Callum J Reynolds v Concrete Sleepers Victoria Pty Ltd
[2022] FWC 631
| [2022] FWC 631 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Callum J Reynolds
v
Concrete Sleepers Victoria Pty Ltd
(C2021/8108)
| DEPUTY PRESIDENT CROSS | SYDNEY, 24 MARCH 2022 |
General protections dismissal dispute – whether application filed out of time – application filed within time.
On 29 November 2021, Mr Callum Reynolds (the Applicant) lodged an application (the Application) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant stated he had been employed by Concrete Sleepers Victoria Pty Ltd (the Respondent), and that he commenced his employment with the Respondent on 21 August 2020. The Applicant claimed that he was notified of his dismissal on 8 November 2021, and that the dismissal took effect on that date.
The Respondent disputed the termination date recorded in the Application, and asserted
that the Applicant’s employment was terminated on 5 November 2021. Pursuant to s.366(1) of the Act, General Protections applications involving dismissal must be made within twenty-one (21) days after the dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. If the Respondent’s contention regarding the termination date is correct, the application has been lodged outside of the time prescribed, and 3 days after the last day on which such an application could have been made.
On 1 February 2022, directions were issued to program the manner in which the
Application was to proceed (the Directions). The Directions required the filing of materials for the determination of whether the Applicant was out of time, and if so, whether he would be allowed an additional period within which to lodge his Application.
The parties complied with the Directions. In Particular:
(a) On 15 February 2022, the Applicant filed an Outline of Submissions, and on 16 February 2022, filed a Statement of the Applicant, and a Statement of Kristie Reynolds, the Applicant’s wife; and
(b) On 3 March 2022, the Respondent filed an Outline of Submissions, a Statement of Mr Ryan Staples, the CEO of the Respondent, and a Statement of Mr Johnathon Gehle, the Production Manager of the Respondent.
On Tuesday 15 March 2022, the matter was heard. Each deponent of a statement in the matter was cross-examined, and each party supplemented their written submissions with further oral submissions.
Relevant Facts
The relevant facts of the matter, as disclosed by the materials filed and the evidence
adduced at the hearing, are as follows:
(a) Shortly before the Applicant’s employment with the Respondent ceased, the relationships between the Applicant and his co-workers on the one hand, and management on the other, had been turbulent. There was evidence that from 3 November 2021, the Applicant took three weeks of annual leave in connection with these issues.
(b) On 5 November 2021, the Applicant attended the worksite. Mr Gehle subsequently arrived as the Applicant was leaving. The Applicant and Mr Gehle spoke amicably.
(c) Shortly after, Mr Staples arrived and asked the Applicant what he was doing at work that day. The Applicant replied that he was leaving because there was no one at work.
(d) The Applicant went to leave, and Mr Staples said that he needed the Applicant to stay at work for a drug test.
(e) The Applicant went to leave in his car and Mr Staples moved his motor vehicle across the driveway to stop the Applicant from leaving. The Applicant then drove into Mr Staples' motor vehicle.
(f) Thereafter, both the Applicant and Mr Staples got out of their motor vehicles. The Applicant grabbed Mr Staples around the throat and attempted to push him up against the timber boundary wall. The Applicant said to Mr Staples words to the effect of "See I've still got you with one f**ken hand.”
(g) Mr Gehle intervened to remove the Applicant from Mr Staples.
(h) Police were called, and Mr Gehle stated that one of the Police Officers said to the Applicant words to the effect of:
"Your boss has asked you to leave the premises immediately and to collect your personal belongings and you are not to return. We will escort you to collect your belongings."
(i) The Police then escorted the Applicant up the driveway from the factory, and Mr Gehle walked with them to the entrance of the factory and waited outside. While at the factory entrance the Applicant stated to Mr Gehle and a co-worker, Mr Lester, words to the effect of "Well that’s that isn't it. There's no coming back from that!", to which Mr Gehle responded "Good luck".
(j) The Respondent claimed the Applicant took all of his personal belongings on that day, while the Applicant claimed he only took certain items he was to use during his period of leave and left other important belongings.
(k) On 8 November 2021, the Applicant returned to the workplace at around 8:45am, wearing plain clothes and not his usual work clothes. The Applicant and his wife presented a certificate of capacity dated 8 November 2021 to Mr Staples.
(l) In the evening of 8 November 2021, the Respondent sent the Applicant the following letter by email (the Notice of Termination).
“8th November 2021
…
NOTICE OF TERMINATION OF YOUR EMPLOYMENT
I refer to the above and confirm the following:-
A. Employment
I confirm that, on 21st August 2020 you were employed by Concrete Sleepers Victoria Pty Ltd as a Production Manager. The terms of your employment are specified in the job description of your employment agreement.
On numerous occasions over the past months you have breached your contractual obligations by committing the following outlined breaches.
B. Actions resulting in the termination of employment
1. Bullying employees on site
2. Harassing staff outside of work
3. Refusal to take a drug test
4. Witnesses to him taking drugs on site
5. Driving company vehicle under the influence
6. Workplace abandonment – multiple occasions
7. Destroying company property – witness to one occasion
8. Abusing external contractors and sub tenants
9. Sexual harassment of female staffers
10. Causing financial disruption to the business
11. Workers leaving as a result of actions taken by Callum whilst employed by CSV
12. Assaulting boss: as a result, police being called (police making report, and advising him to not return to the site, police escorting him to collect his belongings and ordered not to return.
13. Verbal abuse of boss and staff
14. Fraud: lying about hours worked on timesheet.
On the 13th August 2021, we gave you verbal warning during a meeting that was convened between the company superiors, namely, Harold Barter and Ryan Staples, and yourself.
