Alex Wiseman v Bazel Holdings Pty Limited T/A Bazel & Co Builders Pty Limited
[2017] FWC 4217
•30 AUGUST 2017
| [2017] FWC 4217 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Alex Wiseman
v
Bazel Holdings Pty Limited T/A Bazel & Co Builders Pty Limited
(U2017/5315)
DEPUTY PRESIDENT DEAN | SYDNEY, 30 AUGUST 2017 |
Application for an unfair dismissal remedy – effective date of dismissal – extension of time.
[1] Mr Wiseman commenced employment with Bazel Holdings Pty Limited T/A Bazel & Co Builders Pty Limited (Bazel Holdings) on 3 December 2013.
[2] On 18 May 2017 Mr Wiseman lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that he had been unfairly dismissed by Bazel Holdings. He says that the last day that he performed work for Bazel Holdings was 10 March 2017.
[3] The matter was listed for hearing by telephone on 21 August 2017 to determine two matters. First, what was the effective date of Mr Wiseman’s dismissal, and second, whether his application was lodged within the statutory time limit and, if not, whether an extension of time should be granted pursuant to s.394(3) of the Act.
[4] At the hearing, Mr Wiseman appeared on his own behalf and was assisted by his father. Mr Warrick Baczynski, owner, appeared for Bazel Holdings.
When did the dismissal take effect?
[5] A dismissal takes effect when it is communicated to the employee who is being dismissed, 1 and can be communicated orally.2
[6] A termination at the initiative of the employer involves some action of the employer that is intended to bring the employment relationship to an end, or had that probable result. 3
[7] Mr Wiseman states that on 9 March 2017 Mr Baczynski told him he was “done” and should not come to work the following week but was to continue working on Friday 10 March 2017. He says that the conversation was quick and at the time he did not understand what Mr Baczynski meant. He says that he attempted to speak to Mr Baczynski on 10 March 2017 and again the following week by telephone and via text message. A meeting was arranged between Mr Wiseman and Mr Baczynski for 20 March 2017 which Mr Baczynski did not attend. Mr Wiseman gave evidence that on Monday 13 March 2017 he attended work to have papers signed off confirming the completion of the second year of his apprenticeship, and that after that time he did not attend work for Bazel Holdings, nor was he notified of work in the manner in which he had been notified previously.
[8] Mr Wiseman submits that following a number of attempts to contact Mr Baczynski he contacted his training provider who confirmed that he was still registered as working for Bazel Holdings, and that the training provider had not been informed that Mr Wiseman had been dismissed. He says that on 18 May 2017 he sent a form to his training provider to cancel his training contract to enable him to look for another employer to take over his apprenticeship and was advised by the training provider that Bazel Holdings needed to confirm his dismissal. He states that he received confirmation from the training provider that his training contract had been cancelled effective 18 July 2017.
[9] Mr Baczynski gave evidence that he and Mr Wiseman had a discussion on either 8 or 9 March 2017 during which Mr Wiseman agreed that he would not pass a drug test. Bazel Holdings submit that as a result of this discussion, Mr Wiseman was informed that he would no longer be employed by the company. Bazel Holdings denies that Mr Wiseman was asked to attend work the following day.
[10] The term ‘dismissed’ for the purposes of both the unfair dismissal jurisdiction is defined in s.386 of the Act. Section 386 provides that a person is dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative, or 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. 4
[11] In J Searle and Moly Mines Limited, 5a full bench considered the meaning of termination at the initiative of the employer, and stated:
[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 6:
“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) 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) 5 CLR 174 at 185] and Lucy's Case [Lucy v The Commonwealth, (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.
[12] While Mr Wiseman acknowledged that 10 March 2017 was the last date he performed work, his submissions focused on the date his training contract was cancelled. The proper test however, is the date the employment relationship ended. I find that the employment relationship ended at the time Mr Wiseman ceased performing work for Bazel Holdings despite his training contract being cancelled at a later date.
[13] It follows and I find that the effective date of dismissal is 10 March 2017. As Mr Wiseman’s application was filed on 18 May 2017, his application has not been made within the 21 day time limit prescribed by the Act. It is therefore necessary for me to consider whether Mr Wiseman should be granted an extension of time.
Extension of time
[14] Section 394(3) of the Act provides:
(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.
[15] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on the Applicant.
[16] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 7 where the Full Bench said:
“[13] In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
[17] I now deal with each of the provisions of s.394(3) of the Act.
