[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
1
Fair Work Act 2009
s.604 - Appeal of decisions
Mohammed Ayub
v
NSW Trains
(C2016/4491)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT WELLS
COMMISSIONER JOHNS SYDNEY, 30 SEPTEMBER 2016
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.
Introduction
[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
20161 (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:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under
Division 4 granting a remedy.
1 PR582486
2 [2016] FWC 4623
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DECISION
E AUSTRALIA FairWork Commission
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2
Note 1: Division 4 sets out when the FWC may order a remedy for unfair
dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6-1 may prevent an application being made under this Part in relation
to a dismissal if an application or complaint has been made in relation to the dismissal
other than under this Part.
(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.
[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
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[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:
(1) A letter dated 14 January 2016 and signed by Ms Alison Condon, from the
Secretariat of the Panel (Outcome Letter), advised Mr Ayub that the disciplinary
outcome of dismissal was affirmed, but did not in terms advise the date of the
dismissal. The Outcome Letter, underneath the date, contained the words “Delivered
by Hand”. However this letter was never personally served on Mr Ayub.
(2) In a letter addressed to Mr Ayub dated 15 January 2016 but signed by Ms
Samantha Hudson, the Regional General Manager Central West, on 18 January 2016,
NSW Trains confirmed that Mr Ayub was dismissed and that his last day on the
payroll would be 14 January 2016 (Dismissal Letter). The Dismissal Letter enclosed a
copy of the Outcome Letter. An email attaching the Dismissal Letter and the Outcome
Letter was sent to Mr Ayub’s email contact address (which was his wife’s email
address). NSW Trains contends that this occurred on 18 January 2016. Mr Ayub did
not see and open the email until 19 January 2016.
(3) In the proceedings before the Senior Deputy President, NSW Trains filed a
submission which attached a witness statement of Ms Vicki Wong dated 29 April
2016, who was employed as its Acting Workplace Relations Manager - Projects. In
her statement Ms Wong averred that on 14 January 2016 she rang Ms Helen Bellette
and informed her of the Panel’s decision. Ms Wong did not say that she identified the
effective date of the dismissal. Ms Bellette was an organiser employed by the RTBU
who had carriage of Mr Ayub’s matter. At the hearing before the Senior Deputy
President, a witness statement from Ms Bellette dated 9 May 2016 was admitted into
evidence. In that statement, Ms Bellette said that she did not recall receiving any
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phone call from Ms Wong, nor was there any record of such a call having been made.
Ms Bellette further stated that on 18 January 2016 she received an email from Ms
Wong which attached the Outcome Letter and the Dismissal Letter. Neither Ms Wong
nor Ms Bellette was cross-examined at the hearing before the Senior Deputy President.
[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:
“[4] There was a difference between the parties as to what should be determined to be
the date of termination of employment. When the respondent’s internal review was
commenced Mr Ayub was advised in correspondence how the date of his termination
of employment would be determined if the review determined that his employment
should be terminated.
[5] I was satisfied that the date of Mr Ayub’s termination of employment was 14
January 2016.”
[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:
“[12] I considered the various criteria to which my attention is directed by s.394(3) of
the Act.
reason for the delay-s.394(3)(a)
[13] The only reason Mr Ayub provided for his delay in lodgement was the late
service of the notice of termination of employment.
[14] I was not persuaded that Mr Ayub’s difficulties were out of the ordinary, unusual
or uncommon.
whether the person first became aware of the dismissal after it had taken effect-
s.394(3)(b)
[15] Mr Ayub became aware of the end of his relationship with the respondent on 19
January 2016.
any action taken by the person to dispute the dismissal-s.394(3)(c)
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[16] Mr Ayub disputed his dismissal by engaging in an internal appeal process and by
lodging this application.
prejudice to the employer-s.394(3)(d)
[17] I was satisfied that there would be no greater prejudice to the respondent caused
by this application being listed now than there would have been had it been lodged in
time. Prejudice to the respondent was a neutral consideration.
the merits of the application-s.394(3)(e)
[18] Merit was a neutral issue in my consideration of this application.
fairness as between Mr Ayub and other persons in a similar position-s.394(3)(f)
[19] There was no issue of fairness in relation to any other person in a similar position.
