Brett Wingate v Causeway Holdings Pty Ltd T/A Western Forklift Services

[2017] FWC 3751

[2017] FWC 3751

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brett Wingate
v
Causeway Holdings Pty Ltd T/A Western Forklift Services
(U2017/5028)

COMMISSIONER PLATT ADELAIDE, 17 JULY 2017

Application for an unfair dismissal remedy – objection on the basis that application was made late – held application made within time – no extension required.

[1] Mr Brett Wingate has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with Causeway Holdings Pty Ltd T/A Western Forklift Services (WFS) which his form F2 Unfair Dismissal Application advised took effect on 27 April 2017.

[2] This application was lodged on 11 May 2017.

[3] On 18 May 2017, WFS lodged a Form F3 Employer Response and raised a jurisdictional objection on the basis that the application was lodged out of time. WFS contended that the dismissal occurred on 7 April 2017 that being the last day worked.

[4] On 9 June 2017, my Associate corresponded with Mr Wingate and WFS and advised that the extension of time issue would be considered at a telephone conference on 11 July 2017. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Mr Wingate was directed to provide a statement concerning the extension of time and any documents to be relied upon by 21 June 2017. WFS were invited to file any material in reply by 4 July 2017. The hearing date was subsequently brought forward to 7 July 2017.

[5] Mr Wingate provided a written submission which is summarised as follows:

● On 7 April 2017, he was informed that WFS would be engaging a new employee who was to be trained in the role performed by him.
● Mr Wingate was advised that he would now be employed on a casual basis.
● He was advised that he did not need to attend for work and to remove his tools from the work vehicle.
● On 27 April 2017, Mr Wingate contacted WFS to ask when he would return to work. He was advised that the new employee had done well in replacing him and that there was no further work available for him.
● Mr Wingate asked for a Centrelink Separation Certificate and was provided with the same indicating the last day of work as 25 April 2017.
● Mr Wingate contends that his application was made within 21 days of the date upon which his employment ceased.

[6] WFS provided a written submission which is summarised as follows:

● Mr Wingate was employed as a casual heavy duty mechanic.
● Mr Wingate had been repeatedly warned in relation to absenteeism.
● WFS became aware that there was no work for Mr Wingate on 7 April 2017 and he did not work beyond that date.
● Mr Wingate was never dismissed.
● On 7 April 2017, WFS decided that Mr Wingate had been given many opportunities to improve and it was decided to replace him with someone more reliable.
● Mr Wingate was required to return company property at the end of the day including the work vehicle. At no time was Mr Wingate advised that he was dismissed.
● Mr Wingate was advised that he would be contacted should the opportunity arise for work on a casual basis.
● On 18 April and 25 April 2017, WFS paid Mr Wingate in two instalments, an amount for the work performed to 7 April 2017, an ex-gratia amount and two weeks wages in recognition of his service.
● WFS provided a Centrelink Separation Certificate.
● The application was made out of time.

[7] A hearing was conducted by way of telephone conference on 7 July 2017. A sound file record of the telephone conference was kept. Ms Nasser of counsel represented Mr Wingate and Mr Eaves represented WFS. Permission was granted pursuant to s.596(2)(a) of the Act. I provided my decision to the parties at the end of the hearing, below are the reasons for my decision.

[8] The parties reiterated their submissions. Mr Eaves accepted that Mr Wingate was advised on or about 27 April 2017 that he had been replaced and he would not be offered further work. Mr Eaves said he did not use the word termination or dismissal in any conversation with Mr Wingate.

[9] Section 394 relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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.”

[10] It appears to me that Mr Wingate did not become aware that WFS considered that it had terminated his employment until 25 April 2017.

[11] However in light of the fact that;

● WFS did not advise Mr Wingate at any time that he was being terminated or dismissed;
● the final payment of entitlements and what appears to be notice was not made until 25 April 2017;
● it was not until 27 April 2017 that Mr Wingate was advised he would no longer be employed; and
● the Separation Certificate issued on 27 April 2017 nominated 25 April 2017 as the date employment ceased.

[12] I find that the date of termination was 25 April 2017 and that the application was made within the time required.

[13] At time of the hearing, I advised the parties that the matter would be referred for conciliation. I have since been advised that the matter has already been conciliated and as such the matter will be referred to an alternate member for the hearing of the merits.

[14] An Order¹ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Ms M.Nasser of counsel on behalf of the Applicant.

Mr N.Eaves on behalf of the Respondent.

Hearing (Conference) details:

2017.

Adelaide:

7 July.

1 PR594616

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<Price code A, PR594615>