Gary Swift v Cruise 1st Australia Pty Ltd T/A Cruise1st.com.au
[2017] FWC 6812
•20 DECEMBER 2017
| [2017] FWC 6812 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Gary Swift
v
Cruise 1st Australia Pty Ltd T/A Cruise1st.com.au
(U2017/10035)
DEPUTY PRESIDENT DEAN | SYDNEY, 20 DECEMBER 2017 |
Application for an unfair dismissal remedy – effective date of dismissal – extension of time.
[1] Mr Swift commenced employment with Cruise 1st Australia Pty Ltd T/A cruise1st.com.au (Cruise 1st) on 3 September 2012.
[2] On 14 September 2017 the Australian Services Union (ASU) lodged an application on behalf of Mr Swift pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that he had been unfairly dismissed by Cruise 1st. The ASU later ceased acting for Mr Swift.
[3] The application was listed for hearing by telephone before me on 18 December 2017 to determine two matters. First, what was the effective date of Mr Swift’s dismissal, and second, was his application lodged within the statutory time limit and, if not, should an extension of time be granted pursuant to s.394(3) of the Act.
[4] The listing by telephone was to accommodate Mr Swift who no longer resides in Australia. A number of unsuccessful attempts were made to contact Mr Swift at the scheduled hearing time. As a result, the hearing did not proceed. The parties were provided with a further opportunity to file material in support of their respective positions. Both parties filed further material to which I have paid regard in reaching my determination.
When did the dismissal take effect?
[5] A dismissal takes effect when it is communicated to the employee who is being dismissed 1, and can be communicated orally2.
[6] A termination at the initiative of the employer involves some action of the employer that is intended to bring the employment relationship to an end, or had that probable result. 3
[7] The term ‘dismissed’ for the purposes of the unfair dismissal jurisdiction is defined in s.386 of the Act. Section 386 provides that a person is dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative, or the person has resigned from his or her employment but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. 4
[8] In J Searle and Moly Mines Limited, 5a full bench considered the meaning of termination at the initiative of the employer, and stated:
[22] Before turning to the facts of this case there is another issue which arose in the course of the submissions with which we should deal. That matter concerns the relevance of the principles governing the termination of a contract of employment. It is clear that the statutory test relates to termination of the employment relationship, not termination of the contract of employment. The difference is well illustrated by the following passage from the joint judgment of Brennan CJ and Dawson and Toohey JJ in Byrne and Frew v Australian Airlines Ltd 6:
“It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson [(1946) 72 CLR 435 at 471]. As Latham CJ said (at 454):
“An employer terminates the employment of a servant when he dismisses him, though, as I say hereafter, such a dismissal does not put an end to the contract between the parties. An argument that a dismissal because wrongful was a nullity was raised and rejected in both Williamson’s Case [Williamson v The Commonwealth, (1907) 5 CLR 174 at 185] and Lucy’s Case [Lucy v The Commonwealth, (1923) 33 CLR 229 at 237, 238, 249, 252, 253].”
And as Dixon J said [Automatic Fire Sprinklers Pty Lt v Watson at 545]:
“there is nothing in the general law preventing the wrongful dismissal of a servant operating to discharge him from service, notwithstanding that he declines to accept the dismissal as absolving him from further performance but keeps the contract open and remains ready and willing to serve.” “
[23] In the case of wrongful dismissal, as the passage shows, the employment is terminated by the employer even though the contract continues until the employee accepts the repudiation, thereby bringing the contract to an end. In applying the statutory test it is the termination of the employment relationship which is important.
[9] The proper test for determining the date of dismissal is the date the employment relationship ended.
[10] In the present application, 14 August 2017 is recorded as the date Mr Swift was notified of his dismissal, and 28 August 2017 as the date his dismissal took effect. Mr Swift’s application includes a statement to the effect that Cruise 1st wrote to Mr Swift on 14 August 2017 to inform him that his employment was being terminated ‘due to the cessation of [his] current bridging visa and consequently [him] no longer being entitled to work legally in Australia”.
[11] It is not disputed that Mr Swift’s last day of work was 14 August 2017. He was paid until 24 August 2017 and was not required to work out his notice period.
[12] It is further agreed that a meeting took place on 14 August 2017 between Mr Swift and Mr Carl Frier, Managing Director of Cruise 1st, in which Mr Swift’s visa status and his ongoing employment were discussed.
[13] In relation to this meeting, Mr Swift contends that “a discussion was held with Carl regarding my situation and he advised me to go away and think about leaving Australia and to contact him within a couple of days and if I didn’t get back to him with my notice letter then he would just go ahead and terminate my contract anyway. At no point was my contract terminated that day. I left the office still on stress leave to explore my final options.”
