| [2020] FWC 4813 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Michelle Rawson
v
Mudgee Golf Club Ltd
(U2020/2622)
COMMISSIONER CAMBRIDGE |
SYDNEY, 11 SEPTEMBER 2020 |
Unfair dismissal - jurisdictional objection - contest as to the date that dismissal took effect -notification of dismissal by email - evidence that email notification was sent but not received by applicant - application made within time - further proceedings to be arranged.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 6 March 2020. The application was made by Michelle Rawson (the applicant) and the respondent employer is the Mudgee Golf Club Ltd ABN 28 001 001 305 (the employer).
[2] The application indicated that the date that the applicant’s dismissal took effect was 26 February 2020. Consequently, prima facie, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act. However, the application included a copy of an employment separation certificate dated 26 February 2020, which stated that the date that the applicant’s employment ceased was 11 February 2020.
[3] On 6 April 2020, the Registered Clubs Association of NSW (ClubsNSW) acting on behalf of the employer, filed an employer’s response to the application (Form F3). The Form F3 relevantly indicated that the date that the applicant’s dismissal took effect was 11 February 2020. Consequently, the employer raised a jurisdictional objection on the basis that it asserted that the application had been made out of time.
[4] On 7 April 2020, the application was the subject of unsuccessful conciliation. At the conciliation and in subsequent proceedings, the applicant has been represented by Mr Stephen York. Mr York is not a lawyer or paid agent, and he has represented the applicant in an unpaid capacity. Following the unsuccessful conciliation, the employer requested that its jurisdictional objection be determined before any consideration of the merits of the application was undertaken.
[5] On 17 April 2020, Catanzariti VP of the Fair Work Commission (the Commission) wrote to the applicant advising of the contest about the date that the dismissal of the applicant took effect. The applicant was invited to provide, inter alia, documentary material to confirm the date that the dismissal took effect, or alternatively, if the date of the dismissal as asserted by the employer was correct, material upon which the Commission might establish that exceptional circumstances would provide for an extension of time to lodge the application.
[6] On 23 April 2020, Mr York acting on behalf of the applicant, provided the Commission with documentary material to support inter alia, the assertion that the applicant had not received any email or other communication from the employer on 10 or 11 February 2020 advising her of her dismissal. On 24 April 2020, the contested jurisdictional objection to the application was allocated to the Commission as currently constituted for determination.
[7] On 29 April 2020, Mr York provided the Commission and the employer with a Statutory Declaration of the applicant dated 29 April 2020. This Statutory Declaration stated inter alia, “No formal “Termination Notification written letter or document” was emailed, hand-delivered or mailed by registered mail to my home (address provided) on: the 10th or 11 of February 2020 in matter U2020/2622.”
[8] On 30 April 2020, the Commission convened a Pre-Hearing Conference during which Directions were issued for the filing and service of submissions and evidentiary material in support of the respective positions regarding the jurisdictional objection concerning the contested date on which the dismissal of the applicant took effect.
[9] In due course, the Parties filed their respective documentary materials, and each indicated that they were content for the jurisdictional objection to be determined upon the documentary material which had been filed and without any requirement for a Hearing.
[10] The applicant had worked for the employer in two separate periods. The second period of her employment commenced on 14 March 2019 and concluded with the dismissal of the applicant on either 11 February 2020 as asserted by the employer, or on 26 February 2020 as asserted by the applicant, or at some point in time between those two dates. The applicant was initially employed as a cook, and in August 2019, she was promoted to the role of Head Chef. The employer operates a golf club with bar and restaurant facilities in the New South Wales country town of Mudgee.
[11] In January 2020, the employer investigated allegations that had been made against the applicant and which involved her alleged misconduct. As part of this investigation, the applicant was placed on paid suspension from duties on and from 20 January 2020. Communications regarding the applicant’s suspension from duties and the allegations that had been made against her, were conveyed to her home email address. As the investigation progressed, communication between the employer and the applicant was transacted by email.
[12] On 5 February 2020, the employer sent a letter to the applicant via email which requested her attendance at a formal disciplinary meeting scheduled for 4 pm on 7 February 2020. The applicant subsequently attended the disciplinary meeting on 7 February 2020, during which the applicant denied the allegations.
[13] On 10 February 2020, the employer sent a Show Cause Notice letter to the applicant via email. The Show Cause Notice letter required the applicant to respond in writing by 5 pm the next day and show cause why she should not be terminated. At 5:33 pm on 11 February 2020, the employer sent a termination of employment letter to the applicant via email. The termination of employment letter advised that the applicant had been summarily dismissed with immediate effect and without notice.
[14] On 26 February 2020, the employer sent a Centrelink Separation Certificate to the applicant via email. The Centrelink Separation Certificate was dated 26 February 2020 and it stated that the date that the applicant’s employment ceased was 11 February 2020.