[20] Having considered all of the matters to which my attention is directed by the Act I
was not satisfied that there were exceptional circumstances which would warrant my
granting an exception to the statutory time limit and on that basis dismissed the
application. Mr Ayub’s circumstances were not out of the ordinary course, unusual,
special or uncommon.”
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.
Consideration
Permission to appeal
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[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:
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on
the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do
so because of conduct, or a course of conduct, engaged in by his or her
employer.
[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:
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
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“[82] To be effective, a notice of termination of a contract of employment must specify
a time when termination is to take effect, or that time must be ascertainable (G J
McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at
79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed
according to how it would be understood by a reasonable person in the position of the
recipient who had knowledge of the background of the dealings between the parties
(Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL
19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at
126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at
677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at
[99]).”
[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 Transport9 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:
“[47] The notion of the termination of an employment contract retrospectively, as seems
to be the purport of the letter of 9 October 2000, is inconsistent with the rule of law to
the effect that the giving of a notice terminating a contractual employment, whether by
employee or employer, is the exercise of the right under the contract of employment to
bring the contract to an end, either immediately or in the future: Riordan v. War Office
(1959) 1 WLR 1046 per Diplock J. When the respondent called the applicant to come
to work on 9 October 2000, and decided to terminate his employment, it was entitled
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)
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to terminate his employment either upon notice or with immediate effect. It did neither
of those things. It terminated his employment with effect from a prior date. It would
appear that the applicant might have been deprived of one day’s pay as a result of the
respondent's retrospective termination of his employment.”
[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 Giudice12 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
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
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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:
“[11] Counsel for the Commonwealth referred us to a number of authorities but
conceded that there are few on point. One decision which appears to us to bear directly
on the issue is Transport Workers' Union of Australia v National Dairies
Limited (1994) 57 IR 183. In National Dairies Keely J, sitting in the Industrial
Relations Court of Australia, was required to decide whether the employment in
question terminated before or after the date on which legislation providing statutory
remedies for unfair dismissal commenced to operate. In the course of his judgment His
Honour said:
"It was accepted by the respondent's counsel, for the purpose of the present
hearing, that the employer's letter of purported termination was not received
by the applicant until 30 March 1994. In my opinion the mere posting of the
letter of termination does not in itself amount to a termination of the
employment of the employee concerned until its contents are communicated to
the employee. I am unable to uphold the respondent's submission that the
intention of the legislature was to make it a contravention of the Act for an
employer to perform actions ‘pursuant to which the employer seeks to
terminate an employee even if that wish is never communicated to the
employee ie even if a letter of termination posted by an employer is never
received by the employee."
With respect we agree with His Honour's conclusion. Whilst it is clear that a contract
can be terminated unilaterally, it is beyond contemplation, unless there is special
provision in the contract to the contrary, that a contract could be terminated without
communication of the termination to the other party. We think that at common law,
where termination occurs by letter, generally the termination is not effective until the
letter is received. There may be a qualification to that general position. It may be that,
in some circumstances, a termination is effective when its communication could
ordinarily be expected to have been received. If an employer has attempted in good
faith to communicate the termination and the Commission forms the view that the
15 [2001] AIRC 163, PR901127 (26 February 2001)
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employee has deliberately avoided receipt of such communication, it may be arguable
that in such circumstances termination occurred despite the fact that it has not
physically been communicated to the employee. Those circumstances did not,
however, exist in this matter and we therefore refrain from further discussion of the
point.
[12] The Commonwealth seeks to meet this argument. It submits that while the
termination could not occur until the respondent received the termination letter, once
the letter was communicated the termination operated according to the terms of the
letter. Relevantly the letter specified Friday 19 May 2000 as the date of termination.
The Commonwealth submits that while the termination did not operate until at least 22
May 2000, once it operated it was effective from 19 May 2000 and within the
probationary period.
[13] We reject this submission. We do so primarily because its adoption has the
potential to frustrate the operation of the legislation. It would permit a party to select
an operative date for termination which bore no relationship to the date on which the
termination was to be communicated to the other party. A range of examples could be
constructed but it is sufficient to mention only one. We are not prepared to construe
the statutory provisions in a way which would permit an employer to deprive an
employee of a right of action pursuant to s.170CE (subject to the discretion
in s.170CE(8) to receive an application lodged out of time) by delivering a letter
purporting to terminate the contract 3 weeks earlier. Whilst this may be thought a
fanciful example, the meaning of the word "termination" in s.170CE(1) is a legal
question which must be answered consistently regardless of the facts of the case. It
seems to us that in a case of this kind "termination" must be construed to refer to the
date on which the termination is communicated to the employee. The same conclusion
was reached by Senior Deputy President Williams in Grzelka v Peel Training and
Employment (Inc) [Print T3393] at para [13].
