Johnny Bond v KB Redman Pty Limited T/A Toukley Tyre Power

[2014] FWC 4823

[2014] FWC 4823

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Johnny Bond
v
KB Redman Pty Limited T/A Toukley Tyre Power
(U2014/7460)

COMMISSIONER MCKENNA SYDNEY, 4 SEPTEMBER 2014

Application for relief from unfair dismissal

[1] On 23 May 2014, Johnny Bond (“the applicant”) made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (“the Act”) concerning the termination of his employment by KB Redman Pty Limited T/A Toukley Tyre Power (“the respondent”). The respondent determined to summarily dismiss the applicant by letter dated 26 February 2014. The respondent has taken preliminary objection to the application on the basis that the application, having been lodged on 23 May 2014, was made out of time.

[2] For his part, the applicant contends he was not aware he had been dismissed until informed of the dismissal on 21 May 2014 by the Fair Work Ombudsman (in connection with an approach he made to that organisation concerning alleged underpayments). The applicant’s written submissions in this respect read:

“The reason my application has been logged out side of the 21 days of termination was because I was not notified until 21/015/14 by the fair work ombudsman

As supplied by my employer my medical certificate stating that I was on sick leave at the time of termination I was not notified that I had been terminated until months later by the fair work ombudsman I never received any letter in the mail or any phone calls no communication at all

I did produce a medical certificate (also supplied to my employer) as advised by my GP that I was medically unfit to be communicating with my employer as they were the cause of my diagnosis [condition] and also that I had an AVO stating that I could not go near or contact the workplace [address]

I never had a chance to give my reply/defend myself to the allegations made against me and was never notified that I had been terminated so as per application form is the reason why I have started this claim” [sic]

[3] The reasons outlined in the application form, as referred to in the last paragraph above, were set out at 3.2 of the applicant’s initiating process - the Form F2 Unfair Dismissal Application - as follows:

“3.2 Why was the dismissal unfair?

...

1. As I was on sick leave and applying for a work cover claim.

2. I supplied my employer with a work cover medical certificate and a GP medical certificate

3. I was due for long service leave on 27th April 2014 and they could not afford to pay it as the business was not doing very well financially due to no work and I think this payed a big factor why I was terminated” [sic]

[4] In the proceedings to consider the respondent’s objection, the applicant appeared on his own behalf, together with his wife Mrs C Bond as support person. The respondent was represented by Mr S James, accountant, and Mrs B Redman, sole director of the respondent.

Matters to be considered before merits

[5] The matter for determination raises consideration of the provisions of ss.394 and 396 of the Act. In this regard, s.396 reads as follows:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.”

[6] If the application was not made within time, s.394 of the Act then relevantly arises for consideration:

“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).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[7] It is a reasonably well-established proposition that a dismissal ordinarily does not take effect unless and until the dismissal is communicated to the employee who is being dismissed. For example, in Makenja v Baptist Community Services [2007] AIRCFB 38 a Full Bench of the Australian Industrial Relations Commission (“AIRC”) said this:

“[18] ... Normally a termination of employment would not “take effect” before it was communicated to the employee concerned, although that may not always be the case. ...”

[8] Similarly, in Commonwealth of Australia (Australian Taxation Office) v Wilson [PR901127] (“Wilson”), a Full Bench of the AIRC said:

“[11] Counsel for the Commonwealth referred us to a number of authorities but conceded that there are few on point. One decision which appears to us to bear directly on the issue is Transport Workers' Union of Australia v National Dairies Limited (1994) 57 IR 183. In National Dairies Keely J, sitting in the Industrial Relations Court of Australia, was required to decide whether the employment in question terminated before or after the date on which legislation providing statutory remedies for unfair dismissal commenced to operate. In the course of his judgment His Honour said:

“It was accepted by the respondent's counsel, for the purpose of the present hearing, that the employer's letter of purported termination was not received by the applicant until 30 March 1994. In my opinion the mere posting of the letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee. I am unable to uphold the respondent's submission that the intention of the legislature was to make it a contravention of the Act for an employer to perform actions "pursuant to which the employer seeks to terminate an employee even if that wish is never communicated to the employee ie even if a letter of termination posted by an employer is never received by the employee.”

With respect we agree with His Honour's conclusion. Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee. Those circumstances did not, however, exist in this matter and we therefore refrain from further discussion of the point.” [My underlining]

[9] I turn now to the particular circumstances of this case.

