David Appleyard v Powr Electronics

[2015] FWC 1560

[2015] FWC 1560

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

David Appleyard
v
Powr Electronics
(U2014/12766)

DEPUTY PRESIDENT SAMS SYDNEY, 6 MARCH 2015

Application for an unfair dismissal remedy - objection based on genuine redundancy - disputed date of dismissal - whether application lodged within statutory time period - extraordinary set of circumstances - conflicting evidence - applicant’s version of events preferred - application filed within time - unnecessary to consider ‘exceptional circumstances’ - remitted for further hearing Application for relief from unfair dismissal.

[1] This decision arises from an application for an extension of time for the lodgement of an application for an unfair dismissal remedy, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Mr David Appleyard (the ‘applicant’) claims he was dismissed from his employment with Powr Electronics (the ‘respondent’) on 19 September 2014. However, the respondent claimed the applicant was notified of his dismissal, on the grounds of redundancy (lack of work) on 12 August 2014, with the applicant’s dismissal to take effect on 22 August 2014.

[2] The application for unfair dismissal was filed on 24 September 2014. The Act mandates a 21 day time limit for initiating an application for a remedy from unfair dismissal. If the applicant’s stated date of dismissal is correct, then obviously his application is within time. Alternatively, if the respondent’s claimed date of redundancy is correct, the application was lodged at least 12 days outside the statutory time limit set out in s 394(2)(a) of the Act.

[3] Section 396 of the Act requires the Commission to determine a number of jurisdictional matters before considering the merits of an unfair dismissal application. These are:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal (s 382)

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code (s 380); and

(d) whether the dismissal was a case of genuine redundancy (s 389)

[4] I am satisfied that the applicant was a person protected from unfair dismissal and that the respondent is not a small business employer, as defined (it has 20 employees). This decision will determine whether the application was filed within time and, if not, whether the applicant has established ‘exceptional circumstances’ in accordance with s 394(3) of the Act, such as to allow the Commission to exercise its discretion to extend the time for the filing of the application.

[5] Mr Appleyard provided a five page submission outlining the circumstances surrounding his dismissal and dealing with the criteria set out in s 394(3) of the Act. In the respondent’s F3, Mr Dragi Panovski, Director of the respondent, gave the following reasons for the applicant’s dismissal:

‘Product Care contract for under $400 was taken from us and David’s primary role was performing this.

Our volume of Work has dropped dramatically coming from 60-80 items per day to currently 3-10 items per day.

There are no other positions available within the business to redeploy David.’

Curiously, the respondent did not identify genuine redundancy as an objection at 2.1 of the Form F3 Employer’s Response and only relied on an objection based on the application being ‘out of time’.

[6] The matter was listed for hearing on 30 January 2015. The applicant appeared with the assistance of a pro bono solicitor, Ms D King, under the Commission’s pro bono arrangements with the Law Society of New South Wales. Mr Panovski appeared for the reaspondent with the assistance of Ms K Byrnes, Solicitor under the same arrangement.

THE EVIDENCE

The applicant

[7] The applicant said he had no knowledge whatsoever of having been terminated by Mr Panovski until 19 September 2014. He explained that Mr Panovski first told him on 22 August 2014 to take two weeks annual leave and then he asked him (and he agreed) to take a further two weeks annual leave when he turned up for work on 5 September 2014 to prepare for his return to work on Monday 8 September. He then turned up for work on 19 September to prepare for a return to work on Monday 22 September. When he inquired of Mr Panovski as to why no payments had been made for his annual leave during the previous month, Mr Panovski had replied, ‘I don’t have enough work and have to let you go.’

[8] What the applicant then claimed about the circumstances leading up to 19 September 2014 were truly extraordinary. He said that on 12 August 2014, he had met Mr Panovski at the Eastern Creek Tavern for lunch. No one else was present. Mr Panovski had told him he wanted to ‘get rid of Joshua Monks’ (another young employee of the respondent) and he had a plan he wanted him to ‘play along’ with. Mr Panovski would inform both of them they were to be dismissed, so it would appear Mr Monks would not think he was being ‘singled out’.

[9] However, Mr Panovski had assured him that his job was secure and he was ‘just playing a little game for Joshua Monks’ benefit so it looked better.’ Mr Panovski told him to take two weeks annual leave. He would be paid for the time off and when he came back, ‘I will look at a pay rise for you.’ They both shook hands on the deal. On 22 August 2014, a farewell barbecue was held for both Mr Monks and the applicant. The applicant added that when he returned to work on 5 September 2014, Mr Panovski had asked him to take another two weeks annual leave as ‘he wanted to get rid of a few more people.’ They both acknowledged they would see each other in two weeks.

