Jashua Anton James Karel Tonk v Doolan's Heavy Haulage Pty Ltd
[2024] FWC 1875
•18 JULY 2024
| [2024] FWC 1875 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jashua Anton James Karel Tonk
v
Doolan’s Heavy Haulage Pty Ltd
(U2024/4026)
| COMMISSIONER SCHNEIDER | PERTH, 18 JULY 2024 |
Application for an unfair dismissal remedy
Mr Jashua Anton James Karel Tonk (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Doolan’s Heavy Haulage Pty Ltd (the Respondent).
The information provided by the parties indicates that the application may have been filed out of time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
The Applicant filed submissions in the Commission on 10 June 2024. The Respondent filed submissions in the Commission on 21 June 2024.
A Hearing of the matter was held before the Commission. The Applicant was granted permission to be represented and the Respondent was self-represented.
At the Hearing, the Applicant gave evidence on his own behalf.
Mr Mike Dunbar (Mr Dunbar), WA Manager and Mr Jesse Cooper (Mr Cooper), WA Operations Manager gave evidence on behalf of the Respondent. Neither party sought to cross examine any of the witnesses.
Dismissal date
Relevant Law
Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
…(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3)…”
As the Full Bench has stated, in relation to a general protections application but equally applicable here, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”1
The Full Bench further stated, “if 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.”2
The parties are in dispute about when the dismissal took effect.
The Applicant submits that the dismissal took effect on 18 March 2024, when he was issued a Termination Letter from the Respondent.
The Respondent submits that the dismissal took effect on 15 March 2024, when the Applicant was verbally dismissed by Mr Cooper.
Submissions and Evidence
Applicant
The Applicant’s position arises from the Termination Letter issued by the Respondent on 18 March 2024.
Relevantly, the Termination Letter reads as follows:
“This letter serves as formal advice of your termination from Doolans Heavy Haulage Pty Ltd.
I refer to our meeting on Friday March 15, 2024. At this meeting, I outlined the ongoing unacceptable conduct you exhibited towards WA Operations Manager, Jesse Cooper.
As discussed during that meeting, it was considered that your conduct in your interaction with Jesse:
· Was wilful or deliberate disrespectful behaviour by you, that is inconsistent with the continuation of your contract of employment.
We consider that your actions constitute serious misconduct warranting summary dismissal.
You will be paid your accrued entitlements and any outstanding pay up to and including your last day of employment considered to be 15/03/2024. An additional week's salary will be paid.”
The Applicant references the decision of Sy v ABC Tissue Products Pty Ltd[1] in which Deputy President Mansini distilled the key factors pertaining to the communication of a termination as follows:[2]
“A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[3] An employer may communicate a dismissal to an employee “by plain or unambiguous words or conduct”.[4] In the case of a dismissal without notice, the dismissal needs to be communicated to the employee in such a way that the employee knows, or at least has a reasonable chance to find out, that he or she has been dismissed.[5]”
Accordingly, the Applicant is of the position that the Termination Letter fulfils the requirements of communication of termination and that, if the Respondent did attempt to terminate the Applicant on 15 March 2024, any prior communication of a termination was unclear and not the effective date of termination for the purposes of calculating the lodgement period.
The Applicant submits that, if there was a termination on 15 March 2024, the communication of such was not sufficiently clear.
Further, the Applicant submits that he was of the belief that Mr Cooper, who communicated the alleged termination on 15 March 2024, did not have the authority to terminate his employment unlike Mr Dunbar.
Finally, the Applicant asserts that the Termination Letter, not any alleged termination on 15 March 2024, was the communication that clearly articulated and affected the end of his employment.
The Applicant provided further submissions, in the event the Commission is satisfied that the application was lodged out of time, in support of exceptional circumstances giving rise to an extension.
The Applicant primarily relies on the argument of representative error, submitting that the Applicant relied upon the advice and apparent miscalculation of his representative.
Evidence of Mr Tonk
The Applicant states he met with Mr Dunbar on Friday 15 March 2024 in Mr Dunbar’s office at approximately 3:15PM. He states the meeting with Mr Dunbar was in relation to a recent disagreement he had with Mr Cooper.
The Applicant acknowledges the conversation was heated and states that, during the meeting, Mr Dunbar swore at the him. The Applicant maintains that at no point during the meeting did Mr Dunbar terminate his employment.
The Applicant states that, following the discussion with Mr Dunbar, he had a discussion in private with Mr Cooper. The Applicant again asserts that at no point during the meeting with Mr Cooper was he informed of his employment being terminated.