Consideration

[10] The respondent is a small business involved in motor mechanical and tyre sales which has operated in Toukley in the Central Coast of New South Wales for some 42 years. The applicant was employed by the respondent for nearly a decade. Mrs Redman, who is the sole director of the company, has been mostly running the business on her own since her husband sadly died about two years ago with occasional help from her accountant and representative for the respondent in these proceeding, Mr James. Mr James was involved in assisting Mrs Redman in the processes which preceded and post-dated the dismissal.

[11] Certain matters concerning the applicant came to Mrs Redman’s attention involving allegations made by a young, female apprentice. The documentary evidence and submissions relied on by the respondent (which were not disputed in any, or any significant, way by the applicant) indicate Mrs Redman approached the apprentice’s allegations about the applicant in a way that showed she was very careful about attempting to conduct matters concerning the allegations in a procedurally fair and appropriate way.

[12] The immediate background to the respondent’s decision to summarily dismiss the applicant by letter dated 26 February 2014 is conveniently set out in a letter that the respondent originally sent to the applicant on 7 February 2014. That letter, which is reproduced only for background, read as follows as to certain complaints that had been made by the apprentice concerning the applicant:

“7 February 2014

Johnny Bond

[Address]

Dear Johnny,

On Friday, 31 January 2014, a meeting was held with Mr James, you and I to inform you of some of the serious complaints made by [name of employee].

At that meeting you requested a written list of some of the complaints and it was agreed to give you the list in the afternoon of Friday, 31 January 2014.

However, you left work at approximately 11.00 am and you did not return to work at all on Friday. In fact you have not been to work from the time you left on Friday. I had to inform Mr James of your absence even though he had prepared the list you requested. I enclose a copy of the minutes of the meeting held on Friday, 31 January 2014, and attached is the list for your records.

There was to be another meeting held on Tuesday, 4 February 2014, to discuss the complaints in more detail. Mr James and I attended the meeting but you did not attend.

Whilst I am aware that you will attend Wyong court on Thursday, 13 February 2014, regarding the application made by [name of employee] with Toukley police, we still need to resolve the official complaints made by [the employee] against you at work.

I have not received an original medical certificate from you and therefore you are absent from work without authorisation. Due to the unauthorised absence I have not paid you for those days.

You sent [named of person; a friend of the applicant] to the workshop on Wednesday, 5 February 2014, to pick up your tool box. This would seem to indicate that you are not returning to work, however you have not communicated anything to me.

I can only make a decision regarding the complaints lodged by [name of employee] based on all the information in my possession.

Please provide a written report addressing the matters in this letter no later than Friday, 14 February 2014.

Yours sincerely,

[signature]

Barbara Redman Employer”

[13] The applicant left the workplace following the meeting referred to in the letter above on 31 January 2014 and visited a doctor at a medical centre in Morriset. Arising from that examination on 31 January 2014, a doctor (initially) certified in a WorkCover certificate as to an injury concerning the following:

“Called into office, stressful meeting, clear relationship between workforce meeting and [condition], ?, [sic] especially in view of context of meeting and accusations made. Unable to continue working that date. Seen after this meeting By [sic] GP.”

[14] The first WorkCover certificate, bearing a date of 31 January 2014, was received by the respondent by facsimile transmission on 2 February 2014 and indicated the applicant had “no current work capacity” from 31 January 2014 to 28 February 2014.

[15] The applicant did not attend, or was unable to attend, the meeting that had been scheduled for 4 February 2014, apparently because of events that had transpired the prior evening involving his arrest by the NSW Police Force. What is known of those matters is set out in minutes of a meeting prepared by the respondent which relevantly read:

“Barbara Redman advised the following:

1. Johnny Bond (Bond) was arrested last night for alleged common assault, indecent assault, assault occasioning actual bodily harm and damage or destroy property towards [name of employee].

2. Bond did not turn-up for the meeting this morning.

3. Redman has offered counselling services to [name of employee].

[Name of employee] provided the “Provisional Order (Ex Parte) Apprehended Personal Violence Order” prepared by Toukley Police detailing the various assault charges. The information was provided to the police by [name of employee]. [Name of employee] gave permission for Redman to provide the police document.

4. Sean [James] advised Barbara that we needed to still follow-up the complaints made by [name of employee]. We will need to interview others to ascertain what has been happening in the workplace between Bond and [name of employee].”

[16] On 5 February 2014, a friend of applicant attended the respondent’s premises and removed all the tools that belonged to the applicant. The respondent’s submissions indicated that the respondent took this removal of tools to be an indication the applicant would not be returning to work; the applicant submitted the retrieval of the tools was connected with the provisional apprehended personal violence order concerning the apprentice as it related to approaching the workplace and his concern his tools may be damaged in his absence.

