[2016] FWCFB 5500

The attached document replaces the document previously issued with the above code on 30 September 2016.

Typographical error have been fixed at paragraph 6, 56 and 57

Helen Hamberger

Associate to Vice President Hatcher

17 October 2016

[2016] FWCFB 5500


Fair Work Act 2009

s.604 - Appeal of decisions

Mohammed Ayub
NSW Trains



Appeal against an order [PR582486] and decision [2016] FWC 4623 of Senior Deputy President Drake at Sydney issued on 6 July 2016 and 11 July 2016 respectively in matter number U2016/4407.


[1] Mr Mohammed Ayub has lodged an appeal, for which permission to appeal is required, against the “Finding and Order” of Senior Deputy President Drake issued on 6 July 2016 1 (Order) and the reasons for decision issued on 11 July 20162 (Decision) refusing to grant him an extension of time to make an unfair dismissal remedy application under s.394(3) of the Fair Work Act 2009 (FW Act) with respect to the termination of his employment by NSW Trains. In the Order, the Senior Deputy President found that she was not satisfied there were exceptional circumstances warranting the grant of an extension of time under s.394(3) of the FW Act, refused the application for an extension of time, and dismissed the unfair dismissal application. In the Decision, the Senior Deputy President found that the relevant dismissal took effect on 14 January 2016, that Mr Ayub’s unfair dismissal remedy application was filed on 8 February 2016, four days after the 21-day period prescribed by s.394(2)(a), and reiterated that she was not satisfied that there were exceptional circumstances warranting the grant of an extension of time under s.394(3).

[2] Section 394 sets out the procedural requirements applying to the lodgement of an unfair dismissal remedy application as follows:

[3] Where an employer objects to an unfair dismissal remedy application proceeding on the basis that the application was not made within the 21-day timeframe specified in s.394(2)(a) and that no further period should be allowed for the application to be made under s.394(3), the initial question which the Commission must first determine is whether the application was in fact made “within 21 days after the dismissal took effect”. If it is determined that the application was not made within that period, the Commission must then consider whether there exist exceptional circumstances such as to permit the allowance of a further period to make the application taking into account the six specified matters in paragraphs (a)-(f) of s.394(3).

[4] In most cases where an extension of time issue arises, the answer to the initial question is not in dispute because the date the dismissal took effect is clear and/or because the precise date of effect would make no difference to whether the application was lodged within the 21-day period. However in some cases, such as Mr Ayub’s, the initial question is in contest.

Factual background

[5] The relevant facts may be summarised as follows. Mr Ayub was employed by a predecessor entity of NSW Trains in May 1982. In a letter dated 11 September 2015, NSW Trains advised Mr Ayub of certain conduct he had allegedly engaged in, asked him to respond within 14 days, and warned Mr Ayub that his response would be considered in relation to whether disciplinary action, including termination of employment, would be taken. In a further letter dated 13 October 2015, NSW Trains advised Mr Ayub that, there having been no response received from him to the earlier letter of 11 September 2015, a preliminary decision had been made to dismiss him. He was given 14 days to make a submission in relation to this disciplinary outcome.

[6] Mr Ayub’s union, the Rail, Tram and Bus Union (RTBU), sent a submission on his behalf to NSW Trains on 17 November 2015. NSW Trains then sent Mr Ayub a letter dated 23 November 2015 which advised him that the “final view of the appropriate disciplinary outcome” was “dismissal”, but that he had a right to seek a review of this decision under the “Interim Discipline Penalty Review Process Guidelines” by filling out the appropriate form within 14 days. The letter further advised that if no request for a review was made within the 14-day time period, the dismissal would take effect on 7 December 2015, but if a review was requested and the outcome of the review was that the decision to dismiss was confirmed, the dismissal would be “effective from 7 December 2015 or from the date of the outcome letter whichever one is of the latter date”.

[7] On 7 December 2015 the RTBU, on behalf of Mr Ayub, made a request for a review, which was undertaken by the “Transport for NSW Disciplinary Panel” (Panel). On 13 January 2016 the Panel determined to affirm the disciplinary outcome of dismissal. Various steps were then taken to attempt to inform Mr Ayub of the outcome:

[8] Mr Ayub’s unfair dismissal remedy application was lodged on 8 February 2016. It nominated Ms Bellette of the RTBU as his representative, and the application appears to have been prepared by the RTBU. However Mr Ayub was represented by his own lawyers (Mr Livers of Slattery Thompson Solicitors) at the hearing before the Senior Deputy President and in the appeal before us.

