Denis Ginnane v Ambergold Holdings Pty Ltd T/A Fibber McGees

[2014] FWC 7650

[2014] FWC 7650 [Note: An appeal pursuant to s.604 (C2014/8215) was lodged against this decision - refer to Full Bench decision dated 29 January 2015 [[2015] FWCFB 522] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Denis Ginnane
v
Ambergold Holdings Pty Ltd T/A Fibber McGees

(U2014/11932)

DEPUTY PRESIDENT MCCARTHY PERTH, 24 NOVEMBER 2014

Termination of employment - extension of time.

[1] On 22 August 2014, Mr Denis Anthony Ginnane (the Applicant) lodged an Unfair Dismissal Application (the Application). The Applicant asserts that he was unfairly dismissed from his employment with Ambergold Holdings Pty Ltd trading as Fibber McGees (the Respondent). In his Application in relation to the date the Applicant’s dismissal took effect the Applicant states that he was dismissed on 11 July 2014. However he also states that “I wasn’t formally notified, I suspect I was dismissed on 11^TH July 2014”.

[2] The Respondent asserts that the Applicant was not dismissed at the initiative of the Respondent. They assert that the Applicant resigned from his employment and that this occurred on 11 July 2014.

[3] The Fair Work Act 2009 (the FW Act) requires that an application for unfair dismissal must be lodged within 21 days of the day the dismissal took effect. 1

[4] On 27 August 2014, I wrote to the Applicant requesting that he address the considerations I must take into account in determining whether exceptional circumstances exist to allow an extension of time.

[5] On 29 August 2014, the Applicant provided further submissions. On 10 September 2014, the Respondent provided submissions and documentary material in response to the Applicant’s submissions. As there appeared to me to be disputed facts I conducted a hearing on 17 November 2014. Prior to that hearing on 14 October 2014, in reply to the Respondent’s material the Applicant provided statements from himself, Mr Simon Kidd (the Applicant’s Uncle); Mr John Ginnane (the Applicant’s father); and Mr Paul Ginnane (the Applicant’s brother).

Consideration

The date of Dismissal

[6] The Applicant in the Application appears to acknowledge that he was dismissed on 11 July 2014 but that he was not formally notified. He explained however that he “suspected” he was dismissed on that day.

[7] The Respondent purchased an airline ticket for the Applicant to fly home to Ireland which he did on 15 July 2014. The Respondent submitted that this was consistent with his obligations as an employer of a 457 visa holder who terminates their employment. It was also stated that the Applicant was not permitted to return to the Respondent’s premises after 11 July 2014. Both of these matters are indicative of a termination occurring on 11 July 2014.

[8] In the circumstances I will treat the Application as a termination at the intuitive of the Respondent, i.e. a dismissal by the Respondent, however I make no conclusive finding in that regard. It seemed to me that it would be the most expeditious and efficient way to deal with the matter.

Reason for the delay

[9] The Applicant states that one of the reasons for the delay was that he was not notified that he had been dismissed. The Applicant submitted that “similar situations in the past had been resolved after a “cooling off time”” and that he “thought by taking a short break at home would allow us [the Applicant and the Respondent] both time to “cool off””. The Applicant further submitted that as “John [Mr Little] asked me to contact him by 15th August to inform him if I was coming back. This led me to believe that I could resolve the situation as before.”

[10] The Respondent stated that he contacted the Applicant on 21 July 2014 requesting that the Applicant contact him by 15 August 2014 to advise whether he intended to return to Australia. The Respondent submitted that as an employer of a 457 visa holder he was required to advise the Department of Immigration and Border Protection that the Applicant had quit his employment and left the country and that this was the reason he had requested that the Applicant contact him.

[11] It seems that there are two reasons for the delay proffered by the Applicant. Firstly, he seems to argue that he was not sure he had been dismissed. I do not accept that proposition. It is not in dispute that the Applicant was given an airline ticket to fly back to Ireland, as apparently is required under the provisions of his visa. That is indicative that the Applicant knew his employment had ceased.

