Guy Clark v GPC Asia Pacific Pty Ltd T/A Repco

[2025] FWC 210

[2025] FWC 210

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Guy Clark
v

GPC Asia Pacific Pty Ltd T/A Repco

(C2024/7726)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 22 JANUARY 2025

Application for a general protections dispute involving dismissal – termination of employment did not take effect until communicated to the employee - application found to be made within 21-day period.

Introduction

1. Mr Guy Clark has made an application to the Commission under s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with contraventions involving dismissal. He contends that he was dismissed by the Respondent in contravention of section 351 of the Act.

1. Section 366 of the Act states that an application under section 365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

1. Mr Clark’s application was made on 27 October 2024 and he contends that he was dismissed on 7 October 2024. However, the Respondent contends that the Applicant’s employment as a casual employee was terminated on 5 August 2024.

1. I have found that the termination of employment took effect on 27 October 2024. Accordingly, the application was made within the 21 day period and no additional time to make the application is required.

Factual context and findings

1. The Applicant commenced employment with the Respondent on a casual basis on 26 August 2016. His last working day was on 28 May 2024. The Applicant’s evidence is that he spoke to his line manager on 26 June 2024 and advised that he was unavailable to work anything other than emergency shifts because of his personal circumstances, including caring for his mother and dealing with property and insurance issues, and that he would update his manager when the situation changed. On about 30 July 2024, in a conversation with his manager primarily about ordering a heater for home, the Applicant advised that he continued to be unavailable for shifts, and there was no clear sign of being able to return in the immediate future.

2. The Respondent’s practice is to treat casual employees, including the Applicant, who have not worked for some time and continue to be unavailable for future shifts, as inactive. Part of the reason for this is so that staff discounts are not misused.

1. In August 2024, the store manager was asked to review inactive casuals. As a result of this review, the Applicant’s employment was terminated on 5 August 2024. However, likely due to a change in systems launched in July, it appears that the Applicant was not made aware that his employment had been terminated. On 22 August 2024, the Respondent paid out the Applicant’s long service leave.

1. On 22 August 2024 the Applicant contacted the Human Resources team, after unsuccessfully attempting to use his staff number to access the staff discount. The Respondent contends (but led no evidence) that in this conversation the Applicant was told that he had been made inactive because of his unavailability, that his employment had been terminated and was directed to contact his line manager. However, the Applicant’s evidence is that he was not told during that conversation that his employment had been terminated. He says that he was told that his manager had ‘filed for his termination’ and that there were plans to terminate his employment but denies that he was told that his employment had been terminated. As to receiving his long service leave payment, his evidence is that whilst he did register that a payment had been made, he wasn’t sure what it was for and there were more concerning matters to deal with. Mr Clark did not act promptly in contacting his manager, as directed, however he says that as he didn’t understand that his employment had been ended, he had other more pressing priorities at the time. At the time, he believed there must have been some error, because he had spoken with his manager on the 8^th and 13^th of August (after the date his employment is said to have been terminated), albeit primarily about goods he had ordered, and his manager knew he was off on ‘personal leave’ and did not refer to his employment at all.

1. Mr Clark’s evidence that he was not aware that his employment had been terminated is also consistent with subsequent emails he sent on 17 and 23 September 2024 regarding his staff number not being active. If he had been told clearly that his employment had been terminated, there would have been no purpose in sending these emails. On 7 October 2024, the Store Manager replied advising that “Due to inability to fulfill (sic) shifts you have been removed from employment with GPC.” Mr Clark submits that this is the date the termination of his employment took effect.

1. In these circumstances, I find that the Applicant’s employment was terminated on 5 August 2024. However, that is not when the termination took effect. Broadly, a termination of employment cannot take effect until it is communicated to the employee.[1]

1. Whilst I have some doubts about the matter, the Applicant’s unchallenged evidence is that he was not informed during the call on 22 August 2024, or at any point prior to the email dated 7 October 2024, that his employment had been terminated. Accordingly, I find that the termination took effect on 7 October 2024 when it was communicated unambiguously to him. On that basis, the application made on 27 October 2024 was within the 21-day period.

1. The jurisdictional objection is dismissed.

DEPUTY PRESIDENT

Appearances:

G. Clark, the Applicant appearing on his own behalf.
J. Lewis, appearing on behalf of the Respondent.

Hearing details:

2025.
20 January (Via Microsoft Teams).

[1] Mohammed Ayub v NSW Trains [2016] FWCFB 5500.

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