Boguslaw Bienias v Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia

[2016] FWC 5357

[2016] FWC 5357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Boguslaw Bienias
v
Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia
(U2016/3008)

DEPUTY PRESIDENT CLANCY MELBOURNE, 3 AUGUST 2016

Application for relief from unfair dismissal – extension of time granted.

[1] Mr Boguslaw Bienias has alleged that the termination of his employment by Iplex Pipelines Australia Pty Limited T/A Iplex Pipelines Australia (Iplex) was unfair.

[2] Iplex submitted that Mr Bienias was notified of the termination of his employment by a letter dated 30 May 2016 (Termination letter) 1 which stated that 13 May 2016 was the date of termination, relying on abandonment of employment provisions in the Manufacturing and Associated Industries and Occupations Award 2010. In the alternative, Iplex submitted that if the Fair Work Commission (the Commission) was to determine Mr Bienias was dismissed, the dismissal took effect on 30 May 2016.

[3] Mr Bienias completed his Form F2 – Unfair Dismissal Application form (Application form) on 22 June 2016 and it was emailed to the Commission that day.

[4] In the Application form, Mr Bienias answered questions 1.2-1.4 as follows:

• “1.2 What date were you notified of your dismissal? 30/05/2016.”



• “1.3 What date did your dismissal take effect? 30/05/2016”; and



• “1.4 Are you making this application within 21 calendar days of your dismissal taking effect? No.”

[5] In the Application form, Mr Bienias had also indicated that the Termination letter had been found unopened by his wife in his mailbox on 11 June 2016 but, having answered questions 1.2-1.4 in the manner he did, his unfair dismissal application was considered not to have been lodged within the 21 day timeframe outlined in s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act). As such, Mr Bienias was advised by letter dated 1 July 2016 that his unfair dismissal application had been allocated to a Commission Member to decide whether or not to extend the time for the lodgement of it.

[6] In his evidence before me, Mr Bienias said that in preparing for the hearing, his wife, Ms Alicja Gonciarz, had called the courier company that was said to have delivered the Termination letter on 30 May 2016. Mr Bienias said his wife was told that the courier company was still in possession of a letter and had no instructions regarding what to do with it. The courier company then made the delivery to Mr Bienias’ house at approximately 5.30pm on 27 July 2016.

[7] Having regard to this, I noted that Ms Gonciarz was to be a witness for Mr Bienias. I also noted that attachment JH-19 to the witness statement of Mr Jason Holmes, plant manager for Iplex, was a record of Job #11630 said to have been completed on 30 May 2016 and it outlined the instruction if there was no one at home at Mr Bienias’ address to “return letter to base – leave calling card in box.”

[8] Mr Bienias also gave evidence that his wife had found a copy of the Termination letter in his letterbox on 11 June 2016 but he did not know when between 30 May and 11 June 2016 it was delivered and it had no stamps on it. When cross examined, Mr Bienias also said that he had not checked his letter box for mail during the period between 12 May 2016 and 5 June 2016.

[9] In response, Mr Wade for Iplex submitted that Iplex was not in a position to refute the evidence of Mr Bienias. Mr Wade referred to attachment JH-19 to the witness statement of Mr Holmes and submitted there was no evidence that could be lead to establish that there was in fact a delivery at 12.38pm on 30 May 2016. Mr Wade said that Iplex could not refute the evidence of Mr Bienias that he did not look in his letter box and submitted that in all the circumstances, the appropriate course was for the jurisdictional objection of Iplex to the unfair dismissal application (that Mr Bienias was not dismissed within the meaning of s.386(1) of the Act) to be heard and determined.

Consideration

[10] In Burns v Aboriginal Legal Service of Western Australia (Inc.), 2 the Full Bench of the Australian Industrial Relations Commission held that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.

[11] On the basis of Mr Bienias’ evidence and the submissions of Iplex in response, it appeared the proposition that Mr Bienias was notified of the termination of his employment on 30 May 2016 was not sustainable and therefore it could not be concluded that the Application form received by the Commission on 22 June 2016 was made more than 21 days after the date of the dismissal, thereby offending s.394(2)(a) of theAct.

[12] In these circumstances, pursuant to s.394(3) of the Act, I order that the time for Mr Bienias to make his unfair dismissal application under s.394 of the Act to the Commission be extended to the actual date of lodgement. An order to this effect will be issued with this decision.

[13] Accordingly, the matter will now be referred for further directions so that the jurisdictional objection to and the merits of Mr Bienias’ unfair dismissal application can be heard and determined.

DEPUTY PRESIDENT

Appearances:

Mr B Bienias on his own behalf.

Mr R Wade for the Respondent.

Hearing details:

2016.

Melbourne:

July 28.

 1   Exhibit A3.

 2 (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24].

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