[15] The employer has submitted that the applicant was dismissed for serious misconduct on 11 February 2020, when it sent an email to the home email address of the applicant. The email attached a termination letter on club letterhead sent by the employer’s club President, Mr Neil Gowdie. The employer submitted that as the termination letter sent on 11 February 2020, was capable of being retrieved by the applicant on 11 February 2020, from her home email address inbox, which had previously been used to transact correspondence between the Parties, the effective date of dismissal was 11 February 2020.
[16] The submissions made by the employer to support the proposition that the email communications of 11 February 2020 represented communication to the applicant of her dismissal, and thus provided the effective date of dismissal, referred to the Full Bench Decision in the case of Ayub v NSW Trains 1 (Ayub). The employer’s submissions included the following extract from the Ayub Decision:
“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.”
[17] The employer further submitted that the Commission should reject any assertion by the applicant that because the termination of employment letter had been sent from a personal email address of Mr Gowdie and not an email address of the employer, the communication was somehow invalid. The employer submitted that Mr Gowdie had communicated with the applicant on behalf of the employer using both his personal email address and email addresses of the employer.
[18] The employer also provided evidence about an issue that arose in respect to the capitalisation of the first letter of the applicant’s home email address. The emails that Mr Gowdie sent on 10 and 11 February 2020 which respectively attached the Show Cause Notice and the termination of employment letter, showed that the first letter of the applicant’s home email address had been capitalised, that is, the address, although correct in all other respects was shown as a capital “M” rather than a lower case “m”. The employer provided evidence which stated that email addresses were not case-sensitive, and it would make no difference if Mr Gowdie sent emails to an address that commenced Michelle or michelle.
[19] In summary, the submissions made by the employer asserted that the dismissal of the applicant took effect on 11 February 2020, when the employer communicated the advice of the summary dismissal by email which attached the termination of employment letter. The employer asserted that the evidence established that the applicant received the termination of employment letter when it was sent to her email address on 11 February 2020. The unfair dismissal application was lodged on 6 March 2020, outside of the 21 day time frame required by subsection 394 (2) of the Act, and therefore the employer submitted that the application should be dismissed accordingly.
[20] The submissions made on behalf of the applicant asserted that the application had been filed in time on 6 March 2020, because the applicant never received formal communication from the employer on 11 February 2020 of her termination. The applicant asserted that the first formal advice of her dismissal was provided on 26 February 2020, when Mr Gowdie send her the Centrelink Separation Certificate from the employer’s email address.
[21] The applicant further submitted that Mr Gowdie, the President of the Mudgee Golf Club, sent the email which attached the termination of employment letter from his personal/business email account and not the Mudgee Golf Club email account. In addition, the applicant submitted that Mr Gowdie entered the incorrect username which was said to be a case-sensitive email address and by using an incorrect case-sensitive username, the email was not deliverable to the applicant. Therefore, according to the submissions made on behalf of the applicant, no notification of termination of employment was sent to the applicant on 11 February 2020.
[22] In summary, the submissions made on behalf of the applicant asserted that the date that the dismissal of the applicant took effect was 26 February 2020 and not 11 February 2020. Therefore, according to the applicant’s submissions, the application was made within the 21 day time limit. The applicant urged the Commission to dismiss the jurisdictional objection raised by the employer.
[23] An application for unfair dismissal remedy must be made within 21 days after the dismissal took effect. However, subsection 394 (2) (b) of the Act allows for an extension of the 21 day time period if exceptional circumstances are established.
[24] In this instance, there was considerable contest as to the actual date that the dismissal of the applicant took effect. The application stated that the dismissal took effect on 26 February 2020, when the applicant received via email from the employer’s email address, a copy of the Centrelink Separation Certificate. However, the employer provided evidence that the applicant was sent an email on 11 February 2020, from a personal/business email address of the President of the employer, Mr Gowdie, which attached the termination of employment letter that had been typed on the letterhead of the employer.
[25] The applicant provided a Statutory Declaration which stated inter alia that, “No formal “Termination Notification written letter or document” was emailed, hand-delivered or mailed by registered mail to my home (address provided) on: the 10th or 11 of February 2020 in matter U2020/2622. The applicant’s representative also raised an issue about email communications being sent from the personal/business email addresses of Mr Gowdie as opposed to an email address of the employer. Further, the applicant’s representative asserted that as the email address of the applicant was case-sensitive the email that attached the termination of employment letter was “not deliverable” to the applicant. The employer provided evidence that asserted that email addresses were not case-sensitive.
