Damyian Harrold v Hancey Labour Hire Pty Ltd

[2021] FWC 4614

[2021] FWC 4614

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damyian Harrold
v
Hancey Labour Hire Pty Ltd
(U2021/4571)

COMMISSIONER SIMPSON BRISBANE, 30 JULY 2021

Application for unfair dismissal – application lodged out of time – whether an extension of time should be granted

[1] On 27 May 2021, Mr Damyian Harrold filed an application for unfair dismissal remedy in accordance with section 394 of the Fair Work Act 2009 (the Act) alleging his employment with Hancey Labour Hire Pty Ltd (the Respondent) was terminated unfairly.

[2] Part 1.4 of the Form F2 application contains a question, “Are you making this application within 21 calendar days of your dismissal taking effect?” Mr Harrold answered on the Form F2 “Yes.”

[3] On 10 June 2021, the Respondent lodged a Form F3 – Employer response to unfair dismissal application and objected to the application on the basis it was made outside the time required in s.394(3) of the Act and that the termination of Mr Harrold’s employment was by way of genuine redundancy.

[4] The matter was allocated to me to determine whether an extension of time should be granted to Mr Harold to file his unfair dismissal application. I issued directions for the filing of material and the matter was listed for Hearing of the jurisdictional objections on 13 July 2021 by telephone.

LEGISLATION

[5] Section 394 of the Act provides:

(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.”

[6] Section 389 of the Act provides:

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

SUBMISSIONS

Applicant

[7] The Applicant submitted that on 25 January 2021, the Applicant was asked by the Respondent to take annual leave in circumstances where there was a shortage of work and the Respondent was attempting to acquire new contracts.

[8] The Applicant submitted that on 10 May 2021, the Applicant instructed Everingham Lawyers on his behalf to write to the Respondent to make enquiries regarding his employment status in circumstances where it was required for the resolution of his property settlement proceedings before the Federal Circuit Court.

[9] The Applicant submitted that on 17 May 2021, the Respondent notified Everingham Lawyers that the Applicant's employment had been terminated effective from 25 March 2021.

[10] The Applicant submitted that on 18 May 2021, Everingham Lawyers on behalf of the Applicant wrote to the Respondent disputing the date of termination.

[11] The Applicant submitted that the Respondent relies on a letter which was purported to have been delivered to a letterbox of the Applicant on 26 February 2021 as being notice of the termination. On 20 April 2021, the Applicant sent a text message to the Respondent's General Manager, in relation to his return to work. No response was received.

[12] The Applicant submits that the first notice that the Applicant had of his termination was 17 May 2021. The Application was filed on 26 May 2021, and therefore it is argued that the application was made within twenty-one (21) days of the Applicant being made aware of his termination.

[13] The Applicant submitted that the text messages between the Applicant and the Respondent dated 31 March 2021 and 23 April 2021 do not, on balance, give any credit to the Respondent in support of its assertion that a letter was hand delivered to the Applicant’s letter box at his residence on 26 February 2021. The Applicant submitted the text message by the Applicant to Graham Cruise dated 20 April 2021 also supports the Applicant's version that he was not notified of the termination.

[14] Further, the Applicant submitted that the Respondent does not indicate to what address the letter was delivered, the time it was delivered, and what attempts were made to ascertain whether the Applicant had in fact received the letter and become aware of the termination. The Application relied on the decision of Ayud v New South Wales Trains 1 (Ayud) in support of its case that the Applicant was not terminated by the Respondent on the date claimed by the Respondent.

Respondent

[15] The Respondent submitted that on 25 January 2021, Mr Nathan Hancey, Director of the Respondent, met with the Applicant to discuss his role and his capacity for employment. The substance of the conversation is outlined in the Statutory Declaration of Nathan Hancey dated 15 July 2021.

[16] The Respondent submitted that on 25 February 2021, Mr Hancey attended the Applicant’s home, however the Applicant was not home. It was submitted that Mr Hancey left a termination for redundancy letter in the Applicant’s letter box dated 25 February 2021 (Termination Letter).

[17] The Respondent submitted that in May 2021, Mr Hancey received a letter from the Applicant’s solicitor (10 May Letter). In the letter, the Applicant’s solicitor stated as follows:

“… our client instructed us that this position has been made redundant and he has been asked not to attend at the workplace until such time as a position becomes available.

