DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steve Petkovski
v
M J Luff Pty Ltd T/A Border Express
(U2021/7202)

Application for an unfair dismissal remedy – effective date of dismissal – whether application filed out of time – finding in relation to effective date of dismissal – application filed within time – jurisdictional objection dismissed

[1] Mr Steve Petkovski (Applicant) commenced employment with M J Luff Pty Ltd T/A Border Express (Respondent) on or about 22 February 2018. 1 He was employed as a Parcel Sorter based at Tullamarine at the time of his dismissal. The Applicant is also a member of the Transport Workers’ Union of Australia (TWU). The TWU have represented the Applicant throughout the FWC proceedings. On 13 August 2021 the Applicant applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy.

[2] The date on which the Applicant’s dismissal took effect is in dispute. During a hearing held on 16 September 2021, the Applicant contended that the termination of employment took effect on Tuesday, 27 July 2021, when he received the letter of termination that was sent to him by the Respondent via registered post. The Respondent contended at the hearing that the Applicant’s dismissal took effect on 22 July 2021, the day that the Respondent sent an email to the Applicant’s personal email address. That email advised the Applicant that his employment had been terminated. The resolution of this issue is relevant to assessing whether the application was lodged within the time prescribed under s.394(2) of the Act.

[3] If the Applicant is correct, the application was lodged in time. If the Respondent is correct, the application was lodged 1 day after the time for lodgement had passed. In that event the Applicant has not submitted that a further period within which his application may be lodged should be allowed because there are exceptional circumstances. Therefore, the application will not accord with section s.394(2) and must be dismissed.

[4] For the reasons set out below I have concluded that the Applicant’s dismissal took effect on 27 July 2021, when he received the letter of termination via registered post. Therefore, the application was made within the 21-day statutory timeframe.

Background

[5] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to s.394(3). On the Form F2, the Applicant stated that the dismissal took effect on 21 July 2021. Therefore, based on the Form F2, the application should have been lodged on or before 11 August 2021, and was therefore filed 2 days outside the 21-day period.

[6] On 23 August 2021, I issued directions to allow the Applicant to file material in relation to whether there are exceptional circumstances to allow for a further period for the application to be made in accordance with s.394(3) of the Act. The matter was also programmed for conference/mention on 2 September 2021.

[7] The Applicant subsequently filed submissions which contended that the Form F2 contained an error, and that the dismissal took effect later than 21 July 2021 such that the application was made within the statutory period, and therefore an extension of time was not required.

[8] Further directions were issued on 2 September 2021 to allow the parties to file submissions regarding when the Applicant’s dismissal took effect. The Applicant gave evidence on his own behalf and Mr George Pavlou (TWU Organiser) also gave evidence on his behalf. Mr Andrew Fisher (Operations Manager) and Mr Noel Springall (National Business Partnering Manager) gave evidence on behalf of the Respondent. As there were disputed facts, a hearing was held on 16 September 2021.

The evidence

[9] As noted above, the Applicant was employed by the Respondent as a a Parcel Sorter based at Tullamarine. On 21 July 2021, the Applicant attended a meeting with a number of company representatives, including Mr Fisher. A union delegate also attended the meeting. The meeting was called to allow the Applicant to respond to allegations of misconduct. During the meeting, the Applicant was handed a copy of a letter setting out the allegations of misconduct and directing the Applicant to attend a “show cause” meeting to be held on 23 July 2021.

[10] The evidence of Mr Fisher is to the effect that during the 21 July meeting, the Applicant “became incensed and entered a fit of rage, swearing loudly with abusive language and threats before slamming the large table in the boardroom & damaging its legs. He also created some holes in the wall and also damaged another door on the way out”. The Applicant was subsequently ushered off the premises. 2 The Applicant’s evidence is that after receiving the letter during the 21 July meeting, he objected to the allegations made and left the meeting.3 It is not necessary for the purposes of this decision to make any findings as to the alleged conduct of the Applicant at the 21 July meeting.

