Heinrich Wiechers v Sodexo Remote Sites Australia Pty Ltd

[2013] FWC 1564

[2013] FWC 1564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Heinrich Wiechers
v
Sodexo Remote Sites Australia Pty Ltd
(C2012/4379)

COMMISSIONER BOOTH BRISBANE, 13 MARCH 2013

Alleged dispute regarding s.340 Protection and Workplace rights .

[1] Mr Heinrich Wiechers is the applicant in a general protections application to the Fair Work Commission (the Commission) arising from his dismissal as a plumber from Sodexo Remote Sites Australia Pty Ltd (“Sodexo”).

[2] Sodexo sought to have the application set aside, alleging it was brought out of time. The application, brought under s.365 of the Fair Work Act 2009 (the Act), is subject to time limits prescribed by s.366, which at the relevant time 1 read as follows:

366 Time for application

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

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA 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.

[3] Mr Wiechers’ application was filed on 29 June 2012, which would be in the prescribed 60 day limit if the dismissal took effect on or after Monday 30 April 2012, but out of time if it took effect (as Sodexo asserts) on Saturday 28 or Sunday 29 April 2012.

[4] Mr Weichers, who was represented by his solicitor, Mr Andrew Wright, says that the notice was not received by him until 30 April 2012 during a telephone call scheduled earlier to deal with another matter before this Commission. He further submits that, in any case, the dismissal took effect from 30 April 2012 by the plain reading of the notice of his dismissal. That date is stated in the notice as the date from which payments in lieu of notice would commence.

[5] Sodexo, represented by Ms Amelia Peters of Australian Mines and Metals Association (AMMA), submits that Sodexo had formed an intention to terminate Mr Wiechers’ employment after his site access was withdrawn by one of Sodexo’s customers on 25 April 2012. Mr Wiechers’ duties were predominantly at the mine, although he performed other duties for Sodexo at other sites. Sodexo contends that it effected Mr Wiechers’ dismissal by notice given to him on either Saturday 28 April 2012 or Sunday 29 April 2012, apparently effective immediately from whichever date is the correct date.

[6] The parties are at odds about the factual circumstances of the giving of the notice.

[7] Sodexo asserts that it contacted Mr Wiechers by email on the Saturday at 5.15pm, and attempted to telephone him over the weekend, and apparently had Ms Judith Smith, Sodexo’s Relief Project Manager at Cloncurry, serve the dismissal notice on him in person at his caravan at Cloncurry. The request to Ms Smith to serve the notice was made “around early afternoon” on the Saturday and the documentation arrived by email at about 5.00pm. 2 Ms Smith and a colleague attended on Mr Wiechers’ caravan at about 10.00am on the Sunday. Not being able to raise him, Ms Smith says she left the notice outside the caravan on an upturned blue bucket under a stone. She also says in her statement that she chose not to slip the notice under the door, fearing the dog, which was “barking furiously” inside the caravan, “would chew it up”.

[8] Mr Wiechers says he was not contacted by telephone, email, letter, or in person by the Sodexo over the weekend of 28-29 April 2012, and only became aware of his dismissal on Monday 30 April 2012 during the Commission’s conciliation and later upon reading Sodexo’s email and finding the letter.

[9] He says in his statement that he spoke to Ms Smith by telephone at about 1.44pm on 28 April 2012 to enquire about his being stood down and was told that she had no knowledge of the matter and that the Duty Manager was unavailable.

[10] Mr Wiechers was in the caravan all day Sunday with his wife (who was ill), enjoying the air conditioning on a hot day, and did not hear anyone knocking at the door. Nor was his dog roused by anyone’s presence. Neither he nor his wife emerged until after dark, when his wife had stepped outside and fell over a plastic bucket. He then emerged, and took his wife to the hospital. He says he did not at that time see the notice but found it the next day. Photographs of the notice and envelope were exhibited to Mr Wiechers’ statement and appear to show the paper soiled and weathered, possibly consistently with having been outdoors overnight.

[11] As to the email communication, Mr Wiechers says, and Sodexo confirms, that prior to Saturday 28 April 2012, it was not their habit or practice to communicate by email. Ms Linda Nunn, who at the time was Sodexo’s Industrial Relations Manager, says in her statement:

During my time at Sodexo, I found it was always very difficult to contact Mr Wiechers. Up until 28 April 2012, I had never had any email contact with Mr Wiechers. I only had a PO box address for him as well as a mobile number… Out of the blue, at 10:02 on Saturday, 28 April 2012, I received an e-mail from Mr Wiechers in relation to another matter… I recall being pleased that I received an email from Mr Wiechers because I was finally able to get in contact with him. I replied to his email and advised him of the termination of his employment.