[17] On 12 February 2014, the respondent received a faxed second (or reissued) WorkCover certificate also bearing a date of 31 January 2014, but with certain information fields changed. The second WorkCover certificate similarly indicated the applicant had “no current work capacity” from 31 January 2014 to 28 February 2014.

[18] Very shortly after the respondent received the second WorkCover certificate, a non-WorkCover medical certificate dated 11 February 2014 was also forwarded to the respondent by facsimile transmission on 12 February 2014. The medical certificate dated 11 February 2014, in contrast with the second WorkCover certificate (but also referring to the initial examination of 31 January 2014), indicated the applicant would be unfit until a review at the “end of March 2014 at the latest” - and, relevantly, that he was also unfit for any form of communications with his employer. The non-WorkCover medical certificate read as follows:

“This is to certify that on Friday, 31st January 2014 I examined Mr Johnny Bond.

In my opinion Mr Johnny Bond will be unfit for work duties, and to attend any meetings, or enter into any discussion written or oral, with his employer until I review him at the end of March 2014 at the latest.

I understand there are legal barriers to him attending work above and beyond his medical fitness, and these preclude communication and attendance until these are sorted.

He may be able to attend work in future, and after his current medical condition and legal matters are sorted I expect him to be able to return to full and normal employment, even with his current employer.”

[19] In circumstances where the applicant did not attend the meeting of 4 February 2014 and did not provide a written report by 14 February 2014 as had been sought by the respondent in the correspondence of 7 February 2014, the respondent continued its own investigations concerning events at the workplace (that is, not the other matters outside the workplace which were by then understood by the respondent to have been the subject of an arrest of the applicant and a provisional apprehended personal violence order as outlined in the extract above). The outcome of those investigations, which were minuted by the respondent, included a meeting with another employee of the respondent on 12 February 2014 and a meeting with a customer of the respondent on 18 February 2014.

[20] Over the course of the period from the initial meeting of 31 January 2014 to the date of the dismissal, the applicant also failed to answer or return various calls to him by the respondent. In this regard, the applicant relied in the proceedings on the medical certificate dated 11 February 2014 which was faxed to the respondent from a medical centre on 12 February 2014 and apparently also placed reliance on the apprehended personal violence order in relation for his complete lack of any contact with the respondent following the meeting on 31 January 2014.

[21] By letter dated 26 February 2014, the respondent wrote to the applicant advising of summary dismissal in the following terms:

“26 February 2014

Johnny Bond

[address]

Dear Johnny,

I have finalised my investigation regarding the official complaints made against you by [name of employee].

In my letter to you, dated 7 February 2014, I advised that this matter, which is covered by the Fair Work Act, needed to be resolved even though the police were pursuing their own course of action.

Also, I advised that I can only make a decision based on all the information in my possession. You were asked to meet with me on Tuesday, 4 February 2014, but you did not attend. You were advised that you could bring a support person with you. In my letter to you dated, 7 February 2014, I requested that you provide a written report addressing the matters in that letter no later than Friday, 14 February 2014. I have not received that report or any correspondence from you.

You have advised, through your doctor, that you will not attend any meetings with me, or enter into any discussion, written or oral, with me.

Based on my investigations I have found the following:

1. [Name of employee] would be working under a car that was on the hoist. You would sneak-up behind her and poke your fingers/hands into her waist. This would scare her. On some occasions when you would poke your fingers/hands into her waist you would yell “boo.” This too would scare and startle her. On one occasion when you did this to [name of employee] she spilt oil on the floor. This is very serious misconduct and is totally inappropriate behaviour. This action could cause serious and imminent risk to the health and safety of [name of employee].

2. [Name of employee] would be working under a car that was on the hoist. You would sneak-up near her and throw small tools or small empty tins at her feet. This would scare her. This is very serious misconduct and is totally inappropriate behaviour. This action could cause serious and imminent risk to the health and safety of [name of employee].

3. [Name of employee] would walk from the workshop into the lunch room or into another room and you would hide yourself out of sight. As she walked passed you would jump out and yell “boo.” This would scare her. You also did this in the workshop. On other occasions you would jump out but not say “boo.” This is totally inappropriate behaviour. This action amounts to bullying, teasing, practical joking and intimidating conduct.

4. [Name of employee] would wash her hands at the workshop sink. You would wash your hands and wipe your soap lathered hands on her face. On other occasions you would wipe your hands on [name of employee’s] overalls. This action amounts to harassment and assault.

5. [Name of employee] has been heard to say to you “Leave me alone” or “don/t do that.” This action amounts to aggressive and intimidating conduct towards [name of employee].