We understand that you asked our client to take holidays while the restructuring was taking place and you also invited our client to “see what else was out there’. Our client took his annual leave, such annual leave extended for approximately 3½ months. Our client has been in contact with you on a number of occasions regarding the redundancy payout or his return to work, and at this stage, no response has been received.”

[18] On 17 May 2021, Mr Hancey responded to the 10 May Letter from the Applicant’s lawyer by email. The email read as follows:

“Hi Julia, thanks for your email.

I think you have also been a bit mis informed or was stated incorrect in your letter:

We have tried to contact Damyian Harrold a few times both visiting his house and also via text requesting a meeting which no reply was sent.

Below are times we contacted or tried to:

Dates contacted Damyian:

25th Jan

Advised in person no need for Damyian in Hanceys turf on the farms: due to lost contracts and how much damaged he has caused to machinery. Advised to take some holidays, I also said I would try and do my best to find employment elsewhere but then was thrown all these stipulations.

26th Feb

Visited Damyian house No one home

31st March:

Damyian msg asking how much holidays left and when he was to run a mowing crew. (I had no information from council and did not know so could not update)

Friday 23rd April

Advised Damyian I had lost a contract we looked at him supervising and said advised would catch up with Damyian the following week

Friday 30th April:

Damyian was asked to come down to shed to meet - no reply

I tried to find him some work but due to running out of work/contracts and also his limited restrictions on what he can do- he advised us he could not hold a brush cutter and could only operate a mower which is no role is available.

Also suggestions of a supervisor role was discussed but since losing a contract this is not an option.

He was instructed to take some holidays which he was paid all his holidays. Then once his holidays hours ran out we started to pay him moneys owed for time in lieu.

Reasons for loss of employment

-Loss of major contracts

-Restrictions of manual tasks he can not do operate a brush cutter

Also for full transparency another point discussed with Damyian so he was aware but not the primary reason:

-accumulating damages caused to machinery

I did try and find Damyian some work in other areas which due to Damyian instructions in what he would not do as he can not operate brush cutters. He also wanted a company vehicle if travelling to the Sunshine Coast which could not be done.

This job also would have been a reduction in hourly rate which in Damyian words "was already on shit money" would have been less and not an opt ion.

Moneys paid since he stopped actual working:

Holiday pay: was paid his holiday pay weekly

Accrual hours in Leiu: was paid out weekly when his holiday pay hours ran out

Let me know if you need anything else. Nathan”

[original text kept]

ORAL EVIDENCE

[19] Mr Harold gave evidence that he has been living at his current address for approximately 12 months. Mr Harold said he gave verbal confirmation of his change in address. Mr Harold said he lived on the farm he worked on, being the farm owned by Mr Hancey.

[20] Mr Harold said that the last time he lived at the Crampton Drive address was five years ago or more. Mr Harold said he never received the letter Mr Hancey said he delivered. He said that he shares the property with his partner, his son and his tenant. He said there had never been an occasion when he had not received mail.

[21] Mr Harold said he had never seen the documents Mr Hancey said he left in Mr Harold’s mailbox.

[22] Mr Harold said 2 Heart Road Stanmore was an address he was familiar with. He said he never resided there; it was his place of work. Mr Harold was asked if the place he worked and the place he lived were right next to each other. Mr Harold accepted that and said he moved to Ardwick Court to be closer to work.

[23] Mr Harold was asked when discussions about the mowing crew came about, and he said it was a conversation that took place at Ardwick Court and Mr Hancey said he needed to restructure and that he was going to put Mr Harold up in Noosa to run one of the mowing crews.

[24] It was put to Mr Harold he went to see a solicitor on 10 May to which Mr Harold agreed.

[25] Mr Harold was asked if he told his Solicitor that his position was made redundant, Mr Harold said this was not correct.

[26] Mr Harold was asked if Mr Hancey messaged him on 30 April, asking whether Mr Harold was available and why Mr Harold did not respond to the message. Mr Harold agreed he receive the message, but he was out on a tractor all day and didn’t receive the message until after dark.

[27] Mr Harold was asked if there was any further communication with Mr Hancey during the period between 20 April to 10 May. Mr Harold said on 20 April he contacted the General Manager regarding what he was supposed to do.

[28] Mr Harold was asked if he made any other attempts to contact the Respondent between 20 April and 10 May. Mr Harold said on 23 April he saw the General Manager out on the street while driving, so he stopped the car and approached him and asked what was going on with his employment. Mr Harold said he told the General Manager he’d sent a text to both the General Manager and to Mr Hancey with no response.