[12] A copy of the email in question was exhibited to the statement. Reads, relevantly:

It is with regret that Sodexo have determined that they have no option other than to terminate your employment.

I have forwarded the attached letter to EHM 3 today to be signed and delivered to you; however I wanted to do you the courtesy of informing you immediately of Sodexo’s decision in relation to your ongoing employment.

I'm happy to discuss this matter with you on Monday during the scheduled conference with FWA.

[13] Mr Wiechers says he had no history of email communication with Sodexo, did not expect Sodexo to be in communication with him by email, and that he did not open his email until after he was advised of his dismissal on 30 April 2012. In short, he says he did not in fact receive any email before 30 April 2012 and that Sodexo had no reason to believe he would be contactable by email. 4

[14] The written notice left at the caravan on 29 April 2012 was dated 28 April 2012, and read, in part as follows:

As the client has withdrawn your right to enter the EHM site and Sodexo has no suitable or available plumber roles, Sodexo regrettably has no option but to terminate your employment.

In line with the EBA that covers your employment, Sodexo will pay you five weeks’ notice of termination from 30 April of 2012.

[15] The text of the notice was the same as that in the email attachment.

[16] The reference to 30 April 2012 is said by Ms Nunn to be a matter of administrative convenience for Sodexo’s payroll system. 5 This is not mentioned in the email or letter.

[17] Mr Wright submits that the letter is not clear, but that it can be understood to effect termination of employment from 30 April 2012. Indeed, Mr Wiechers asserts that is indeed his understanding of the notice, that it purported to effect his dismissal from 30 April 2012. Sodexo asserts that the termination was to take effect “immediately” and its effect was therefore from the date of actual or constructive notice. It says the immediacy was clear from the statement in the email: “I wanted to do you the courtesy of informing you immediately of Sodexo’s decision”.

[18] Ms Peters says that continued employment cannot coextend with payment in lieu of notice, and that termination must therefore have been effected before 30 April 2012. She pointed out that personal knowledge of dismissal is not a necessary prerequisite of termination: “the employment relationship must be able to be brought to an end where the employee is deliberately avoiding service of notice.” 6

[19] There are two questions for the Commission in determining this procedural issue:

• when was Mr Wiechers given notice by Sodexo that he was, or was to be, dismissed; and



• when did the dismissal take effect?

[20] It is clear from the submission of both parties that Mr Wiechers received actual notice of his dismissal at the latest during the conference on Monday 30 April 2013. Sodexo asserts notice was effected either earlier by the email or leaving the letter at the caravan or both. If notice was not actually given, it may be constructively given. Whether Mr Wiechers was avoiding Sodexo’s attempts at service, as suggested by Sodexo, is not really relevant.

[21] I agree with the proposition put by Ms Peters that actual knowledge of dismissal is not a necessary prerequisite to dismissal taking effect. However, actual notice was taken by Mr Wiechers no later than 30 April 2012, being one day or two days after Sodexo says it gave, or attempted to give, notice.

[22] Those one or two days might be critical because of the time limit in s.366(1)(a). Time may be enlarged by the Commission in “exceptional circumstances” under s.366(1)(b). Mr Wiechers seeks such an extension in the alternative to his primary submission that the application was brought in time.

[23] The 30th of April 2012 is also the date from which his payment in lieu of notice commenced. The notice did not state a date from which dismissal was effective. There are really only three logical conclusions open on the evidence and submissions put to the Commission. The dismissal took effect:

a) from the date stated in the letter from which payment in lieu of notice ran, namely, 30 April 2012, as contended by Mr Wiechers; or

b) from the date of the letter was dated and the email sent, 28 April 2012, or the next day, when delivery in person was attempted; or

c) from the date of actual notice, contended for Mr Wiechers to be 30 April 2012, or actual or constructive notice contended for Sodexo to be one of the earlier dates by email or by leaving the letter at the caravan.

