Beat (Joe) Unternaehrer v Compri Tube Clean Pty Ltd T/A Compri Tube Clean

[2014] FWC 7736

[2014] FWC 7736 [Note: An appeal pursuant to s.604 (C2014/7919) was lodged against this decision - refer to Full Bench decision dated 15 April 2015 [[2015] FWCFB 2539] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Beat (Joe) Unternaehrer
v
Compri Tube Clean Pty Ltd T/A Compri Tube Clean
(U2014/907)

DEPUTY PRESIDENT MCCARTHY PERTH, 4 NOVEMBER 2014

Application for relief from unfair dismissal - extension of time.

[1] Mr Beat (Joe) Unternaehrer (the Applicant) lodged an Unfair Dismissal Application (the Application) on Friday, 21 March 2014 at 6:20 pm in the Melbourne Registry of the Fair Work Commission (the FWC) electronically. The Application states that the Applicant resides in Queensland. It is not in dispute that the Applicant was employed in Western Australia. The Application states that the Applicant was dismissed from his employment with Compri Tube Clean Pty Ltd trading as Compri Tube Clean (the Respondent) on 4 March 2014.

[2] The Employer Response to the Application (the Employer Response) objects to the Application on the grounds that the Application was lodged outside the time allowed (see s. 394(2) of Fair Work Act 2009 (FW Act)). The Respondent asserts that the Applicant’s employment was terminated on 27 February 2014.

[3] As there were disputed facts I conducted a hearing on 23 October 2014 to deal with the date the dismissal took effect and if the Application was lodged outside the time allowed whether the Application should be allowed.

[4] The Applicant provided a statement. In that statement he states that:

“11. I had loose social arrangement to meet with Erich at the Swiss German Club after work on Friday, 28 February 2014, but was unable to make it for personal reasons, and did not hear from Erich until I opened his termination email on 4 March 2014.

[5] Essentially the Applicant asserts that the dismissal took effect on 4 March 2014 when he received the letter of termination. The letter of termination was dated 27 February 2014.

[6] Under cross examination the Applicant asserted that:

● he was never orally advised of his dismissal before 4 March 2014; and

● he did not receive any phone calls from Mr Erik Kemmerlings (a company Director) on 27 February 2014 nor did he think he had before 27 February 2014.

[7] The Applicant admitted that he had refused to hand over the keys (presumably being keys to the Respondent’s premises) to Ms Belinda Dawes on 27 February 2014. It is apparent from the Applicant’s own evidence that he refused to hand over the keys to Ms Dawes as he believed she did not “belong to the company” and was not “a member of the company operations people”.

[8] The Applicant also stated that he organised a meeting with Mr Kemmerlings at the club (the Swiss German Club) at 6:00pm on 28 February 2014. He stated that he “was coming down to the meeting and I [the Applicant] was bringing the keys”. The Applicant’s evidence regarding this was confusing. He stated that he told Mr Kemmerlings that
“he was coming to the meeting and I [the Applicant] was bringing the keys”. He then stated he could not remember when he organised the meeting to which he was referring and nor could he remember how he organised it although when pressed he said he
“probably called him”. Peculiarly the Applicant stated that he probably called Mr Kemmerlings at “6 o’clock in the evening” for a meeting at 6 o’clock on that same evening.

[9] Ms Dawes gave evidence that she witnessed many phone calls between the Applicant and Mr Kemmerlings. Ms Dawes also stated that she “was present when Mr Unternaehrer [the Applicant] left and told everybody present when he left that he would never be back because he no longer worked for Compri Tube Clean.”

[10] Ms Dawes stated that she “was present and knew the circumstances leading up to the instant dismissal on the 27th of February, and previous phone calls, and the fact that Mr Unternaehrer [the Applicant] had packed all his belongings, for what they were worth, into the car. He also knew that he had to hand over the keys to me, but he refused.”

[11] Ms Dawes testified that the Applicant was dismissed instantly on 27 February 2014. She stated that:

“I became aware of the termination, I knew that it was happening because I was advised on the 26th that that would be happening on the 27th. I was advised that Mr Unternaehrer [the Applicant] would be contacted on the 27th.”

[12] She stated that she “was present when he [the Applicant] received the call from Eric Kemmerlings.”

[13] Ms Dawes stated that:

“Mr Unternaehrer [the Applicant] had gone to the car. He was sitting in the passenger seat and he was talking to Mr Kemmerlings in German. They were having a conversation in German. I knew - I had been advised by Mr Kemmerlings that he would be ringing regarding the termination. The - after the phone call that Mr Unternaehrer [the Applicant] received he affirmed that he had been - he - his employment had been terminated. They were the words, not instantly dismissed but his employment had been terminated.”

[14] After the phone call Ms Dawes states that the Applicant said “I no longer work for Compri Tube Clean”. She says that: “He then he then proceeded to come out of the car. He collected all of his belongings”. The Applicant is then said to have said, ““Goodbye” to the people that were working there and said that he would not be seeing them again, and that was his words, that he would not be seeing them again” and repeated as much to Mr Dawes.

[15] Ms Dawes stated that she did not speak German and that the conversation between the Applicant and Mr Kemmerlings was in German.

