2020, when the email that was sent to the Gmail Email Address on 8 May 2020, was communicated to the Applicant through the Partner's Email. That is the date upon which the Applicant became aware of the email, and so is the date of his dismissal. The application was therefore not out of time.

[26] As the Applicant was dismissed on 15 June 2020, the application filed on 29 June 2020 was not out of time.

[2] Ayub v NSW Trains [2016] FWCFB 5500 (Hatcher VP, Wells DP, Johns C, 30 September 2016) at [17]; Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24].

[3] [2016] FWCFB 5500 at [50].

[4] (1994) 57 IR 183, at pp. 184 to 185.

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