Gary Longobardi v Wagners Personnel Pty Ltd
[2010] FWA 4568
•30 JUNE 2010
[2010] FWA 4568 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gary Longobardi
v
Wagners Personnel Pty Ltd
(U2009/9918)
COMMISSIONER SPENCER | BRISBANE, 30 JUNE 2010 |
Termination of employment - extension of time.
Background
[1] The Applicant (Mr Longobardi) made an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), claiming he was unfairly dismissed from his employment with Wagners Personnel Pty Ltd (the Respondent). The application for relief must be made within 14 days after the dismissal took effect (s.394(2) of the Act). This determination relates to the jurisdictional issue as to whether an extension of time should be granted to allow the application.
[2] The Applicant indicated in his application that the date he was notified of the dismissal was 19 July 2009 and he was unsure of the date the dismissal took effect. The Respondent in their Form F3 Employer’s response indicated the period of employment ended on 18 July 2009. The application was lodged on 11 August 2009, and therefore prima facie appears to be at least nine days out of time.
[3] Fair Work Australia (FWA) is required to consider whether an application is made within time, as well as whether the Applicant was protected from unfair dismissal, before considering the merits of the application. Section 394(3) authorises FWA to extend the time for making the application if it is satisfied that there are exceptional circumstances taking into account specific matters.
[4] Directions were issued following a conference between the parties in order to have this jurisdictional matter dealt with. The parties were also requested to respond as to whether they required a hearing, both parties confirmed that they did not require a hearing, accordingly, the matter has been determined on the papers. The parties filed their material, and whilst this determination does not make reference to all of the materials filed in relation to this matter, all of such have been considered.
Legislation
[5] The relevant sections of the Act are as follows:
394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
…
(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.
396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) whether the application was made within the period required in subsection 394(2);
…
Submissions of the Applicant
[6] The Applicant submitted that his application was not out of time. He stated that while working at one of the Respondent’s sites, he was forced out of the provided accommodation for smoking inside the House, and that this occurred on 18 July 2009. He also stated that the Respondent maintained possession of his personal belongings. Relevantly, the Applicant explained:
“48. On Sunday, 19 July 2009, I left the Wagners’ donga and walked half way to the airport and caught a cab for the other way. On that day, I flew to Brisbane and caught a bus from Brisbane to Toowoomba.
49. It took 4 weeks for my personal possession to be returned to Toowoomba. When they got here, they were just dumped on the dirt in the middle of the Wagners yard, were [sic] anyone could run over them.
50. For the whole week of 20 July 2009 until 27 July 2009, I was not contacted by Wagners’ management.
51. At time during this period that I cannot accurately recall, I wrote and send [sic] an official complain [sic] to Cameron about my treatment, being left at the airport without transportation and my personal belongings.
52. On Monday 27 July 2009, I spoke to Shane [Dennis, Wagner’s Project Manager] over the telephone who informed that my employment with Wagners was going to be terminated but that I was to see him first. I made an appointment with him for later in the week.
53. On Thursday, 30 July 2009, I saw Shane and he said words to the effect of:
“That I was being terminated”
“But don’t hand in your Wagers keys just yet as Cameron wants to see you first.”
“He may have something for you”
54. I understood that is to mean that Wagners may have further work for me as to be told to hold onto my keys (which gives me access to every Wagers [sic] site in Queensland) obviously meant that they trusted me and were still providing lawful instructions as an employer to an employee.
55. In reliance of paragraph 53 and combined with the fact that I had yet to be supplied with a letter of termination and or a separation certificate, I verily believed that my dismissal was not effective and that I was still employed by Wagners.
56. During the days 3rd, 4th and 5th of August 2009, I made three appointments with Cameron.
i. The first appointment was cancelled by Cameron because he had to go to court;
ii. The second appointment made by Cameron had to be cancelled by me as I was going to Brisbane on that day; and
iii. The third appointment involved Cameron coming to my home which was cancelled by Cameron.