[11] The evidence of Mr Fisher is that after the 21 July meeting, it was determined to “not allow Steve to return back to site”. 4 Further, that a summary dismissal letter was drafted and finalised that same day. The evidence of Mr Springall is that he sent the letter which advised the Applicant of the termination of his employment at 9.45 am on 22 July 2021 to the Applicant’s private @hotmail email address.5 The letter was sent to that private email address as that was the email address that the Respondent had on the Applicant’s file. There is no reason to doubt the evidence of Mr Springall that he sent the email at that time to the Applicant. However, the Applicant’s evidence is that:

“The email address [redacted]@hotmail.com is an email address I no longer use. I do not look at this email address as I use the email address [redacted]@gmail.com. I do not recall the password for the email address [redacted]@hotmail.com.” 6

[12] The text of the letter of termination which was dated 21 July 2021 is as follows:

“Further to discussions held between yourself, Abner Omega, Arnold Dumapias & Andrew Fisher today (21 July), this letter is to confirm your termination of employment for serious misconduct specifically your violent behaviour in the mentioned meeting where we had gathered to discuss other misconduct by yourself. Today’s behaviour is a serious breach of Company values and Code of Conduct which has resulted in a repudiation of your employment contract with Border Express.

You were notified of the allegations of misconduct for which the meeting was arranged and you were being given an opportunity to respond to those allegations at the meeting. However, your conduct during the meeting goes well beyond the initial allegations and amounts to serious and wilful misconduct.

Nearing the conclusion of this meeting, you became extremely hostile and aggressive. u you made physical & verbal threats to management and wilfully damaged company property including; Doors, Walls & Meeting Tables. You were asked to leave site & arrangements were made for you to be driven to your residence.

As a result of the above, the company is hereby terminating your employment for serious misconduct without notice. This is summary dismissal without any payment of notice. Therefore. your final day of employment will be Wednesday 21^st July 2021. We require you to return all company uniform, including your swipe access ASAP. You are hereby banned from returning to site, so this can be arranged via post or dropped off by another employee.

Once all uniform & swipe access is received, your final payment, which will include payment for work already undertaken and any outstanding entitlements will be processed into your nominated bank account in the next payroll cycle.

The Company will be seeking financial recourse from you for the damages that you have caused to our office. We will write you on the cost of repairs soonest.”

[13] The letter of termination that was attached to the 22 July email sent by Mr Springall clearly advises the Applicant that his employment had been terminated. However, as pointed out above, the Applicants evidence is that he did not see that email as it was sent to the @hotmail email account that he no longer uses.

[14] Mr Pavlou (TWU Organiser) gave evidence. His evidence included the following:

“… I was contacted by Mr Andrew Fisher, Operations Manager – Border Express Tullamarine on Thursday 22 July 2021. I was made aware that the meeting had not ended well.

From the conversation with Mr Fisher it was apparent that the Applicant’s employment had been terminated. I can recall that Mr Fisher requested if I could arrange the return of Border Express property from the Applicant.

I also recall that Mr Fisher advised that the Applicant would be advised of his dismissal by a letter to be delivered by courier. As I recall Mr Fisher did not ask me to advise the Applicant that his employment had been terminated.

I did contact the Applicant on that day and advised him to return the property to border Express. The purpose of the call was to advise the Applicant to return the property, not to advise the Applicant that his employment was terminated though I did indicate to the Applicant that his employment was terminated.

I spoke to Mr Fisher again on Friday 23 July 2021, again the purpose of the conversation was the return of the property. I can recall from the conversation that the letter of termination had yet to be sent to the Applicant. I again spoke to the Applicant that day to arrange return of the equipment.

My understanding is that termination letter was not sent, I understand by courier, until sometime in the week beginning 26 July 2021.” 7

[15] While it was not submitted by the Respondent, I have nevertheless considered whether the fact that Mr Pavlou advised the Applicant on Thursday 22 July 2021 that his employment had been terminated has the result that the termination took effect on that day. However, for reasons set out later in this decision, I do not accept that it did.

[16] There was a further means which the Respondent sought to communicate the fact of the Applicant’s summary dismissal to him, which was by way of sending the termination letter by registered post. The evidence of Mr Fisher is that he and Mr Alistair Reid (AM Manager) attended the Gladstone Park Post Office around noon on Friday, 23 July 2021 and sent a copy of the letter to the Applicant by registered post. There was no real challenge to this evidence during the hearing and I accept the Respondent’s sworn evidence that the termination letter was sent on that date.

[17] The Applicant accepts that he received a copy of the termination letter on 27 September 2021 via post. The Respondent did not challenge this evidence during the hearing.

Law to be applied

[18] A dismissal takes effect only when it is communicated to the employee. In Mohammed Ayub v NSW Trains  8 the Full Bench stated:

“[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.”

