Harrison Mullins v Gregors Plumbing & Gas Pty Ltd
[2024] FWC 551
•1 MARCH 2024
| [2024] FWC 551 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Harrison Mullins
v
Gregors Plumbing & Gas Pty Ltd
(C2024/59)
| DEPUTY PRESIDENT DOBSON | BRISBANE, 1 MARCH 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – out of time – jurisdictional objection dismissed – matter to be listed for conference.
Mr Harrison Mullins (Applicant) made an application to the Fair Work Commission (Commission) under s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Gregors Plumbing & Gas Pty Ltd (Respondent) in contravention of Part 3-1 of the FW Act.
The Respondent has objected to the application on the ground that the application is out of time.
Before dealing with the dispute, I must be satisfied that the application was not made out of time.
When must an application for the Commission to deal with a dismissal dispute be made?
Section 366(1) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
It is a matter of record that the application was made on 3 January 2024.
When did the dismissal take effect?
The parties are in dispute about when the dismissal took effect.
Submissions and evidence
The Applicant submits that he was injured at work on 24 October 2023. Consequently, the Applicant was limited to light duties which the Respondent was unable to accommodate. The Applicant’s last day on workers compensation leave was Friday 15 December 2023. The Applicant submits that on Sunday 17 December he texted the Respondent to enquire where he should attend work the following day.
The Applicant stated that in response to this text he was notified by text message that he had been terminated due to a lack of work. The Applicant provided the text message dated Sunday, 17 Dec at 6.32pm which read as follows:
“Hey mate i think you’ve wrong (sic) person maybe, no work tomorrow as discussed we lost alote (sic) of maintenance work when u (sic) got injured as could not cope. stopped doing as much. have new roof work from rains and new builds next year”[1]
The Applicant stated that he had not received his final termination payment or notice until 17 December 2023. Further, the Applicant stated that there was no evidence that the notice of termination was given prior. The Applicant submitted that the dismissal took effect on 17 December 2023 because this was the date that he had been advised of the termination (via text message). The Applicant submitted that there was therefore no delay to the present Application which was filed on 3 January 2024 well within the required 21 days.
In reply to the Respondent’s material, the Applicant submitted that the Respondent had not demonstrated that he actually received or that they had sent him any termination letter. He further stated that he had only received the separation certificate after he had requested it on 17 December 2023.
The Respondent submits that the dismissal in fact took effect on 7 December 2023. The Respondent claims that they notified the Applicant on 23 November 2023 (by phone) that the Applicant had failed his probation. The Respondent submitted that they had advised the Applicant during that telephone call that the Applicant “didn’t pass his probationary period and his employment was terminated.”[2] Further the Respondent submitted that the Applicant was given 2 weeks’ notice with his employment ending 7 December 2023.[3]
Consideration
A dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware.[4] Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter.[5]
In the hearing the Respondent acknowledged that it didn’t notify the Applicant of his dismissal in writing until 20 December 2023. The Respondent had the opportunity to provide evidence that a phone call was made to the Applicant on 23 November 2023 however the Respondent failed to do so. Further, when the Respondent was asked when they notified the Applicant in writing, they alleged to have notified the Applicant by email on 23 November 2023 however when the email was requested, the email provided by the Respondent to support this contention is dated 20 December 2023, which is after the Applicant had texted the Respondent about returning to work on 17 December 2023.
The Respondent failed to put any evidence before the Commission to support its contention that it notified the Applicant of his termination on 23 November 2023. Further, evidence that was put before the Commission did not support the contentions made by the Respondent.
Findings
I accept the evidence of the Applicant as to when he was notified of the termination by text message. The Respondent’s assertions were inconsistent with the evidence before the Commission.
Having regard to the matters I have referred to above, I find that the dismissal took effect on 17 December 2023.
Was the application made within 21 days after the dismissal took effect?
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[6]
The Full Bench has further stated, “[i]f the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[7]
As I found above, the dismissal took effect on 17 December 2023. The final day of the 21 day period was therefore 8 January 2024 and ended at midnight on that day. The application was made on 3 January 2024. The application was therefore made in time.
The application having been made within 21 days of the date on which the dismissal took effect, I do not need to consider whether to allow a further period for the application to be made. The matter will now be referred for conference.
DEPUTY PRESIDENT
Appearances:
Mr Mullins appearing for himself
Mr Gregor appearing for the Respondent.
Hearing details:
Brisbane
29 February 2024
[1] Digital Court Book p13.
[2] Digital Court Book p22.
[3] Digital Court Book p22.
[4] Ayub v NSW Trains[2016] FWCFB 5500, [36].
[5] Foyster v Bunnings Group Ltd[2017] FWCFB 3923, [17].
[6] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[7] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A; Stedman v Transdev NSW Pty Ltd [2015] FWCFB 1877.
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