The Decision

[9] In the Decision, the Senior Deputy President determined the initial question we have earlier identified as follows:

[10] The Senior Deputy President therefore proceeded on the basis that Mr Ayub lodged his application four days beyond the 21-day period specified in s.394(2)(a) and required an extension of time under s.394(3) to that extent. The Senior Deputy President’s reasoning and conclusion on that score was as follows:

Appeal submissions

[11] Mr Ayub submitted that the Decision was in error because his application was not in fact lodged outside the 21-day period. A dismissal takes effect only when it is communicated to the employee, which occurred on 19 January 2016 when Mr Ayub opened and read the email attaching the Outcome Letter and the Dismissal Letter. Any communication with the RTBU did not constitute notification of the dismissal, and the Outcome Letter was never delivered directly to Mr Ayub (except insofar as it was sent together with the Dismissal Letter as an attachment to the 18 January 2016 email).

[12] NSW Trains submitted that its letter of 23 November 2016 constituted notice of the dismissal. Its effect was to give notice to Mr Ayub that if he applied for a review of the decision to dismiss him and the review was unsuccessful, the date of effect of his dismissal would be the 7 December 2015 or the date of the letter notifying him of the outcome of the review. The Outcome Letter was dated 14 January 2016, so in accordance with the letter of 23 November 2015 his dismissal became effective from that date. Mr Ayub’s and his representative, the RTBU, knew of the review outcome and received the Outcome Letter within a reasonable period after it was dated and the dismissal took effect. The 21-day period prescribed by s.394(2)(a) expired on 4 February 2016, and there were no exceptional circumstances justifying an extension of time. In particular, Mr Ayub had advanced no explanation for the delay in lodging his application.


Permission to appeal

[13] Mr Ayub’s appeal was initially listed for hearing before us on 10 August 2016 only in relation to the issue of whether permission to appeal should be granted. After hearing the parties’ oral submissions, we issued an ex tempore decision granting permission to appeal. We considered that the grant of permission to appeal would be in the public interest (as required by s.400(1)) because the appeal raised an issue of significance and general application, namely the proper meaning and application of the expression “within 21 days after the dismissal took effect” in s.394(2)(a) of the FW Act. In particular, the appeal raised the question of whether in any circumstances a dismissal could be said to have taken effect before it was communicated to the relevant employee.

[14] Having granted permission to appeal, we considered that the appeal could be determined on the basis of further written submissions from the parties without the need for a formal hearing, and the parties consented to this course. Accordingly, in accordance with s.607(1), it was not necessary for us to hold a further hearing in relation to Mr Ayub’s appeal.

The appeal

[15] Part 3-2, Unfair Dismissal, is concerned with the termination of employment of employees where it meets the definition of “dismissed” in s.386. The primary part of the definition is set out in s.386(1) as follows:

[16] Section 386(1) is subject to certain exceptions set out in s.386(2) as qualified by s.386(3). This case does not concern a resignation, so the focus of attention is necessarily upon when a termination of employment at the employer’s initiative can be said to have taken effect for the purpose of s.394(2)(a).

[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. 3 Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee.4 The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd5 as follows:

[18] A notice of termination may validly operate notwithstanding that it is stated to take effect subject to a condition, provided that the notice is expressed with sufficient certainty so that conditional date of termination is ascertainable, the condition upon which the termination becomes operative has been fulfilled and the employee is in a position to know that the condition has been satisfied. 6

[19] When the termination occurs without notice on the basis that a sum of money is paid in lieu of the notice that would otherwise be required, then the termination would take effect when communicated to the employee subject perhaps to the additional requirement that the amount in lieu of notice has actually been paid to the employee. 7

[20] A termination of employment may also occur by way of a summary dismissal. In contractual terms, a summary dismissal is to be characterised as the exercise of an election by the employer to terminate the employment contract in response to a repudiation of the employment contract by the employee constituted by a breach of an essential term, a serious breach of a non-essential term, or conduct on the part of the employee manifesting an intention not to be bound by the contract in the future. An election to terminate a contract on this basis puts an end to the contract at the time the termination is communicated to the other party. 8

