Fair Work Act 2009

s.394 - Unfair dismissal

Application for relief from unfair dismissal - termination of employment - jurisdictional objection - minimum employment period not served - application dismissed

[1] Ms Rachael Raven commenced employment with Bank Australia Limited T/A Bank Australia ("Bank Australia") on 3 October 2016 in the position of Branch Manager at the Maryborough Branch in regional Victoria. She was originally employed on an initial period of 3 months' probation, however, this was subsequently extended by a further period of 3 months ending on 3 April 2017.

[2] Bank Australia submits Ms Raven's employment was then terminated in a meeting on 29 March 2017. However, she submits her termination did not take effect until she received a letter of termination on 5 April 2017. She has now lodged an unfair dismissal application. Bank Australia objects to the application on the basis that she is not a person protected from unfair dismissal as she has not completed the 6 month minimum employment period required under s.382 of the Fair Work Act 2009 (Cth) ("the Act"). Both parties acknowledge this minimum employment period ended on 2 April 2017.

[3] This decision accordingly deals with the issue of when Ms Raven's termination took effect, and whether she is a person who has completed the required "minimum employment period". In the event the Commission finds she has not completed the minimum employment period then her application must be dismissed. If it finds she has completed the relevant period then the application will be relisted to enable her substantive application to be dealt with.

[4] Mr Peter Rochfort from Rochforts Workplace Solutions appeared on behalf of Ms Raven. Mr Nick Chadwick from Chadwick Workplace Law appeared on behalf of Bank Australia. Both were given permission to appear under section 596(2)(a) as the matter involves a degree of complexity and their involvement might enable it to be dealt with more efficiently.

[5] Section 382 of the Act provides that a person is protected from unfair dismissal at a time if, at that time:

"(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold."[1]

[6] Section 383 of the Act continues to provide that the minimum employment period is:

"(a) if the employer is not a small business employer - 6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal ..."[2]

[7] Bank Australia submits that Ms Raven met with Mr Ben Smith and Ms Samantha Kleyn on 29 March 2017 to discuss various issues concerning her work performance. Mr Smith is a Regional Manager at Bank Australia and Ms Kleyn is employed as a People & Culture Business Partner. It submits that at the conclusion of this meeting Ms Raven was told her employment was terminated, with effect immediately. Her termination entitlements were then paid into her bank account on the following day, and on 31 March 2017 a letter providing confirmation of her termination was posted to her.

[8] It continues to submit that Ms Raven then handed back her keys to the building and collected some personal belongings prior to leaving. She also communicated with other staff in a manner consistent with an understanding that she had been terminated. However, on Monday, 3 April 2017 Ms Raven again arrived at work and remained until she was advised by telephone by Mr Smith and then by Mr John Lowther, the Branch Manager at the Bendigo Branch of Bank Australia, that her employment had previously been terminated.

[9] Mr Ben Smith is a Regional Manager with Bank Australia and Ms Raven reported to him during the time she was employed. On 31 January 2017 he telephoned Ms Raven to advise that he was extending her probationary period and this was subsequently confirmed in writing. However, there continued to be a number of on-going concerns about her work performance.

[10] On 28 March 2017 he sent an email to Ms Raven indicating he wanted to meet with her on the following day to discuss a range of performance issues. He also indicated that Ms Kleyn would be present, and Ms Raven could bring a support person with her if she wanted.

[11] The meeting lasted for approximately 20 minutes and Ms Kleyn took notes summarising the discussions. At the end of the meeting Mr Smith told Ms Raven it had been decided her employment at Bank Australia was to be terminated with immediate effect. He said Ms Raven was obviously upset by this decision and a discussion then took place about what to do with some outstanding files she was dealing with. She subsequently left the premises but immediately returned and tossed her keys on the counter, saying these would not be required any longer. Mr Smith then met with the remaining staff at the branch to inform them that Ms Raven had been dismissed.

[12] Mr Smith was then informed on the following day by a staff member at the branch that Ms Raven's husband had delivered an envelope to the branch. He said he would collect it on the next day. When he opened the envelope it contained a medical certificate indicating Ms Raven was suffering a medical condition and was unfit for work until 13 April 2017. Mr Smith found this strange given her employment had already been terminated.

[13] On Monday, 3 April 2017 Mr Smith received a further phone call from a staff member at the branch, who told him Ms Raven had arrived at work. He told the staff member to ask Ms Raven to call him. She then called and said she had been on sick leave, but Mr Smith told her that was not correct and confirmed her employment had been terminated on 29 March 2017. Ms Raven told him this was not correct because she had not received anything in writing. He also told her she had handed in her keys at the end of the meeting and it was clear her employment had ended. He also asked the Bendigo Branch Manager, Mr John Lowther, to call Ms Raven to discuss the situation.