[14] We note that a similar conclusion was reached by a Full Bench of the
Commission in Burns v Aboriginal Legal Service of Western Australia (Inc) [Print
T3496 esp. at para 24]. That case was concerned with the question of whether to
accept an application which had been lodged out of time. The date of termination was
relevant in order to calculate the number of days by which the application was out of
time. It is submitted by the Commonwealth that cases involving a consideration of
whether an application lodged out of time should be accepted are to be distinguished
from the present case because of the terms of s.170CE(7). That section reads:
"An application under subsection (1) or (3) must be lodged within 21 days after
the day on which the termination took effect."
While we doubt whether any relevant distinction can be made between the meaning of
the expression "termination" in s.170CE(1) and the meaning of the expression
"termination took effect" in s.170CE(7) this is not a matter which requires resolution
in this case. We have reached our decision independently of the decision in Burns by
construing the expression "termination" in s.170CE(1).”
http://www.austlii.edu.au/au/cases/cth/wrasections/s170CE.html?stem=0&synonyms=0&query=wilson%20and%20pr901127&nocontext=1
http://www.austlii.edu.au/au/cases/cth/wrasections/s170CE.html?stem=0&synonyms=0&query=wilson%20and%20pr901127&nocontext=1
[2016] FWCFB 5500
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[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:
“[15] We turn now to the submission based on s.29 of the Public Service Act 1999. We
can find nothing in the terms of the section to support the suggestion that an Agency
Head may terminate employment in such a way as to render the termination effective
prior to its communication to the employee. It is to be inferred, therefore, that the
legislature was using termination in its usual sense at common law. But even if it were
supposed that the letter took effect according to its terms and that the termination
occurred for the purposes of the Public Service Act 1999 on 19 May 2000, that could
not affect the outcome here. For the purposes of s.170CE(1) of the Workplace
Relations Act 1996 the termination occurred when the notice was received on 22 May
2000.”
[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:
“[24] As we have already stated, the facts of this matter are not in dispute. The letter of
termination purports to make the termination effective from 14 April 2000. The letter,
however, was dated 18 April 2000 and was delivered by courier to the appellant's
home address on 19 April 2000. In our view, a termination of employment does not
take effect unless and until it is communicated to the employee whose employment is
being terminated. The earliest that such communication could be said to have occurred
in this case was the date upon which the letter of termination was received at her home
address, i.e. 19 April 2000.”
[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:
16 T3496
17 [2007] AIRCFB 38
[2016] FWCFB 5500
12
“[18] There is an additional matter which was not raised in argument. Section
643(14) requires an application to be lodged within 21 days of “the day on which the
termination took effect.” Normally a termination of employment would not “take
effect” before it was communicated to the employee concerned, although that may not
always be the case. In this case it does not seem to be in contest that the appellant was
not aware of the letter of termination until 22 August 2006. The application for relief
was filed within 21 days of that date. In cases in which abandonment of employment is
alleged the time at which the termination took effect may only be ascertainable after
resolving factual and legal issues. It will be rare for such issues to be resolved fairly
without a hearing. But if on one view of the material before the Commission the
application was within time, there is a strong case for allowing the application under
s.643(14).”
[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:
“[6] On 17 October 2011, Mr Bambach received an Employment Separation Certificate
from WorkPac stating that his employment had ceased on 24 September 2011 and that
the reason for separation was ‘unsuitability for this type of work’.”
[33] The Full Bench rejected this ground of appeal for reasons which included the
following (footnotes omitted):
“[17] In any event we are not persuaded that the Commissioner erred in the manner
contended by the appellant. In the circumstances of this case we are not persuaded that
the occasion arose for the exercise of the discretion to extend time under s.394(3). This
is so because in our view the date of dismissal was 10 October 2011 and not 24
September 2011 as found by the Commissioner. It was common ground at first
instance and on appeal that 10 October 2011 was the date that the dismissal of Mr
Bambach’s employment took effect. This was the date on which the appellant
informed Mr Bambach that there was no work available for him.
