Harry Evans-Mete v Chapmans Lawyers Pty Ltd

[2015] FWC 3713

[2015] FWC 3713

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Harry Evans-Mete
v
Chapmans Lawyers Pty Ltd
(C2015/307)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 2 JUNE 2015

Application to deal with contraventions involving dismissal.

[1] Mr Harry Evans-Mete (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 13 February 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Chapmans Lawyers Pty Ltd (Chapmans - the Respondent) in contravention of the general protections provisions of the Act. In his application, Mr Evans-Mete contended he had been dismissed from his employment on 27 January 2015.

[2] The matter was listed for a conference which was scheduled for 5 March 2015. On 24 February 2015 Chapmans filed its response to the application (Form F8A). The response raised a jurisdictional objection on the basis that Mr Evans-Mete had not been dismissed on 27 January 2015 or, in the alternative, that he had been dismissed on 6 January and that the application was therefore lodged outside the 21 day statutory timeframe for lodgement set out in s.366(1) of the Act. The conference listing was cancelled and Directions were issued requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding whether or not the application had been lodged within the statutory timeframe for lodgement and any information relevant to the extension of time issue.

[3] The Directions invited both parties to indicate if they wished to be heard on the matter and stated that in the absence of such a request the Commission would determine the matter based on the material lodged in accordance with the Directions. As neither party requested to be heard, I have determined this matter on the papers. Mr Evans-Mete provided a witness statement on his own behalf, while witness statements were provided by Mr Michael Lourey, Chapmans Legal Director, and Mr Len Gandini, Chapmans Practice Manager, on behalf of the Respondent.

[4] For the reasons set out below I consider that Mr Evans-Mete’s employment with Chapmans ceased on 27 January 2015. Relying on that date means that Mr Evans-Mete’s application was received by the Commission within 21 day statutory timeframe. As a consequence, the jurisdictional objection raised by Chapmans is dismissed. The application will now be listed for a conference directed at resolving the matter.

Background

[5] Mr Evans-Mete commenced employment on a trial basis with Chapmans as a solicitor on 28 October 2013. He was offered, and accepted, a full-time permanent position as a solicitor with Chapmans on 1 March 2014. Mr Evans-Mete was predominantly responsible for the day-to-day management of workers’ compensation files.

[6] On 6 January 2015, Mr Lourey met with Mr Evans-Mete to discuss concerns relating to aspects of Mr Evans-Mete’s performance. During the course of the meeting, Mr Evans-Mete was advised by Mr Lourey that he would no longer be managing those files he had previously been responsible for. The prospect of Mr Evans-Mete moving into an alternative role was also discussed, with Mr Evans-Mete advising that he would take a day or two to consider his options regarding the new role.

[7] On 7 January 2015, Mr Evans-Mete sent an email to Mr Lourey indicating that the alternative role that had been discussed was very attractive. On 8 January 2015 a meeting was convened to further explore the new role, with Mr Lourey, Mr Evans-Mete and Mr Gandini in attendance. Mr Evans-Mete maintained his interest in the alternative role during this meeting, though he advised that he could not commence in the new role until 27 January 2014 as he had to attend to some personal matters in New Zealand. In his application, Mr Evans-Mete states that a request for Carer’s Leave for this period was rejected by Chapmans but that Mr Gandini suggested that he would nonetheless be paid something while he away. In his witness statement, Mr Evans-Mete deposed that it was agreed at the 8 January 2015 meeting with Mr Lourey that he would no longer be responsible for the day-to-day management of files but that he would instead prepare witness statements for clients 1.

[8] Emails were exchanged between Mr Evans-Mete and Mr Lourey over the period 24 and 26 January 2015. Mr Lourey deposed that he emailed Mr Evans-Mete on 24 January 2015 requesting that he meet with him late on 26 January 2015 to try and reach agreement “on the various details that would see the applicant filling the new role.” 2 The final email response from Mr Evans-Mete as part of that email exchange stated “I find the need for yet another meeting to be degrading and humiliating and add this to the list of my complaints about workplace bullying”.

[9] Following on from these emails, Mr Evans-Mete and Mr Lourey met at 10am on 27 January 2015. During the course of that meeting Mr Evans-Mete was informed that Mr Lourey doubted Chapmans ability to proceed to work with Mr Evans-Mete in the new role as an employee. Mr Evans-Mete put it to Mr Lourey that he was being terminated for making bullying allegations. Mr Lourey denied this and stated that there was an absence of trust and confidence between the parties.

