Adam Kelly v National Roofcare Pty Ltd [2024] FWC 494

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Adam Kelly v National Roofcare Pty Ltd (U2023/12574) DEPUTY PRESIDENT ROBERTS SYDNEY, 23 FEBRUARY 2024 Application for an unfair dismissal remedy [1] The Applicant in these proceedings, Mr. Adam Kelly (Applicant) was previously employed by National Roofcare Pty Ltd (Respondent). On 1 November 2023 and in the course of his employment, the Applicant received an email from the Respondent in the following terms: Hi Adam, With regards to your recent Work Cover letter from GIO, we are confirming that you are unable to work in the capacity of a Roof Plumber moving forward. Whilst we have explored other opportunities (including WA), it is not possible for you to gain access to roof environments due to insurance issues. As at Dec 1 it’s the intention of National RoofCare to pay out your entitlements, including annual leave. We thank you for your services to date and we wish you the very best in the future. Regards [2] On 15 December 2023 the Applicant filed an application for an unfair dismissal remedy under s.394(1) of the Fair Work Act 2009 (Act). The Respondent subsequently filed a response to the application in which it raised a jurisdictional objection. The Respondent asserted that the Applicant’s dismissal had taken effect on 1 November 2023 and the objection was that the application was made outside the 21-day time period prescribed by s.394(2)(a). [3] Directions were made for the filing of material for the purpose of dealing with the Respondent’s objection and the matter was listed for hearing on 20 February 2024. The Respondent did not file any material in response to the directions and in the circumstances, I [2024] FWC 494 DECISION -- 1 of 4 -- [2024] FWC 494 2 determined that the matter would be determined on the papers. The parties were advised accordingly. [4] The first question to be answered in relation to the jurisdictional objection is whether the application was lodged after the expiry of the 21-day time period. As the date of the making of the application is known, the answer to that question will depend in turn on the date that the Applicant’s dismissal took effect. As the basis for giving effect to the dismissal was the email of 1 November, I must consider the proper meaning and effect of that email. Context [5] It is appropriate to provide some brief context to the email. The Applicant was initially employed by the Respondent as a roof plumber in November 2020. Over the course of his employment, he transitioned into a managerial role becoming the ACT and Southern NSW State Coordinator. In early 2023 he was asked by the Respondent to move to Western Australia to set up a branch of the business there. On 14 July 2023 he suffered a workplace injury. The Applicant continued to perform his normal duties for approximately two weeks. By on or about 1 August 2023 the injury had not resolved itself and the Applicant sought medical assistance, obtained a certificate of capacity and filed a workers’ compensation claim. The claim was initially accepted. [6] The Applicant continued to perform managerial and administrative tasks for the Respondent. Following a subsequent medical examination, the Applicant was advised by the workers’ compensation insurer that the injury was considered to be a pre-existing injury and that the claim had been rejected. [7] At the time he received the email of 1 November, the Applicant was on a period of extended leave. [8] On 8 December 20231 the Applicant received a payslip from the Respondent showing a payout of his annual leave and other payments for a pay period ending on 1 December 2023. Submissions [9] The Applicant contended that the dismissal took effect on 1 December 2023. They referred to and relied on the decision in Mihaljovic v Lifeline MacArthur [2013] FWC 9804 as authority for the proposition that a dismissal does not take effect until communicated in clear and unambiguous terms and that the circumstances of a contract of employment and the disbursement of entitlements can be relevant. The Applicant also referred to the Full Bench decision in Ayub v. Sydney Trains [2016] FWCFB 5500 and the following passage from decision of Fardell v. Coates Hire Operations Pty Ltd [(2010) 201 IR 64 cited therein: [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 -- 2 of 4 -- [2024] FWC 494 3 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]). [10] The Applicant said that the whole of the email of 1 November would be understood by an ordinary reader as a clear indication that the Applicant was dismissed with effect on 1 December. There is no indication in the email of any intention to the contrary. Alternatively, the Applicant said if the 1 November email is “technically silent” on the date of dismissal, it unambiguously states that the Applicant’s entitlements would be paid out on the 1 December, which is also just over the four weeks of notice required under the Act. Further, the Applicant said that if the view