57. On 6 August 2009, I saw Cameron at Wagners. During our conversation, he discussed Paul selling Wagners products for beer and other issues. Furthermore, I was told that Wagners had nothing for me, my employment was therefore terminated and that I was to hand in my keys, which I did.
58. On the 7 August 2009, I collected my separation certificate Wagners which was dated 7 August 2009 and effective 19 July 2009. Exhibit “A” to this statement is a true and correct copy of the separation certificate dated 7 August 2009.
59. The separation certificate referred to in paragraph 0 stated that my employment was terminated because:
“Unsuitability for this type of work”
60. Until 7 August 2009, I had not received anything in writing from Wagners stating that I had been dismissed.”
[7] The Applicant submitted that the Respondent’s actions created a ‘situation where confusion and ambiguity of the date of dismissal can be reasonable understood’, as the Respondent finished his employment at one site, but at the same time did not provide anything definitive regarding the termination nor did they provide any clarification in writing until a much later date. Furthermore appointments were organised with the applicant to discuss the matter and he was told to keep his work keys. The applicant also submitted the potential for ongoing work was also held out to him.
Submissions of the Respondent
[8] The Respondent submitted that the Applicant, despite being in contact with the Transport Workers’ Union (TWU) and FWA, did not pursue his claim with any vigour until after the time prescribed by the Act had expired. It further submitted that its actions were neither contradictory nor ambiguous regarding the date of the Applicant’s termination of employment. The respondents relied on the termination being effected on 18 July 2009, and the evidence of Mr Shane Dennis (Queensland Projects Manager):
“19. On the morning of 18 July 2009, I received another call from BB. [the Respondent’s client whom Mr Longobardi was working for].
19.1 BB instructed me [the Respondent] to remove the Applicant from the site because he threatened his supervisor (Paul Smith) on Friday night with physical violence and spoke to him in an abusive/offensive manner, as well as for his repeated breaches of its terms and conditions for accommodation - smoking.
19.2 BB also advised me that it had organised accommodation for the Applicant offsite at a hotel in Collinsvale (town).
20. In response to the call from BB, an emergency meeting was held at the Respondent’s Head Office in Toowoomba to discuss how the Respondent should deal with the Applicant. As a result of this meeting the Respondent decided that because of the Applicant’s serious and continued misconduct, it would terminate the ITEA that it had with the Applicant.
21. Given that Collinsvale is a very small town, the Respondent decide to remove him from the area instead of taking BB’s offer for the Applicant to stay in accommodation in Collinsvale, so that there was no possibility of the Applicant being able to do something which may adversely affect the reputation of the Respondent in the area.
22. Once this decision was made, I telephoned the Applicant. I advised him that:
22.1 due to his misconduct, his ITEA was terminated, effective today [18 July 2009];
22.2 he was going to be removed from the project site at Collinsvale and that someone was coming to pick him so he should get his things;
22.3 he would be taken to Townsville airport and would need to find his way home from there;
22.4 he should come and see me on Wednesday [22 July 2009].
23. I noticed during the conversation that the Applicant was making a lot of excuses for his behaviour and contradicted himself a number of times.
...
30. The Applicant failed to meet with me on Wednesday 22 July 2009.
31. On the morning of 24 July 2009, I telephoned the Applicant to ascertain why he had not been in to see me on 22 July 2009.
31.1 During this conversation, I noticed that the Applicant considered that he had a job with the Respondent to come to, so I again confirmed to him that because of his serious misconduct his ITEA was terminated, effective from 18 July 2009.
31.2 I also asked that he hand in his [Wagners logo] badges, keys and [access] fob.
31.3 The Applicant advised me that he had been in contact with the Transport Workers’ Union and Fair Work Australia regarding the termination of his ITEA.
32. After this conversation, but before I met with the Applicant, I met with Mr Cameron Coleman. [General Manager - Regional Queensland and Australian Projects]
33. Mr Coleman directed me to ask the Applicant to hold on to his [badges,] keys and fob because he wanted to see if the Respondent had a suitable position for the Applicant at the Respondent’s location (at Pittsworth) near the home of the Applicant. He also asked me to arrange for the Applicant to meet with Mr Coleman in the following week.