[10] On 26 October 2014, after an unfair dismissal conciliation, an amount was paid into the applicant’s bank account. There was no pay slip or supporting documentation. The applicant assumed it was the four weeks of annual leave for the period of 22 August to 19 September 2014. As at 23 November 2014, the applicant had never received any letter terminating his employment. Nor had he been paid any outstanding entitlements or redundancy pay.

[11] The applicant claimed that Mr Panovski had given conflicting information in a Fair Work Ombudsman (FWO) mediation. Mr Panovski had been told by the mediator that he had been underpaying the applicant. That matter was still being pursued with the FWO.

[12] The applicant gave further evidence that during the first two weeks of his annual leave (after 22 August 2014), Mr Panovski had asked him and his brother to pick up a ute on his property at Oberon. The applicant said he would not have picked up the ute if he was no longer employed by Mr Panovski. However, after the applicant had filed this unfair dismissal application, Mr Panovski alleged that he had damaged the ute. Mr Panovski demanded a grossly exaggerated repair bill or he would take legal action against him.

[13] In oral evidence, the applicant restated the evidence he had set out in his statement. In addition, he said that during the four week period he was on annual leave, no payment was ever made to him. After being told on 19 September 2014 that he was terminated, he had contacted the mother of a friend. She had advised him to lodge an application for a remedy from unfair dismissal.

[14] The applicant recalled the conversation he had with Mr Panovski at the Tavern lunch on 12 August 2014. The word ‘redundancy’ had not been mentioned. Rather, Mr Panovski said the reason he would give would be ‘not enough work’. Mr Panovski also said that he wanted to keep him on (over Mr Monks) because Mr Monks had moved to Maitland. The applicant was five minutes away, whereas Mr Monks had a 3½ hour drive to the workplace. Nothing was said about either of their work performances.

[15] The applicant admitted that he had ‘gone along’ with the ruse, because he loved his job and the people he worked with. A couple of days after the farewell barbecue, he had told two close mates of the ‘scheme’: Mr Ryan Palmer and Ms Renee Taylor and a few others. He believed Mr Monks was still unaware of the ‘scheme’.

[16] In cross examination, the applicant deposed that Mr Panovski was like a big brother to him and he had often visited his farm. He described the ute on the farm as a ‘bush basher’.

[17] The applicant confirmed that in the meeting with Mr Panovski and Mr Monks, Mr Panovski had said that there was not enough work for them both. When Mr Monks left the room, Mr Panovski assured the applicant that his job was ‘absolutely safe’. He had never said anything like, ‘Keep checking, keep coming back because if I get work, I’d love to offer it to you.’ Nevertheless, the applicant acknowledged that after 22 August 2014, he continued to drop into the workplace, just to see everyone. Mr Panovski was not always there.

[18] The applicant said that around October 2014, he received a payment from Mr Panovski, which he believed represented his four weeks annual leave. However, even this amount was incorrect.

[19] In re-examination, the applicant acknowledged that he had been aware before 12 August 2014, that Mr Monks would be ‘going soon’.

Mr Dragi Panovski

[20] Mr Panovski stated that he regarded the applicant as a friend. He described the following conversation with the applicant at the Eastern Creek Tavern on 12 August 2014:

‘On 12 August, we went out with Dave for lunch and went to the pub. Had a discussion to Dave just to ease him off a bit. I said “Look, I’m going to have to let you and Josh go”. I said “At the end of the day, if I do have work I will call you back. Come and see me every couple of days and when we get back I will call you and Dave into the office and I’ll” - “you and Josh into the office and I’ll advise you of your two weeks”. I had to do this with Dave because we had an issue about six months prior to that where I had to let Dave go and I did let him go he cried that much in my office actually felt sorry for him and just gave him another chance then.’

In accordance with this arrangement, Mr Panovski said that the applicant would come into the office three or four times a week, and also ring him up seeking work.

[21] Mr Panovski said that he had withheld the applicant’s termination pay until October 2014, because he wanted to deduct an amount for the damage to the ute. However, he was told at the Commission’s conciliation that he could not withhold an employee’s statutory entitlements.

[22] In cross examination, Mr Panovski denied the applicant’s version of events. He said that he would never say a person’s job was safe - because this was not the case. He had actually made five employees redundant due to a shortage of work. It was Mr Panovski’s evidence that after 22 August 2014, he had not paid the applicant because he never worked.

CONSIDERATION

[23] This is a classic ‘word on word’ case. There were no witnesses to the meetings between the applicant and Mr Panovski. Regrettably, if the Commission accepts the applicant’s version of events, it reflects very poorly on both of them. For the applicant, it means that he was complicit in an elaborate scheme to have one of his work colleagues deceived into believing that both of them were to be dismissed for a false reason. Mr Panovski emphatically, and on oath denied the applicant’s version of events. He claimed that both the applicant and Mr Monks were dismissed for reasons of genuine redundancy. Who is the Commission to believe, given such diametrically opposed versions of the evidence?