was taken that the 1 November email was unclear as to the date of termination, it may not be regarded as an effective termination at all, in which case the termination would not have taken effect until 8 December 2023 when the Applicant received a payslip showing that his entitlements had been paid out on 7 December. The Applicant said that receipt of that payslip would be regarded by a reasonable person in the position of the Applicant as a notice of termination. On any of these scenarios, the Applicant contended that the application filed on 15 December was within time. [11] In my view the email of 1 November evinces an intention to bring the employment relationship to an end. This much is made clear by the last sentence of the email. The position is reinforced by the first and second sentences which say that ongoing employment options are no longer available. However, on any ordinary reading of the text of the email, there is nothing to indicate that the termination of the employment relationship is or was intended to take immediate effect. It is clearly not a case of the Applicant being told he was being terminated and receiving ‘payment in lieu of notice’ in the first sense in which that term is discussed in Leech v Preston Borough Council [1985] ICR 192 at 196 as cited in Siagian v. Sanel Pty Ltd (1994) 122 ALR 333. The relevant extract from the latter case is as follows: “Counsel's second argument is that, because of the payment in lieu of notice, the termination did not occur on 29 March but at the date of expiration of the period for which payment was made, 15 April. If this argument is correct, s.170EEorders are available. This argument also raises a complex problem. The problem arises because of the ambiguity inherent in the words "payment in lieu of notice". The ambiguity was pointed out by Waite J, in Leech v Preston Borough Council [1985] ICR 192 at 196: "... it is clear from the authorities cited to us, ... all of which are confirmed by the experience of our lay members, that the expression 'payment in lieu of notice' is regularly used throughout industry in one or other of two quite different senses. The first, which is the grammatically correct one, is when it is used to describe the payment to an employee whom it is proposed to dismiss summarily of a lump sum representing compensation for the wages or salary which he would have received if he had been given the notice to which he is entitled by law. The second, which is the colloquial and grammatically inaccurate one, is when the term is used as a convenient shorthand way of telling an employee that he is being given the full period of notice to which he is -- 3 of 4 -- [2024] FWC 494 4 entitled by law but is at the same time excused any duty (and refused any right) that he would otherwise have under his employment contract to attend at the workplace during the notice period." Although Waite J did not spell out the result that flowed from each meaning, it is clear from other decisions that, in the first case, the employee's employment terminates upon the date of payment of the lump sum. In the second case, the employment extends until the expiration of the period for which the payment was made. [12] The email makes no express reference to payment for the notice period or that the Applicant is released from further duty and attendance at the workplace. Nor does it say that the payment of any entitlements including wages, would cease from 1 November. In the absence of that advice, and in ordinary circumstances, the obligation to continue to pay wages and other entitlements would be ongoing. The email is in my view, effectively providing a period of notice of one calendar month to the Applicant. It does, on a proper reading of its text and construed objectively, give notice to the Applicant that the employment relationship is coming to an end at a future date. I am of the view that the future date is 1 December 2023 and that a reasonable reader in the position of the Applicant would have read it that way. [13] I also observe that as it turned out, the Applicant received his accrued entitlements on 7 December 2023. He also received an amount for “Wages paid on WorkCover” for a pay period ending on 1 December 2023. Such a payment is not consistent with an intention to terminate the employment relationship on 1 November 2023. It is consistent with the view that the relationship ended on 1 December 2023. [14] The dismissal of the Applicant took effect on 1 December 2023. The contention that the application is out of time is rejected and the issue of whether an extension of time should be granted does not arise. [15] The matter will be relisted for directions on a date to be determined. DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <PR771747> 1 The material filed by the Applicant also makes reference to the payslip being received on 7 December 2023. I do not regard it as material to the outcome of this decision that the receipt of the payslip was on one or tother of those dates. -- 4 of 4 --