David Doring v CanDo Building Services Pty Ltd T/A CanDo Scaffold

[2017] FWC 2967

[2017] FWC 2967

FAIR WORK COMMISSION

DECISION

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

David Doring
v
CanDo Building Services Pty Ltd T/A CanDo Scaffold
(U2017/4231)

DEPUTY PRESIDENT DEAN SYDNEY, 2 JUNE 2017

Application for an unfair dismissal remedy – effective date of dismissal.

[1] On 20 April 2017 Mr David Doring made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by CanDo Building Services Pty Ltd trading as CanDo Scaffold(CanDo Building Services).

[2] CanDo Building Services raised a jurisdictional objection to the application and submitted that it was not made within the 21 day time period provided for in the Act. CanDo Building Services stated that the dismissal took effect on 20 March 2017, with the result that Mr Doring’s unfair dismissal application was made ten days out of time. Mr Doring contended that his dismissal took effect on 3 April 2017 and that his application was made within the required time frame.

[3] The matter was listed for hearing by telephone on 2 June 2017 to determine whether the application was lodged within the statutory time limit and, if not, whether an extension of time should be granted pursuant to s.394(3) of the Act. At the hearing, Mr Doring appeared on his own behalf. Mr Kevin Jury appeared for CanDo Building Services.

What date did Mr Doring’s dismissal take effect?

[4] In order to determine whether Mr Doring’s application has been made within time, I need to determine the date his dismissal took effect.

[5] Mr Doring gave evidence that he was not aware of the dismissal until he received the letter of termination via email on 3 April 2017. He submitted that his last day of work was on 17 March 2017 prior to commencing leave to go on an overseas holiday and that prior to receiving the email he thought he would return to work on 5 April upon returning from his holiday.

[6] CanDo Building Services submitted that Mr Doring’s employment was terminated by letter dated 20 March 2017 with immediate effect. Mr Jury gave evidence that the termination letter was posted to Mr Doring on 20 March 2017 and then sent via email on 3 April 2017. Mr Jury confirmed that he was aware Mr Doring was overseas and did not email the letter until the day before he was to return to work so as not to upset him while he was on holiday and to save him from being embarrassed if he attended work.

[7] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 1 I accept that Mr Doring was not aware of the dismissal until he received the letter of termination by email from CanDo Building Services on 3 April 2017. On the evidence before me, I am satisfied that the dismissal took effect on 3 April 2017.

[8] Mr Doring’s application was lodged on 20 April 2017, 17 days after the dismissal took effect. I find that the application has been made within the time limit prescribed by the Act. Accordingly, it is not necessary for me to consider whether Mr Doring should be granted an extension of time.

[9] The jurisdictional objection made by CanDo Building Services is dismissed. The application will be referred for conciliation. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

D Doring on his own behalf.

K Jury for CanDo Building Services P/L Consolidated T/A CanDo Scaffold.

Hearing details:

2017.

Sydney (by telephone):

June 2.

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 1   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) (Print T3496) at [24].