//
[50]
[2023] FWC 1707
General information, not legal advice.
Fair Work Commission
2023-07-13
Commissioner P
Original judgment source is linked above.
s.365 - General protections
Application to deal with contraventions involving dismissal
[1] This decision concerns an application by Ms Samantha Rumbel (Rumbel/Applicant) for the Fair Work Commission (Commission) to deal with a dismissal dispute pursuant to s.365 of the Fair Work Act 2009 (FW Act) (Application).
[2] In the Application, Ms Rumbel stated her employment with Modern Motors Dungog Pty Ltd (Respondent) commenced in 2011 and that her dismissal took effect from 5 May 2023. The Application was made on 15 May 2023.
[3] In its Form F8A Response, the Respondent stated that the Applicant's dismissal took effect from 6 April 2023. The Respondent objected to the Application on the ground that it was not made within 21 days after the dismissal took effect.
[4] Section 366 (1) of the FW Act states that an application for the Commission to deal with a dismissal dispute must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s.366(2). If the Respondent's contention is correct, the period of 21 days ended at midnight on 27 April 2023.
[5] The matter was allocated to my Chambers to determine whether an extension of time is required, and if so, whether an extension should be granted under s.366(2).
[6] In accordance with directions issued by the Commission, both parties were directed to file materials in relation to the date of dismissal, whether an extension of time is required, and if so, whether an extension of time should be granted.
[7] The matter was heard on 11 July 2023. I exercised my discretion to grant permission to both parties to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was represented by Mr H Potter. The Respondent was represented by Mr T Bland.
[8] Witness statements were tendered from the following persons, who each gave evidence at the hearing:
[9] For the reasons that follow, the Application was filed within 21 days and an extension of time is not required.
[10] At approximately 11:00am on 6 April 2023, the Applicant attended a meeting with Mr Rumbel, Mr Mark Peper - the Respondent's accountant, and Ms Debbie Innes, an employee of Mr Peper, during which a number of allegations of misconduct were put to the Applicant.
[12] While there was some dispute about whether the Applicant offered to resign during the meeting, it is not in dispute that the Respondent did not accept any purported offer to resign and that the meeting concluded on the basis that the Applicant was stood down pending further investigation.
This letter is to inform you that you have been directed not to attend work pending an investigation into the allegations. You are required to remain away from work until further notice. You are not permitted to access any software or systems including, but not limited to, emails, bookkeeping software and other records.
You are required to cooperate with those conducting the investigation, including attendance at any meetings, and to provide any information that may assist with the investigation.
You must keep the investigation, and any information provided by you during the course of the investigation, confidential. Failure to comply with this direction may result in disciplinary action against you.
At the completion of the investigation you will be informed of the findings and be given an opportunity to respond to those findings.
If the allegations are founded, Modern Motors will take disciplinary action against you. Such disciplinary action may include the termination of your employment.
ACTION REQUIRED BY YOU - You will be given an opportunity to show cause as to why your employment should not be terminated. You are invited to provide a response in writing for our consideration.
If you fail to provide a written response by Monday 1 May 2023, Modern Motors will make a final decision regarding your ongoing employment, in your absence. This may include the termination of your employment with Modern Motors. This is an important opportunity to put forward your views.
We contend that, [the alleged misconduct] outlined to you in our meeting of 6 April 2023 and subsequent letter dated 17 April 2023, are indeed reasonable grounds to believe that your behaviour was sufficiently serious to justify immediate dismissal.
Despite reserving this right, you were given sufficient time to respond to the detailed allegations and have done so.
We do not accept the "explanations" contained in the letter from your solicitor.
As a result, your employment is terminated, and that termination is back dated to 6 April 2023.
[17] The Application was lodged on 15 May 2023.
[18] As stated above, the parties are in dispute about when the Applicant's dismissal took effect.
[20] The Applicant submitted that the Applicant's dismissal could not have taken effect prior to 5 May 2023 and that an extension of time is not required.
[21] Although the Respondent initially contended the Applicant's employment was terminated on 6 April 2023, it ultimately conceded that was not the case.
[22] However, given the nature of the allegations and that termination of employment was foreshadowed, the Respondent submitted that the dismissal could have occurred on any of the following dates: 17 April, 1 May or 5 May. Of those dates, the Respondent submitted that unless the dismissal took effect on 1 May or 5 May, it was out of time.
[23] In response to a question from the Commission, the Respondent accepted that Burns v Aboriginal Legal Service is correct in that a dismissal cannot take effect until it is communicated to the employee.
Consideration - when did the dismissal take effect?
[24] I have no hesitation in finding the date that the Applicant's dismissal took effect was 5 May 2023.
[25] It is abundantly clear on the Respondent's correspondence that no decision to dismiss the Applicant had been made prior to 5 May 2023 and that the Applicant received notification of her dismissal by email on 5 May 2023. Furthermore, under cross examination Mr Rumbel agreed that the Respondent had not informed the Applicant of her dismissal prior to 5 May 2023.
[27] In Ayub v NSW Trains the Full Bench stated:
[36] 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.[9]
[29] The Respondent's position seems to be based on an (erroneous) belief that it can back-date a dismissal to the date at which it considered it had grounds to dismiss the Applicant. That position is contrary to the authorities and is simply unacceptable.
[30] The date the Applicant's dismissal took effect was 5 May 2023. The Applicant was filed ten days later on 15 May 2023.
[31] The Application was made within the 21 day period. An extension of time is not required.
[1] Exhibit R1 at [4]-[9], Annexure A.
[2] Exhibit A1 at [7], Annexure A; Exhibit R1 at [10], Annexure B.
[3] Exhibit A1 at [8], Annexure B; Exhibit R1 at [12], Annexure C.
[4] Exhibit A1 at [10], Annexure C; Exhibit R1 at [13].
[5] Exhibit A1 at [11]-[12], Annexure D; Exhibit R1 at [14].
[6] Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000).
[8] Burns v Aboriginal Legal Service at [24].
[10] Leigh Foyster v Bunnings Group Limited [2017] FWCFB 3923 at [17].
Printed by authority of the Commonwealth Government Printer
Samantha Rumbel
Modern Motors Dungog Pty Limited [2023] FWC 1707