[12] Secondly, the Applicant says that he thought the decision could be changed as that had been past experience. There are two implications of that proposition. Firstly, it is indicative that a termination had taken place, regardless of by whose initiative it was, on 11 July 2014. Secondly, endeavouring to either change the decision or have it revoked is not a matter that I consider I should give much weight to in considering whether exceptional circumstances exist.

[13] There were reasonable explanations for the delay but they are not reasons for which I give weight in favour of a finding of exceptional circumstances.

When the Applicant was notified of his dismissal

[14] The Applicant states that he was not notified of his dismissal. The Applicant asserts that during a conversation with Mr TadhgWilliams, Manager of the Respondent, on 11 July 2014, Mr Williams advised him that Mr Little had told Mr Williams that he had quit his employment.

[15] The Applicant further submits that he was advised during a conversation with Mr Little on 18 August 2014 that he had quit his employment. Presumably he means that was the first he knew that he was no longer employed by the Respondent.

[16] The Respondent asserts that the Applicant quit his employment on either 9 or 10 July 2014 (the Respondent was unable to recall the exact date).

[17] I do not accept that the Applicant only became aware of his termination on 18 August 2014. I have already found above that his employment ended on 11 July 2014.

[18] I find that whilst there may have been some hope on the part of the Applicant that the termination could be revoked or indeed that he was uncertain about some of its aspects that he was nevertheless was sufficiently aware of the events and consequences of what occurred on 11 July 2014 for him to be aware at that time that employment had ceased.

[19] Nevertheless, I find give neutral weight for this element of my deliberations.

Any action taken by the Applicant to dispute the dismissal

[20] After receiving Mr Little’s email of 21 July 2014 that Applicant does not appear to have taken any action to dispute the dismissal until he attempted to contact Mr Little on or around 14 August 2014. The Applicant submitted that he did not attempt to contact Mr Little prior to this time as he believed that a “cooling off time would help” and that “similar situations in the past have been resolved after a “cooling off time””.

[21] The Applicant submits that he attempted to call Mr Little on 15 August 2014, as requested by Mr Little in his email of 21 July 2014, however, he was unable to get in contact with Mr Little. The Applicant states that he called Mr on 18 August 2014 and was advised by Mr Little that there was nothing to discuss as he had quit his employment.

[22] The Mr Little submits that the Applicant had his mobile and email address and his wife’s mobile and that he had no contact from the Applicant until 18 August 2014, when he spoke with both the Applicant’s brother and the Applicant. The Respondent also stated that the Applicant contacted the Respondent requesting a reference and that Ms Natasha Collins (Duty Manager of the Respondent) provided a reference to the Applicant on 14 August 2014.

[23] I find that the action taken by the Applicant to dispute the dismissal does not weigh in favour of a finding of an exceptional circumstance.

Prejudice to the Respondent

[24] I do not consider the Respondent will suffer prejudice if the Application is allowed.

Merits of the Application

[25] The merits of the Application rely on the facts asserted by the Applicant and those asserted by the Respondent. The facts are contested by both sides and without a full hearing and findings in relation to those facts I am not in a position to weigh the merits of the case in either parties favour.

Fairness between the Applicant and persons in a similar position

[26] The fairness between the Applicant and other persons in a similar position weighs against a finding of exceptional circumstances.

[27] I find that exceptional circumstances do not exist. Therefore, I will not extend the time for the filing of the Application. The Application is dismissed.

DEPUTY PRESIDENT

Appearances:

D Ginnane self represented.

K Bonomelli of Counsel for the Respondent.

Hearing details:

2014.

Perth:

November 17.

Final written submissions:

Applicant, 14 October 2014.

Respondent, 30 September 2014.

 1 s.394(2)(a) of the Fair Work Act 2009.

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