David Heywood v O'Connor Ferry Service Pty Ltd
[2010] FWA 3541
•14 MAY 2010
[2010] FWA 3541 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
David Heywood
v
O'Connor Ferry Service Pty Ltd
(U2009/15087)
COMMISSIONER ROBERTS | SYDNEY, 14 MAY 2010 |
Termination of employment - date of termination - extension of time.
[1] This decision concerns an application lodged by Mr Heywood on 24 December 2009 for relief pursuant to s.394 of the Fair Work Act 2009 (the Act) in respect of the alleged unfair termination of his employment by O’Connor Ferry Service Pty Ltd (O’Connor or the Company).
[2] Mr Heywood stated that his termination of employment took effect on 11 December 2009 when he allegedly received a letter from the Company dated 1 December 2009. The Company maintains that the termination took effect on 1 December 2009 when Mr Heywood was advised of his dismissal during a telephone conversation with Ms G Wilson, a Director of O’Connor and was then provided with a letter of termination on 2 December 2009. If Mr Heywood’s alleged date of termination is accepted then no extension of time is required. If O’Connor’s submission that Mr Heywood was dismissed with effect from 1 December 2009 is accepted then the application was lodged some nine days outside the 14 day time limit prescribed by the Act and therefore requires me to consider whether to grant Mr Heywood an extension of time for filing.
[3] The hearing to determine whether Mr Heywood’s application was out of time and if so, whether an extension of time should be granted, was heard by me in Sydney on 30 April 2010. Mr Heywood was represented by Mr P Garrett of the Maritime Union of Australia (the MUA) and O’Connor by Ms Wilson. Mr Heywood gave sworn evidence and tendered a witness statement 1. Mr G O’Connor (Managing Director of O’Connor) and Ms Wilson gave sworn evidence for the Company and each tendered a witness statement.2
Legislative Framework
[4] Subsections 394(2) and (3) of the Act provide:
“(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
Background
[5] Mr Heywood commenced his employment with O’Connor as a casual Ferry Driver from 8 October 2008. He was dismissed by O’Connor on 1 December 2009 (according to O’Connor) or on 11 December 2009 (according to Mr Heywood). O’Connor submits that the termination was conveyed verbally on 1 December, a copy of a termination letter was provided to Mr Heywood on 2 December and the original of that letter was forwarded to Mr Heywood by registered mail on 3 December. Mr Heywood maintains that the first he knew of the termination of his employment was when he collected the registered mail from his local post office on 11 December 2009. If O’Connor’s date of termination is accepted then Mr Heywood’s application for relief was filed some nine days late but if Mr Heywood’s date is accepted then his application was filed within time. Mr Heywood further argues that should I find that his application was filed out of time then circumstances exist which should persuade me to grant an extension of time.
Evidence
Mr Heywood
[6] It was Mr Heywood’s evidence that “I was terminated by way of letter on December 11, 2009. I had not received prior notice that I had been terminated prior to that point.”
[7] He had been made aware that the Company was investigating an incident which occurred on 7 November 2009 concerning the grounding of a ferry and that O’Connor had been considering disciplining him. He was not aware until 11 December that his employment had been terminated.
[8] “At no time during my telephone conversation with Ms Wilson on December 1, 2009, was I ever made aware that my employment had been terminated. On December 2, 1009, I went to the office of the Respondent to collect my payslip. As discussed, it was left in the mailbox in an envelope. Within that envelope was my payslip and nothing further. I did not receive a letter of termination that day.”
[9] A meeting was held with Mr O’Connor on 8 December together with representatives of the MUA. “I left the meeting with the understanding that I had not been terminated and that further discussions were underway between the Maritime Union of Australia.”
[10] On receiving the written termination letter on 11 December, he consulted the MUA and the application for relief was lodged on 24 December.