Reason for the delay
[18] In his written submissions, Mr Wiseman stated that the main reason for the delay in making his application “was that I wasn’t properly dismissed and therefore didn’t know I had been dismissed”. He also indicated that he thought that he might be able to return to work for Bazel Holdings.
[19] Mr Wiseman gave evidence that he made numerous attempts to contact Mr Baczynski and “thought things would work out OK”, because he had worked for Bazel Holdings for 2 years as a school-based apprentice and a further 16 months as a full-time apprentice, and had not been given any warnings.
[20] In his application, Mr Weisman indicated that he did not make his application within time because he had been “trying to find out what is happening from my employer who refuses to communicate with me”. He further stated that “I have come to the conclusion that being told I was “done” on the 9th March was notice of my dismissal even though I was told to work on the 10th March.”
[21] Having considered all of the evidence and submissions, I find that the matters addressed by Mr Wiseman as reasons for the delay in lodging this application cannot be considered “exceptional”. This weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[22] Mr Wiseman’s evidence was that he was told he was “done” by Mr Baczynski on 9 March 2017 but didn’t really understand what he meant by “done”.
[23] I accept that there may have been some confusion on Mr Wiseman’s part following the conversation between himself and Mr Baczynski on or around 9 March 2017. Mr Wiseman’s evidence is that he made multiple attempts by email and text message to contact Bazel Holdings to clarify the situation. He submits that he conducted an ASIC search and noted that the company had ceased trading but was still a registered company. He took steps to contact his training provider who confirmed he was still registered as an apprentice with Bazel Holdings.
[24] However, Mr Wiseman’s evidence is that other than attending to have his apprenticeship papers signed, he did not attend work or perform work after Monday, 13 March 2017, nor was he contacted by text message or phone by his employer which was the normal method of informing Mr Wiseman as to where he should attend for work on a daily basis. It is reasonable in my view to conclude that Mr Wiseman was aware that his employment had ended on by 10 March 2017, notwithstanding any hope he may have held that “things would work out OK”.
[25] I find that this weighs against the granting of an extension of time.
Any action taken by the person to dispute the dismissal
[26] Mr Wiseman submits that he made numerous attempts to speak with Mr Baczynski, including attending the workshop which was closed and is now empty. I find that Mr Wiseman made numerous attempts to contact Mr Baczynski who did not return his calls. This weighs in favour of granting an extension of time.
Prejudice to the employer (including prejudice caused by the delay)
[27] There is no evidence of prejudice to Bazel Holdings if I were to grant an extension of time.
[28] I am not persuaded that Bazel Holdings would suffer prejudice if the extension of time were granted. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.
The merits of the application
[29] For the purpose of determining whether to grant an extension of time for Mr Wiseman to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’8
[30] Mr Wiseman contends that he was not given a reason for the dismissal and for a period of time following the dismissal he was unclear of the status of the employment relationship.
[31] Bazel Holdings submit that Mr Wiseman’s employment was terminated following an acknowledgement that he would not pass a drug test. Mr Wiseman disputes that he ever admitted that he would not pass a drug test.
[32] It is not disputed that Basel Holdings is no longer trading and is closed down. Mr Baczynski gave evidence that he has filed for bankruptcy, and the reason the company has not been deregistered is that he cannot afford to appoint a liquidator.
[33] Overall, on the limited evidence before me, I am unable to make a final determination of the merits in this matter. I therefore find the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
[34] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 9 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’10
[35] I do not consider that there are other relevant persons in a similar position to Mr Wiseman, I therefore find this to be a neutral consideration.
Conclusion
[36] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances as to warrant my granting an exception to the statutory time limit for the lodgement of this application.
[37] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
A. Wiseman with P. Wiseman for the applicant.
W. Baczynski for Bazel Holdings Pty Limited T/A Bazel & Co Builders Pty Limited
Hearing details:
2017.
Sydney (by telephone):
August 21.
1 Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, 21 November 2000) print T3496.
2 Plaksa v Rail Corporation NSW[2007] AIRC 333.
3 Searle v Moly Mines Limited [2008] AIRCFB 1088 at para 2.
4 Section 386 of the Act.
5 [2008] AIRCFB 1088.
6 (1995) 185 CLR 410 at 427.
7 [2011] FWAFB 975.
8 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
9 [2015] FWC 8885.
10 Ibid at [29].
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