[29] Mr Harold was asked whether he had already received legal advice before 10 May, and Mr Harold said he wasn’t exactly sure. He said he was in the middle of a divorce and that is why he needed the details about his employment status.

[30] Mr Harold was asked if it was correct that 25 March was the last time that he had received payment from the Respondent and he agreed this was correct.

[31] Mr Harold said he doesn’t deal with the money in his household, so it wasn’t until a few weeks later that his partner informed him there was no money going into the bank account from the employer. Mr Harold was asked when the approximate date was when he realised, he was not receiving a wage. Mr Harold said it would have been approximately two weeks from 25 March.

[32] It was put to Mr Hancey that he put in his statutory declaration that he was a Director of Hancey Labour Hire, to which he replied he was. It was put to Mr Hancey that he was not a director of Hancey Labour Hire, as an ASIC search provided that it was Ms Angela Hancey. Mr Hancey said he was the director of the Hancey Group.

[33] Mr Hancey was asked if he prepared and typed the letter of termination to which Mr Hancey said that he did. He was asked how he prepared that document to which Mr Hancey said he typed it on a computer. Mr Hancey was asked if he produced the document to the Commission would it show the properties when the document was created to which Mr Hancey replied he didn’t see why not. Ms Wallace called for that document to be produced to the Commission.

[34] It was put to Mr Hancey that he should have sent an email to the solicitor acting for Mr Harold, advising Mr Harold was terminated by way of a letter on 26 February. Mr Hancey said he would have done many things differently.

[35] Mr Hancey was asked whether after receiving a text message from Mr Harold on 31 March advising he was back from holidays and asking what was happening with his employment, whether that seemed strange. Mr Hancey said he was away himself, and he thought it was strange but didn’t contact him because he didn’t know what was happening.

[36] It was put to Mr Hancey it seemed that Mr Harold didn’t receive the letter. Mr Hancey said that’s why he thought it was strange. It was put to Mr Hancey that when he provided Mr Harold an update in relation to his employment on 23 April there was no mention of his termination to which Mr Hancey replied he could not recall.

[37] Mr Hancey said he felt that something wasn’t right, and things weren’t being communicated which is why he told Mr Harold to come and speak to him. It was put to Mr Hancey that it was apparent Mr Harold did not receive the letter, to which Mr Hancey said he didn’t know if Mr Harold got the letter.

[38] It was put to Mr Hancey that it would have been important to communicate with Angela Hancey regarding the status of Mr Harold’s employment. Mr Hancey said he would have mentioned matters regarding Mr Harold’s employment.

[39] Mr Hancey was asked where Mr Harold’s five weeks’ notice were to which Mr Hancey said he didn’t know and “like I said we are a small business”. It was put to Mr Hancey he never terminated Mr Harold by letter on 25 or 26 February. Mr Hancey said he did but it appeared Mr Harold never received the letter.

[40] In re-examination Mr Hancey said on 25 or 26 February 2021 he attended the Ardwick Court address of Mr Harold and provided the letter around mid to late morning. Mr Hancey said he knocked on the door but there was no answer. Mr Hancey said he had visited Mr Harold at that address previously.

[41] In the course of the hearing Ms Wallace on behalf of the Applicant called for evidence from the Respondents IT system of the letter Mr Hancey claimed to have delivered being prepared. Following the hearing documents were produced by the Respondent including screenshots of metadata to indicate the relevant documents said to have been placed in the letterbox of the Applicant on 25 or 26 February 2021, were created on 25 February 2021.

CLOSING SUBMISSIONS

[42] Ms Wallace for the Applicant submitted that if there was a termination on 25 or 26 February, then the annual leave entitlements would have been paid out at that time as opposed to being paid each week as shown in the pay slips.

[43] Ms Wallace said dropping a letter in the letterbox was not how Mr Harold and Mr Hancey had communicated with each other previously and it was always done by text message. It was submitted there was no need for the termination letter to be left in the letterbox.

[44] It was submitted the termination was not expected. It was submitted that the reason for the termination on 25 February was overlooked in correspondence on 17 May from Mr Hancey to Ms Wallace, and this was because it didn’t happen.

[45] Ms Sarah Florendo of Innover Legal Solutions submitted for the Respondent that Mr Harold gave instructions to his solicitor that he was made redundant, and he was making enquiries with his employment about his redundancy payment. It was submitted that it was clear Mr Harold was aware he was being made redundant prior to 10 May 2021.

