DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Loren Hahn
v
Aloe Vera Industries
(U2018/9635)

Application for an unfair dismissal remedy – Jurisdictional objection that the application was filed out of time - Dispute regarding date of dismissal – Dismissal did not have effect until 3 September 2018 – Application within time.

[1] This matter concerned an application made in accordance with section 394 of the Fair Work Act 2009 (the Act) by Ms Loren Hahn who alleges her employment with Aloe Vera Industries (the Respondent) was terminated unfairly. Ms Hahn stated in her application that she commenced employment with the Respondent in February 2015 and was employed until her dismissal on 3 September 2018. If I was to accept Ms Hahn’s claimed date of termination as being 3 September 2018, Ms Hahn’s unfair dismissal application was lodged within the 21 day period prescribed by the Act as it was filed on 18 September 2018.

[2] On 3 October 2018 the Commission received a “Form F3 – Employer Response to Unfair Dismissal Application” raising a jurisdictional objection to the application on the basis it had been lodged out of time.

[3] The Respondent stated that Ms Hahn was notified of her dismissal on 8 May 2018 and her employment was terminated on 11 May 2018, meaning the application was lodged 109 days out of time. The Respondent submitted that although there was no dismissal letter provided, on the 30th of May 2018 Ms Hahn was provided with a letter confirming her dismissal at her request in order for her to able to claim legal aid.

[4] If an unfair dismissal application is received out of time, the application cannot proceed unless an extension of time is granted by the Fair Work Commission (the Commission).

[5] The Act provides that a person who has been dismissed and applies to the Commission for it to deal with an unfair dismissal application pursuant to s.394 of the Act, must make the application within 21 days after the dismissal took effect. However, the Commission may allow a further period for the application to be made if the delay in lodgement was due to exceptional circumstances.

[6] Section 394 of the Act provides:

“Section 394 Application for unfair dismissal remedy

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

Background

[7] The Form F2 filed by Ms Hahn included that she had made a complaint in April 2018 to Ms Kelli Thorley, a manager employed by the Respondent, that another employee of the Respondent had sexually harassed her. Ms Hahn went on to say that two weeks after making the complaint she was told there was no more work for her until the end of August 2018. In the Form F2 Ms Hahn said that not having heard from the Respondent she emailed Ms Thorley on 27 August advising that if she did not hear back from her by 3 September than she would take that as her date of dismissal.

[8] Attached to the Respondent’s Form F3, was a statement by Mr John Maguire, the General Manager of the Respondent. In the statement Mr Maguire set out details concerning the complaint Ms Hahn had made against another employee, and steps he took to deal with the complaint. The statement was to the effect that Mr Maguire believed he had addressed the matter and consulted with Ms Hahn and understood the matter had been resolved.

[9] The statement said the matter was not raised again until the Respondent received a WorkCover certificate on 21 May 2018 concerning Ms Hahn. Mr Maguire’s statement included that Ms Hahn was a casual employee and that she was advised that “we had no more work for her and 5 other casual employees at the time.” Mr Maguire’s statement included that one of the Respondent’s largest customers had without notice substantially reduced their orders in the month of May and also orders for the foreseeable future.

[10] Mr Maguire’s statement also included that although there was no dismissal letter provided, on 30 May 2018, the Respondent provided Ms Hahn with a letter confirming her dismissal. The letter reads as follows:

“30 May 2018

To Whom it May Concern,

Loren Hahn has been employed by Aloe Vera Industries Pty Ltd as a casual worker for an extended period. During this period, we have been able to offer semi regular employment hours as our orders have been buoyant.

Recently one of our major customers has suffered a down turn in sales, which has reduced the work available to us. Although we cannot predicate with any certainty, we believe that this order reduction will last for possibly a few months, however may pick up again going into Christmas.

Therefore, due to this down turn in sales we are unable to offer work to Loren and have no clear indication of when this may change.

Yours sincerely,

Kelly Thorley

Production Manager.”

[11] The Form F3 completed by Ms Thorley said that Ms Hahn was advised of her dismissal on 8 May 2018 to take effect on 11 May 2018 and was paid out on 16 May 2018.

[12] On 23 October Deputy President Dean of the Fair Work Commission sent correspondence to Ms Hahn directing Ms Hahn to confirm the date she said her dismissal took effect, and to explain why she said this date was the date of dismissal, and a copy of any evidence or documents that confirm the date of dismissal.

[13] On 31 October Ms Hahn responded by email correspondence attaching the 30 May 2018 letter from the Respondent which she said was written so she could apply for legal aid when the Respondent stopped giving her work. Ms Hahn also provided the email she sent to the Respondent on 27 August 2018 asking for a formal dismissal date, and claiming the Respondent did not respond.

[14] Ms Hahn also said in the email that she had spoken to ‘Fair Work’ which she clarified during her oral evidence to be a reference to the Fair Work Ombudsman (FWO) who she claimed advised her that because she had worked for the Respondent for three years and they had not formally dismissed her, that she had to get a proper date (of dismissal) in order to pursue an unfair dismissal claim. Ms Hahn claimed the FWO advised her to send an email to the Respondent advising she would give it a week from the dated email to get back to her with either hours so she could start back or to formally dismiss her.