6. [Name of employee] has been heard complaining that you had hid parts from her. You would say, “Open your eyes and look for the parts.”This action is childish, belittling and humiliating. This is inappropriate behaviour in the work place.

7. [Name of employee] would be working on a car engine with the bonnet up. Her arms would be stretched into the engine with her body leaning over the side of the car whilst she worked. You would sneak-up behind her and poke your fingers/hands into her waist and yell “boo.” This would scare her. This action could cause serious and imminent risk to the health and safety of [name of employee].

8. [Name of employee] would be working on a car engine with the bonnet up. Her arms would be stretched into the engine with her body leaning over the side of the car whilst she worked. You would sneak-up behind her and lean part of your body onto her body. Your head would be near [name of employee’s] ear. She would move away. This action amounts to sexual harassment and is indecent.

9. A customer has advised that you approached their business to solicit their work for your business. At a meeting held on 15 January 2014 you advised “that you had enough of your own customers and did not need to approach any of the customers of the employer.” Soliciting my customers causes serious and imminent risk to the profits of my business. This behaviour is deliberate and inappropriate.

I consider that your actions constitute serious misconduct and I terminate your employment today 26 February 2014 without notice.

You will be paid any unused annual leave and superannuation up to and including 26 February 2014. However, due to the serious misconduct I will not pay any long service leave.

Yours sincerely,

Barbara Redman

Employer”

[22] As evidenced by Australia Post records, the respondent forwarded by registered mail the letter advising the applicant of his termination of employment of 26 February 2014. That is, documentary materials indicate that on 26 February 2014 Australia Post received the registered mail and attempted delivery the correspondence to the applicant at his home address on the morning of 27 February 2014, but the “customer [was] not known at address”. Australia Post’s records further indicate the registered mail was returned to the sender on 28 February 2014, namely the respondent, as “RTS-Unknown at this address”.

[23] The respondent’s letter of 26 February 2014 advising of the summary dismissal was thereby the subject of attempted delivery on 27 February 2014 by Australia Post as registered mail addressed to the applicant at his last-known address - which, it is common ground, was his actual residential address at all relevant times.

[24] For his part, the applicant considers the registered mail might have been returned to respondent because his brother may have advised the postal officer that the applicant was not at home on the day in question. The applicant submitted there was no reason why his brother would not have accepted the registered mail. The applicant’s speculation was that his brother - whom he said was house-sitting for him while the applicant was going backwards and forth between his home in Charmhaven and Dubbo when the registered mail was not accepted for delivery on the basis that the applicant was not known at that address - may have informed Australia Post that the applicant was not at home when Australia Post attempted to deliver the registered mail. The applicant thought his brother “could have put it in better terms”, but the applicant could not know what box the postal officer ticked when the registered mail was not accepted for delivery at his residential address on 27 February 2014. As to the respondent’s contention that the evidence of a certificate from a doctor in Morriset contradicted the applicant’s contention he was not at his home in Charmhaven, but was in Dubbo, on the date the first registered letter was the subject of attempted delivery on 27 February 2014, the applicant then submitted he had, on 27 February 2014, travelled from Dubbo, returning to the Central Coast after lunch, for a medical appointment at Morriset at 4.30pm and returned to Dubbo that night.

[25] It remains a matter of speculation, given the lack of any direct evidence thereto, why the registered mail from the respondent to the applicant was not accepted for delivery at the applicant’s home address and/or was returned to the respondent on the basis that the applicant was not known at what was then, in fact, his residential address. The applicant’s evidence was that he was not at his home in Charmhaven on 27 February 2014. As the respondent’s submissions noted, the documentary evidence of a medical certificate confirms, however, the applicant was in closer proximity to the Central Coast than to Dubbo for (at least) part of the day of the attempted delivery by Australia Post of registered mail. Charmhaven and Morriset are about 20 minutes drive apart, whereas Dubbo, is in the central-west of New South Wales, is more than about 4.5 hours drive from New South Wales’ Central Coast area.

[26] Any advice that may (speculatively in the applicant’s case) have been given by the applicant’s brother to Australia Post that the applicant was not known at his home address when delivery was attempted was incorrect. If the applicant’s speculation about what his brother may have said was correct (that is, that the applicant was not there as opposed to not known at the address) in connection with the return to the respondent of the registered mail, I have taken into account in my conclusions that follow that the applicant’s brother may have advised the postal officer the applicant was not at home on 27 February 2014 (as opposed to not being known at his home address) when Australia Post attempted to effect delivery.

