Kumar v 123 Pty Ltd [2016] FWC 3517 (31 May 2016) [2016] FWC 3517 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 —Unfair dismissal Mrs Vandhani Kumar v 123 Pty Ltd T/A 123 Kids Early Learning Centre (U2016/4962) COMMISSIONER HARPER-GREENWELL MELBOURNE, 31 MAY 2016 Application for relief from unfair dismissal – extension of time granted. [1] Mrs Vandhani Kumar (Mrs Kumar) made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to the termination of her employment by 123 Pty Ltd T/A 123 Kids Early Learning Centre (123 Kids). [2] Section 394(2)(a) of the Act provides that 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] Section 394(3) of the Act is as follows: “ 394 Application for unfair dismissal remedy … (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.” [4] Section 394 of the Act involves two questions: 1. Whether the application was made within 21 days after the dismissal took effect; and 2. If it was not, whether the Commission should allow a further period for the application to be made, having regard to section 394(3) of the Act. [5] Mrs Kumar lodged her unfair dismissal application on 26 February 2016. In her application, Mrs Kumar states her dismissal took effect on 3 February 2016, being the date she was due to return to work following a period of approved parental leave. 1 The date of lodgement was 23 days after the date Mrs Kumar nominated as the date her dismissal took effect. As a result, on 2 March 2016, the Commission advised Mrs Kumar and 123 Kids that the application was out of time and, on 9 March 2016, listed the matter for an Extension of Time Conference/Hearing on 1 April 2016. When did the termination have effect? [6] The matter was listed for an Extension of Time Conference/Hearing on the basis of the date Mrs Kumar nominated as the date the termination took effect in her application. However, on the evidence before me, it is clear that Mrs Kumar was wrong in her understanding of the date of effect of the termination. The date on which the termination had effect is a question of fact and not the parties’ beliefs. [7] Mrs Kumar was due to return to work on 3 February 2016 after taking a period of approved parental leave. 123 Kids emailed Mrs Kumar on 24 December 2015 seeking confirmation of Mrs Kumar’s intention to return to work in the week beginning 1 February 2016. There followed various correspondence, including a request by Mrs Kumar to extend the period of leave, advice by 123 Kids that Mrs Kumar was to return to work on 3 February 2016 on the same days and times and with the same number of hours she was working prior to her commencement of parental leave, and a request by Mrs Kumar for a roster change. Mrs Kumar did not return to work on 3 February 2016 and failed to attend 123 Kids for her rostered shifts on 5, 10, 12, 17 and 19 February 2016. During this period, several attempts were made by staff at 123 Kids to contact Mrs Kumar by mobile phone without success. [8] Mr Kloufetos, Director of 123 Kids, gave evidence that a letter was hand delivered to Mrs Kumar’s home address on 9 February 2016 advising Mrs Kumar that 123 Kids considered that she had abandoned her employment, seeking a response from her and advising her that if she did not respond within seven days, she would be considered to have abandoned her employment. Mrs Kumar’s evidence was that she did not receive the letter. In the absence of any response from Mrs Kumar, on 19 February 2016, Mr Kloufetos wrote to Mrs Kumar notifying her of her dismissal and concluding that Mrs Kumar had abandoned her employment by failing to return to work from approved parental leave on 3 February 2016. The letter was sent by registered post that same day. The evidence of Mrs Kumar is that she received the letter on 24 February 2016. [9] It is clear on the evidence that the termination of employment was conveyed to Mrs Kumar in Mr Kloufetos letter of 19 February 2016. In considering the evidence before me, there was a deliberate decision by Mr Kloufetos to terminate the employment of Mrs Kumar, therefore ending the employment relationship on 19 February 2016 and at the initiative of 123 Kids. [10] Considering the decision of Burns v Aboriginal Legal Service of Western Australia (Inc) , 2 a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed: “[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.” [11] It is not in contention that Mrs Kumar was first advised that she had in fact been dismissed by a letter she received by registered mail which was dated 19 February 2016. Whether Mrs Kumar received notification of her dismissal on the 24 February 2016, as she contends, or earlier, I am satisfied that Mrs Kumar first became aware she had in fact been dismissed between 19 and 24 February 2016. The termination of employment did not take effect until it was communicated to Mrs Kumar between 19 and 24 February 2016. It follows her application which was made on 26 February 2016 is not out of time. [12] 123 Kids submitted that Mrs Kumar abandoned her employment and her termination date should be the last day she attended work, prior to taking parental leave, which was 14 August 2015. Alternatively, the date of effect of the termination was 3 February 2016, the date from which Mrs Kumar failed to return to work from her parental leave, and, 123 Kids contended, Mrs Kumar thereby abandoned her employment. [13] Generally abandonment of employment arises in circumstances where an employee is absent from the workplace without communicating with the employer to provide a reasonable excuse for the absence. There is authority for the proposition that abandonment on the part of an employee constitutes repudiation of the employment contract, and that the election of the employer to accept the repudiation is the action which brings about the termination of employment, rather than the abandonment itself. 