The Applicant states that, a little while after leaving the meeting room, Mr Cooper again approached his and said words to the effect that he did not feel comfortable working with the Applicant anymore.
The Applicant’s evidence was that he was not dismissed by Mr Cooper during this meeting, but he did form the view that a dismissal was likely imminent.
The Applicant states that he did not speak to Mr Dunbar further on the 15 March 2024, as he believes that Mr Dunbar left work for the day. The Applicant states his understanding was that Mr Cooper did not have the authority to terminate his employment.
The Applicant submitted that when he received the letter on 18 March 2024, he understood then that his employment had been terminated.
Respondent
The Respondent maintains that the Applicant was verbally terminated on 15 March 2024.
The Respondent submits that Mr Cooper was empowered to deliver the termination.
The Respondent submits that the Applicant understood the effect of the communication on 15 March 2024.
The Respondent rejects that the Applicant can rely on representative error as the reason for delay.
Evidence of Mr Dunbar
Mr Dunbar confirms that he had a discussion with the Applicant on 15 March 2024.
Mr Dunbar strongly denies that he told the Applicant that he “should pack his shit up and fuck off” during their discussion.
Mr Dunbar states that the termination did not occur during his conversation with the Applicant on 15 March 2024.
Mr Dunbar asserts that the Applicant should not have held the belief that Mr Cooper did not have authority to terminate him and that such belief was never inferred or communicated to the Respondent's employees.
Mr Dunbar’s evidence is that, following his conversation with the Applicant on 15 March 2024, he left his office to speak with Mr Cooper and suggested that he speak with the Applicant. Mr Dunbar then states, sometime later, the Applicant walked past him towards the truck park up area. Subsequently, Mr Dunbar states he saw Mr Cooper speaking with the Applicant. Following this, Mr Dunbar was approached by Mr Cooper who informed him that he had terminated the Applicant, and the Applicant was now collecting his personal belongings.
Mr Dunbar rejects the Applicant’s evidence, that he was unable to speak to Mr Dunbar following the discussion with Mr Cooper as the former had left work for the day, stating that he remained at work for another hour.
It is Mr Dunbar’s opinion that the communication of the Applicant’s termination by Mr Cooper must have been sufficiently clear, noting that the Applicant commenced collecting his personal items. Further, Mr Dunbar states the Applicant had informed other employees that he had been sacked.
Mr Dunbar questions the Applicant’s reliability as a witness in general.
Evidence of Mr Cooper
Mr Cooper states that he terminated the Applicant’s employment.
Mr Cooper details the discussion he had with the Applicant on 15 March 2024, the following outlines his evidence:
· The Applicant approached him, around 4:00PM, after meeting with Mr Dunbar.
· The Applicant apologised for interpersonal issues the two had.
· The Applicant informed him that Mr Dunbar had stated it was up to Mr Cooper to decide whether he was to remain in employment.
· Mr Cooper told the Applicant he needed time to think about the decision.
· Mr Cooper informed the Applicant that he did not believe his behaviour would improve, noting many conversations on the issue.
· Mr Cooper told the Applicant to go outside and continue working while he made his decision.
There is a break in the conversation as the Applicant then exits Mr Cooper’s office.
Mr Cooper notes that he was concerned about terminating the Applicant due to the potential result it could have on the Respondent’s operations.
Mr Cooper states he then went to discuss this issue with the Respondent’s Transport Scheduler. Mr Cooper gave evidence that the subsequent discussions with his coworkers supported the decision to terminate the Applicant.
Subsequently, Mr Cooper states he approached the Applicant (who was now outside) and “advised him that his time was done at Doolan’s and to remove all of his personal belongings”.
Mr Cooper confirms he then informed Mr Dunbar of the termination.
Mr Cooper gave evidence that the Applicant sent him a text message the following day, 16 March 2024, requesting to collect some other personal items. Like Mr Dunbar, Mr Cooper asserts that the communication of the Applicant’s termination was clear and that his behaviour following supports that position.