[27] I note also the respondent received a faxed medical certificate dated 11 February 2014 advising that the applicant would be unfit until the end of March 2014 - i.e. more than a month more than certified in the WorkCover certificate and also advising the applicant would be unfit to attend any meetings or enter into “any discussion written or oral”. The applicant also relied on the existence of the personal violence order preventing him from attending the respondent’s workplace, but Mr James submitted the personal violence order was not such that it prevented the applicant from speaking by telephone to Mrs Redman.

[28] Given the particular factual circumstances of this matter, I consider the dismissal was effected in late-February 2014 (as opposed to late-May 2014) when the written advice from the respondent advising of the summary termination of employment was the subject of attempted (albeit unsuccessful) delivery of registered mail by Australia Post to the applicant’s last-known address. In this regard, some tangential guidance may be gleaned from s.28A and s.29 of the Acts Interpretation Act 1901 (Cth) and rule 42 of the Fair Work Commission Rules 2013 - albeit matters are complicated here because of the evidence that the registered mail was not successfully delivered and was, in fact, returned to the respondent.

[29] Any incorrect advice that may have been given to the Australia Post officer when delivery was attempted on 27 February 2014 and/or any incorrect recording of advice that the applicant was not known at his actual residential address were matters entirely beyond the respondent’s control or responsibility. The respondent took reasonable and responsible steps to advise the applicant of the dismissal in sending the correspondence of 26 February 2014 by registered mail, which was the subject of attempted delivery by Australia Post on 27 February 2014 at the applicant’s correct residential address.

[30] In any event, the evidence and submissions, apart from those concerning the initial attempted delivery of the registered mail on 27 February 2014, otherwise lead me to infer the applicant knew he had been dismissed by the respondent. The fact that the medical centre the applicant attended faxed the various medical certificates and WorkCover certificates to the respondent, being documents which apparently pre-supposed the applicant was still employed by the respondent, does not detract from my conclusion in this respect. For example, one of the medical certificates, dated 31 March 2014, read as follows:

“This is to certify that on Monday, 31 March 2014 I examined Mr Johnny Bond and reviewed him as planned as per my previous certificate.

In my opinion Mr Johnny Bond will be unfit for duties, to attend any meeting, or enter into any discussion, written or oral, with his employer as he has had elective L leg surgery and will be unwell for at least 6-8 weeks.

I also understand there are legal barriers to him attending work above and beyond his medical fitness, and these preclude communication and attendance until these are sorted.

He may be able to attend work in future after his matters with is [sic] employer have completed, and after full recovery from his leg surgery.

After his current medical condition and legal matters are sorted I expect him to be able to return to full and normal employment, even with his current employer.”

[31] Although this particular medical certificate post-dated the termination of employment, I observe it is unclear why elective left leg surgery would have rendered the applicant unfit to attend any meeting with the respondent, or enter into any written or oral communications with the respondent, for a period of up to eight weeks from the date of the issuing of the certificate.

[32] Matters that lead me to the inference the applicant knew or ought reasonably to be assumed to have known that he was dismissed before being given such advice by the Fair Work Ombudsman on 21 May 2014 include, but are not limited to, the following (which are addressed in no particular order).

[33] First, in connection with the termination of employment, the respondent paid the applicant’s outstanding untaken annual leave and annual leave and leave loading directly into his financial account on or about the date of the termination of employment, as indicated by a termination pay slip dated 26 February 2014. The applicant did not, thereafter, receive any payments by way of wages or sick leave from the respondent (albeit I note there was subsequently a small adjustment of $66.49 to payments once the applicant provided a medical certificate in support of his claim for a sick leave payment after his claim for workers’ compensation benefits had been rejected by GIO, which was the respondent’s workers’ compensation insurer).

[34] Second, Australia Post records indicate that on or about 21 March 2014, the respondent made a second attempt to send the letter of termination of employment to the applicant’s last-known address by registered mail. Although Australia Post attempted delivery on 24 March 2014, the postal records indicate that the second attempted delivery was unsuccessful and the registered mail was again returned to the respondent on the basis that the customer/applicant was “not known” at his residential address. The applicant again speculated that his brother, as house-sitter, may have advised the postal officer that the applicant was not at home that day, rather than that he was not known at his home address. It seems improbable to me that such an error would have occurred twice. I consider there is cause to infer there may have been some level of avoidance - however described - of the receipt of registered mail from the respondent.