3 [14] In Searle v Moly Mines Limited 4 a Full Bench of Fair Work Australia said: “[22] Before turning to the facts of this case there is another issue which arose in the course of the submissions with which we should deal. That matter concerns the relevance of the principles governing the termination of a contract of employment. It is clear that the statutory test relates to termination of the employment relationship, not termination of the contract of employment. The difference is well illustrated by the following passage from the joint judgment of Brennan CJ and Dawson and Toohey JJ in Byrne and Frew v Australian Airlines Ltd : ‘It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson [(1946) [1946] HCA 25 ; 72 CLR 435 at 471]. As Latham CJ said (at 454): ‘An employer terminates the employment of a servant when he dismisses him, though, as I say hereafter, such a dismissal does not put an end to the contract between the parties. An argument that a dismissal because wrongful was a nullity was raised and rejected in both Williamson's Case [Williamson v The Commonwealth[1907] HCA 60; [1907] HCA 60 ; , (1907) 5 CLR 174 at 185] and Lucy's Case [Lucy v The Commonwealth[1923] HCA 32; [1923] HCA 32 ; , (1923) 33 CLR 229 at 237, 238, 249, 252, 253].’ And as Dixon J said [Automatic Fire Sprinklers Pty Lt v Watson at 545]: ‘there is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve.’ ’ [23] In the case of wrongful dismissal, as the passage shows, the employment is terminated by the employer even though the contract continues until the employee accepts the repudiation, thereby bringing the contract to an end. In applying the statutory test it is the termination of the employment relationship which is important.” [Endnotes not reproduced] [15] In GlaxoSmithKline Australia Pty Ltd v Gauci 5 a Full Bench said: “[19] There is an additional contention advanced by the respondent’s counsel which requires comment. It was argued that even if the respondent had abandoned his employment that would not constitute termination. It would constitute repudiation of the contract. Because GSK had elected to treat the repudiation as terminating the contract the employment was terminated at GSK’s initiative. This argument raises an issue of potential significance in any case involving conduct by an employee which constitutes repudiation of the contract of employment. It is not necessary to decide the issue in this case, however, because we have not disturbed the finding that there was no abandonment and therefore the question of repudiation does not arise. But we observe that the argument may blur the distinction between termination of employment and termination of the contract of employment. The question posed by the statute is whether the employment was terminated at the initiative of the employer. An analysis based on contractual notions of repudiation and acceptance may not always correspond with the statutory concept.” [16] Even if it was accepted that Mrs Kumar had abandoned her employment on 3 February 2016, it was Mr Kloufetos’ own evidence that he first advised Mrs Kumar of his intention to bring the employment relationship to an end on 9 February 2016. The deliberate decision by Mr Kloufetos to terminate the employment of Mrs Kumar, therefore ending the employment relationship, was made and conveyed to Mrs Kumar in his letter of 19 February 2016, and at the initiative of 123 Kids. Conclusion [17] There are a number of contentions between the parties regarding the events that led to Mrs Kumar’s dismissal. However, it is not in contention that Mr Kloufetos sent a letter by registered mail to Mrs Kumar on 19 February 2016 advising Mrs Kumar her employment had been terminated and that this was the first notice sent from 123 Kids to Mrs Kumar advising her that her employment ‘ had been terminated’ . [18] Having considered the matters referred and for the reasons set out above , I am satisfied that Mrs Kumar’s application was not made out of time. [19] The matter will now be referred to the Unfair Dismissal Case Management Team for further programming. COMMISSIONER Appearances : Ms V Kumar on her own behalf Mr P Kloufetos for the Respondent Hearing details: 2016. Melbourne: April 1. 1 Form F2 –Unfair Dismissal Application. 2 (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) Print T3496 . 3 Sharpe v MCG Group Pty Ltd [2010] FWA 2357 . 4 [2008] AIRCFB 1088 . 5 [2008] AIRCFB 439 . Printed by authority of the Commonwealth Government Printer <Price code C, PR581017>