[15] Ms Hahn went on to state in the email of 31 October to the Commission that the reason she is giving the date (of 3 September 2018) as her dismissal date was because she was told by Carolyn Gray in mid-May that there was no work available until the end of August or beginning of September. Ms Hahn said she waited and did not get a phone call. Ms Hahn said she then heard the Respondent had employed new people to perform her job. Ms Hahn claimed in the email that she believed the reason the Respondent stopped giving her regular hours was because of the sexual harassment claim she had made.

[16] Ms Hahn also disputed Mr Maguire’s version of the handling of Ms Hahn’s complaint. On 6 November email correspondence was sent to the Respondent and copied to Ms Hahn from Deputy President Dean’s chambers requesting that the Respondent indicate whether in light of Ms Hahn’s response the Respondent still maintained that the dismissal took effect on 11 May 2018. On 8 November the Respondent confirmed its position remained the same and the matter was then allocated to me for hearing.

[17] On 29 November 2018 the parties were invited to make any further submissions in relation to the extension of time issue and the matter was listed for hearing on 17 December 2018 to determine whether the matter was lodged out of time, and if so, whether an extension of time should be granted.

[18] On 6 December 2018 Ms Hahn provided a further submission in the form of an email with the earlier attached letter of 30 May and email to Kelli Thorley of 27 August 2018. The email simply restated the matters previously addressed in Ms Hahn’s 31 October email. The Respondent also filed submissions by way of an email on 11 December 2018 with attachments.

[19] The Respondent’s further material provided by Mr Maguire included that Ms Hahn was employed as a casual by the Respondent in 2015 and some analysis of the number of weekly hours Ms Hahn worked. It was evident from this material that while Ms Hahn’s hours did fluctuate somewhat, she worked on a regular and systematic basis and during her employment had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.

[20] The Respondent’s material claimed that on 8 May 2018 Ms Hahn was advised by Ms Thorley along with five other casual employees that due to a reduction in orders there was no longer enough work to keep them employed for the foreseeable future. Mr Maguire said at that time the Respondent employed 56 employees and currently employees 42 as there has been no increase in orders.

[21] Mr Maguire said that in the week of 16 May 2018 Ms Carolyn Gray was instructed by the Production Manager to contact all previously dismissed casuals and advise that there was no likelihood of future work. This was said to be necessary due to a number of the terminated employees contacting the Production Manager, to see if there was any likelihood of future employment, before taking other employment. Mr Maguire again referred to the letter of 30 May being sent at the request of Ms Hahn confirming that she was no longer employed with the Respondent as she wished to access legal aid.

[22] At the hearing on 17 December Ms Hahn represented herself. Mr John Maguire and Ms Kelli Thorley represented Aloe Vera Industries.

[23] Ms Hahn adopted her email of 6 December as her statement 1. Ms Hahn gave oral evidence that on Wednesday, Ms Thorley did not tell her that there was no longer enough work to keep her employed, and instead Ms Thorley said that on the Thursday and Friday (of that week) there was no packaging work and there would be work next week, and nothing to the effect was said that she was dismissed or not working for the Respondent any more.

[24] Ms Hahn claimed that there were four casuals involved. Ms Hahn claimed Ms Thorley told her that Ms Carolyn Gray would call her on the following Tuesday.

[25] Ms Hahn said on the following Tuesday she received a phone call from Ms Gray to advise that there was no work at the moment but that her or Kelli (Ms Thorley) would call her at the end of August or early September to tell her when to come back. Ms Hahn said at the time she received the phone call she was at the residence of a fellow employee Rebecca, and that her work colleague received a separate phone call providing the same advice.

[26] Ms Hahn appeared to accept that phone call was in the same week the Respondent claimed Ms Gray was instructed to contact casuals about there being no likelihood of future employment.

[27] Ms Hahn also gave evidence that she understood the Respondent had employed other employees in the period she had not been offered shifts. In her oral evidence Ms Hahn gave some further evidence about the nature of her contact with the FWO.

[28] In regard to the letter of 30 May Ms Hahn said she spoke to Ms Thorley by phone and claimed the conversation was to the effect that she told Ms Thorley she understood there was no work being offered at that time, and that the Respondent would contact her again when shifts were available. Ms Hahn said she was involved in a separate unrelated legal matter at that time and given she was not receiving pay during this time she requested the letter to assist her in seeking legal aid.

[29] Ms Hahn said when she spoke to the FWO she was advised that without a dismissal date she was unable to make an application for unfair dismissal.

[30] During his oral evidence Mr Maguire accepted he was not present when Ms Thorley spoke to the casual employees including Ms Hahn. Ms Hahn said she did not understand anything from the letter of 30 May to mean she had been dismissed.

[31] Mr Maguire adopted the statement attached to the Form F3 and also the further email of 11 December 2018. 2

[32] Mr Maguire said because there was a reduction in material and demand for work the employer had no alternative then to advise the casuals work was not available for them.