[35] Third, by letter dated 2 May 2014 sent to the applicant’s home address, GIO declined a claim for workers’ compensation benefits that had been made by the applicant in relation to an alleged injury arising from the meeting that had been held on 31 January 2014 to inform the applicant of the “serious complaints” that had been made by the apprentice. The letter from GIO declining the applicant’s claim for compensation read in part:

“... 6. In the alternative, if you suffered a diagnosable injury, GIO considers the alleged harassment and assault of [named employee] as demonstrating a degree of purposeful conduct taking yourself outside the course of employment. Therefore this results in GIO also declining your claim under Section 4 of the [Workers Compensation Act 1987 (NSW)].

7. In the event you suffered a work related injury, GIO considers that the onset of your psychological symptoms are the result of disciplinary actions of the employer regarding the alleged assault against [named employee] subsequently resulting in termination of your employment.

8. Barbara Redman in her statement has indicated that on 31 January 2014 an initial meeting was held to discuss serious complaints made by [named employee] and a follow up meeting had also been arranged for 4 February 2014. You did not attend this meeting and this was confirmed in correspondence to you on 7 February 2014.

9. Subsequently, a letter was sent to you on 26 February 2016 being a follow up letter to the warning letter of 7 February 2014 indicating that, due to your serious misconduct and allegedly assaulting and harassing [named employee], your employment had been terminated. ...” [My underlining]

[36] The applicant contended in the proceedings he was unaware of the GIO letter which referred at paragraphs 7 and 9 extracted above to his termination of employment. In effect, the applicant submitted he had been encountering difficulties with receiving mail from GIO around this time, and had to follow-up with GIO for letters. I note there is, however, objective cause on the face of the applicant’s Form F2 - Unfair Dismissal Application to doubt that the applicant was not aware of the GIO letter declining his workers’ compensation claim prior to being advised by the Fair Work Ombudsman on 21 May 2014 of the termination of employment and, relevantly, referring to the letter sent to him on 26 February 2014 indicating that the respondent had terminated his employment. That is, the applicant’s initiating process read, in part:

“1.4 Are you making this application within 21 calendar days of your dismissal taking effect?

[ ] Yes

[ # ] No

...

On the 31st January [2014] I applied for work cover and gave my employer a work cover medical certificate a GP medical certificate stating I was unfit for work. My claim was then declined on the 2nd May 2014 and I have had NO contact with my employer from the 31st January as they were the cause of medical condition.

Following work cover being denied I submitted a claim with the fair work ombudsman as I was not being paid.

I was notified by [named individual] from fair work ombudsman via phone late afternoon on Wednesday 21st May that i had been terminated on the 26/02/2014 for abandonment of work even though I had supplied them with a work cover medical certificate a GP medical certificate that I was unfit for work from 31st January until 28th February there for I was unfit for work and on sick leave when I was terminated.

I have not received a letter of termination from my employer and I also have not had any phone call or seen my employer in person to inform me that my employment was terminated.

I believe I should not have been terminated due to supplying a medical certificate and my employer being aware that I was unfair for work and was applying for work cover.” [sic. My underlining]

[37] As may be read in the foregoing extract from the Form F2, the applicant initially indicated that he contacted the Fair Work Ombudsman after GIO had, on 2 May 2014, declined the claim. The GIO letter of 2 May 2014 declining the applicant’s workers’ compensation claim contains specific reference to the termination of employment of 26 February 2014 - leading, as the respondent submitted, to an available inference (and despite the applicant’s contentions that he first became aware of the dismissal only on 21 May 2014) the applicant was aware of the dismissal by (at least) on or about the date of the GIO letter of 2 May 2014, notwithstanding the applicant’s submission in the proceedings that he did not receive the GIO letter until a date to as late as 20 May 2014 when he “involved” the Fair Work Ombudsman. Considering the timing of the date the respondent was first contacted by the Fair Work Ombudsman on 19 May 2014, it seems improbable that the applicant did not know of the GIO letter of 2 May 2014 until as late as approximately 20 May 2014.

[38] It may be noted for completeness, in this regard, that on 19 May 2014 the Fair Work Ombudsman contacted the respondent in relation to the applicant’s claim for a payment for sick leave for the period 31 January 2014 to 28 February 2014 and, apparently (although this is not clear), also in connection with a claim for a payment of notice. The respondent then attempted, for a third time, to deliver the letter of termination to the applicant after it had been contacted by the Fair Work Ombudsman in connection with the alleged underpayments. That third attempted delivery of registered mail was successful on 27 May 2014. Moreover, the applicant provided a medical certificate in support of his claim for sick pay and, on 3 June 2014, confirmation was made to the Fair Work Ombudsman that an adjustment of about $66.00 would be paid to the applicant the following day.