[21] In Stevanovski v Linfox Transport 9 the Australian Industrial Relations Commission (Lacy SDP) rejected the proposition that at common law an employment contract could be terminated with effect from a date prior to that upon which the termination was communicated to the employee:

[22] It is conceivable that a contract of employment might expressly provide for its termination by the employer immediately without the termination first being communicated to the employee. However, other than in that circumstance, it is difficult to contemplate that an employment contract could ever terminate retrospectively even by agreement between the employer and the employee. 10

[23] Notice of termination of employment may be given to an agent of an employee who has actual or ostensible authority to receive that notice. 11

[24] We now turn to the proper construction of s.394(2)(a) itself. It may immediately be observed that the provision which operates by reference is concerned with the date of effect of the dismissal. Section 386(1), which we have earlier set out, makes it clear that a dismissal for the purpose of Pt.3-2 of the FW Act is constituted by the termination of the employment relationship. As was observed by the High Court in Visscher v Giudice 12 the termination of an employment relationship and the termination of an employment contract are different concepts, and a wrongful dismissal from employment may not be effective in discharging the contract if the employee elects not to accept the employer’s repudiatory breach. This will rarely be of legal significance, since the employee will not after dismissal be entitled to remuneration if he or she keeps the contract on foot, and will not other than in exceptional circumstances be able to obtain specific performance of the contract.13 This led it to be said in Byrne v Australian Airlines Ltd14 that “[t]he possible continuation of the contract of employment after a wrongful dismissal will, therefore, ordinarily be of no real significance as it will for all practical purposes be at an end”. There is no reason to conclude therefore that the relevant legal principles applicable to the termination of the employment contract which we have earlier summarised would not equally be applicable to the termination of the employment relationship.

[25] The unfair dismissal regime in Pt.3-2 of the FW Act applies to “national system employees” and “national system employers”: s.380. Those expressions are defined in ss.13 and 14 respectively. National system employees are employees of national system employers, being employers which bear certain characteristics such as to make them amenable to particular heads of the legislative power of the Commonwealth in s.51 of the Constitution. Beyond this, the FW Act does not seek to establish a statutory definition of what constitutes an employee; national system employees for the purposes of Pt.3-2 are otherwise parties to an employment relationship at law. Presumptively therefore the common law principles concerning when a termination of employment by the employer takes effect are applicable to s.394(2)(a) in the absence of any express statutory provision deeming when a dismissal takes effect.

[26] Decisions under the FW Act and its statutory predecessor, the Workplace Relations Act 1996 (WR Act), have approached the question of when a termination of employment takes effect in a manner consistent with the common law principles earlier identified. Under the WR Act, the issue was the subject of the most significant analysis in the AIRC Full Bench decision in Commonwealth of Australia (Australian Taxation Office) v Wilson. 15 In that matter an application had been made under s.170CE(1) for relief in respect of a termination of employment. The employer contended that the application was beyond the jurisdiction of the AIRC because of the exclusion applicable to probationary employees effected by s.170CC(1)(a) and reg.30B(1)(c) of the Workplace Relations Regulations. The employee’s probation period ended on 21 May 2000. The employer sent her a letter by registered post on 19 May 2000 informing her that her employment was terminated effective that day, but the letter was not received by the employee until 22 or 23 May 2000. The question was whether the employee was serving a period of probation at the time of the termination of employment. The Full Bench said:

[27] The Full Bench went on to consider a separate submission that the employee’s employment terminated earlier than when communicated because of the operation of s.29 of the Public Service Act 1999 (Cth). The Full Bench said:

[28] We understand that conclusion to be that, whatever might be the date of effect of the termination of employment for the purposes of the Public Service Act 1999, the date of termination for the purposes of s.170CE(1) could not be earlier than the date that the notice of the termination was received by the employee.