[18] We acknowledge that the Employment Separation Certificate identified the date
of termination as 24 September 2011. But that fact is not determinative of this issue,
for three reasons:
18 [2012] FWAFB 3206
[2016] FWCFB 5500
13
(i) The author of the Employment Separation Certificate was not called and the
only witness called by WorkPac (Ms Jessica Patricia Deen) had no knowledge
of the procedure involved in the preparation of these documents.
(ii) WorkPac’s Form 3 response to the application is also relevant, it states:
“The Applicant requested that WorkPac complete a Separation
Certificate in [sic] to facilitate his access to unemployment benefits.
WorkPac complied with this request, but made it clear that they would
continue in efforts of securing him work...
Upon the request of the Applicant, WorkPac issued a Separation
Certificate. This was done solely to assist the Applicant in securing
unemployment benefits.
The reference on the Separation Certificate should not be considered
determinative of any position taken by WorkPac with respect to the
Applicant.”
We note that the last observation was made in relation to the notation
on the Certificate that the reason for termination was ‘unsuitability for
this type of work.’ But nevertheless the observation illustrates
WorkPac’s disavowal of information contained in the document.
(iii) The Employment Separation Certificate was signed on behalf of WorkPac
on 13 October 2011 and was received by Mr Bambach on 17 October 2011.
[19] In relation to the last point there is ample authority for the proposition that a
termination of employment takes effect when it is communicated to the employee.
There may be some exceptions to this general proposition but none are relevant in the
context of this matter. On this basis even if the Employment Separation Certificate
constituted the instrument which terminated Mr Bambach’s employment it did not
take effect until he received it, on 17 October 2011.
[20] Accordingly, on any view of it, the application was filed within the prescribed
time.”
[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
Limited19 (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
19 (1994) 57 IR 183
[2016] FWCFB 5500
14
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:
381 Object of this Part
(1) The object of this Part is:
(a) to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and
(b) to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c) to provide remedies if a dismissal is found to be unfair, with an emphasis
on reinstatement.
(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the
manner of deciding on and working out such remedies, are intended to ensure that a
"fair go all round" is accorded to both the employer and employee concerned.
[2016] FWCFB 5500
15
Note: The expression "fair go all round" was used by Sheldon J in re Loty and
Holloway v Australian Workers' Union [1971] AR (NSW) 95.
[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):
Notice specifying day of termination
(1) An employer must not terminate an employee's employment unless the employer
has given the employee written notice of the day of the termination (which cannot be
before the day the notice is given).
Note 1: Section 123 describes situations in which this section does not apply.
Note 2: Sections 28A and 29 of the Acts Interpretation Act 1901 provide how a
notice may be given. In particular, the notice may be given to an employee by:
(a) delivering it personally; or
(b) leaving it at the employee's last known address; or
(c) sending it by pre-paid post to the employee's last known address.
[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
[2016] FWCFB 5500
16
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:
(1) … in this Part 'the effective date of termination' –
(a) in relation to an employee whose contract of employment is terminated
by notice, whether given by his employer or by the employee, means the date
on which the notice expires,
(b) in relation to an employee whose contract of employment is terminated
without notice, means the date on which the termination takes effect …
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
[2016] FWCFB 5500
17
[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:
“[1] Determining what is the effective date of the termination of a person's employment
has fundamental implications for any claim for unfair dismissal. This case illustrates
the substantial penalty that will be paid by an employee who fails to recognise its
significance, for the effective date of the termination of employment is the effective
date on which time begins to run on the short period within which an employee must
launch his or her claim for unfair dismissal.”
[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:
“[29] In examining the question whether Ms Barratt had the opportunity to learn of the
contents of the letter, should the focus be on the reasonableness of her behaviour in
failing to avail of the chance to discover what it contained, or should it be on the
existence of the opportunity to do so? The Employment Judge, the EAT and all the
members of the Court of Appeal were unanimous in the view that to include
consideration of the behaviour of the respondent in an assessment of whether she had a
reasonable opportunity to find out what the letter contained was not an error of law.
We agree.
[30] The circumstances of the present case exemplify the need to be mindful of the
human dimension in considering what is or is not reasonable to expect of someone
facing the prospect of dismissal from employment. To concentrate exclusively on what
is practically feasible may compromise the concept of what can realistically be
expected...
