| [2020] FWC 4357 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Emily Murphy
v
Dawert Group Pty Ltd
(U2020/10506)
DEPUTY PRESIDENT MILLHOUSE |
MELBOURNE, 27 AUGUST 2020 |
Application for an unfair dismissal remedy – effective date of dismissal – date applicant became aware of the dismissal – application within time.
[1] Ms Emily Murphy made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (Act) on 3 August 2020.
[2] The matter proceeded to an extension of time hearing on the basis that the respondent sought to terminate Ms Murphy’s employment by email, effective 17 June 2020. On this basis, it is contended that Ms Murphy’s application was made 26 days out of time.
[3] For the reasons that follow, I find that Ms Murphy’s application was made within the 21-day timeframe prescribed by s.394(2)(a) of the Act. The objection to Ms Murphy’s application proceeding on account of it being out of time is therefore dismissed.
[4] Ms Murphy commenced employment with the respondent in early 2017 as a casual waitress.
[5] On account of COVID-19, the respondent’s restaurant was closed from approximately 23 March 2020. Prior to the restaurant reopening on 1 June 2020, the respondent requested Ms Murphy’s availability to work. Ms Murphy advised that she had an interview for a role as a casual nurse, which would affect her availability. An email to this effect was sent by Ms Murphy on 18 May 2020 to Mr David Wertiechowski, the director/owner of the respondent. 1
[6] On 26 May 2020, Ms Murphy sent a text message to the respondent advising that she had been offered employment as a casual nurse. Ms Murphy advised that her availability to work for the respondent became limited to Fridays only, as she also held employment with Tasman Meats. 2 However, Ms Murphy gave an indication that she may be available to work night shifts during the week for the respondent.3
[7] On 29 May 2020, Ms Murphy received a text message advising that in light the COVID-19 restrictions, the respondent anticipated a downturn in trade and therefore fewer staff would be required. 4
[8] Ms Murphy was not rostered to work for the respondent in the weeks commencing 1 and 8 June 2020.
[9] On 9 June 2020, Mr Wertiechowski telephoned Ms Murphy regarding her availability. During the call, Ms Murphy agreed to work four shifts per week for the respondent in order to preserve her JobKeeper payments.
[10] Ms Murphy was not rostered to work in the week commencing 15 June 2020. The respondent’s business manager, Ms Francesca Ameli, said that she had not been apprised of Ms Murphy’s revised availability prior to finalising the roster. 5
[11] On 17 June 2020, the respondent sent Ms Murphy a termination letter. It is not in dispute that the termination letter was sent to an incorrect email address and did not reach Ms Murphy. 6 The termination letter advised:
“It is with regret that we need to inform you that we are unable to provide any rostered shifts for you in the near future at our peckish venue at the Kooringal Golf Club.
This is mainly due to the significant drop off in venue patronage due to the COVID 19 restrictions but also your limited available hours which are no longer in line with our open shifts.
We thank-you for your hard work & loyalty since you have worked with us and wish you only the very best.” 7
[12] On 19 June 2020, Ms Murphy sent Ms Ameli a text message restating her availability to work four shifts per week. 8 Ms Ameli telephoned Ms Murphy and is said to have advised her that there were limited shifts available and it was unlikely that Ms Murphy would be rostered. Ms Murphy understood that Ms Ameli would contact Mr Wertiechowski regarding the call.9
[13] Ms Ameli said that she subsequently contacted Mr Wertiechowski regarding her discussion with Ms Murphy and advised that she “detected some confusion in relation to her employment.” 10 Ms Ameli said that “from this point I left it in the owner’s hands…”11
[14] On 23 June 2020, Ms Murphy sent a text message to Ms Ameli regarding the preceding fortnight’s JobKeeper payment. Ms Ameli responded advising that Ms Murphy’s pay enquiry had been relayed to Mr Wertiechowski. 12
[15] In the absence of payment, Ms Murphy sent a text message to Mr Wertiechoski on 15 July 2020 querying why she had not been paid JobKeeper for the period 22 June 2020 to 4 July 2020. In response, Mr Wertiechoski advised Ms Murphy that her availability did not suit the respondent and Ms Murphy was no longer on the system. Ms Murphy said that a “blurred photo” of the termination letter was sent to her by text message by Mr Wertiechoski, and she was advised to follow up with JobSeeker. 13
[16] On 16 July 2020, Ms Murphy sent a letter to Mr Wertiechoski seeking clarification about her employment status with the respondent and disputed the basis for any termination of her employment. 14
[17] Ms Murphy says that in the absence of a response from Mr Wertiechoski, on 17 July 2020 she sought advice from JobWatch regarding her employment. On 20 July 2020, Ms Murphy is said to have had a discussion with McDonald Murholme about the matter. Ms Murphy said that “both explained to me that I was a dismissed employee (being taken off JobKeeper and told to apply for JobSeeker being one of their examples) and suggested that I pursue the matter with this Unfair Dismissal Application.” 15
[18] On 22 July 2020, a letter from the respondent’s representative was emailed to Ms Murphy. The letter provided as follows:
“Dear Ms Murphy,
COASTAL FOOD GROUP - PEKISH @ KOORINGAL
1. We refer to your letter dated 16 July 2020 to David Wertiechowski regarding JobKeeper Payments and your employment relationship. We act for Coastal Food Group trading as Pekish @ Kooringal.