[11] In cross-examination, Mr Heywood denied being verbally advised of the termination of his employment on 1 December and denied receiving a written letter of termination on 2 December. 3 Mr Heywood went on to say that he received notice on 10 December that a registered post item was at the Kurrajong Post Office awaiting collection. He picked it up on the next day.4
Mr O’Connor
[12] It was Mr O’Connor’s evidence that Ms Wilson informed him on 1 December 2009 that she had terminated Mr Heywood’s employment during a telephone conversation on that day. She further informed him that Mr Garrett of the MUA had telephoned her on the same day asking that she reconsider the termination. On 2 December “I observed Gayle Wilson copy Mr Heywood’s termination letter and place it inside an envelope that contained his payslip. I saw Gayle Wilson walk to our post box at the end of the driveway and place the envelope in the post box. Both myself and Gayle Wilson watched the post box until Mr Heywood arrived and took the envelope.”
[13] On 3 December he posted the original copy of the termination letter by registered post to Mr Heywood. On 8 December he met with Mr Garrett, Mr Heywood and others at which Mr Garrett asked him to reconsider the termination and instead to suspend Mr Heywood. He had replied: “The decision is final and there is nothing else to consider.”
[14] In cross-examination, Mr O’Connor said that he was “in close proximity to Ms Wilson for the entire time of the telephone call” 5 and that Ms Wilson had said to him after the call, regarding Mr Heywood: “He won't bring the uniforms back because he's been told by Paul Garrett not to, until he gets his termination in writing.”6
[15] In response to a question from me, Mr O’Connor said that he read the text of the termination letter in draft form and saw the final version printed and signed by Ms Wilson. 7 He saw Ms Wilson place the letter in the envelope.8 He did not make any attempt to speak to Mr Heywood when he collected the envelope9 but did see him collect it from the letter box.10
[16] Mr O’Connor said that he forwarded the letter by registered post on 3 December to make it ‘official’. 11 He was asked: “On 8 December, at our meeting, would it not have been appropriate, considering the gravity of the situation and the discussions that we were having about what was thought by the union to be a potential dismissal - not a decision that had taken effect - would it not have been appropriate to identify that a termination letter had been dispatched?” and answered: “On 8 December, you were aware David Heywood was aware that he had already been dismissed. There is no other way to put that.”12
[17] Mr O’Connor denied using any form of language on 8 December “…that may have led [Mr Heywood] to the position that he may not have been terminated yet but discipline was being seriously considered by O'Connor Ferry Service.” 13
Ms Wilson
[18] Ms Wilson gave evidence that: “I had made Mr Heywood aware that a decision had been made to terminate his employment on the 1st December 2009 verbally and again on the 2nd December 2009 by a written notice. The original written notice of termination was posted on the 3rd December to Mr Heywood’s address by registered post. I had a phone conversation with Mr Heywood on the 1st December 2009 where I said, ‘A decision has been made to terminate your employment effective from today.’ I had a further phone conversation with Mr Heywood on the morning of the 2nd December when he rang me to ask if he could pick up his payslip that morning, as it was payday that day. I said, ‘Yes you can pick it up, also could you bring your uniform back please’. Mr Heywood said, ‘I was told by Paul Garrett not to return the uniform until I have my termination in writing.’”
[19] In cross-examination, Ms Wilson maintained her evidence as set out above. She went on to say that the decision to terminate Ms Heywood’s employment had been made on 28 November 2009. 14 She said that she did not hand a copy of the termination letter to Mr Heywood personally on 2 December to avoid confrontation.15 She further said that the Roads and Traffic Authority was informed on 3 December that Mr Heywood was no longer employed by O’Connor.16
Written Submissions
[20] Both Mr Heywood and O’Connor filed written submissions 17.
[21] In written submissions on behalf of Mr Heywood, the MUA maintained the position that Mr Heywood did not receive any notice of termination until he collected the registered post envelope on 11 December 2009. “Whilst the Applicant was aware that he was subject to an ongoing disciplinary investigation regarding an incident on November 7, 2009, the Respondent made no other reasonable steps to advise the Applicant that he was terminated other than to send the registered letter.