[19] The Applicants representative referred me to Jason Sy v ABC Tissue Products Pty Ltd, 9 where Deputy President Mansini summarised some of the factors to be taken into account in determining whether notice of dismissal has been communicated to an employee.

“[15] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 10 An employer may communicate a dismissal to an employee “by plain or unambiguous words or conduct”.11 In the case of a dismissal without notice, the dismissal needs 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.12

[16] Where an employee is informed of their dismissal by email, the employee is usually 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. 13”

Consideration

[20] There are three key factors to consider in the circumstances of this matter. Firstly, while the Respondent did not contend that the fact that Mr Pavlou informed the Applicant of his dismissal on 22 July 2021 constituted communication of the dismissal, I have nevertheless considered the effect of that communication. It may be that in circumstances where a relationship of agency was established between the Applicant and the TWU, that communication of the dismissal to an employee through their representative would constitute communication of the dismissal by the employer. However, there is no evidence that a relationship of agency was established between the Applicant and the TWU, the scope of which extended to the TWU receiving all communications from the Respondent pertaining to the Applicant’s misconduct process. Further, it is apparent from the text of the termination letter which states “…this letter is to confirm your termination of employment for serious misconduct…”, that it was the intention of the Respondent to communicate the dismissal to the Applicant by way of him receiving that letter rather than through conversations with the TWU representatives.

[21] Secondly, I accept that the Applicant did not see the email sent to his @hotmail email address on 22 July 2021. That evidence is not contested, and I accept it. While it is understandable that the reason the Respondent sent the letter of termination to the Applicant’s @hotmail address is that is the email that they had on file, they were not to know that email address was one no longer being used by the Applicant. In the circumstances, this action to communicate the dismissal by email did not provide the Applicant with a reasonable chance to find out that he was dismissed. 14

[22] Thirdly, the communication from the Respondent that allowed the Applicant to be informed of his dismissal was the letter sent via registered post on 23 July 2021. The unchallenged evidence of the Applicant is that he received that letter on Tuesday, 27 July 2021. Dismissal does not take effect until it is communicated to the employee who is being dismissed, therefore date of dismissal in this case was 27 July 2021. As the dismissal took effect on 27 July 2021, the application needed to be lodged by 17 August 2021.

[23] As the Applicant’s dismissal took effect on 27 July 2021 when he received the termination letter sent by registered post, it follows that his application for an unfair dismissal remedy lodged on 13 August 2021 was lodged within the time prescribed.

Conclusion

[24] I am satisfied that the Applicant’s dismissal took effect on 27 July 2021. It follows that the Applicant’s unfair dismissal application was lodged within the 21-day statutory timeframe. The Respondent’s jurisdictional objection is dismissed.

[25] An order giving effect to this decision is separately issued in PR734038. Directions to facilitate the hearing and determination of the substantive application will be issued shortly.

COMMISSIONER

Appearances:

J Cooney of the Transport Workers’ Union of Australia for the Applicant.
K Demian for the Respondent.

Hearing details:

2021.
Melbourne (by telephone):
16 September.

Printed by authority of the Commonwealth Government Printer

<PR734032>

 1   Form F3 – Employer response to unfair dismissal application at Q1.2.

 2   Statement of Mr Andrew Fisher dated 8 September 2021.

 3   Statement of Mr Steve Petkovski dated 30 August 2021 at [6].

 4   Statement of Mr Noel Springall dated 6 September 2021.

 5   Statement of Mr Andrew Fisher dated 8 September 2021.

 6   Statement of Mr Steve Petkovski dated 13 September 2021 at [6].

 7   Statement of Mr George Pavlou dated 30 August 2021 at [4] - [9].

 8   [2016] FWCFB 5500.

 9   [2020] FWC 4393.

 10   Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24].

 11   Plaksa v Rail Corporation NSW [2007] AIRC 333 (Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne, Print Q9605 (AIRC, Whelan C, 10 December 1998); Mohammed Ayub v NSW Trains [2016] FWCFB 5500 at [17], [48] and [49].

 12   Mohammed Ayub v NSW Trains [2016] FWCFB 5500 at [48].

 13   Ibid at [50]; see also s.14A of the Electronic Transactions Act 1999 (Cth).

 14  Ayub v NSW Train [2016] FWCFB 5500 at [49] - [50].