[39] This application was not, in my view, made within the period required in s.394(2) of the Act. The Commission may allow a further period for the application to be made by an applicant if satisfied there are exceptional circumstances, taking into account specific matters. Turning particularly to the matters (as may not otherwise already have been addressed and/or considered earlier in this decision).

The reason for the delay

[40] The reason for the delay relied upon by the applicant is that he did not know he had been dismissed until advised of that by the Fair Work Ombudsman. The applicant’s evidence was that he was unaware of the dismissal and would have lodged the application for an unfair dismissal remedy sooner if he had known about the dismissal. He also submitted that it seemed “coincidental” to him that the respondent’s second (unsuccessful) endeavour to send registered mail to advise him of the dismissal was forwarded to his address more than 21 days after the dismissal. I have considered earlier in this decision why there is cause to doubt that the reason for the delay arose solely or principally from an alleged lack of knowledge of the termination of employment until advice of such dismissal was conveyed to the applicant by the Fair Work Ombudsman on 21 May 2014.

Whether the person first became aware of the dismissal after it had taken effect

[41] The applicant’s case contends he did not become aware of the dismissal until 21 May 2014, but my inferences and conclusions in such respects are dealt with earlier in this decision. The respondent invited the Commission to infer the applicant was aware of the dismissal earlier than 21 May 2014, and I accept such an inference may be drawn. Approached another way, I do not consider it could reasonably be accepted that the applicant would have had any proper or reasonable basis to consider he was still employed by the respondent at the time he approached the Fair Work Ombudsman in May 2014 concerning alleged underpayments of an amount of sick leave and, apparently, notice.

Any action taken by the person to dispute the dismissal

[42] The applicant did not take any action to dispute the dismissal, other than lodging the application for an unfair dismissal remedy. The applicant’s evidence was that he did not contact the respondent because of the personal violence order concerning the apprentice and attendance at the workplace. As Mr James submitted, without any contrary submission from the applicant, the existence and nature of the personal violence order did not prevent the applicant from telephoning (or writing) to the respondent at any time following the initial meeting of 31 January 2014.

Prejudice to the employer (including prejudice caused by the delay)

[43] The applicant’s evidence was that he considers he deserves a chance to “run his case” because he had not been informed of the reasons for the dismissal. As outlined in Mr James’ submissions, the respondent acted on the basis of advice from the Fair Work Ombudsman as to advice of termination of employment being conveyed to the applicant by registered mail. The respondent was also careful in attempting to disaggregate the allegations concerning the apprentice which related to the workplace, and the matters which allegedly occurred outside the workplace and which were separately the subject of police involvement and court proceedings.

[44] I consider there would be considerable prejudice to the respondent if this application were to be the subject of an extension of time given what is already before me in the evidence and submissions.

The merits of the application

[45] While it rarely could be said that an applicant may not have at least an arguable case, the merits of this application could not be said to be strong even taking at their highest the matters already raised by the applicant in contending he was unfairly dismissed (that is, as outlined in the application form, because he supplied a WorkCover certificate and a medical certificate, that the dismissal was related to avoidance of long service leave payments, and that he was not given an opportunity to defend himself against the allegations).

[46] Mrs Redman was punctilious in her approach to dealing appropriately with the allegations made against the applicant, which included investigations most relevantly involved with the apprentice’s allegations. (Although the allegation about poaching a customer was not initially raised with the applicant, the respondent’s inquiries had indicated the applicant in fact had a business of his own and was conducting that business during relevant times).

[47] As Mrs Redman wrote in her letter to the applicant of 7 February 2014 and the letter of termination of employment of 26 February 2014, she could only make a decision based on the information in her possession. In circumstances where the applicant had been afforded procedural fairness by the respondent, but failed to communicate anything on his own behalf, the respondent proceeded to effect a summary dismissal on the basis of serious misconduct based on the information then available to it.

[48] Although the case has not been fully developed as to merit, as is typically and necessarily often so in relation to proceedings concerning extensions of time, I note the respondent has indicated it would otherwise be relying on its small business status in defending any claim for an unfair dismissal remedy and, in the regard, the approach described in decision of the Full Bench in Pinawin T/A RoseVi.Hair.Face.Body v Domingo[2012] FWAFB 1359 may tend to suggest - putting aside any other matters that may be raised in any hearing of the substantive merits of the claim - the applicant would be unlikely to prevail if the application were run on what the applicant considers to be the merits of his claim. For example, this was said in Pinawin:

“[23] As s.396 requires the determination of this issue before considering the merits of the application more generally we consider this matter first. The Small Business Fair Dismissal Code contains the following reference to Summary Dismissal:

“It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. .....”

...