[14] Mr Smith said he had also reviewed the notes of the meeting taken by Ms Kleyn, which were attached to his witness statement, and they were a true and correct account of the discussions that took place during the meeting.

[15] Mr John Lowther is the Branch Manager of the Bendigo Branch of Bank Australia. At 5.11 p.m. on Wednesday, 29 March 2017 he received a request from Ms Raven to remove her from a social media chat group involving various Branch managers of the Bank. Her message stated, "Good luck everyone please remove me from chat."[3] He responded with a message confirming she had been removed and asking whether "all's well".[4] She responded by stating, "Shit day John sorry, no longer with bank Australia".[5] He responded again by texting, "Oh Rachael. I'm so sorry to hear your news. What a loss for us. I hope your ok? Please call me if I can do anything, referee etc. Your a good person Rachael and I hope we can stay in touch."[6]

[16] He then received a text message from Ms Raven on the morning of Friday, 31 March 2017 asking whether they could talk. He responded by indicating he would call later in the day. He subsequently called in the afternoon and Ms Raven told him she was upset and confused by not having a clear understanding about why she had been dismissed. He told her he was somewhat conflicted and suggested she contact someone from the Employee Assistance Program.

[17] He said he was then contacted on the morning of Monday, 3 April 2017 by a staff member from the Maryborough Branch indicating that Ms Raven had arrived at work. He then called Ms Raven, who confirmed she had no access to the system. He told her he would come to the branch to discuss the situation but when he arrived she had already left.

[18] Ms Samantha Kleyn is a People & Culture Business Partner with Bank Australia. She attended the meeting with Mr Smith and Ms Raven on Wednesday, 29 March 2017. It had previously been agreed with Mr Smith that she would take notes during the meeting. She confirmed that Mr Smith told Ms Raven her employment at Bank Australia was terminated with immediate effect. She subsequently prepared the termination letter that was then sent on 31 March 2017. She also attached a copy of her notes of the meeting to her witness statement and states that they are a true and correct account of what was discussed.

[19] Her notes indicate that prior to the conclusion of the meeting, Mr Smith stated, "We've listened carefully to what you've said but it's also important that I consider what the business has said and what I myself have observed. Unfortunately you haven't demonstrated during your probationary period that you are able to meet the requirements of the position. As a result we will not be continuing with your employment effective today."[7] Ms Raven then states, "What does that mean?"[8] Mr Smith replies, "Your employment with Bank Australia is terminated. Sam, can I confirm Rachael will receive four weeks payment?"[9] The notes continued to indicate that termination monies would be paid into Ms Raven's account the following day. Some further discussion then took place about files Ms Raven was working on. It was also indicated that she could seek assistance from the Employee Assistance Program. The notes also indicate that Ms Raven then stated, "I don't mean this to be a parting shot but before I go, you need to know that the bank needs to provide much more support for new people. There are no staff backups and no support for new people."[10]

[20] The notes then make reference to her keys being returned, but then note that Ms Raven tossed them on the counter, stating that she would not be needing them any longer. Ms Raven then left the branch.

[21] Bank Australia submits, in conclusion, that the evidence makes clear Ms Raven was terminated on 29 March 2017, and her subsequent actions and behaviour make clear she understood this to be the case. In this context it refers, in particular, to 5 key events. These involve her handing over the keys at the conclusion of the meeting on 29 March 2017; the text to Mr Lowther later that evening asking to be removed from the chat group; the further text to a Mr Lowther indicating she was no longer with Bank Australia; payment of the termination monies into her account on the following day; and, finally, the removal of her access to the system.

[22] Bank Australia also makes reference to the authorities relied on by Ms Raven in support of her application and acknowledges that notice of termination must be clearly communicated to an employee, and cannot be retrospective. It also acknowledges that if a termination is carried out by letter, then the termination takes effect from the date of the letter being received by the employee. It referred to the decision in Mohammed Ayub v NSW Trains [2016] FWCFB 5500 as authority for these propositions. However, it also seeks to distinguish the present circumstances from those in which a termination is carried out in writing because, in its submission, it is clear in the present matter that Ms Raven was told she had been terminated in the meeting on Wednesday, 29 March 2017. The termination letter that was then sent to her simply provided confirmation of this decision.