[10] Subsequent to the meeting Mr Lourey sent an email with a letter attached to the Mr Evans-Mete. The letter states, inter alia:

“RE: ONGOING EMPLOYMENT
...
In light of events to date, including the contents of your email of 26 January 2015 and this morning’s meeting, we no longer have on offer a new role with this firm. As you have previously been advised that you were no longer required by us to perform your previous role, and have rejected any attempt by us to further discuss with you a new role, we confirm you have no ongoing employment with the firmeffective immediately.

We will forward you your entitlements and other personal effect by no later than 5 February 2015, inclusive of the appropriate period of notice (if any).” [Underlining added]

[11] Mr Evans-Mete contends that he was dismissed as a result of him making a workplace bullying complaint on 26 January 2015.

The Relevant Legislation

[12] Section 366 of the Act provides:

“366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

[13] To determine whether the application was made within the statutory timeframe specified in s.366 of the Act it is first necessary to determine when Mr Evans-Mete’s employment came to an end.

On what date did Evans-Mete’s employment come to an end?

[14] Chapmans submitted that there had been no termination of employment at its initiative as it was agreed at the meetings on 6 and 8 January 2015 that Mr Evans-Mete would no longer be employed to carry out his former role. While Chapmans acknowledged that it had discussed an alternative role with Mr Evans-Mete, it submitted that the proposed new role would only be offered after certain prerequisites were clarified and agreed, with a further meeting necessary for this purpose. According to Chapmans, at the meeting on 27 January 2015 Mr Evans-Mete demonstrated by his conduct that he would not be suitable to be employed by it in any way. Specifically, Chapmans submitted that there was no termination of Mr Evans-Mete’s employment on 27 January 2015. In the alternative, Chapmans submitted that if there was a termination of Mr Evans-Mete’s employment at its initiative, it occurred at the meeting on 6 January 2015.

[15] Mr Evans-Mete submitted that he was dismissed on 27 January 2015 with immediate effect as evidenced in the letter from Mr Lourey to him on 27 January 2015. As his application was lodged on 13 February 2015, Mr Evans-Mete submitted that it had been made within the 21 day statutory time. Mr Evans-Mete further submitted that Chapmans claim is fanciful and contradicts the written correspondence between the parties from 3 to 27 January 2015.

[16] Mr Evans-Mete’s provided the Commission with a number of his pay slips, including one for the pay period 8 to 21 January 2015. That payslip clearly shows that Mr Evans-Mete was paid “Holiday Salary” for this period. This is consistent with the material set out in his application and referred to at paragraph [7] above. The payslip supports a finding that the employment relationship remained on foot after the meetings on 6 and 8 January 2015.

[17] The pay slip also raises two questions. First, if the employment relationship had ended on 6 or 8 January as contended by Chapmans, why did they continue to pay him? Second, if the employment relationship ceased on 6 January 2015, why did Mr Evans-Mete only received his termination payment on 5 February 2015 as opposed to the pay run of 22 January 2015?

[18] Beyond this, the correspondence of 27 January 2015 from Mr Lourey to Mr Evans-Mete that advised Mr Evans-Mete that he did not have ongoing employment with the firm, effective immediately clearly supports a finding that the employment ceased on that day. This is reinforced by the reference in the final paragraph of the letter to Chapmans forwarding Mr Evans-Mete his entitlements “inclusive of the appropriate period of notice (if any).”

[19] Finally, there is nothing in the conduct of the parties to suggest that the ‘alternative role’ that was discussed between the parties was anything other than a potential transfer for Mr Evans-Mete from one role to a different role with Chapmans.

[20] Taken together these factors support a finding that Mr Evans-Mete’s employment with the Respondent ceased on 27 January 2015. Relying on that date means that the 21 day timeframe for lodgement at s.366(1)(a) of the Act would have expired on 17 February 2015. As Mr Evans-Mete’s application was received by the Commission on 13 February 2015, I find that it was made within 21 day statutory timeframe. As a consequence, the jurisdictional objection raised by Chapmans is dismissed. The application will now be listed for a conference directed at resolving the matter.

DEPUTY PRESIDENT

 1   Witness Statement of Harry Evans-Mete at paragraph 10

 2   Witness Statement of Michael Lourey at paragraph 24

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