[24] Ms Nunn gave evidence by way of statement that:

• Mr Wiechers’ access to the mine site was withdrawn on 25 April 2012;



• she was informed of this by telephone that day;



• Mr Wiechers was asked to leave the mine site immediately that day;



• he was stood down on full pay;



• she made inquiries on 26 and 27 April as to possible alternative roles for Mr Wiechers. Those inquiries were by way of searching Sodexo’s jobs board and discussion with the Recruitment Manager.

[25] Mr Wiechers, for his part, asserts that withdrawal of the mine access was a matter capable of remedy and that he expected to resume full duties in short course. That is, he did not necessarily expect to be dismissed even though stood down on full pay.

[26] If Sodexo intended to terminate its employment relationship with Mr Wiechers, whether as soon as possible after he was denied site access or once no alternative roles were found, it should have made clear both the intention to dismiss and the time from which dismissal took effect.

[27] Sodexo says that sending the email and leaving the letter were effective notice, calling in aid various provisions about service of notice including ss.28A and 29, Acts Interpretation Act 1901 (Cth) and s.9 of the Electronic Transactions Act 1999 (Cth).

[28] Mr Wiechers’ evidence is that he did not in fact receive communication of his dismissal until 30 April 2012, the day on which he was told in conference, read the email, and found the letter. He had no reason to expect he would be contacted by email and was not contacted by telephone, SMS or in person.

[29] Mr Wright did not contest Sodexo’s evidence that the email was sent and the letter was left. He submits that the constructive notice argument is not relevant because Sodexo had to communicate the dismissal clearly to the employee and that any exceptions relied on the employee being aware of the employer’s intention to dismiss. 7

[30] These questions do not matter if the notice itself was effective from 30 April 2012.

[31] The letter left at the caravan does not clearly state that termination is effective immediately or from any particular date. The use of the word “immediately” in the email can only be read in the context of the courtesy being offered in regard to the decision to terminate, not the time it was effective. That view is reinforced by the reference in the email to further communication on the Monday. In the absence of any other firm evidence as to the effective date of dismissal, it is fair to conclude that the notice was effective from the date payment started, 30 April 2012.

[32] Sodexo’s submission that termination must be on an earlier date than commencement of payment in lieu of notice is not the only possibility. Immediate termination might trigger such payments in lieu of notice immediately, the dismissed employee’s entitlement in lieu replacing any ordinary wages for the day of dismissal. I cannot conclude on the evidence that Sodexo intended to disentitle its employee from both employment and termination benefits for one or two days. Indeed, it seems clear that Sodexo was intent on scrupulously fulfilling its legal obligations to Mr Wiechers.

[33] Without clear words, the notice cannot be reasonably construed to be subject to a corporate administrative arrangement about payroll matters, shifting the payment date away from the dismissal date. Further, such an arrangement might mean that Mr Wiechers remained an employee entitled to wages for the days 28-29 April 2012, leaves Sodexo in the same place.

[34] It is logical that if the notice period ran from the 30th then the effective date was also the 30th.

[35] It follows that the dismissal took effect on 30 April 2012 and that the application was made within the period prescribed. An order will issue accordingly.

COMMISSIONER

Appearances:

Mr Andrew Wright for the Applicant.

Ms Amelia Peters from Australian Mines and Metals Association for the Respondent.

Hearing details:

2013.

Brisbane:

February 13.

 1   The application was brought before commencement of the Fair Work Amendment Act 2012 that, among other things, reduced the time limit stated in s.366(1)(a) to 21 days and changed the Commission’s name from FWA (Fair Work Australia) to the Fair Work Commission

 2   Statement of Judith Smith, paragraph 9.

 3   Ernest Henry Mine, presumably referring to Soxedo’s local management.

 4   Mr Wiechers’ statement exhibits an email and attachment he sent by email dated 27 April 2012 to [email protected] about his suspension from mine access, noting, among other things, that he would be difficult to contact from 28 April 2012 as it was his rostered week off, and a failure notice about that email. He also exhibits the email referred to by Ms Nunn. See Exhibits HW4, HW5 and HW6 respectively.

 5   J Nunn’s Statement, paragraph 21.

 6   Written submissions filed for Sodexo on 14 February 2013.

 7   Citing Transport Workers' Union of Australia on behalf of Paul Horvath v Startrack Express Pty Ltd [2011] FWA 2154 and Commonwealth of Australia - re P T Wilson v Australian Taxation Office [2001] AIRC 163.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR534783>