[14] Cruise 1st asserts that Mr Frier advised Mr Swift on 14 August 2017 that his employment was terminated because of his inability to remain within Australia due to the expiration of his visa. Mr Swift was told that he was not required to work out his notice period and would receive payment in lieu. Mr Frier says that Mr Swift agreed to this, and advised he would like some time to think about resigning or accepting the termination, to which Mr Frier agreed. Mr Swift left the workplace and did not return. Subsequently, emails were exchanged between the parties.
[15] On 17 August 2017 Mr Frier sent an email to Mr Swift in the following terms:
Hi Gary,
Appreciate this is a difficult time for you but following our conversation earlier in the week we do need to tidy up your paperwork over the next few days in relation to finalising your employment at Cruise 1st. I’m happy to wait until Monday for you to advise if your preference is to resign but if I haven’t heard by then I will have to send you your termination notice accordingly.
Regards
Carl Frier Managing Director Australasia
[16] Cruise 1st had not received advice by 24 August 2017 that Mr Swift wished to characterise his termination as a resignation and a letter was then sent by email confirming the termination of his employment.
[17] On 28 August 2017, Mr Swift attended the workplace and collected his personal belongings.
[18] Having considered the submissions of the parties, I find that the employment relationship ended at the time Mr Swift ceased performing work for Cruise 1st on 14 August 2017 and that the correspondence following the cessation of the employment relationship dealt only with the characterisation of the termination.
[19] It follows and I find that the effective date of dismissal is 14 August 2017. As Mr Swift’s application was filed on 14 September 2017, his application has not been made within the 21 day time limit prescribed by the Act. It is therefore necessary for me to consider whether Mr Swift should be granted an extension of time.
Extension of time
[20] Section 394(3) of the Act provides:
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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.
[21] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the Act. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to extend time. The onus of establishing exceptional circumstances is on Mr Swift.
[22] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd 7 where the Full Bench said:
“[13] In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”
[23] I now deal with each of the provisions of s.394(3) of the Act.
Reason for the delay
[24] Mr Swift relied on his dismissal taking effect on or after 23 August 2017, which, if correct, would mean that his application was within time. There is no suggestion of any impediment which has prevented Mr Swift from lodging his application within the required timeframe and no reason was provided as to why the application was otherwise late. This weighs against the granting of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
[25] It is clear from the material before me that Mr Swift was notified of his dismissal on 14 August 2017. This weighs against the granting of an extension of time.
Any action taken by the person to dispute the dismissal
[26] There is no evidence to suggest that Mr Swift took any action to dispute the dismissal except lodging this application. This weighs against the granting of an extension of time.
Prejudice to the employer (including prejudice caused by the delay)
[27] I am not persuaded that granting an extension of time would result in a prejudice to the Respondent. While a lack of prejudice is an insufficient basis to grant an extension of time, a lack of prejudice weighs in favour of a finding of exceptional circumstances.
The merits of the application
[28] For the purpose of determining whether to grant an extension of time for Mr Swift to file his application, the Commission ‘should not embark on a detailed consideration of the substantive case.’8
[29] Mr Swift’s employment was subject to a 457 visa arrangement. He was terminated because he no longer had a legal right to work in Australia. The merits of his application for an unfair dismissal remedy in my view are not strong. I find this weighs against granting an extension of time.
Fairness as between the person and other persons in a similar position
[30] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm 9 considered this criterion and said ‘cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.’10
[31] I do not consider that there are other relevant persons in a similar position to Mr Swift, and I therefore find it to be a neutral consideration.
Conclusion
[32] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances as to warrant my granting an exception to the statutory time limit for the lodgement of this application. It follows that Mr Swift’s application must be dismissed.
[33] An order to that effect will issue with this decision.
DEPUTY PRESIDENT
Hearing details:
2017.
Sydney (By telephone):
December 18.
1 Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, 21 November 2000) print T3496.
2 Plaksa v Rail Corporation NSW[2007] AIRC 333.
3 Searle v Moly Mines Limited [2008] AIRCFB 1088 at para 2.
4 Section 386 of the Act.
5 [2008] AIRCFB 1088.
6 (1995) 185 CLR 410 at 427.
7 [2011] FWAFB 975.
8 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].
9 [2015] FWC 8885.
10 Ibid at [29].
Printed by authority of the Commonwealth Government Printer
<Price code C, PR598837>
0
4
0