Byron Exner v Meredith Dairy

[2015] FWC 3692

[2015] FWC 3692

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Byron Exner
v
Meredith Dairy
(U2014/16467)

COMMISSIONER LEWIN MELBOURNE, 29 MAY 2015

Application for relief from unfair dismissal - application out of time - time of effective termination of employment - no exceptional circumstances - application dismissed.

[1] This decision concerns an application made by Mr Byron Exner for an unfair dismissal remedy in relation to the termination of his employment with Meredith Dairy. Mr Exner filed an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) on 18 December 2014.

[2] Mr Exner submits that his employment was terminated on 2 December 2014, when he received a letter signed by Mr Sandy Cameron, the proprietor of Meredith Dairy, on behalf of Meredith Dairy. If so, the application was filed within the 21 days allowed for the making of the application. Meredith Dairy submit that Mr Exner’s employment ceased in July 2014. If so, the application would be significantly outside the time for making the application. The relevant statutory provisions are contained within s.394 of the Act which provides as follows:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[3] In order to decide if Mr Exner’s application was made within the time allowed it is necessary to determine when the employment came to an end.

[4] The matter was heard at Ballarat. Mr Exner and Ms Lyn Wolff, the Human Resources Manager of Meredith Dairy, gave evidence about Mr Exner’s employment and its cessation. On the material before me there are a number of issues of fact which are significant for consideration of the jurisdictional objection. I propose to record a number of findings based on the evidence and material before me. They are as follows:

(1) Mr Exner was engaged as a casual employee by Meredith Dairy on 23 October 2013 and remained so for the whole of his employment.

(2) The last day on which Mr Exner worked for Meredith Dairy was 7 July 2014.

(3) On 7 July 2014, Mr Exner left the workplace prior to the completion of his engagement that day.

(4) Mr Exner has not been offered an engagement by Meredith Dairy since 7 July 2014.

(5) On 22 July, Mr Exner approached Centrelink to apply for an unemployment benefit.

(6) Centrelink advised Mr Exner that a Separation Certificate would be required from Meredith Dairy in order for Mr Exner to be eligible for any benefit.

(7) In late July 2014, Centrelink contacted Ms Wolff informing her that Mr Exner had made on application for an unemployment benefit and requested that Meredith Dairy issue a Separation Certificate so as to enable Mr Exner to claim a benefit.

(8) On 27 July 2014, Ms Wolff completed a Separation Certificate which noted that Mr Exner’s employment with Meredith Dairy ceased on 7 July 2015 because of a shortage of work.  1

(9) Ms Wolff forwarded a copy of the Separation Certificate to Mr Exner.

(10) Mr Exner received the Separation Certificate in late July or early August 2014.

(11) For the period of time between 7 July 2014 to 26 September 2014, Mr Exner provided certificates of incapacity for work due to a psychological illness.

(12) Following 7 July 2014, Mr Exner pursued a WorkCover claim in relation to the psychological illness. This claim was pursued without legal representation. The claim was resolved following a conciliation conference held on 14 November 2014 and a Conciliation Outcome Certificate was issued detailing the outcome on 17 November 2014.  2

(13) On 18 November 2014, Mr Exner wrote to Mr Cameron. The letter provides as follows:

“Dear Sandy,

Now that my work cover claim maybe settled, I now wish to address my unfair dismissal claim. My claim is for loss of potential earnings, pain and suffering and damage to professional and personal reputation.

The basis of my claim is out lined in my previous letter to you on or about the week commencing 7/7/2014. I also received a separation certificate signed by Lyn Wolfe and in a taped telephone conversation with Lyn Wolfe she informed me that I was no longer required at Meredith Dairy as there was no more work.

In the weeks that proceeded, I learnt that Roy Wolfe and a female where employed and Mick Rooney has since been employed full time in stores.

The position in stores was a position I sort and was qualified to work. I know that Mick has no formal qualifications in that area.

I am 50 years of age with no immediate prospects of employment. I planned on retiring at 65 years of age. Based on my annual income of $40,000 at Meredith Dairy and 15 years of working life, my potential loss of earnings is estimated at $600,000.