[22] Accordingly, the application was lodged within time. It was further submitted that, should I find against Mr Heywood on the date of termination issue, I should extend time as: “The Applicant contends that he did reasonably believe that the termination had taken effect on December 11, the date he received the termination letter. He reasonably believed that he had fourteen days to lodge an application for relief from unfair dismissal and by lodging the application December 23, did so.”
[23] In written submissions, O’Connor said that the application was out of time as Mr Heywood was informed of the termination of his employment on 1 December 2009 and that he was advised in writing on 2 December and again by registered post on 3 December 2009. It was further submitted that no exceptional circumstances exist to support an application to extend time. Mr Garrett had been clearly informed on 8 December that the termination would not be reconsidered.
Conclusions and Finding on date of termination
[24] In the case before me, it all comes down to who I believe concerning the date of termination. In this regard, I prefer the evidence of Mr O’Connor and Ms Wilson to that of Mr Heywood. In particular, I am satisfied on the balance of probabilities that Mr Heywood was provided with a written letter of termination on 2 December 2009. I accept that there could have been some misunderstanding during the telephone call of 1 December and therefore prefer the date of 2 December as the termination date. The registered post issue is therefore not of importance. Mr Garrett gave evidence from the bar table but did not give sworn evidence. Having determined that I prefer the evidence of Mr O’Connor and Ms Wilson to that of Mr Heywood, it is not necessary for me to further consider Mr Garrett’s statements. Accordingly, I find that Mr Heywood’s employment was terminated on 2 December 2009 and his application for relief was therefore filed some eight days out of time. I must now consider whether to grant an extension of time.
Extension of time
[25] The grant of an extension of time depends on my finding that I am satisfied that there are exceptional circumstances for so doing taking into account those matters set out at subsection 394(3) of the Act.
The reason for the delay
[26] I have noted the submissions on this point and find that there are no exceptional circumstances to account for the delay of filing. The concept of ‘exceptional circumstances’ has been considered in several decisions of the Tribunal 18 and I find that such circumstances do not apply here. For whatever reason, Mr Heywood and/or the MUA were dilatory in lodging the application.
When the Applicant first became aware of the dismissal
[27] Given my finding above in relation to the date of termination, I am satisfied that Mr Heywood became aware of his dismissal no later than 2 December 2009 and so find.
Action to dispute the dismissal
[28] I am satisfied that Mr Heywood took action via the MUA to dispute the termination of his employment and so find.
Prejudice to the Respondent
[29] I am unable to discern any significant prejudice to O’Connor which would be caused by the granting of an extension of time but that factor in itself is not a reason to extend time.
Merits of the application
[30] The details of the reasons given by O’Connor for the termination are hotly disputed between the parties. As the forming of a view on merit would necessarily involve further sworn evidence, I am unable to express a view on this point and merit has been neutral in my consideration.
Fairness between the Applicant and other persons in a similar position
[31] Another employee was apparently also terminated at or about the same time as Mr Heywood in relation to the events of 7 November 2009 Limited material concerning that other employee is before me and I am not in a position to assess it in any meaningful way. Accordingly, this factor has been neutral in my decision making.
[32] All in all, I do not believe that there are any exceptional circumstances which could militate in favour of an extension of time and such an extension is therefore refused.
[33] It follows that the substantive application must also be dismissed. An order reflecting this decision is in PR996770.
COMMISSIONER
Appearances:
P Garrett for the Applicant.
G Wilson for the Respondent.
Hearing details:
2010.
Sydney:
April 30.
1 Exhibit Heywood 1.
2 Exhibits O’Connor 1 and O’Connor 2.
3 Transcript PN91 and following.
4 Transcript PN116.
5 Transcript PN261.
6 Transcript PN262.
7 Transcript PNs333-339.
8 Transcript PN342.
9 Transcript PN348
10 Transcript PNs349-352.
11 Transcript PN375.
12 Transcript PN414.
13 Transcript PN425.
14 Transcript PN483.
15 Transcript PN493.
16 Transcript PN518.
17 Exhibits Heywood 2 and O’Connor 3 respectively.
18 See for example my decision in [[2010] FWA 3351].
Printed by authority of the Commonwealth Government Printer
<Price code C, PR996769>
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