[23] The submissions provided on behalf of Ms Raven note she was employed subject to an initial probationary period of 3 months, which ended on 2 January 2017. She was then informed that her probationary period was being extended by a further period of 3 months. She was then asked to attend a meeting on 29 March 2017, but was not aware that this was to be anything other than a discussion to confirm her on-going permanent employment. She submits that Mr Smith did not make it clear in the meeting that she had been terminated, and she left the meeting feeling confused and uncertain. She was also not feeling well at the time and attempted to obtain an appointment with her doctor, but was not able to do so until the following day.

[24] She also submits that s.117 of the Act requires that an employer must not terminate an employee's employment until the employer has given the employee written notice of the day of termination, and she did not become aware of her termination until the termination letter was received on 5 April 2017. In her submission there is no clear evidence of her employment being terminated prior to this time.

[25] The closing submissions provided on behalf of Ms Raven also made reference to her letter of appointment, which is attached to the witness statement provided by Ms Tracey Williams. It states on page 4 alongside the heading Notice of Termination, "Your employment may be terminated by either you or the Company providing four weeks' notice in writing. If you fail to give the required notice of your intention to terminate your employment, you will forfeit remuneration in lieu of notice. In the case of serious misconduct, the Company may proceed with summary dismissal without notice."[11]

[26] Ms Raven indicated in her witness statement that she initially found it strange that her initial probationary period had been extended after the original period had expired. She then received what she described as a "terse email direction from Mr Smith"[12] asking her to attend the meeting on 29 March 2017. She was invited to bring a support person and was told that the intention was to discuss her performance. She stated that she was not feeling well on the day but decided to attend the meeting in any case. She said it was difficult to understand what Mr Smith was saying during the meeting and he mumbled to himself quite a lot. She could not recall Ms Kleyn taking notes in the meeting and she simply sat with a notebook in front of her. However, she did recall Mr Smith making reference to her employment being terminated, but understood she was being given a further period of one month to assess whether her performance had come up to the standard required.

[27] She then left the meeting with the intention of making an appointment with her doctor, but realised she still had the office keys with her. As she expected to be off work for some time she decided it would be best to leave the keys at the branch and accordingly returned and left them on the counter.

[28] She also stated that she used a "poor choice of words" in the text messages she exchanged with Mr Lowther, and was simply intending to let him know she was unwell and expected to be off work for some time. However, after 4 days recuperating she felt well enough to return to work, despite her medical certificate, and arrived at work on Monday, 3 April 2017. She then received telephone calls from Mr Smith and Mr Lowther asking what she was doing at work. She assumed they were asking because she had a medical certificate indicating she was unfit for work. She subsequently left the branch prior to Mr Lowther arriving because she again felt unwell.

[29] She also agreed that a payment from the Bank was made into her account on 30 March 2017, but there was no explanation about what this payment constituted. She subsequently received a further pay advice in April, describing a payment made on 5 April for the pay period 23 March to 5 April 2017.

[30] Her submissions indicate, in conclusion, that her period of employment with Bank Australia was characterised by poor personnel practices. She notes, firstly, that her initial period of probation was only extended after the initial period had ended. Secondly, it was not made clear in advance of the meeting on 29 March 2017 that the discussions could result in her employment being terminated. She also submits that it was not made clear in the meeting that her employment had been terminated with immediate effect. In addition, the Bank did not act properly to ensure her keys were returned. She also submits that her termination was not carried out in accordance with either the terms and conditions contained in her letter of appointment and/or the provisions contained in s.117 of the Act.

[31] It is acknowledged at the outset that there appears to have been some shortcomings and discrepancies in the practices adopted by Bank Australia in regard to Ms Raven's period of employment. The evidence indicates, for example, that she was only given notice that her initial period of probation had been extended by a further period of 3 months after the initial period had expired. Confirmation of this was, in fact, only provided to her approximately 3 weeks after the initial period had ended. In addition, while her evidence makes clear she was told the meeting on 29 March 2017 was to discuss her performance, it appears it was not made clear in advance of the meeting that the discussions could result in termination of her employment, even though it is noted she was offered the opportunity of having a support person present.

[32] However, leaving aside these considerations the determination of this matter essentially turns on whether the evidence establishes that Ms Raven was told in the meeting on 29 March 2017 that her employment had been terminated, with immediate effect, and that she understood this to be the case. I am satisfied, in response, that the evidence makes clear this was the case.

