Jason Brown v Wesley Engineering Pty Ltd
[2023] FWC 960
•21 APRIL 2023
| [2023] FWC 960 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Jason Brown
v
Wesley Engineering Pty Ltd
(C2022/6422)
| COMMISSIONER SCHNEIDER | PERTH, 21 APRIL 2023 |
Application to deal with contraventions involving dismissal
Mr Jason Brown (the Applicant) made an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (Cth) (the 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 Wesley Engineering Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act.
The Respondent objects to the application on the ground that the application is out of time.
Before the matter proceeds, I must be satisfied that the application was not made out of time. If the application was made out of time, I must then consider whether there are exceptional circumstances which would allow for an extension of time to be granted.
For the reasons that follow, I have determined that the matter was lodged within time and no extension needs to be granted. The objection is dismissed, and the matter will proceed.
Legislation
Section 366(1) of the 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.
When did the dismissal take effect?
The parties are in dispute about when the dismissal took effect.
It is a matter of record that the application was made on 19 September 2022.
The Applicant submits that the dismissal took effect on 29 August 2022 because, until this date, he had not been advised that his employment had been terminated by the Respondent.
The Applicant submitted that, on 29 August 2022, he went to the airport to catch his scheduled flight to site. The Applicant explained that, while he was completing his COVID-19 pre-flight test, he was advised by the nurse present that he was not on the list. The Applicant confirmed with the airline that he was not on the list to fly.
The Applicant attempted to contact Mr Matthew Boulton (Mr Boulton), Operations Manager of the Respondent. The Applicant submits that Mr Boulton did not answer his calls and did not return his calls on 29 August 2022.
The Applicant contacted Mr Edward Mitchell (Mr Mitchell), his supervisor, who advised the Applicant that his employment had been terminated.
The Applicant provided the below evidence in support of his submission:
· A copy of an Uber trip journey, confirming he travelled from his home to the airport on the morning of 29 August 2022.
· A copy of his phone records for the morning of 29 August 2022, confirming his attempts to speak to Mr Boulton and Mr Mitchell.
· A copy of his roster, confirming that he was previously booked to fly to site on 29 August 2022.
· A copy of messages exchanged between the Applicant and his partner on the morning of 29 August 2022, to support the Applicant’s submissions that he had just found out his employment had been terminated.
The Applicant submits that it is illogical that he would have travelled to the airport on the morning of 29 August 2022, and attempted to fly to site, if he was aware that his employment had been terminated prior to this.
The Respondent submits that the dismissal in fact took effect on 18 August 2022, when his employment was terminated by Mr Boulton.
The Respondent was given the opportunity to provide detailed submissions and include any evidence in support of their assertion that the Applicant’s employment was terminated on 18 August 2022. The Respondent did not provide any further material in support of this assertion.
Consideration
I do not accept the Respondent’s position that the employment relationship ceased on 18 August 2022.
It appears that the Respondent may have effectively rendered the Applicant’s employment as terminated on 18 August 2022, without informing him of that fact.
However, 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]
Further, in assessing the employer’s assertion that the dismissal took effect prior to the notification, the Full Bench in Ayub v NSW Trains found the following:
“In Mr Ayub’s case, if the dismissal took effect on 18 January 2016 or later, his application was lodged within the 21-day time period prescribed by s.394(2)(a). The calculation of the 21-day period is calculated exclusive of the day upon which the dismissal took effect 23, so that if the date of dismissal was 18 January 2016, then 8 February 2016 (when Mr Ayub’s application was lodged) was the 21st day. Accordingly it would need to be concluded that the date of effect of Mr Ayub’s dismissal was before 18 January 2016 in order for him to require an extension of time under s.394(3).
Although NSW Trains’ email of 18 January 2016 (which attached the Outcome Letter and the Dismissal Letter), which was sent to Mr Ayub via his wife’s email address, purported to identify that his employment ended on 14 January 2016, it could not legally have retrospective effect in that way. There is no suggestion that Mr Ayub’s contract of employment or the enterprise agreement which applied to his employment authorised a retrospective dismissal; at common law, a termination of the employment contract for breach cannot operate retrospectively; and for the reasons earlier stated we do not consider that, on the proper construction of s.394(2), a dismissal could take effect retrospectively such as to deny or diminish an employee’s right to make an unfair dismissal remedy application within 21 days.”[4]
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]
There has been no evidence provided by the Respondent which counters the Applicant’s submissions that he was not terminated until 29 August 2022.
The Applicant’s submissions and evidence provided confirmed that the Applicant went to the airport on 29 August 2022 to catch his previously scheduled flight to work.
The Applicant also provided evidence, a screenshot of his mobile phone records, that he attempted to contact his supervisor on the morning of 29 August 2022.
The Applicant provided screenshots of his mobile phone records with his partner on the morning of 29 August 2022 confirming that he had just found out that he had been dismissed.
From the evidence provided, I have found that the Applicant was only advised of his termination on 29 August 2022.
Having regard to the matters I have referred to above, I find that the dismissal took effect on 29 August 2022.
As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[6]
As I found above, the dismissal took effect on 29 August 2022. The final day of the 21-day period was therefore 19 September 2022 and ended at midnight on that day. The application was made on 19 September 2022. The application was made in time.
Conclusion
The application, having been made within 21 days of the date on which the dismissal took effect, is lodged correctly and I do not need to consider whether to allow a further period for the application to be made. The parties will be contacted regarding the future of this application in due course.
COMMISSIONER
[1] Print T3496, [24].
[2] [2016] FWCFB 5500.
[3] [2016] FWCFB 5500, [48].
[4] [2016] FWCFB 5500, [51]-[52].
[5] [2016] FWCFB 5500, [58].
[6] [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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