2. Our client recognises that its correspondence of 17 June was sent to an incorrect email address and apologises for that error.
3. As you would be aware, the COVID-19 pandemic has directly impacted our client’s business with Pekish@Kooringal being currently closed. Due to the significant pressures placed upon our client and your inability to make yourself available for shifts, our client was left with no choice but to remove you from their roster as it is permitted to do as you are a casual, not a permanent employee.
4. Specifically, casual employees are entitled to accept or not accept shifts [as the case maybe] from time to time and are employed from shift to shift. As a casual employee, you are [equally] not automatically entitled to be regularly rostered on a weekly or fortnightly basis either. Our client has acted entirely appropriately to remove you from its rosters as you were no longer able to accept shifts based on other employment.
5. On that basis, it was required by law to confirm your new status with the ATO.
[19] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days from the effective date of dismissal, or pursuant to s.394(3) within such further period as the Commission allows. In the determination of Ms Murphy’s application, it is first necessary to ascertain the date that Ms Murphy’s dismissal took effect. This is because the uncontested evidence before the Commission is that Ms Murphy did not receive the 17 June 2020 termination letter because it was mistakenly sent to an incorrect email address.
[20] A Full Bench in Ayub v NSW Trains 16 concluded that the 21-day period for lodgement of an unfair dismissal application should not be interpreted to begin to run before an employee becomes aware of the dismissal, or has at least had a reasonable opportunity to become aware of it.17
[21] On 19 and 23 June 2020, Ms Murphy contacted Ms Ameli. The evidence before the Commission, which I accept, is that Ms Murphy was not informed by Ms Ameli on either occasion that her employment had ended on 17 June 2020. 18
[22] In the period that followed to 15 July 2020, Ms Murphy said that she refrained from making enquiries regarding her JobKeeper payment out of concern for her ongoing employment. Ms Murphy said that she had also become aware that the respondent’s business closed on or about 8 July 2020 due to COVID-19.
[23] Ms Murphy’s evidence is that she became aware of the dismissal on 15 July 2020 “when I contacted David Wertiechoski about not receiving my pay.” 19 Ms Murphy relies upon Mr Wertiechosk’s text messages of 15 July 2020 in which she was advised that she was no longer on the respondent’s system and that she should “chase it up to get JobSeeker” to inform her view.20
[24] On 16 July 2020, Ms Murphy corresponded with Mr Wertiechoski to dispute the basis for any termination of her employment. Ms Murphy’s correspondence discloses that she also queried whether the termination letter of 17 June 2020 was a stand down letter. A response was provided by the respondent’s representative on 22 July 2020. Ms Murphy was advised that she had been removed from the roster on the basis of the respondent’s view of her inability to accommodate casual shifts. The letter confirmed that the respondent had apprised the Australian Taxation Office of this fact, which had the effect of removing Ms Murphy from the JobKeeper scheme.
[25] Having regard to the above matters, I accept Ms Murphy’s evidence that she became aware of the dismissal on 15 July 2020. The 22 July 2020 correspondence from the respondent served to clarify the basis for the respondent’s decision. Accordingly, the 21-day period for Ms Murphy to lodge her unfair dismissal application runs from 15 July 2020.
[26] Ms Murphy’s application was lodged on 3 August 2020, representing 19 days from 15 July 2020. Ms Murphy’s application was therefore lodged within the 21-day timeframe for lodgement prescribed by s.394(2)(a) of the Act.
[27] Given my findings at [25] and [26], there is no requirement for the Commission to grant a further period for the making of Ms Murphy’s application.
[28] The jurisdictional objection under s.394(3) of the Act is dismissed. The application will now proceed to conference before the Commission.
DEPUTY PRESIDENT
Appearances:
E Murphy, Applicant
A Reynolds and F Ameli, on behalf of the Respondent
Hearing details:
2020
Melbourne (by telephone):
August 19.
Printed by authority of the Commonwealth Government Printer
<PR721932>
1 Form F2 – Unfair dismissal application dated 3 August 2020 (Form F2) Appendix D
2 Ibid Appendix E
3 Ibid Appendix F
4 Ibid Appendix G
5 F3 Employer response form dated 18 August 2020 (Form F3) Appendix A3 at p.2
6 Witness statement of Ms Emily Murphy dated 11 August 2020 (Murphy statement) Appendix C
7 Form F2 Appendix H
8 Ibid Appendix I
9 Form F3 Appendix A3 at p.3
10 Form F2 question 1.5
11 See also Form F3 Appendix A3 at p.3
12 Form F2 Appendix J
13 Ibid Appendix K
14 Form F3 Appendix A1
15 Form F2 question 3.2 at p.7
17 Ibid at [36]
18 See also Murphy statement at [7]
19 Ibid at [9]; see also [1]-[2]
20 Ibid at [10]