[24] Whatever might be said about the applicant’s version of events, it was certainly a unique and extraordinary account. I have never come across quite a bizarre set of circumstances. Presumably, Mr Panovski would have the Commission find that the applicant, at worst, has simply reconstructed a set of implausible circumstances or, at best, misunderstood their conversations, in order to explain the late filing of his unfair dismissal application. I am unable to make either of these findings.

[25] Firstly, in my view, given the almost unbelievability of the applicant’s story, it seems to be highly unlikely that he could have ‘made it up’. Secondly, the applicant was unshaken in his oral evidence as to what had been said by Mr Panovski. He did not refer to notes when he was retelling his story to the Commission. He gave his evidence confidently and carefully. He denied being mistaken or having misunderstood Mr Panovski’s words or intentions. As a relatively young man, completely inexperienced in giving evidence, one might ordinarily expect a slip up, confusion or a mistake with the timing of events. Such errors might indicate a version of events which had been made up. However, that was not the case with the applicant’s evidence. Thirdly, I could discern no uncertainty, confusion or conflict between the applicant’s written version of events, going as far back as his Form F2 application and his oral testimony.

[26] Fourthly, the evidence the applicant gave was obviously against his own interests. He had betrayed a work colleague and been complicit in a schemed to mislead the entire workforce. He was an active and willing participant in a sham concocted by someone he trusted and who he believed was a personal friend. In short, his evidence made him look very bad. Usually, one would hardly implicate oneself so readily in a made up story if they were not telling the truth.

[27] Fifthly, the rationale that Mr Panovski had used to encourage him to assist in the sham were obviously based on Mr Panovski’s false promise that the applicant’s job would be safe - indeed that he might even get a pay rise. While this could not possibly justify the applicant’s complicity, it is explicable for a young man desperately wanting to keep a job he loved.

[28] Sixthly, the relationship between the applicant and Mr Panovski was plainly an unequal one. Mr Panovski had the power over a young man’s future employment. They had been personal friends. No doubt the applicant looked up to Mr Panovski, as not only someone in authority, but someone he could trust. It would seem that that trust was naively misplaced.

[29] Seventhly, the reason why Mr Panovski concocted a plan to dismiss both employees, at the same time, seems entirely plausible. As he wanted to get rid of Mr Monks, he needed a reason which appeared sound and valid. His plan was designed to appear that Mr Monks was not being singled out. Dismissing two employees, based on an alleged downturn in work, was a clever, but cruel cover for his real intentions.

[30] Eighthly, Mr Panovski provided no financial records or other evidence to demonstrate that there was a downturn in work or an economic basis for dismissing, either the applicant or Mr Monks. There was no evidence to corroborate Mr Panovski’s claim that he had made five employees redundant at around the same time.

[31] Ninthly, it is curious that if the applicant had really been terminated on 22 August 2014, he was not paid any outstanding entitlements, let alone any redundancy pay, until after 25 October 2014 - a month after the unfair dismissal application had been filed and following a conciliation by the Commission. I do not accept Mr Panovski’s explanation that he was withholding payment because of damage to a ute on his property. In my view, this was a convenient, but highly unlikely, ‘red herring’.

[32] Tenthly, I did not find Mr Panovski’s evidence to be particularly persuasive. His focus on the alleged damage to the ute was a diversion from the truth of the applicant’s dismissal and indicative of a high handed approach to his employees.

[33] Eleventhly, even on the respondent’s own evidence - the Employment Separation Certificate - there were significant errors and confusing information. The document says the applicant was paid four weeks $2,200 gross. However, the employer’s Form F2 said the applicant was paid $550 per week. The gross and net figure can’t be the same amount. There was an argument as to the applicant’s period of employment with Mr Panovski as the employer - that is, whether he commenced employment in 2011 or 2013. For present purposes, it does not really matter. However, the date of the Certificate itself is said to be the ‘25 October 2015’. Mr Panovski explained this was a typographical error. It is difficult to imagine that someone would not know in what year they had signed the Certificate. In addition, there would appear to be at least a prima facie case that Mr Panovksi had been underpaying the applicant.

[34] Given all these circumstances, I am satisfied, on the balance of probabilities, that the applicant was actually dismissed, and genuinely believed he was dismissed, on 19 September 2014. It follows that his application for an unfair dismissal remedy was filed within time. It is therefore unnecessary for the Commission to consider extending the time for filing the application. The application is competently before the Commission and will be remitted to the Unfair Dismissal Team for further processing according to the Commission’s usual protocols.

DEPUTY PRESIDENT

Appearances:

Applicant in person, assisted by Ms K Byrnes, Solicitor.

Mr D Panovski for the respondent, assisted by Ms D King, Solicitor.

Hearing details:

2015:

Sydney.

30 January

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