[33] Mr Smith states in his evidence that he told Ms Raven at the conclusion of the meeting that her employment had been terminated with effect immediately. This was corroborated by the evidence of Ms Kleyn who was also present. She also took detailed notes of what was discussed and the evidence of Mr Smith and Ms Kleyn again confirms that the content of those notes, which were attached to each of their witness statements, are a true and correct record of what was discussed. The evidence of Ms Raven in response is that Ms Smith left her in a confused state at the conclusion of the meeting because of his mumbling/stumbling style of expression, and while she acknowledged that termination was mentioned, she left the meeting with an understanding that her performance would be reviewed again at the end of a further period of one month.

[34] I have no reason to doubt the evidence of Mr Smith and Ms Kleyn, and it is difficult to conclude that the detailed notes of the meeting are a concocted account of what occurred. In addition, their evidence was not diminished in cross examination to any significant extent. I am accordingly satisfied that it can reasonably be concluded that Ms Raven was told in the meeting that her employment had been terminated with immediate effect.

[35] However, I am also satisfied that this conclusion is reinforced by the evidence about Ms Raven's subsequent actions and behaviour, which make clear she also understood her employment had been terminated with effect from 29 March 2017. In this context I refer, in particular, to the evidence about the following matters:

• At the conclusion of the meeting a discussion took place in regard to some on-going files that Ms Raven was responsible for and she was told not to worry about these matters.

• Ms Raven then collected some personal belongings and left the building, only to immediately return and throw her keys onto the counter, indicating to another staff member that she would not be needing these any longer. She apparently did this before Mr Smith took action to obtain the keys from her.

• She then sent a text message later that afternoon to another Branch Manager asking to be removed from a chat group involving several Branch Managers. When it was confirmed that this had been done she then sent a further text message in response stating in part ".... no longer with Bank Australia," to which she received a further response acknowledging her departure and offering any assistance, including an offer to be a referee.

• Ms Raven was then in further contact with the same Branch Manager two days later wanting to discuss or better understand why she had been terminated.

• In addition, on 30 March a sum of more than $8,000 was transferred into her bank account in a manner consistent with a payment made on termination, including an amount in lieu of notice. Ms Raven took no action to question why this payment had been made.

[36] Ms Raven endeavoured to provide an explanation for her actions. Essentially, she claims she was upset and confused about what had occurred. She also claims to have been unwell at the time and expected to be off work for a period of time. However, I am not satisfied that these provide a satisfactory explanation for what occurred, and her actions were instead consistent with a person who has been told on 29 March that their employment had been terminated with immediate effect.

[37] Her actions in attending at the Bank on the morning of Monday, 4 April, after having been absent on the previous Thursday and Friday, can perhaps also be explained in the context of a person who is endeavouring to ensure that they have completed the minimum employment period prior to their termination taking effect. However, regardless of these considerations, I am satisfied in conclusion that the evidence establishes that Ms Raven was told in the meeting on 29 March, and clearly understood at the time, that her employment had been terminated with immediate effect.

[38] As indicated, the submissions provided on behalf of Ms Raven also seek to rely upon the fact that her letter of appointment states her employment may be terminated by either party providing 4 weeks' notice in writing. However, I am satisfied, in response, that this did not preclude her employment from being terminated in other ways, including by being given oral notice of her termination, which is what occurred in the meeting on 29 March 2017, and was then confirmed in writing. In any case, even if this can be said to constitute a breach of her employment contract it is not a breach which now acts to alter the fact her employment was terminated on 29 March 2017.

[39] A similar situation applies in regards to the provisions contained in s.117 of the Act, which essentially require an employer to provide a written period of notice of termination in accordance with the scale set out in the National Employment Standards, or for payment in lieu to be provided of at least an amount equivalent to the minimum period of notice. Again, even if the present circumstances can be said to constitute a breach of that obligation then the employer would potentially be exposed to a civil penalty. The breach would not act to change the date of termination. In addition, Ms Raven's evidence did not indicate that any confusion she might have had about why she was terminated was in any way due to any breach of her employment contract, or to any failure to comply with the requirements in s.117.

[40] I am satisfied, in conclusion, that the evidence establishes that Ms Raven was told her employment had been terminated with immediate effect in the meeting on 29 March 2017, and her subsequent actions and behaviour make clear she understood at the time that this was what had occurred. It follows that her employment has been terminated prior to the completion of the minimum employment period, which ended on 2 April 2017. Therefore, Ms Raven is not a person who is protected from unfair dismissal and her unfair dismissal application must be dismissed.

[1] Fair Work Act 2009 (Cth) s 382.

[2] Fair Work Act 2009 (Cth) s 383.

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