[29] ... There are two steps in the process of determining whether this aspect of the Small Business Fair Dismissal Code is satisfied. First, there needs to be a consideration whether, at the time of dismissal, the employer held a belief that the employee’s conduct was sufficiently serious to justify immediate dismissal. Secondly it is necessary to consider whether that belief was based on reasonable grounds. The second element incorporates the concept that the employer has carried out a reasonable investigation into the matter. It is not necessary to determine whether the employer was correct in the belief that it held.

[30] Acting reasonably does not require a single course of action. Different employers may approach the matter differently and form different conclusions, perhaps giving more benefit of any doubt, but still be acting reasonably. The legislation requires a consideration of whether the particular employer, in determining its course of action in relation to the employee at the time of dismissal, carried out a reasonable investigation, and reached a reasonable conclusion in all the circumstances. Those circumstances include the experience and resources of the small business employer concerned.”

Fairness as between the person and other persons in a similar position.

[49] The applicant considered the dismissal arose from the respondent’s wish to dismiss him before his entitlement to long service leave payment would crystallise at ten years’ service and, in this regard, that this raised issues of fairness as between himself and other employees in a similar position. On what is available before me, however, the dismissal did not arise from anything involving a wish to dismiss the applicant before any fully-vested entitlement arose to long service leave payments on termination of employment but against the background of the matters leading to the respondent’s conclusion, as set out in the letter of termination of employment, that the applicant had engaged in serious misconduct - rather than being related to any attempted avoidance of a contingent statutory entitlement with any resulting questions of fairness as between himself and other persons with pending long service leave.

Conclusion

[50] The respondent summarily dismissed the applicant on 26 February 2014 and advice in that regard was (in the first instance) the subject of attempted delivery by registered mail on 27 February 2014. The applicant contends that the reason the application for an unfair dismissal remedy was made more than 21 days after the dismissal was because he did not know he had been dismissed until he was informed by Fair Work Ombudsman on 21 May 2014 he had been dismissed.

[51] While I accept that a dismissal generally does not take effect until it is communicated to an employee, the particular factual circumstances of this dismissal lead me to conclude, consistently with the approach in Wilson (extracted earlier in this decision) that, at common law, where termination of employment occurs by letter, generally the termination is not effective until the letter is received - but there may be a qualification to that general position such that, in some circumstances, a termination of employment is effective when its communication could ordinarily be expected to have been received.

[52] In this case, the communication of the termination of employment ordinarily could have been expected to have been received by the applicant on or about the date the letter thereto was the subject of attempted delivery by Australia Post on 27 February 2014 to the applicant’s correct residential address (and would have been communicated but for the return of the registered mail to the respondent on the basis noted in Australia Post’s records that the applicant was not known at that address). I also respectfully agree with the observation in Wilson that if an employer has attempted in good faith to communicate the termination of employment and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances the termination of employment occurred despite the fact that it has not physically been communicated to the employee.

[53] I consider it implausible that the applicant did not know he had been dismissed until 21 May 2014 or, on the other hand, that he could reasonably have considered that he was still in the employ of the respondent to that date of 21 May 2014. In any event, if the applicant did not know he had been dismissed, it was not for want of the respondent reasonably endeavouring to communicate that advice to him. After the initial meeting with him on 31 January 2014 to discuss the apprentice’s complaints, the applicant left the workplace and never again returned and never again personally communicated with the respondent despite the respondent’s subsequent endeavours in that regard. The periodic certificates sent from a medical centre by or on behalf of the applicant which proceeded on a basis presupposing the applicant was still employed by the respondent are of no evidentiary consequence in relation to the applicant’s contention that he was not aware of the dismissal until 21 May 2104.

[54] The meaning of “exceptional circumstances” in relevantly identical statutory provisions to those in s.394(3) of the Act and discretionary considerations was considered in Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 as follows:

“[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[55] Proceeding on the basis that the termination of the applicant’s employment occurred in late February 2014 and the application was lodged on 23 May 2014, I am not, all things considered, satisfied there are exceptional circumstances within the meaning of s.394(3) of the Act such as to allow the application to be made beyond the time specified in s.394(1) of the Act. If, however, I am wrong in concluding that the circumstances disclosed in this matter do not, when considered collectively in the context of the statutory criteria, comprise exceptional circumstances, I would not, in the exercise of discretion, extend time for lodgement because I would not, as discussed in Nulty, consider it fair and equitable that time should be extended.

[56] An order dismissing the application has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

J. Bond, applicant.

S. James for the respondent.

Hearing details:

2014.

Newcastle;

July, 16.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR553276>