34. In the afternoon of 24 July 2009, I met with the Applicant. During this meeting:
34.1 the Applicant made a number of unsubstantiated allegations against the Respondent and its workers previously not brought to the attention of the Respondent;
34.2 I advised the Applicant that his ITEA was terminated;
34.3 As instructed by Mr Coleman, I advised the Applicant to hold on to his keys and fob until he met with Mr Coleman;
34.4 I advised the Applicant to arrange to meet with Mr Coleman.”
[9] In relation to the meeting with Mr Coleman, Mr Coleman’s evidence was as follows:
“Monday 3 August - Friday 7 August 2009
14. I do not recall what day I met with the Applicant during this week because I did not make a diary note of our meeting as it was very brief.
...
18. I did not pursue the Applicant for this meeting as I considered his ITEA terminated. However, I also considered that if the Applicant still wanted work from the Respondent and that if the Respondent had other work available for which he was more suited, that is, work which would not require him to be away from his home for an extended period of time, then the Respondent may have considered engaging him for that work.
19. When I met with the Applicant, I had already ascertained that the Respondent did not have any suitable work available for the Applicant and I advised him accordingly.”
Consideration
[10] The following provides an assessment of the matters in s.394(3) which are required to be taken into account in addition to being satisfied that there are exceptional circumstances, to allow a further period of time for the application made by the Applicant.
s.394(3)(a) the reason for the delay
[11] The Applicant submitted that his application was not filed out of time, as the termination of his employment only took effect on 7 August 2009, and as such his application of 11 August 2009 was within the 14 day time limit required by the Act. In the alternative, the Applicant submitted that the delay was caused by the contradictory and ambiguous behaviour of the Respondent which led the Applicant to believe that his employment contract was still on foot and alternative work was to be discussed.
[12] The Respondent did not address in any submission or evidence the delay in the provision of the Separation Certificate, and asserted that there was no ambiguity in relation to its actions regarding the termination and subsequent meeting. The submissions of the Respondent do confirm alternative work was being assessed, but in the last meeting with the Applicant in the week of 3 August 2009 it was communicated to the Applicant that no such work was available.
[13] On the point regarding when the dismissal was effected, the evidence and submissions of the Applicant are preferred. On the Respondent’s evidence, if the dismissal took effect on 18 July 2009 it is inconsistent as to why it took a subsequent three weeks to provide the Applicant with a Separation Certificate. Furthermore, the actions of the Respondent in meeting with the Applicant on 24 July 2009 could reasonably have created confusion for the Applicant as to whether his employment had been terminated. The Applicant’s confusion regarding the date of the dismissal was reflected in his initial unfair dismissal application which indicated that he was unaware of the date the dismissal took effect.
[14] Mr Dennis and Mr Cameron’s (the General Manager) evidence indicated that even after 24 July 2009, the Respondent was looking for a suitable position for the Applicant to be placed in, near his home, and that this was not clarified until the meeting of 6 August 2009 with Mr Cameron.
s.394(3)(b) whether the person first became aware of the dismissal after it had taken effect
[15] The Respondent submitted that the Applicant first became aware of the termination on 18 July 2009; when Mr Dennis phoned him to inform him that he was dismissed as a result of his misconduct. The Respondent further submitted that it reiterated to the Applicant on 24 July 2009 that his employment was terminated on 18 July 2009.
[16] As per the reasons set out above in relation to s.394(3)(a), the Applicant was made aware that the dismissal was final on 6 August 2009, despite the Separation Certificate stating 18 July 2009 as the date of termination. The Respondent’s search for alternative employment for the Applicant and the request for the Applicant to hold onto the keys and access cards meant that the dismissal did not take effect until the meeting with Mr Cameron, on 6 August 2009.
s.394(3)(c) any action taken by the person to dispute the dismissal
[17] The Respondent submitted that the Applicant advised Mr Dennis on 24 July 2009 that he had contacted the TWU and FWA regarding his dismissal. The Applicant responded that this contact was made theoretically, in that he was seeking advice as to the steps ‘one can take if terminated unfairly’. It is not apparent from the submissions or evidence that the TWU became involved in this matter.