A second meeting was conducted on Wednesday 3rd November 2021, wherein we brought your most recent unacceptable actions. We advised you to take 3 weeks of your annual leave so that you can attend to your personal challenges to better set yourself straight mentally rather than give you an immediate notice of termination.
The third and final incident warranting immediate termination of your employment
I note that, on Friday 5th November 2021, you returned to the work premises after being strictly instructed not to. Your arrival and presence at the workplace resulted in causing panic amongst our staff members to the extent that 90% of our workforce had to leave for their own safety out of fear and some of them out of anger resulting from your actions.
Following the above, I arrived at the premises after the fact, (but had been advised of your actions) noting that you were still on the premises in your motor vehicle. Upon noticing my presence, you started your motor vehicle as an indication that you were about to leave.
I walked up to where you were parked and informed you that you must present yourself for a drug testing as one of the measures that are in place. All other staff members were undertaking the same drug test.
You refused to take the drug test and attempted to drive away while you were visibly angry. I confirm that I got into my Ute and blocked your way from leaving. We both got out of our cars, I with the intention of a civil discussion and you then assaulted me. John Gehle, one of our employees separated us and I called the police.
When the police arrived, we were both questioned separately, and I advised them to tell you not to return to our work premises under any circumstances. You were escorted from the property again.
Despite the above, you still texted one of our workers to state your intentions to come to the workplace on Sunday the 7th of November 2021. Why you would do this I do not know as it is not a ‘workday’ and I can only assume it would be to cause menace.
Despite the warnings referred to in this notice, you continued to breach the conditions and you sent a message to one of the employees advising them that you would be attending to the work premises.
I now formally give you this notice that, you have breached the terms and conditions of your employment on numerous occasions, and it will no longer be tolerated. We have tried to work with you but without result.
You are to desist from attending the workplace and site. I have made an application for an intervention order due to your violent attacks and disturbances including threats and intimidation from you to me and the other employees. The safety of the employees and myself are of paramount importance and you are a threat to that safety.
Your disruptive menace, verbal and physical attacks have impacted greatly on my business; therefore I wish to advise that you are now officially terminated from Concrete Sleepers Victoria Pty Ltd, effective immediately.”
(Emphasis added)
Consideration Regarding Date of Dismissal
The Respondent submitted that, viewed objectively, the conduct of the parties disclosed that the Applicant was summarily dismissed on 5 November 2021, because the following circumstances “compel that conclusion”:
(a) The Applicant had been instructed by a Police Officer with words to the effect
of ‘Your boss has asked you to leave the premises immediately and to collect your personal belongings and you are not to return. We will escort you to collect your belongings’;(b) The Applicant collected all of his personal belongings and left the workplace;
(c) The Applicant stated to Mr Gehle words to the effect of ‘Well that’s that
isn't it. There's no coming back from that!’; and(d) When the Applicant attended the workplace on 8 November 2021 to deliver documents, he was not reporting for work and was not dressed to perform work.
The Respondent further submitted that properly viewed, the letter of termination of 8 November 2021 was simply written confirmation of a termination of employment which had already occurred, and the requirement under s.117(1) of the Act for a termination to be by written notice did not apply given that the employment ended by way of dismissal for serious misconduct (s.123(1)(b)).
To be effective, a notice of termination must be received by the recipient. As Keely J
observed in Transport Workers Union v National Dairies Limited[1] in a matter involving a
notice of termination posted by an employer to an employee:
“In my opinion the mere posting of a letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee.”
In Ayub v NSW Trains[2] the Full Bench addressed circumstances involving email communications. The Full Bench held:
“We see no reason to depart from the above line of authority insofar as it is consistent with the general principle at common law that a dismissal may not take effect prior to it being communicated to the employee. Neither party submitted otherwise. However two questions remain. The first is whether there are any exceptions to this principle, the existence of which are suggested but not identified in Makenja and WorkPac. The second is whether the mere receipt of a communication (whether a letter, fax or email) is sufficient to constitute the communication of the dismissal to the employee in circumstances where the employee has not read the communication immediately upon receipt.
Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.”
I reject the Respondent’s submission that the Applicant should have divined his dismissal on 5 November 2021 from the circumstances identified. It is clear from the Notice of Termination that the Applicant’s employment had involved some volatile events that had previously not resulted in his dismissal. That the events of 5 November 2021 involved an escalation of such volatility does not somehow mean that the Applicant would understand he was dismissed, even with the comment made to Mr Gehle.
I do not accept the proposition that an employer can delegate the task of advising an employee he is dismissed to the Police, and I note that in this circumstance Mr Gehle, the Production Manager, was present when the Applicant was spoken to by the Police and he made no comments consistent with advising the Applicant he was dismissed.
Finally, I note that the Notice of Termination clearly stated “Your disruptive menace, verbal and physical attacks have impacted greatly on my business; therefore I wish to advise that you are now officially terminated from Concrete Sleepers Victoria Pty Ltd, effective immediately”. The Notice of Termination clearly stated the dismissal is official “now” and “effective immediately”, being in the evening of 8 November 2021. There is no basis for finding the Notice of Termination was written confirmation of an earlier termination of employment.
Conclusion
As the Applicant was dismissed on 8 November 2021, the Application filed on 29 November 2021 was not out of time.
DEPUTY PRESIDENT
Appearances:
E Steegstra of Cogent Legal Pty Ltd for the Applicant.
J Nguyen of HWL Ebsworth Lawyers for the Respondent.
Hearing details:
2022.
Sydney (via videoconference)
March 15.
Printed by authority of the Commonwealth Government Printer
<PR739571>
[1] (1994) 57 IR 183, at pp. 184 to 185.
[2] [2016] FWCFB 5500, at [35] and [36].
Printed by authority of the Commonwealth Government Printer
<PR739571>
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