[29] It may be noted that the Full Bench decision in Burns v Aboriginal Legal Service of Western Australia (Inc) 16 that was referred to in ATO v Wilson concerned the operation of the 21-day time limit in s.170CE(7), which ran from “the day on which the termination took effect”. The facts of that matter, and the Full Bench’s conclusion concerning the date of effect of the termination of employment, were briefly stated as follows:

[30] The operation of the 21-day time limit in s.643(14) of the WR Act, as amended by the Workplace Relations Amendment (Work Choices) Act 2005, was further considered by a Full Bench of the AIRC in Makenja v Baptist Community Services. 17 In that matter, the employee had taken authorised annual leave and had travelled to Tanzania where she fell ill and was unable to return to Australia as planned. Her employer formed the conclusion, after she failed to return to work after her period of annual leave ended and it was unable to contact her, that she had abandoned her employment. It eventually sent her a letter dated 13 July 2006 notifying her that her employment had ceased as at that day. The employee did not return to Australia until 22 August 2006 whereupon she became aware of the dismissal letter. She filed her application for relief from termination of employment on 12 September 2006, 21 days later. The Full Bench determined the matter on the basis that it was appropriate to extend time to file the application. However the Full Bench also stated:

[31] The circumstances in which it might be the case that a termination of employment took effect before it was communicated to the employee were not identified in Makenja.

[32] The general approach taken under the WR Act whereby a dismissal takes effect when it is communicated to the employee, but subject to possible but unidentified exceptions, has been followed in decisions under the FW Act. The most notable of these was the Full Bench decision in WorkPac Pty Ltd v Bambach. 18 In that matter, the employer appealed a conclusion that a particular ex-employee was a person protected from unfair dismissal. One of the grounds of appeal was a contention (not advanced at first instance) that the ex-employee’s application had not been filed within the prescribed 21-day period and no consideration had been given as to whether there were exceptional circumstances justifying an extension of time. This contention was based on the factual circumstance described in the decision as follows:

[33] The Full Bench rejected this ground of appeal for reasons which included the following (footnotes omitted):

[34] A footnote to the second sentence in paragraph [19] in the passage quoted above referred to ATO v Wilson and Makenja v Baptist Community Services to which reference has earlier been made, and to Transport Workers' Union of Australia v National Dairies Limited 19 (which was quoted in the passage from ATO v Wilson set out above).

[35] 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.

[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.

[37] The object of Pt 3-2 is stated in s.381 as follows:

[38] The restricted timeframe provided for by s.394(2)(a) is certainly consistent with that part of the object which refers to the procedures for dealing with unfair dismissal being “quick”. It may also be the case that the emphasis on reinstatement as a remedy in s.381(1)(c) is supported by a requirement to initiate proceedings in a short period after dismissal. However it would not be consistent with a system that addresses the needs of employees as well as employers and is intended to ensure that a “fair go all round” is accorded to employees as well as employers that the practical opportunity to lodge an application is diminished or eliminated by treating any dismissal as having retrospective effect.

[39] At least in relation to dismissals on notice, support for the conclusion that s.394(2)(a) is to be read as requiring the communication of a dismissal to the employee for it to take effect is derived from s.117(1), which is part of the National Employment Standards provisions concerning termination of employment and redundancy. It provides (underlining added):

[40] Section 117(1) prohibits a termination of employment to which it applies taking effect before the day on which notice of the termination is given. Section 123 has the effect of excluding from the operation of s.117(1), among other things, employees dismissed for serious misconduct and casual employees. These exceptions are ones in relation to which the common law does not require a period of notice of termination to be provided. However s.117(1) establishes that a termination of employment cannot occur by way of a retrospective notice.

[41] We therefore do not consider that there is any proper exception to the general proposition established by the authorities under the WR Act and the FW Act that a dismissal cannot take effect for the purposes of those statutes before it is communicated to the employee. There is little support for the existence of any such exception which may be derived from the common law. While it is not inconceivable, as earlier stated, that a contract of employment might expressly provide that it may be terminated by the employer on notice to the employee effective from a time prior to receipt of the notice by the employee, we do not consider for the reasons we have stated that any such contract could be treated as determining the date of effect of a dismissal for the purposes of s.394(2)(a). Termination of employment in accordance with such a provision would be in contravention of s.117(1). Statutory industrial instruments such as modern awards and enterprise agreements could also conceivably allow a date of dismissal which is effectively retrospective (although we are not aware of any which actually do so), but again this could not be treated as determinative of the operation of s.394(2)(a) in a particular case such as to deprive a dismissed employee of the full time period allowed by the provision. In relation to statutory provisions governing public sector employment, we have already noted what was said by the Full Bench in ATO v Wilson about the Public Service Act 1999. We do not consider that such legislation could establish an effectively retrospective date of effect of a dismissal for the purpose of s.394(2)(a) of the FW Act unless that was made clear by express words or by necessary implication. There is no such provision in the Public Service Act as it currently stands.