CONSIDERATION

[46] The Full Bench’s decision in Ayub 2 states that an employee does not need to actually open and/or read written correspondence sent by their employer in order for communication ending their employment to have been “received” by them and to be “effective”. The Full Bench said as follows:

“[36] 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.” (underlining added)

[47] The Respondent says he hand delivered the letter by placing it into a letter box at the residence of the Applicant when the Respondent said he was not home.  As the letter was not sent by registered mail there is no evidence of it having been delivered other than that of Mr Hancey himself claiming to have done so. The metadata produced by the Respondent indicates the letter was created on the Respondents IT system on 25 February 2021.

[48] The Applicant said he has never had an issue receiving mail before, however he said there is also another tenant residing at the property.  The evidence overwhelmingly points to the Applicant not having seen the letter given the other correspondence and communications entered into between the parties after February clearly indicating the Applicant understood he remained employed and on leave. 

[49] Further the payslips produced by the Respondent did nothing to change the Applicant’s perception about this, and the Respondent did not take any steps to clarify the issue despite the Applicant’s communications to it making clear he was proceeding on the basis he understood he remained an employee and had not been dismissed. 

[50] The Full Bench in Ayub said as follows in relation to postal delivery:

“[42]We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document. That is, we do not consider that s.394(2)(a) requires the strict application of a “postal delivery rule” where the employee has a legitimate explanation for not being able to read the document immediately upon delivery. The circumstances in which this may be the case are undoubtedly manifold, but for example if an employee is on an approved period of annual leave and is holidaying away from home when a dismissal letter is delivered, there is no reason to conclude that the date of dismissal is the date of delivery and not when the employee returns home and first has a reasonable opportunity to read the letter.”

[51] Whether the letter was placed into the letter box or not, I am satisfied on the basis of the evidence that the Applicant never saw the letter.  I am also satisfied the Applicant has a legitimate explanation for not being able to read the document upon delivery in that his evidence raised the plausible explanation that given he and his family were not the only residents at the property it is quite plausible, indeed likely the documents hand delivered into the letter box had gone astray or been misplaced by someone other than the Applicant.

[52] On that basis, on the particular facts of this case, consistent with the decision in Ayub I am not satisfied the Applicant had a reasonable opportunity to read the documents, as given the living arrangements of the Applicant it is likely the letter was misplaced and on that basis his dismissal was not successfully communicated to him by the Respondent. 

[53] For this reason, I have concluded that the Respondent did not communicate to the Applicant his termination until 17 May 2021 and on the basis the application is within time.

[54] I have considered the Respondent’s submission that the Applicant had instructed his solicitor on a date prior to 10 May that he had been made redundant. I have concluded a fair reading of the relevant documentation, and also taking into account the Applicant’s oral evidence on the point and the evidence overall, that the Applicant considered the job he had previously been performing was no longer required, but that the Respondent was exploring other roles for him. On that basis the Applicant understood he remained employed during the relevant period as he had not been told otherwise. It is not in dispute that he continued to be paid from his accrued entitlements including his annual leave balance until late March 2021.

[55] If the conclusion that the Applicant did not have a reasonable opportunity to read the letter of 25 February 2021 is wrong, then it would have been necessary to determine whether it would be appropriate to extend time.

[56] Whilst it is not strictly necessary to do so given the conclusion above, I add that if it had been necessary to determine whether to extend time I would have done so. As stated, it is clear from the evidence the Applicant did not receive the letter of termination. It is also notable that after February 2021 the Applicant engaged in a number of communications with the Respondent that indicated he believed he was still employed, and the Respondent conducted itself in a manner, including the manner in which it processed payments to the Applicant, and the manner in which it communicated with the Applicant, that would make it not unreasonable for the Applicant to have continued to believe he remained employed.

[57] I would conclude that in those circumstances the considerations under both section 394(3)(a) and (b) would support the extending of time in this case, and taking into account the other considerations in s.394(3) it would be appropriate to extend time on the basis that there are exceptional circumstances in this case.

COMMISSIONER

Appearances:

Ms J. Wallace of Everingham Lawyers for the Applicant.
Ms S. Florendo of Innover Legal solutions for the Respondent.

Hearing details:

2021,
Brisbane:
July 16

Printed by authority of the Commonwealth Government Printer

<PR732293>

 1   [2016] NSW FCFC 5500.

 2   Ibid.