DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Jamie Ilves
v
Lawson Worldwide Forwarding Pty Ltd
(U2016/1270)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 31 MAY 2017

Application for an unfair dismissal remedy; effective date of dismissal; whether application out of time; notice of dismissal; whether received; whether notice clear and unequivocal; jurisdictional objection dismissed.

[1] Mr Jamie Ilves (Applicant) commenced employment with Lawson Worldwide Forwarding Pty Ltd (Respondent), on or about 23 June 2006. He was employed in the position of a Cargo Manager for the Air/Sea Import & Export department. The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act). That application was lodged on 21 March 2016.

[2] On 22 April 2016, the Respondent lodged its Form F3 – Employer Response to Unfair Dismissal Application. The Respondent objected to the application on the basis that it was made outside the 21 day timeframe specified in s.394(2) of the Act.

[3] The date of termination of the Applicant’s employment by the Respondent is in dispute. The Applicant maintains that the termination of his employment took effect on 1 March 2016 when he read an email in reply from Mr David Eroglu, Director of the Respondent (Mr Eroglu) advising that the employment relationship had been terminated approximately 4 weeks prior . 1 That email was sent in response to correspondence sent by the Applicant to Mr Eroglu concerning returning to work after a period of sick leave.

[4] The Respondent maintains that Mr Eroglu informed the Applicant that his employment had been terminated on 6 February 2016 when he hand delivered a letter to the Applicant’s address in the early hours of Saturday morning advising that the Applicant’s employment was terminated immediately and 2 weeks’ notice would be provided. 2 The Respondent therefore contends that the Applicant’s application is made out of time and consequently, the Commission has no jurisdiction to determine the matter.

[5] For the reasons set out below I have concluded that the Applicant’s employment ended on 1 March 2016 when he read the email correspondence from Mr Eroglu and as such the unfair dismissal application was made within the 21 day statutory timeframe.

Background

[6] On 24 January 2016 the Applicant became aware that his father was unwell and that he had been admitted into hospital. 3 On 25 January 2016 the Applicant sent a text message to Mr Eroglu advising him that he would not be able to attend work that day due to his father’s illness.4 On 26 January 2016, the Applicant again advised Mr Eroglu that he would not be attending work, to which Mr Eroglu responded that he would like to visit the Applicant’s father in hospital.5 On the afternoon of 26 January 2016, Mr Eroglu attended the hospital and the Applicant and Mr Eroglu discussed the Applicant’s work arrangements for the following 3 days.6 They agreed that the Applicant would not attend the office…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 2993
Decision Date: 31 MAY 2017

CaseChat Overview and Summary

The matter of Ilves v Lawson Worldwide Forwarding Pty Ltd involved a dispute between the applicant, Mr Ilves, and the respondent, Lawson Worldwide Forwarding Pty Ltd, concerning the applicant's unfair dismissal and the effectiveness of the dismissal date. The application was heard by the Fair Work Commission (FWC). The primary issue before the FWC was whether the applicant's application for an unfair dismissal remedy was lodged within the requisite time limits and whether the applicant had received clear and unequivocal notice of dismissal. The secondary issue was determining the effective date of dismissal, which was crucial for assessing the timeliness of the application.

The FWC considered the arguments presented by both parties regarding the timeliness of the application. The applicant argued that the application was filed within the requisite time, while the respondent contended that it was out of time. The FWC examined the evidence regarding the receipt and clarity of the notice of dismissal. The applicant claimed that the notice was not clear and unequivocal, while the respondent argued otherwise. The FWC found that the applicant had received notice of dismissal and that the notice was clear and unequivocal. The FWC also concluded that the application was not out of time, as the effective date of dismissal was later than the date on which the applicant received the notice.

The FWC dismissed the jurisdictional objection raised by the respondent. The FWC held that the application was validly made and that the applicant had received clear and unequivocal notice of dismissal. The FWC further found that the application was lodged within the requisite time limits. Therefore, the FWC determined that the applicant's application for an unfair dismissal remedy was within the requisite time and that the dismissal was effective from a later date than the respondent had argued. The FWC ordered that the matter proceed to a hearing to determine whether the dismissal was unfair.

Orders