[42] We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document. That is, we do not consider that s.394(2)(a) requires the strict application of a “postal delivery rule” where the employee has a legitimate explanation for not being able to read the document immediately upon delivery. 20 The circumstances in which this may be the case are undoubtedly manifold, but for example if an employee is on an approved period of annual leave and is holidaying away from home when a dismissal letter is delivered, there is no reason to conclude that the date of dismissal is the date of delivery and not when the employee returns home and first has a reasonable opportunity to read the letter.

[43] In support of this approach, we find persuasive the critical aspects of the analysis of the Supreme Court of the United Kingdom in Gisda Cyf v Barratt. 21 That matter concerned the proper interpretation and application of s.97(1) of the Employment Rights Act 1996 (UK), which among other things establishes a right not to be unfairly dismissed (s.94) and establishes a system under which dismissed employees may complain that a dismissal was unfair and seek an order for reinstatement, re-engagement and/or compensation. Section 111(2)(a) provided that a complaint of unfair dismissal had to be lodged within three months “beginning with the effective date of termination” (with there being a limited capacity to obtain an extension of time under s.111(2)(b)). Section 97(1) relevantly identified the definition of the “effective date of termination” as follows:

[44] The facts of the case were as follows. Ms Barratt, the relevant employee, was suspended by her employer for alleged misconduct on 19 October 2006. The employer conducted a disciplinary hearing on 28 November 2006, and at its conclusion she was informed that she could expect to receive a letter informing her of the outcome on 30 November 2006. On the morning of 30 November 2006 Ms Barratt visited her sister, who had just given birth. On that day a letter arrived at her home, which was from her employer advising that she was summarily dismissed for gross misconduct. It was received by her partner’s son but left unopened because she had left no instructions for it to be opened and read. Ms Barratt did not return home until late on the evening of 3 December 2006. The following morning she inquired whether any mail had arrived, and the letter was produced, whereupon Ms Barratt learned that she was dismissed. She initially pursued her internal review rights, with the result that her complaint of unfair dismissal was not lodged until 2 March 2007. Whether it was within time or not depended on whether her dismissal took effect on 28 November 2006 (when the letter arrived) or on 3 December 2006 (when she opened the letter).

[45] In its unanimous judgment the Court began by saying:

[46] In response to the employer’s argument that s.97(1)(b) was to be interpreted consistent with contractual principles, so that the dismissal took effect when the dismissal letter was delivered to the employee and she had an opportunity to read it, the Court said:

[47] Of course the above decision is not an Australian one, and important aspects of its reasoning must be approached with at least two significant reservations in mind. First, the unfair dismissal regime in the FW Act is not, unlike the UK statute, founded on an employee right not to be unfairly dismissed, but rather is “intended to ensure that a "fair go all round" is accorded to both the employer and employee concerned” (s.381(2)). Accordingly the weight given in Gisda Cyf to the protection of the employee’s right in interpreting the statute cannot apply to the FW Act. Second, the segregation between the general law concerning employment contracts and the statutory regime emphasised in Gisda Cyf is perhaps less marked in the FW Act. Most of the key provisions of the FW Act have a long antecedent history in Australian industrial law, and many of its concepts have over the course of that history been drawn from the general law of employment. We have already referred to the fact that Pt.3-2 operates with respect to persons who at common law are party to employment relationships recognised as such at law. It is therefore less safe to assume that the parliamentary intention in respect of particular provisions in the FW Act is divorced from common law principles.

[48] Nonetheless the critical point made in Gisda Cyf that the shortness of the period allowed to lodge a claim must inform the way in which the time-limiting provision is interpreted is valid in the context of the FW Act. Indeed the proposition is a fortiori given that time period allowed by the FW Act is much shorter and the circumstances in which an extension of time may be obtained are more constrained. 22 An interpretation of s.394(2)(a) which would have the practical effect of reducing further what is already a very limited opportunity to lodge an unfair dismissal claim would be rejected if another is reasonably available. Our conclusion is that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.