Consideration
As noted in the Applicant’s submissions, a dismissal cannot take effect until it is communicated to the employee.1
In Ayub v NSW Trains,2 the Full Bench of the Commission considered a matter on appeal in which the appellant was notified of their dismissal several days following the date of termination asserted by the employer. The Full Bench stated the following in consideration of section 386 of the Act:
“Our conclusion is that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.”3
In conclusion, the Full Bench determined that the date of notification to the appellant was the date that the dismissal took effect and determined that no extension of time to file needed to be considered:
“We consider that the finding that the dismissal took effect on 14 January 2016 was in error, and that the dismissal took effect not earlier than 18 January 2016. Mr Ayub’s unfair dismissal application was lodged within the 21-day period prescribed by s.394(2)(a), and no extension of time under s.394(3) was required.”5
On assessment of the material before me, and in consideration of the relevant legal principles regarding when a dismissal takes effect, I find that the dismissal took effect on 18 March 2024.
Upon review of the evidence submitted, it is clear that a discussion regarding the ongoing status of the Applicant’s employment certainly occurred on 15 March 2024. However, I am not satisfied that the conversation with the Applicant included a clear communication of a termination which would satisfy the relevant legal principles.
I note the evidence of Mr Cooper, that he told the Applicant he needed time to consider his potential termination. It appears that the Respondent was then was able to reach that conclusion in very little time, but this statement in the context of their conversation would understandably leave room for the Applicant to reasonably conclude that a decision would not be made on that day.
As the Applicant confirmed, he understood that his employment was likely coming to an end after the discussions on 15 March 2024. This is an extremely reasonable belief for him to have held in the circumstances.
The Applicant acknowledging his termination was likely imminent does not strictly lend to a finding that a termination was clearly communicated and took effect on 15 March 2024. The Applicant’s evidence is rational, acknowledges the negative nature of the conversations and the likely outcome, and I am not satisfied that his assertions are clearly contorted to assist his image in the situation and, accordingly, the outcome of this decision.
That is not to say the Respondent's evidence is questionable. Rather, on review of all the evidence, I am satisfied that, on 15 March 2024, the Respondent attempted to communicate a termination to the Applicant. However, I am not satisfied such communication was satisfactory for it to have the effect of notice.
I am also satisfied that the circumstances surrounding the conversation on 15 March 2024 alongside the language used, would have contributed to the ambiguity.
The Applicant was apparently advised that he “was done” at the Respondent. In some circumstances such a comment may be clear in its effect. However, in this matter, I am not satisfied that such a statement was articulated either in those exact words or in a manner that made it clear to the Applicant his employment was terminated with immediate effect.
The Respondent’s evidence suggests that the Applicant’s actions following the conversations on 15 March 2024 reflect his understanding of the termination. I am not satisfied that this is the case. The Applicant is clear in his evidence that he understood his future at the Respondent was in question and he would likely be terminated. In such circumstances, I am not inclined to conclude that his action of removing his personal items means there was a clearly articulated termination on 15 March 2024.
Further, the Termination Letter of 18 March 2024 suggests that it is the operative notification of termination. The Termination Letter does not explicitly confirm that it is written to serve the purpose of a follow up to a valid notice of termination that occurred on 15 March 2024. Rather, the letter suggests that, following the conversation of 15 March 2024, the Respondent has made a decision and is now formally notifying the Applicant of his termination,
In the event I have erred, and the discussion on 15 March 2024 contained a valid notice of termination, I may be satisfied that exceptional circumstances giving rise to an extension are present. Notably, even if the Applicant was dismissed on 15 March 2024, the confusion surrounding the effective termination date and his reliance on the best advice of his legal representatives may reasonably excuse the delay if it was not occasioned by the Applicant’s conduct.[6] Nevertheless, my conclusion is that the application has been filed in time.
Conclusion
Having regard to the matters I have referred to above, I find that the dismissal took effect on 18 March 2024.
It is a matter of record that the application was made on 8 April 2024.
As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[7]
As I found above, the dismissal took effect on 18 March 2024. The final day of the 21 day period was therefore 8 April 2024 and ended at midnight on that day.
The application having been made within 21 days of the date on which the dismissal took effect, I do not need to consider whether it was made within such further period as the Commission allows. I will issue directions for the next steps in this matter.
COMMISSIONER
Appearances:
C Fordham of HHG Legal Group on behalf of the Applicant.
M Dunbar for the Respondent.
Hearing details:
2024.
Perth (by video):
June 26.
[1] [2020] FWC 4393.
[2] [2020] FWC 4393, [15].
[3] Print T3496 (21 November 2000), [24].
[4] [2007] AIRC 333, 8; citing Print Q9605 (10 December 1998); [2016] FWCFB 5500, [17], [48] -[49].
[5] [2016] FWCFB 5500, [48].
[6] (1997) 74 IR 413, 418‒420; (1998) 105 IR 1, 6; (2011) 202 IR 59 [35].
[7] [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.
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