[32] The genesis of the "reasonable opportunity to discover" test is to be found in the
decision of the EAT in Brown v Southall & Knight. In that case it was held that where
dismissal is communicated to an employee in a letter, the contract of employment does
not terminate until the employee has actually read the letter or has had a reasonable
opportunity of reading it. It was not enough to establish that the employer had decided
[2016] FWCFB 5500
18
to dismiss a person or had posted a letter saying so. If, however, the employee
deliberately did not open the letter or if he went away to avoid reading it, he might
well be debarred from saying that notice of his dismissal had not been given to him.
...
[34] Underlying both decisions (although not expressly articulated in either) is the
notion that it would be unfair for time to begin to run against an employee in relation
to his or her unfair dismissal complaint until the employee knows – or, at least, has a
reasonable chance to find out – that he or she has been dismissed. This is as it should
be. Dismissal from employment is a major event in anyone's life. Decisions that may
have a profound effect on one's future require to be made. It is entirely reasonable that
the time (already short) within which one should have the chance to make those
decisions should not be further abbreviated by complications surrounding the receipt
of the information that one has in fact been dismissed.
[35] These considerations provide the essential rationale for not following the
conventional contract law route in the approach to an interpretation of section 97. As
Mummery LJ said, it is a statutory construct. It is designed to hold the balance
between employer and employee but it does not require – nor should it – that both
sides be placed on an equal footing. Employees as a class are in a more vulnerable
position than employers. Protection of employees' rights has been the theme of
legislation in this field for many years. The need for the protection and safeguarding of
employees' rights provides the overarching backdrop to the proper construction of
section 97.
[36] An essential part of the protection of employees is the requirement that they be
informed of any possible breach of their rights. For that reason we emphatically agree
with the EAT's view in McMaster that the doctrine of constructive knowledge has no
place in the debate as to whether a dismissal has been communicated. For the short
time of three months to begin to run against an employee, he or she must be informed
of the event that triggers the start of that period, namely, their dismissal or, at least, he
or she must have the chance to find out that that short period has begun. Again, this
case exemplifies the need for this. During the three months after Ms Barratt's
dismissal, she pursued an internal appeal; she learned that she was unsuccessful in that
appeal; she sought advice in relation to the lodging of a complaint of unfair dismissal;
and she presumably required some time to absorb and act upon that advice. Viewed in
the abstract, three months might appear to be a substantial period. In reality, however,
when momentous decisions have to be taken, it is not an unduly generous time.
...
[39] The need to segregate intellectually common law principles relating to contract
law, even in the field of employment, from statutorily conferred rights is fundamental.
The common law recognised certain employment rights, but the right at common law
not to be wrongfully dismissed is significantly narrower than the statutory protection
against unfair dismissal. The deliberate expansion by Parliament of the protection of
employment rights for employees considered to be vulnerable and the significance of
the creation of a separate system of rights was recognised by the House of Lords
in Johnson v Unisys Ltd [2001] UKHL 13, [2003] 1 AC 518. In that case the employee
had succeeded in an unfair dismissal claim but, because of the statutory cap on
compensation, sought to bring a claim at common law for breach of an implied term of
trust and confidence during the dismissal process. The House of Lords refused to
permit the supplanting of the legislative scheme by entertaining a second claim at
[2016] FWCFB 5500
19
common law. The leading judgment of Lord Hoffmann recognised the deliberate move
by Parliament away from the ordinary law of contract as governing
employer/employee contractual relations....”
[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
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”.
[2016] FWCFB 5500
20
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 effect23, 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.
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]
[2016] FWCFB 5500
21
[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.
[2016] FWCFB 5500
22
Orders
[59] Permission to appeal was granted on 10 August 2016. We make the following further
orders:
(1) The appeal is upheld.
(2) The Order and the Decision are quashed.
(3) Mr Ayub’s unfair dismissal remedy application in matter U2016/4407 is
referred to Senior Deputy President Drake for allocation for hearing.
VICE PRESIDENT
Appearances:
P. Livers solicitor for M. Ayub.
A. Woods solicitor for NSW Trains.
Hearing details:
2016.
Sydney:
10 August.
Final written submissions:
26 August 2016 and 6 September 2016 – NSW Trains.
1 September 2016 – M. Ayub.
Printed by authority of the Commonwealth Government Printer
Price code C, PR583907
OF THE FAIR WORK MISSION THE
