Benjamin O'Hanlon v Essential Caravans Pty Ltd

[2020] FWC 3262

[2020] FWC 3262

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin O’Hanlon
v
Essential Caravans Pty Ltd
(U2020/8105)

DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 23 JUNE 2020

Application for an unfair dismissal remedy – effective date of dismissal – stand down – whether application filed out of time.

[1] Mr Benjamin O’Hanlon made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth)(Act) on 11 June 2020.

[2] The matter proceeded to an extension of time hearing on the basis of the Respondent’s contention that Mr O’Hanlon’s employment ended on 25 March 2020 and the application was filed 57 days out of time.

[3] However, for the reasons that follow, I find that Mr O’Hanlon’s application was made within the 21-day timeframe prescribed by s.394(2)(a) of the Act.

Background

[4] Mr O’Hanlon contends that the effective date of dismissal is 11 June 2020.

[5] He says that on 25 March 2020 he attended a meeting with Mr John Morris, General Manager and was advised by Mr Morris that he was being stood down without pay as a consequence of the COVID-19 pandemic. He describes the meeting as follows:

“During this meeting I was advised by John that ‘l was stood down but not to worry as I was still employed by the company’. I was also advised that if I happened to ‘find a job’ while I was stood down ‘then take’ it, as John did not know where the company would end up.

When I questioned John and asked if I should take all my personal belongings he advised ‘Yes’ as the Covid-19 situation could ‘Shut down the company’.” 1

[6] On 27 March 2020, the Respondent emailed Mr O’Hanlon a stand down letter which stated:

“This is confirmation That on 25/3/2020 Ben O’Hanlon has been stood down without pay from his employment with Essential Caravans PL.

All entitlements inclusive of annual leave have been payed to nominated bank account.

Reasons for stand down: Coronavirus Covid 19 outbreak.

No further sales or orders coming in.

Period of stand down: Unknown.” 2

[7] On 28 March 2020, the Respondent emailed Mr O’Hanlon an employment separation certificate. Mr O’Hanlon says that that it was unclear to him why the certificate had been issued, however upon review he considered that it was provided by the Respondent to assist him to obtain government income support payments during his period of stand down. 3

[8] On 7 April 2020, Mr O’Hanlon emailed the Respondent enquiring if it would be claiming JobKeeper payments “for the people being stood down or do we need to try get other payments.” 4 The same day Mr David Wilson, Managing Director emailed Mr O’Hanlon advising that the Respondent did not qualify for JobKeeper, however he anticipated that there may be a downturn in revenue for April 2020. The email concluded, “will let you know if it changes Ben.”5

[9] On 5 June 2020, Mr O’Hanlon emailed the Respondent enquiring whether there had been any changes such that there was the possibility of him returning to work. 6 On 11 June 2020, Mr Wilson responded as follows:

“I hope you are well during this trying time and apologies for the delay as I wanted to be very clear that my response is correct.

Ben my understanding is that your role within the company was no longer required, and as such you were made redundant and accordingly your full entitlements were paid out to you.

I have spoken to John Morris who has confirmed this was his understanding as well given he was the company representative that informed you of this decision.

The timing of this event did coincide with the beginning of the COVID19 pandemic and I understand that this would of caused confusion.

I’m sorry if your understanding was that you would be reinstated at a later time, this was not my understanding, if this was the case I sincerely apologise for this.

Both John and I are happy to discuss this further with you if you would like.” 7

[10] Mr O’Hanlon says that he was shocked by the news that his position was made redundant. He submits that a redundancy had not previously been mentioned to him and he was not in receipt of any “redundancy paperwork or even the entitlements that were applicable with one.” 8

When did the dismissal take effect?

[11] The Respondent contends that on 25 March 2020:

(a) non-essential staff were stood down on account of the COVID-19 crisis, and Mr O’Hanlon’s position was not essential; and

(b) Mr O’Hanlon’s role was made redundant effective 25 March 2020. It says that this is supported by its direction to Mr O’Hanlon to collect his belongings from the workplace and the payment of Mr O’Hanlon’s entitlements. 9

[12] The Respondent’s submission that Mr O’Hanlon’s role was made redundant on 25 March 2020 is contrary to Mr O’Hanlon’s direct evidence that he had been stood down on this date. Mr O’Hanlon says that Mr Morris advised him “not to worry” as he was still employed. Mr Morris did not give evidence in the proceedings. However, I accept the stand down letter to be contemporaneous evidence of the matters discussed between Mr O’Hanlon and Mr Morris on 25 March 2020.

