Andrew Rabel v Victorian Elevators Pty Ltd T/A Forte Lift Services
[2023] FWC 2492
•3 OCTOBER 2023
| [2023] FWC 2492 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Andrew Rabel
v
Victorian Elevators Pty Ltd T/A Forte Lift Services
(U2023/6815)
| COMMISSIONER MIRABELLA | MELBOURNE, 3 OCTOBER 2023 |
Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period.
On 26 July 2023, Mr Andrew Rabel (the Applicant) filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) in the Fair Work Commission (the Commission) against Victorian Elevators Pty Ltd T/A Forte Lift Services (the Respondent).
The Applicant seeks the opportunity to establish that his dismissal was unfair so that he can obtain a remedy of reinstatement or compensation.
To have that opportunity, the Applicant must have completed the minimum period of employment with the Respondent in order to be a person “protected from unfair dismissal” and therefore be able to bring an unfair dismissal application against the Respondent. The relevant period is 12 months for employees of small business employers and 6 months for those employed by employers with 15 or more employees.[1] Although the Respondent in their Form F3 employer response stated they are a small business employer, they later conceded in written submissions that they and their associated entities engage more than 15 employees.
The Applicant commenced employment with the Respondent on 24 January 2023. The Respondent contends that the Applicant was dismissed on 21 July 2023 and that he therefore did not serve the required 6 months which would enable him to make an unfair dismissal application. The Applicant contends that he was dismissed on 24 July 2023.
This matter was allocated to me on 4 September 2023. I conducted a determinative conference on 2 October 2023 regarding the matter at the Commission in Melbourne.
The question is whether the Applicant has completed the minimum employment period which is uncontested in this matter as being a 6-month period, such that he is protected from unfair dismissal.
Facts and evidence
The following are agreed unless otherwise indicated.
On 24 January 2023, the Applicant was engaged by the Respondent in debt recovery.
On 21 July 2023, the Applicant and Mr Adrian Allisey, Director of the Respondent, met to discuss the Applicant’s employment (21 July 2023 meeting). The Respondent says they summoned the Applicant to the 21 July 2023 meeting. The Applicant disagrees and says he requested the meeting because he had approached Mr Allisey to discuss taking leave on 28 July 2023.
The Respondent says that at this meeting, Mr Allisey verbally informed the Applicant that he had not satisfactorily passed his 6-month probation period and was thereby dismissed, effective immediately. They say he left the workplace at around 3:00pm, taking his personal belongings with him. The Respondent tendered an email from the Applicant sent later that day with the subject heading “Termination of Probation on 21/7/23 at 330pm at Forte Lifts” and which provided Mr Rabel’s account of the 21 July 2023 meeting.
The Applicant disputes the Respondent’s account of the 21 July 2023 meeting and says he was informed at the meeting that his work performance regarding reconciliations and understanding of construction work were probationary concerns. The Applicant agrees that he was asked by Mr Allisey to leave the premises following the 21 July 2023 meeting and says he did so at approximately 4:00pm. At the determinative conference, the Applicant vacillated between stating that he believed the outcome of the 21 July 2023 meeting was ambiguous and that he was confused, and stating that he clearly understood that he was dismissed by verbal notice at the 21 July 2023 meeting.
Finally, when questioned about the 21 July 2023 meeting, the Applicant apologised and stated words to the effect that there was nothing ambiguous in the 21 July 2023 meeting and that, “I understood clearly, Commissioner, that I was told to leave that day and obviously I wouldn’t come back to work for the Respondent, that is clear. Whether you call it a termination or whatever, I understood that clearly”. The Applicant understood that termination on 21 July 2023 meant he did not qualify for the minimum employment period.
At the determinative conference and under cross-examination, the Applicant stated words to the effect that it was the termination letter that had raised ambiguity for him regarding whether he had been employed for the minimum employment period and he then proceeded to research his possible legal entitlements.
The Applicant says this is because the termination letter refers to the Applicant having “worked here for 6 months” and that this creates ambiguity because it could be read to mean he had completed his six-month minimum employment.
Under cross-examination, Mr Allisey says that he used the phrase “worked here for 6 months” in a general sense and to assist the Applicant in approximating his service with the Respondent for future employment.
The Applicant did not carry out or expect to carry out any further work for the Respondent following the 21 July 2023 meeting.
The Respondent initially submitted that on 23 July 2023, the Applicant attended its premises unannounced and requested he be given a termination letter, although this was later changed to 24 July 2023.