[33] Mr Maguire indicated he understood the last payslip provided to Ms Hahn did not give any indication that her employment was terminated and was simply a standard pay slip. Mr Maguire said he understood the reason why Ms Gray was instructed to contact casuals in the week of 16 May was because at the time Ms Thorley was getting phone calls from casuals asking about the possibility of work and when it would be available again.

[34] The Respondent did not call Ms Gray to give evidence about the matter. I asked Mr Maguire whether she would be available to give evidence. Mr Maguire followed up my request and subsequently advised that said Ms Gray was out to lunch at the time of the hearing.

[35] Mr Maguire said that Ms Gray was not given a script to read from when she called the casual employees and he was not a party to the conversation. Mr Maguire said the phone call from Ms Gray was made out of concern for employees in order to indicate the Respondent was not sure when work could be offered. Mr Maguire indicated that the purpose of Ms Gray making the phone calls was to stop the phone calls from casuals, it was not for the purpose of dismissing employees.

[36] Mr Maguire said his only knowledge about the letter of 30 May was that Ms Hahn had contacted the office asking for the letter to assist her to get legal aid.

[37] Ms Thorley gave evidence that there was not enough work available for the casuals at the time. Ms Thorley said that the conversation she had with Ms Hahn on 8 May was that there was no work available. When I asked for more particulars of the conversation she said she could not remember. Ms Thorley said Ms Hahn worked for several days after 8 May but there was no more work available after that.

[38] It was clear Ms Hahn satisfied the minimum employment period in order to bring an unfair dismissal claim. It must be remembered Ms Hahn had been employed as a casual employee on a regular and systematic basis for in the order of three years.

[39] Having considered the evidence I am not satisfied the Respondent has made out its jurisdictional objection. The evidence concerning the nature of the conversation Ms Thorley had with Ms Hahn on or around 8 May did not amount to a termination of employment. I prefer Ms Hahn’s evidence concerning what was said on the day as it was more precise, and when I pressed Ms Thorley, to her credit she did not seek to expand on her earlier evidence and simply admitted she could not remember more detail.

[40] Turning to the conversation between Ms Hahn and Ms Gray, I accept Ms Hahn’s version of the conversation given it is the only version before me as Ms Gray did not give evidence. Ms Hahn’s version was to the effect that she was told there was not work available but she would be contacted in late August or early September to tell them when to come back. That conversation does not amount to a termination of employment either.

[41] That then leaves the letter of 30 May 2018. Without repeating the evidence as set out above, I accept Ms Hahn’s evidence concerning her reason for requesting the letter. It was apparent she was of the view at the relevant time that she would not be receiving shifts for a period of time from her employer and that was the basis she requested the letter, not that she believed that she was no longer employed. The letter itself which is directed “To Whom it May Concern”, includes that due to a down turn in sales the Respondent is unable to offer work to Ms Hahn and did not have a clear indication when this may change. The letter does not state that Ms Hahn was no longer an employee of the Respondent. The letter did indicate work may pick up again going into Christmas. My reading of the letter is that it is confirmation that at the time Ms Hahn was not receiving income from the Respondent, and the Respondent could not say when she would resume earning income.

[42] It is accepted that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 3 On the facts of this case, Ms Hahn, a long term regular and systematic casual employee of some three years was given advice in May that no work was available at that time however she would be contacted when work was again available which was anticipated to be in late August or early September. That does not amount to a termination of employment. When Ms Hahn was not contacted she sought advice from the FWO and subsequently on 27 August sent correspondence to the Respondent advising it that as she had not heard back from it she would give them a week to offer her work or she intended to regard the end of that period, being 3 September as her dismissal date. The Respondent did not reply.

[43] In the circumstances, I accept that the effect of the Respondent not responding to the 27 August email by 3 September had the effect that the employment was terminated. That may give rise to a separate question concerning at whose initiative the employment was terminated, however that is a separate question to whether the application was filed within time.

[44] For the reasons set out above, I am satisfied that the application was not filed out of time and on that basis it is unnecessary to extend time and the application is not outside jurisdiction for that reason.

[45] Having made that finding, I would add as a further observation that were I to have found that Ms Hahn was terminated in May 2018 I would have been inclined to extend time given the various considerations in s.394(3). That is because I would have been satisfied the circumstances would have been exceptional including because the reason for the delay would have been that Ms Hahn did not understand that she had been dismissed, and would have had good reason for holding that belief, and would have been unaware she was dismissed until the Commission issued a decision to that effect.

[46] It was also apparent Ms Hahn took active steps to contest the termination as soon as she believed her employment was terminated and the other considerations under s.394(3) would not have told against extending time.

[47] The matter will be listed for a further directions hearing at 3:00pm on 18 February 2019.

COMMISSIONER

Appearances:

Ms L. Hahn appearing on her own behalf

Mr J. Maguire and Ms K. Thorley for the Respondent

Hearing details:

2018,

Brisbane:

December 17

Printed by authority of the Commonwealth Government Printer

<PR704629>

 1   Exhibit 1.

 2   Exhibits 2 and 3.

 3   Burns v Aboriginal Legal Service of Western Australia (Inc) (AIRCFB 21 November 2000 at [24].