[26] Consequently, there was considerable conjecture as to whether the emails that were clearly sent on 10 and 11 February by Mr Gowdie to the applicant’s home email address, were actually received, visible, and accessible in the applicant’s email inbox. In order to properly resolve this unusual dilemma, the Commission Directed that the applicant was to provide all records of all inbox entries received at the home email address of the applicant from 5 February 2020 to 11 February 2020.
[27] On 31 July 2020, the applicant’s representative provided material in response to the Direction for all records of all inbox entries, and in addition he provided various other documents including a Statutory Declaration of Nicole Louise Hale dated 21 July 2020. Although the inbox entry records were not provided by way of screenshot but instead appeared as a retyped record, this material indicated that there had been; 2 emails received on 5 February; a further 2 were received on 6 February; no entries were received on 7 February; 1 email was received on 8 February; there were no email entries on either 9, 10 and 11 February 2020.
[28] There was of course potential for the applicant to have deleted email entries and when the applicant’s representative reviewed the inbox and retyped the record it would not have included any of the deleted emails. However, the Statutory Declaration of Ms Hale has provided evidence that strongly supports the assertion made by the applicant from the outset that she did not receive the emails sent by Mr Gowdie on 10 and 11 February 2020, the latter of which included the letter advising of her summary dismissal.
[29] The Statutory Declaration of Ms Hale included the following:
“I process the wages for The Mudgee Golf Club 21 Robertson Street Mudgee.
On the morning of 19 February 2020 I asked our President Neil Gowdie how I will be paying Michelle Rawson this week. He advised she is to be terminated and to payout all her entitlements which I proceeded to do.
I received a phone call in the early afternoon from Michelle Rawson querying why her pay was so high. I advised Michelle that she had been terminated. Michelle was surprised to hear that and stated it would have been nice to have been told. I said to Michelle hasn’t anybody been in contact with you she said she hadn’t had any contact with the club since her meeting the previous week.”
[30] In addition to the Statutory Declaration of Ms Hale, the material provided by the applicant’s representative on 31 July 2020, included the applicant’s final pay advice which was presumably processed by Ms Hale on 19 February 2020. The final pay advice shows that the applicant’s employment ended on “18/02/2020”. The final pay advice accords with the circumstances recounted in the Statutory Declaration made by Ms Hale, and strongly supports the prospect that the applicant did not receive the emails sent by Mr Gowdie on 10 and 11 February 2020.
[31] The evidence that was (eventually) provided by way of the Statutory Declaration of Ms Hale and the applicant’s final pay advice, strongly supports that the applicant did not receive the email sent by Mr Gowdie on 11 February 2020, which attached the termination of employment letter. There is no discernible reason why the emails sent by Mr Gowdie on 10 and 11 February did not appear in the inbox of the applicant’s home email address. This circumstance will remain a mystery and can only be considered to be an unexplained vagary of cyberspace.
[32] As was mentioned in the extract of the Full Bench Decision in Ayub;
“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.”[emphasis added].
[33] However, as the circumstances in this instance have revealed, communication of the advice of dismissal by electronic means such as email or text message, should generally be avoided. Unless there is some compelling reason like extensive distance or genuine safety concern, advice of dismissal from employment is a matter of such significance that it should be conveyed in person.
[34] Further, in this instance the finalisation of entitlements that were due to the applicant upon her summary termination were delayed and not made in accordance with the advice of summary termination that failed to be successfully conveyed on 11 February 2020. The final pay advice provided that the applicant was paid up until 18 February 2020.
[35] The determination required in respect to this aspect of the claim for unfair dismissal has involved a contest about the date that the dismissal of the applicant took effect. The employer raised a jurisdictional objection on the basis that the application had been made out of time because the dismissal of the applicant took effect on 11 February 2020, when it sent email advice of the applicant’s summary dismissal. The evidence has established that for some unexplained reason, the email advice of dismissal was not received in the inbox of the applicant’s home email address. Further, the final pay advice provided to the applicant recognised that her employment continued until 18 February 2020.
[36] Consequently, the date that the dismissal of the applicant took effect was the date that the termination payment was made, and which coincided with the time at which the applicant was advised of her dismissal by Ms Hale. The termination payment was made on 19 February 2020, the same day that the applicant received advice of her dismissal, albeit from Ms Hale, and thus the date that the applicant’s dismissal took effect was 19 February 2020.
[37] The application was filed on 6 March 2020, which was the 16th day after the day on which the dismissal took effect. Therefore, the application was made within the 21 day time period established by subsection 394 (2) (a) of the Act.
[38] The jurisdictional objection raised by the employer is dismissed accordingly. The matter will be listed for programming of further proceedings.
[39] The matter will be listed for Mention and Directions proceedings at 12:00 noon on 25 September 2020.
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1 Mohammed Ayub v NSW Trains [2016] FWCFB 5500.