The parties agree the Applicant attended the Respondent’s workplace on 24 July 2023 where he was given a termination letter, which was dated 21 July 2023.
Submissions
The Respondent
The Respondent submits that the Applicant did not complete 6 months of employment with them and therefore did not meet the minimum employment period required by s.382(a) of the Act. They make the following submissions:
· He was verbally dismissed on 21 July 2023 and not 24 July 2023 as the Applicant contends.
· The term “dismissed” is defined in s.386 of the Act and expressly includes the situation where a person’s employment is “terminated on the employer’s initiative”.
· That the Applicant packed up his personal belongings and left the workplace on 21 July 2023 and then requested a termination letter supports their submission that the Applicant was dismissed on 21 July 2023.
Regarding the Applicant’s submission in his Form F2 application that s.117 of the Act requires written notice of termination, the Respondent submits that the purpose of s.117 is to ensure that employees are given clear and adequate notice of, or payment in lieu thereof, the termination of their employment by their employer. It submits that notice of termination which does not comply with s.117 of the Act may still be effective to bring about the termination of the employment relationship and may constitute “notice of the dismissal” within the meaning of s.383(a)(i) of the Act.
The Respondent concedes that the employment contract between the parties does require notice of termination to be in writing. However, it submits that the “notice” required by s.383(a)(i) of the Act is of the termination of the employment relationship, not the employment contract, which have separate requirements, pointing to the decision of Metropolitan Fire and Emergency Services Board v Garth Duggan[2017] FWCFB 4878.[2]
The Applicant
The Applicant made numerous submissions. These included that:
· He was dismissed on 24 July 2023 when he was handed the termination letter and that it was backdated to 21 July 2023.
· This is supported by the termination letter stating, “you can finish your employment today” and “we confirm you worked here for 6 months”.
· He was provided with payment in lieu of notice on 26 July 2023 and he submits this therefore means the dismissal took effect on 26 July 2023 or 24 July 2023, pointing to the decision in Clarke v Uniti Group Ltd (Uniti Wireless) [2023] FWCFB 133.
In his written submissions, the Applicant says that the letter of termination “superseded and confirmed and extended the inadequate discussion or notice of 21/07/23 to an official and effective termination date of 24 July 2023”.[3] At the determinative conference, the Applicant conceded that the termination was clear on 21 July 2023. Nevertheless, the Applicant continued to make a further submission that the termination decision was effectively made in two stages. The first being the decision on 21 July 2023 that was “pending” and the second being the confirmation of the termination on 24 July 2023 via the letter of termination.
The Applicant points to s.117 of the Act which he submits prohibits an employer from dismissing an employee unless the employer has given the employee written notice of the day of termination, which cannot be an earlier day, and must pay the employee their final payment. He submits that he was therefore dismissed on 24 July 2023 when he received written notice or 26 July 2023 when he received his termination payments.
Conclusion
The Applicant commenced his employment with the Respondent on 24 January 2023. The minimum employment period of six months under s.383 would have applied from 23 July 2023 onwards.
Although the Applicant made numerous and, at times, contradictory submissions, he unambiguously stated at the determinative conference that on 21 July 2023 he had been clearly told that he was terminated and was asked to leave the Respondent’s premises. This date of termination is agreed to by the Respondent.
The Applicant was clear that he had been dismissed on 21 July 2023 and that he was not returning to work for the Respondent.
I am not convinced by the Applicant’s submissions that the termination decision was made in two stages or that the termination letter he received on 24 July 2023 created genuine ambiguity about the date of termination. I prefer the Respondent’s evidence regarding the termination letter and its wording.
I do not find that the termination letter given to the Applicant on 24 July 2023, which referred to the Applicant as having worked for the Respondent for six months, altered the understanding that the employment relationship between the Applicant and Respondent ceased on 21 July 2023.
I find that the date of the Applicant’s dismissal was 21 July 2023 and ended the employment relationship between the Applicant and the Respondent.[4] Accordingly, the Applicant’s employment period was less than six months. The result is that the Applicant is not protected from unfair dismissal. The Respondent’s jurisdictional objection is upheld, and the Applicant’s unfair dismissal application is dismissed.
An order giving effect to this decision will be issued shortly.
COMMISSIONER
[1] Fair Work Act 2009 (Cth) s.383, s. 23.
[2] Metropolitan Fire and Emergency Services Board v Garth Duggan[2017] FWCFB 4878 (Duggan) at [22].
[3] Applicant’s written submissions filed 19 September 2023 at page 3.
[4] Duggan at [21].
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