[18] The Respondent submitted that it sought a statement from the Applicant regarding his misconduct so that it may consider his actions in light of it, and that the Applicant did not provide such a statement. No evidence was provided to support this submission, and the Applicant denied that such a request was made.
[19] The Applicant did not dispute the dismissal but was unclear when it was effected. It is relevant that he sought clarification as to the dismissal in the telephone conversation with Mr Dennis of 24 July 2009 and the subsequent meeting with Mr Cameron on 6 August 2009. There is no evidence that these discussions were sought by the Applicant with the intention of denying the dismissal, however it is clear from the result of the meeting of 24 July 2009, that the Respondent had not definitively terminated the Applicant’s employment. Whilst he had been moved out of the accommodation and his previous position there were discussions about alternative work.
s.394(3)(d) prejudice to the employer (including prejudice caused by the delay)
[20] The Respondent submitted that it had employed another person in this position and should be able to rely on the time limits set under the Act in order for it to continue its operations without reprisal from terminated workers who fail to comply with the Act. Whilst the legislation is aimed at providing certainty, it would be inappropriate to allow an employer to delay the finalisation of an employee’s dismissal and then to rely on the strict time limits of the Act, where there was uncertainty regarding when the termination took effect.
s.394(3)(e) the merits of the application
[21] The material provided by the parties addressed only, in part, the substantive application and therefore, the merits of the application have not been able to be appropriately assessed. Accordingly it would be improper to give weight to such in the determination of this jurisdictional matter. However if the Applicant was in breach of the ‘no smoking’ policy, disciplinary action may well be found to have been warranted.
s.394(3)(f) fairness as between the person and other persons in a similar position
[22] This matter of fairness between like persons has limited application on the current facts. However it is clear that if the termination was not effected with certainty this will generally provide grounds for such an application for person in these circumstances.
Exceptional Circumstances
[23] I adopt the approach taken by Whelan C in Parker v Department of Human Services 1(as preferred by Lawler VP in Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery2) as addressed below:
“[30] Branson J, in a decision of the Full Court of the Federal Court (Hewlett Packard Australia Pty Ltd v GE Capital Finance Pty Ltd [2003] FCAFC 256) described exceptional circumstances as simply circumstances sufficient to render it just and equitable to grant relief.
[31] Dealing with the expression 'exceptional circumstances' as used in regulations dealing with the cancellation of visas, the Full Court of the Federal Court, in a recent decision, also noted that the expression had been considered by the courts on numerous occasions:
Although the expression “exceptional circumstances” is not defined in the Regulations, it has been the subject of consideration in numerous cases. Assistance in interpreting the expression can be found in comments of Lord Bingham of Cornwell CJ in R v Kelly (Edward) [2000] 1 QB 198 at 208 as follows:
We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
[Mann v Minister for Immigration and Citizenship [2009] FACFC 150]
[24] The Act requires FWA to be satisfied that there are exceptional circumstances in order to extend a period of time for a person to make an unfair dismissal application.
[25] As outlined above, the Respondent in this matter did not communicate a final conclusion about the dismissal to the Applicant until 6 August 2009. The Separation Certificate was provided on 7 August 2009, and the Applicant made the application some four days later. Although the Respondent appeared to be clear about its intentions with the Applicant’s employment on 18 July 2009, uncertainty was created by Mr Dennis’s meeting with the Applicant on 24 July 2009, the reference to alternative work for the Applicant close to his home, and the instruction to maintain possession of the Wagners’ keys.
Conclusion
[26] Accordingly, it is considered that based on the facts and circumstances of this matter the Applicant’s application was not lodged out of time, given the continuing discussion with him at the subsequent meeting. Therefore, there is no jurisdictional impediment as the application is not deemed to have been lodged out of time, pursuant to s394(3) and therefore the matter is within jurisdiction. I Order accordingly. The matter will be further listed.
COMMISSIONER
1 [2009] FWA 1638.
2 [2010] FWA 1394.
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