[13] The stand down letter advised Mr O’Hanlon that he was being stood down without pay effective 25 March 2020 for an unknown period. It does not state that Mr O’Hanlon’s employment was terminated. Accordingly, while the letter also specified that “all entitlements inclusive of annual leave” had been paid to Mr O’Hanlon, this of itself is not indicative of the cessation of employment.

[14] The employment separation certificate that followed on 28 March 2020 states that the employment ended on 25 March 2020. 10 Mr Wilson gave evidence that the Respondent supplied Mr O’Hanlon with the separation certificate so that Mr O’Hanlon could “get government monies as a result of COVID-19.” This is consistent with Mr O’Hanlon’s evidence that he understood the separation certificate to have been issued for this purpose.

[15] Mr O’Hanlon’s email to the Respondent on 7 April 2020 queried whether the introduction of JobKeeper would result in payments being made to him during his stand down. This correspondence is consistent with Mr O’Hanlon’s understanding that he remained on unpaid stand down notwithstanding receipt of the separation certificate. Mr Wilson’s response, which advised Mr O’Hanlon that an update would be provided to him if the Respondent’s eligibility for JobKeeper changed, lends support to Mr O’Hanlon’s view.

[16] In the absence of any communication from the Respondent, Mr O’Hanlon sent an email to Mr Wilson and Mr Morris on 5 June 2020 seeking an update about his return to work. In a response dated 11 June 2020, Mr O’Hanlon was advised that his employment had ended by reason of redundancy on 25 March 2020. During the proceedings, Mr Wilson gave evidence that this was the first time that Mr O’Hanlon was advised of his redundancy.

[17] The Respondent’s contention that Mr O’Hanlon’s employment ended on 25 March 2020 by reason of redundancy is inconsistent with the evidence before the Commission. The stand down letter of 25 March 2020 lends no support to the Respondent’s contention that Mr O’Hanlon’s employment ended on this date. While the stand down letter specified that “all entitlements inclusive of annual leave” had been paid to Mr O’Hanlon, such payment cannot be said to have been made in connection with the ending of Mr O’Hanlon’s employment.

[18] Further, the employment separation certificate issued on 28 March 2020 states the reason for separation to be a shortage of work occasioned by COVID-19. It makes no reference to redundancy or payment in lieu of notice. These matters do not support the Respondent’s contention that the employment ended on 25 March 2020 by reason of redundancy. Moreover, Mr Wilson gave evidence that the separation certificate was provided to Mr O’Hanlon to assist him to claim government income support payments. The exchange that followed on 7 April 2020 in response to Mr O’Hanlon’s JobKeeper payment request resolves any question about whether the employment relationship remained on foot. Mr Wilson did not disabuse Mr O’Hanlon of his view that he remained an employee on unpaid stand down. Mr Wilson’s correspondence of 11 June 2020 is the first occasion that Mr O’Hanlon was advised that his employment with the Respondent had ended by reason of redundancy. This position was accepted by Mr Wilson during the proceedings.

[19] Accordingly, I find that Mr O’Hanlon was dismissed from his employment with the Respondent on 11 June 2020. I am satisfied, on the material, that the dismissal took immediate effect. Mr O’Hanlon’s application for an unfair dismissal remedy was made the same day and therefore within the timeframe for lodgement prescribed by s.394(2)(a) of the Act.

Conclusion

[20] Given my finding at [19], there is no requirement for the Commission to grant a further period for the making of the application.

[21] The Respondent’s jurisdictional objection with respect to the timeframe for lodgement is dismissed. The application will now proceed to conference before the Commission.

DEPUTY PRESIDENT

Appearances:

B O'Hanlon, Applicant

D Wilson, for the Respondent

Hearing details:

2020.
Melbourne (telephone hearing):
June 22.

Printed by authority of the Commonwealth Government Printer

<PR720392>

 1   Witness statement of Benjamin O’Hanlon dated 16 June 2020 (O’Hanlon statement) at [4]-[5]

 2   Stand down letter dated 26 March 2020

 3   O’Hanlon statement at [9]

 4   Email from Mr O’Hanlon to Mr John Morris (copying Mr David Wilson) dated 7 April 2020

 5   Email from Mr Wilson to Mr O’Hanlon and Mr Morris dated 7 April 2020

 6   Email from Mr O’Hanlon to Mr Wilson and Mr Morris dated 5 June 2020

 7   Email from Mr Wilson to Mr O’Hanlon and Mr Morris dated 11 June 2020

 8   O’Hanlon statement at [11]

 9   Form F3 Employer response form dated 16 June 2020 at [2.2]

 10   Employment separation certificate issued 28 March 2020