[16] I find that the Applicant’s evidence was improbable and unconvincing. He asserts that he did not have a call from Mr Kemmerlings. Ms Dawes evidence is clear and convincing that there was an extended discussion by phone between the Applicant and Mr Kemmerlings on 27 February 2014.

[17] The Applicant also asserts that he arranged a meeting with Mr Kemmerlings by phoning him at 6:00pm on 28 February 2014 for a meeting at 6:00pm. Even allowing for language difficulties and the technical and sound difficulties encountered during the proceedings it is improbable that the Applicant would arrange a meeting to be held contemporaneously with the time he was organising that it be held.

[18] As unconvincing as the Applicant’s evidence was I found the evidence of Ms Dawes to be logical and convincing. Despite Ms Dawes only overhearing the phone discussion in German between the Applicant and Mr Kemmerlings the actions and utterances of the Applicant evidenced by Ms Dawes appears to me to be the actions of a person that had been dismissed. I find that Mr Kemmerlings dismissed the Applicant during that phone call and that the Applicant understood and knew he had been dismissed. I should also note that I make that finding notwithstanding that Mr Kemmerlings did not give evidence.

[19] I therefore find that the Applicant was dismissed on 27 February 2014 with immediate effect.

Was application lodged within time if dismissal occurred on 27 February 2014

[20] The Applicant argued that even if the dismissal did occur on 27 February 2014 the Application was lodged within the allowable time.

[21] The Applicant argued that by operation of s.36 of the Acts Interpretation Act 1901 the Applicant had until 21 March 2014 to lodge his Application because Monday, 3 March 2014 was a public holiday in Western Australia. The Applicant argued that if the dismissal took place on 27 February 2014 then Friday 28 February, Saturday 1 March and Sunday 2 March are all excluded from the time within which the Application must be lodged. Presumably the Applicant also means Monday, 3 March 2014 as that was the public holiday in Western Australia.

[22] The Applicant therefore seems to assert that the Applicant had until either 25 or 26 March 2014 to lodge the Application.

[23] The Acts Interpretation Act 1901 in s.36(2) provides as follows:

...

(2) If:

(a) an Act requires or allows a thing to be done; and
(b) the last day for doing the thing is a Saturday, a Sunday or a holiday;

then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.

Example: If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April.

(3) In this section:
“holiday” , in relation to the time for doing a thing, means:

(a) a day that is a public holiday in the place in which the thing is to be or may be done; and
(b) if the thing is to be or may be done at a particular office or other place--a day on which the place or office is closed for the whole day.
(my emphasis added)

[24] It is clear enough that s.36(2) has no relevance for lodgements if a public holiday falls within the period of time allowed for lodgement unless the public holiday is on the last day for lodgement. 1 That is not the case here. The last day for lodgement here was 20 March 2014.

[25] As the Application was lodged on 21 March 2014 I find that the Application was lodged outside the time allowed.

Should the application be allowed?

[26] The reason for the delay is that the Applicant asserted that he was not dismissed on 27 February 2014 but rather when he received the written notice of his dismissal. I made findings above regarding the date of the dismissal. I consider that the Applicant was not a credible witness. I also am of the view that the Applicant knew he had been dismissed on 27 February 2014 and that the letter he received on 4 March 2014 was a written confirmation of an oral dismissal which had occurred on 27 February 2014.

[27] There were no submissions regarding representative error however given the nature of the submissions made by Mr Gray regarding his view of the effect of s.36(2) of the Act Interpretation Act 1901 I presume that there was representative error.

[28] I am not persuaded that the reasons for the delay provided weigh in favour of there being exceptional circumstances existing but rather weigh in favour of there not being such a finding although only marginally so.

[29] The Applicant asserts that he became aware of the dismissal on 4 March 2014 and that it took effect on that day. It is apparent from my findings above that I do not accept the Applicant’s evidence in that regard. I find that he became aware of his dismissal when it occurred on 27 February 2014. This element of my considerations does not weigh in favour of exceptional circumstances existing.

[30] The Applicant appears to have sought advice and acted on that advice to lodge an application. There was no evidence nor submissions regarding when that advice was sought and what instructions were given by the Applicant. This element of my considerations does not weigh in favour nor against an exceptional circumstance existing.

[31] I do not consider that the Respondent would be prejudiced by the Application being allowed. It weighs in favour of a finding of exceptional circumstances.

[32] If the Employer’s Response is correct then the Respondent employed only three employees. In such circumstances compliance with the Small Business Fair Dismissal Code (SBFDC) would preclude a finding of an unfair dismissal. 2 Thus, if the Respondent had reasonable grounds to believe the Applicant had seriously misconducted himself the Application could not succeed. From the material lodged and submissions made I am of the view that the Respondent will be able to establish SBFDC compliance. I do not however make any findings of fact and accept that the merits of the case are arguable. I find that the merits of the Application weigh against a finding of an exceptional circumstance.

[33] The fairness between the Applicant and other persons in a similar position also weigh against a finding of an exceptional circumstance.

[34] I find that exceptional circumstances do not exist and therefore I will not allow the Application. The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

T Gray of Counsel for the Applicant.

B Dawes of the Respondent.

Hearing details:

2014.

Perth:

October, 23.

 1   Hemi v BMD Constructions Pty Ltd [2013] FWC 3593.

 2   Fair Work Act 2009 (Cth) s.385(c).

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