[49] In relation to a dismissal with notice, drawing on the common law principles earlier identified, the dismissal would take effect upon the date of the expiration of the specified period of notice. It is necessary however for that date to be clearly identifiable. This would equally apply to a conditional notice of termination. In the case of a dismissal with a payment in lieu of notice, the dismissal would need to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed. There may also be an additional requirement that the payment in lieu of notice has actually been received by the employee.

[50] 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.

[51] In Mr Ayub’s case, if the dismissal took effect on 18 January 2016 or later, his application was lodged within the 21-day time period prescribed by s.394(2)(a). The calculation of the 21-day period is calculated exclusive of the day upon which the dismissal took effect 23, so that if the date of dismissal was 18 January 2016, then 8 February 2016 (when Mr Ayub’s application was lodged) was the 21st day. Accordingly it would need to be concluded that the date of effect of Mr Ayub’s dismissal was before 18 January 2016 in order for him to require an extension of time under s.394(3).

[52] Although NSW Trains’ email of 18 January 2016 (which attached the Outcome Letter and the Dismissal Letter), which was sent to Mr Ayub via his wife’s email address, purported to identify that his employment ended on 14 January 2016, it could not legally have retrospective effect in that way. There is no suggestion that Mr Ayub’s contract of employment or the enterprise agreement which applied to his employment authorised a retrospective dismissal; at common law, a termination of the employment contract for breach cannot operate retrospectively; and for the reasons earlier stated we do not consider that, on the proper construction of s.394(2), a dismissal could take effect retrospectively such as to deny or diminish an employee’s right to make an unfair dismissal remedy application within 21 days.

[53] NSW Trains’ email to Mr Ayub of 18 January 2016 can only have effected the dismissal on that day, when the email was sent and apparently received by Mr Ayub at his email contact address, or on 19 January 2016 when he actually read it. Because there was no evidence demonstrating that Mr Ayub did not have a reasonable opportunity to read the email on the 18th, we incline to the view that that was the date upon which his dismissal was effective. However we do not need to form a final conclusion about this because it makes no difference to whether his application was made within the 21-day period or not.

[54] NSW Trains’ email to Ms Bellette on 18 January 2016 does not take the matter any further, since even if it was treated as a communication to Mr Ayub on the basis that the RTBU was acting as his agent, it could not for the reasons earlier discussed operate to give the dismissal a date of effect earlier than the date of the communication and thus make an extension of time necessary. In any event, we do not consider there was any evidence that could sustain the proposition that the RTBU was authorised to act as Mr Ayub’s agent generally in relation to his dealings with his employer or specifically in relation to the receipt of any notice of termination of employment. The fact that the RTBU’s request to the Panel for a review of the decision to dismiss Mr Ayub was printed on its letterhead and footer and carried its email address and phone and fax numbers was not an indication that the RTBU was holding itself out as having authority to operate as Mr Ayub’s address for service in relation to the communication of his dismissal.

[55] In relation to the alleged phone call from Ms Wong to Ms Bellette on 14 January 2016 concerning the outcome of the Panel’s review, no finding was made about this by the Senior Deputy President. It is not possible for us to make any finding about this contested factual issue given that neither witness was cross-examined about the matters in their respective witness statements. However, even taking Ms Wong’s witness statement at its highest, we do not consider that it could constitute a communication to Mr Ayub of his dismissal effective as at 14 January 2016. As earlier stated, we do not consider that the evidence demonstrated that the RTBU was acting as Mr Ayub’s agent so that a communication to Ms Bellette as an RTBU officer was to be treated as a communication to Mr Ayub. Further, Ms Wong did not assert that she informed Ms Bellette of anything other than the outcome of the Review conducted by the Panel. Although dismissal was an inevitable consequence of the review outcome, Ms Wong did not, according to her witness statement, state in terms that Mr Ayub was now dismissed or identify a date of effect for the dismissal.

