David Miller v Gunnedah Timbers Pty Ltd
[2009] FWA 727
•20 OCTOBER 2009
[2009] FWA 727 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
Gunnedah Timbers Pty Ltd
(U2009/10432)
COMMISSIONER ROBERTS | SYDNEY, 20 OCTOBER 2009 |
Application for unfair dismissal remedy - date of termination.
[1] This decision concerns an application by Mr Miller lodged on 14 July 2009 (Form F2), pursuant to s.394 of the Fair Work Act 2009 (the FWAct) for relief in respect of the termination of his employment by Gunnedah Timbers Pty Ltd (Gunnedah).
[2] On or about 23 July 2009 Gunnedah filed an objection to the application on the following grounds: “(1) Applicant was terminated on 29th June 2009. (2) Respondent Corporation employees [sic] less than 100 (one hundred) employees. (3) Termination was governed by Workplace Relations Act (Work Choices) not Fair Work Act and therefore the termination was not unfair.”
[3] Unsuccessful conciliation occurred on 29 July 2009 and the application was the subject of a telephone mention before Senior Deputy President Acton on 31 August 2009. It was then set down for hearing on 1 October 2009 in Tamworth. That proposed hearing was cancelled and directions were issued for the filing of written submissions. Both parties filed written materials with that process ending on 14 October 2009 and I have decided that, given the narrow issue before me, it is appropriate to determine this matter “on the papers”.
[4] Gunnedah is represented by Ms M Williams of the Timber Trade Industrial Association and Mr Miller is represented by Mr S Michel of Michel + White Lawyers.
Background
[5] Mr Miller commenced employment with Gunnedah in May 1999 as a casual employee and moved to full time employment in April 2000. His employment was terminated by Gunnedah on 29 June 2009 and an application for relief was initially filed in the New South Wales Industrial Relations Commission (NSWIRC) on or about 14 July 2009 but was later discontinued and the current application filed.
When did the termination occur?
[6] The issue before me for decision is a straight forward one. If Mr Miller’s employment was terminated by Gunnedah with effect from 29 June 2009, he would have no right to apply for relief pursuant to the FWAct as his situation would be subject to the requirements of the Workplace Relations Act 1996 (the WRAct). If the effective date of termination was on or after 1 July 2009, he would have the right to apply under the FWAct.
[7] Both sides have made detailed submissions in writing concerning the above point. I have paid full regard to those submissions and to the case law cited therein.
[8] Mr Miller was notified on 29 June 2009 that his employment was being terminated from that date and he was paid all of his outstanding entitlements (except for long service leave) on the same date. There was some dispute over the payment of long service leave and this was resolved at a later date. On 29 June 2009 Mr Miller was paid a sum of money in lieu of four week’s notice.
[9] It is submitted by Mr Miller that his employment did not actually end until 27 July 2009, the notional expiry date of the four weeks’ pay in lieu of notice which he received on 29 June 2009.
[10] In my view, Mr Miller’s argument is not sustainable. It is apparent on the facts that Mr Miller was paid a sum of money in lieu of four weeks’ notice on 29 June 2009 and no longer worked for Gunnedah from that day. He did not remain in Gunnedah’s employ during the subsequent four weeks. Accordingly, the termination of Mr Miller’s employment cannot be the subject of an application for relief pursuant to the FWAct. If the date proposed by Mr Miller was to be accepted, it would lead to the logical inconsistency of his application for relief being filed prior to the actual termination of employment occurring.
[11] As noted above, both sides cited relevant case law. None of that case law appears to support the contention advanced by Mr Miller. The reasoning of Wilcox CJ in Siagian v Sanel Pty Ltd 1is compelling:
“It seems to me that in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase ‘payment in lieu of notice’; it accords with common sense. An employer who wishes to terminate an employee’s services, and is prepared to pay out a period of notice without requiring the employee to work, will surely usually wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment related costs, such as workers’ compensation insurance, payroll tax, liability for leave payments etc. The employer also incurs the risk that some new burden will be imposed in respect of the employment during the period.
I see nothing in the presence case to suggest that Sanel intended that its employment relationship with Mr Siagian should continue until 15 April. The statement of account given by Mr Bryant to Mr Siagian might be called back to work before the expiration of the period of notice. Mr Bryant supplied a separation certificate on 31 March, an action that would have been premature if the employment had not then terminated.
I conclude that the payment made to Mr Siagian in lieu of notice did not have the effect of extending his employment until 15 April.” 2
[12] The only leg on which Mr Miller’s contention appears to stand is that a payment for long service leave was made to him on or about 21 August 2009 and therefore that the full employment relationship was not ended on 29 June 2009. The payment for long service leave is not relevant to the date of termination of employment.
[13] All in all, I find that Mr Miller’s employment ended on 29 June 2009 and he therefore has no right to apply for relief pursuant to the FWAct. His application is therefore dismissed. Given my finding, it follows that Mr Miller may be entitled to make an application pursuant to the WRAct but he should note that any such application would require the granting of an extension of time for filing. The application purporting to have been made under the FWAct cannot be also considered, in the alternative, to be an application under the WRAct.
COMMISSIONER
1 (1994) 1 IRCR 1.
2 Ibid at 23.
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