I hope this matter can be resolved quickly and amicably. I seek only what is fair and reasonable.

Please reply within 21days of receiving this letter or I will have no option other than to engage legal counsel.

Regards”  3

(14) On 2 December 2014, Mr Cameron replied to Mr Exner’s letter dated 18 November 2014. The letter provides as follows:

“Dear Byron,

I acknowledge receipt of your letter dated 18th December 2014.

I deny any suggestion that you were unfairly dismissed or treated improperly during your employment with Meredith Dairy Pty Ltd.

From the Company’s point of view, all issues regarding your employment have been finalised.

I understand that you are currently working as a driving instructor, as Mark Young was distributing business cards on your behalf and we congratulate you in this positive step.

We wish you all the best in your future endeavours.

Kind regards,

Sandy Cameron
Meredith Dairy”  4

[5] Having regard to all of the above I find that the casual employment relationship between Mr Exner and Meredith Dairy ended in July 2014.

[6] It is put by Meredith Dairy that the Separation Certificate is to be regarded as having been received by Mr Exner and that the document is to be taken to be evidence of the termination of Mr Exner’s employment.

[7] Mr Exner submits that Meredith Dairy did not terminate his employment until the letter from Mr Cameron dated 2 December 2014.

[8] I consider the employment came to an end as follows. Mr Exner left the workplace prematurely, during his engagement on 7 July 2014, as a result of a dispute with another employee. Shortly thereafter, Mr Exner was told that there was no more work for him. As a casual employee that statement, followed by the action of Meredith Dairy, to not offer Mr Exner any further engagement, means that the casual employment relationship lapsed.

[9] Where an employer informs a casual employee that no further engagements will be offered it may be concluded that by the decision not to offer further engagements the employer has taken the initiative which brings the employment relationship to an end.

[10] The Separation Certificate provided by Meredith Dairy to Centrelink is no more than an artefact of the cessation of an employment relationship. It is not to be considered an instrument which of itself is the cause of the cessation of the employment. The Separation Certificate is not a contractual document relevant to the employment, and is for the purposes of a Department of State. To the extent that the document is evidence, it is evidence of an employment relationship having come to an end. The document is a record thereof.

[11] Mr Exner’s materials evidence his awareness that he had been told shortly after his premature departure from work on 7 July 2014 that there would be no more casual engagements for him. In my view, the evidentiary material leads to the conclusion that Mr Exner knew by late July 2014 that his employment with Meredith Dairy had ceased. Accordingly, I find that Mr Exner’s employment came to an end sometime in July 2014 and the application in this matter has not been filed within the time prescribed by s.394(2)(a) of the Act.

[12] At the hearing at Ballarat, I asked Mr Exner if I were to find that the employment was not terminated by the letter from Mr Cameron dated 2 December 2014, as he submits, did he have an alternative submission to that which claimed that the application was filed within the time allowed. Mr Exner replied in the negative.

[13] The Commission may accept an application made pursuant to s.394 of the Act outside the time allowed in exceptional circumstances, as prescribed by s.394(3) of the Act.

[14] Mr Exner has not made out a case whereby the requisite exceptional circumstances have been made out. This is because Mr Exner’s case is confined to the submission that his employment with Meredith Dairy remained on foot between July 2014 until the time he received the letter from Mr Cameron dated 2 December 2014, and thus no extension of the time for filing of the application is required.

[15] I determine as follows: the application is out of time, by at least three months, and no case of exceptional circumstances necessary to enliven the Commission’s power to allow a further period to accept the application has been made out. The application is not validly made and must therefore be dismissed. An Order will be issued accordingly.

COMMISSIONER

Appearances:

Mr B Exner on his own behalf

Mr M Champion of Counsel for Meredith Dairy

Hearing details:

2015.

Ballarat.

April 28.

 1   Exhibit R1, LW-2

 2   Exhibit R1, LW-2

 3   Exhibit R3

 4   Exhibit R4

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