[56] NSW Trains placed reliance upon its letter to Mr Ayub of 23 November 2015 as constituting a notice of his dismissal effective from 14 January 2016. That letter purported to give two alternative conditional dates of dismissal. The first was 7 December 2015, conditional on Mr Ayub not requesting a review of the dismissal decision within 14 days. That date was expressed in clear terms, but the condition upon which it was founded was not fulfilled since Mr Ayub did request a review within the required time period. The second date was not identified, but was described as the later of 7 December 2015 or the date of the review outcome letter. This date was subject to the double condition that a review was requested within 14 days and was unsuccessful. Although that condition was fulfilled, we do not consider that this aspect of the 23 November 2015 letter satisfied the other criteria for a valid conditional notice of termination which we have earlier identified. It was not expressed with sufficient certainty, in that in respect of any date after 7 December 2015 it depended entirely on a third person’s decision as to when to write the letter informing Mr Ayub of the review outcome and as to what date the author of the letter chose to place on the letter. That was not a date which was capable of being identified in advance by Mr Ayub, and could not therefore constitute the proper provision of notice to him. Further, Mr Ayub was not in a position to know whether the second aspect of the condition, namely his lack of success in the review, had been satisfied at the time that the dismissal was purportedly to take effect. Although the condition was satisfied as at 13 January 2016 (when the Panel affirmed the dismissal outcome), and the Outcome Letter was dated 14 January 2016, Mr Ayub was not in a position to know that his review had been unsuccessful until 18 January 2016 at the earliest, four days after the purported date of dismissal. The evidence did not demonstrate that Mr Ayub had any basis to think that his application for a review would necessarily fail, and that his dismissal would ensue, prior to this time.

[57] We therefore reject the proposition that the 23 November 2015 letter constituted a valid notice of termination of employment on 14 January 2016.

[58] The Decision does not identify any other basis for the conclusion that Mr Ayub’s dismissal took effect on 14 January 2016. We consider that the finding that the dismissal took effect on 14 January 2016 was in error, and that the dismissal took effect not earlier than 18 January 2016. Mr Ayub’s unfair dismissal application was lodged within the 21-day period prescribed by s.394(2)(a), and no extension of time under s.394(3) was required. The appeal must therefore be upheld.


[59] Permission to appeal was granted on 10 August 2016. We make the following further orders:

scription: Seal of the Fair Work Commission with the member's signature.



P. Livers solicitor for M. Ayub.

A. Woods solicitor for NSW Trains.

Hearing details:



10 August.

Final written submissions:

26 August 2016 and 6 September 2016 – NSW Trains.

1 September 2016 – M. Ayub.

 1   PR582486

 2   [2016] FWC 4623

 3   GJ McCarry, Termination of Employment Contracts by Notice, (1986) 60 ALJR 78 at 79

 4   Birrell v Australian National Airlines Commission (1984) 5 FCR 447 at 457

 5   (2010) 201 IR 64

 6   Ibid at [91]; Thickbroom v Newcastle Wallsend Coal Company Pty Ltd [1998] FCA 867, 83 IR 193 at 197-198

 7   Siagian v Sanel Pty Limited (1994) 54 IR 185 at 203

 8   Cheshire and Fifoot’s Law of Contract, 9th Australian edition, [21.38]; Chateau Constructions (Aust) Ltd v Zepinic & Anor [No 5] [2010] NSWSC 265 at [54]; Larrat v Bankers and Traders Insurance Co Ltd (1941) 41 SR (NSW) 215 at 226

 9   [2001] AIRC 388, PR903594 (23 April 2001)

 10   See GJ McCarry, Termination of Employment Contracts by Notice, (1986) 60 ALJR 78 at 83-4; Transport Workers' Union of Australia v National Dairies Limited (1994) 57 IR 183 at 184-5; New South Wales v Paige (2002) 60 NSWLR 371, 115 IR 283

 11   See M Irving, The Contract of Employment at 11.11

 12   [2009] HCA 34, 239 CLR 361 at [53] per Heydon, Crennan, Kiefel and Bell JJ

 13   Ibid at [54]

 14   [1995] HCA 24, 185 CLR 410 at 24

 15   [2001] AIRC 163, PR901127 (26 February 2001)

 16   T3496

 17   [2007] AIRCFB 38 

 18   [2012] FWAFB 3206

 19   (1994) 57 IR 183

 20   Section 117(1) does not establish any such rule. It establishes a prohibition upon a notice of termination of employment being given with retrospective effect.

 21   [2010] UKSC 41, [2010] 4 All ER 851

 22   Section 11(2)(b) of the UK Act provides that a complaint may be filed “within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months”.

 23   See s.36(1) of the Acts Interpretation Act 1901 (as applied by s.40A of the FW Act); Pearce and Geddes, Statutory Interpretation in Australia, 7th ed., [6.47]

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