Juliano Fares v Forte Sydney Consulting Pty Ltd

[2020] FWC 2952

[2020] FWC 2952

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Juliano Fares
v
Forte Sydney Consulting Pty Ltd
(U2020/2540)

DEPUTY PRESIDENT BULL SYDNEY, 4 JUNE 2020

Application for an unfair dismissal remedy – time of dismissal – filed within time.

[1] This matter was heard before me earlier today on 4 June 2020. This is the published version of the decision in transcript delivered on 4 June 2020, edited for style and clarity.    1

[2] On 4 March 2020, Mr Juliano Fares (Mr Fares/the applicant) lodged an application, pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made against L J Construction Pty Ltd and Forte Sydney Property Group. The applicant has made an application to amend the name of the employer to Forte Sydney Consulting Pty Ltd (the respondent), which was not opposed. Pursuant to s.586 of the Act the application is amended to the extent that the true legal employer is correctly identified.

[3] Mr Fares was employed as a Finishing Foreman by the respondent. The respondent operates in the building construction industry.

[4] The applicant stated in his Form F2 application that he commenced employment with the respondent on 15 May 2017 and that he was notified in writing on 6 February 2020 by the respondent’s representative Ms Helen Liu that he would be dismissed which would take effect on 28 February 2020. A copy of Mr Fares’ termination letter was attached to his application and reads as follows:

“Dear Juliano

Termination of your employment

We consider that your performance is unsatisfactory and have decided to terminate your employment with Forte Sydney Property Group Pty Ltd. (the Company).

Your employment will be end (sic) on 28 Feb 2020

You will be paid a lump sum of $_7,272.21__

Which includes your accrued entitlements and any outstanding pay, up to and including your last day of employment.

You are required to return any company property

Please finalize your employment with Finance Department and HR, and be aware Non-disparagement is applied.

Your sincerely,

Belinda Li

CEO
Forte Sydney Property Group”

(My underline)

[5] On 20 March 2020, the respondent filed a Form F3 – Employer Response. The respondent raised a jurisdictional objection being that the applicant had lodged his application more than 21 days after his dismissal took effect and the application has therefore been lodged out of time. The respondent stated that the applicant’s dismissal took effect on 6 February 2020 as the applicant did not work out his three-week notice period but received payment instead of notice. Therefore, his dismissal took effect on the day he physically finished working at his place of employment being 6 February 2020.

[6] The matter was listed initially for a telephone conciliation before a Commission conciliator on 6 April 2020, however the conciliation did not proceed as the respondent advised that it wished for the jurisdictional objection to be dealt with in the first instance.

[7] On 17 April 2020, the Commission wrote to the applicant advising that the respondent had raised the jurisdictional objection being that the applicant had filed his application out of time. The applicant was requested to provide a response by 4:00pm on 24 April 2020.

[8] On 20 April 2020, the applicant responded that he was notified by email of the termination on 6 February 2020 and that later on the same date the respondent emailed the applicant a copy of the termination letter stating that the termination will take effect on 28 February 2020. The applicant stated that on 6 January 2020 he was injured at work and on 4 February 2020 he told Ms Helen Liu, the respondent’s Human Resources Admin officer that his arms and legs were getting numb and that he had to go onto worker’s compensation. He disputes having been paid out the entirety of his notice.

[9] On 22 April 2020, my chambers issued the parties with a Notice of Listing setting the matter down for a preliminary mention, by telephone, on 27 April 2020 and a subsequent telephone hearing on 4 June 2020.

[10] The telephone mention proceeded on 27 April 2020. The applicant appeared with his solicitor Mr Anthony Iuliano, who sought and was granted leave to appear on the applicant’s behalf pursuant to s.596(2) of the Fair Work Act 2009 (the Act). The respondent was represented by Ms Helen Liu, the respondent’s Human Resources Admin officer.

[11] The applicant’s materials were filed on 18 May 2020, being 7 days after the filing deadline. Mr Iuliano stated that the delay was caused as a result of him mis-diarising the deadline. Mr Iuliano filed and served an outline of written submissions on behalf of the applicant, and a witness statement of the applicant.

[12] On 25 May 2020, Ms Liu on behalf of the respondent filed its written submissions and stated that the applicant received his termination letter on 6 February 2020 when he was supposed to work, but that he didn’t turn up during his full notice period which ended on 28 February 2020. The respondent stated that no medical certificate was provided during this period.

[13] The respondent referred to an alleged extract of the Fair Work Commission’s Benchbook - Unfair Dismissal in support of its position. This extract is not within the contents of the ‘Benchbook”:

“dismissal becomes effective on the day you stop attending the place of employment (regardless of any notice period), and that is when the clock starts ticking on the 21 day deadline”.

[14] The respondent also referred to the applicant’s late filing of their materials and concluded that it is:

“not in the position to participate any more with this non-substantial grounds-based claim.”

[15] On 28 May 2020, the Commission advised the respondent that the matter would still proceed to arbitration as listed on 4 June 2020, at which the respondent may cross-examine the applicant if required. It was also noted by the Commission that no witness statement had been provided by the respondent.

[16] On 2 June 2020, Mr Iuliano filed final reply materials on behalf of the applicant, being a day later than required under the Directions.

[17] Ms Liu represented the respondent at the hearing and despite her best efforts was unfortunately not an effective advocate on the respondent’s behalf. Mr Iuliano a solicitor continued to represent the applicant.

[18] The applicant stated that he had provided to the respondent medical certificates for all dates that he wasn’t able to work from 1 February 2020 until 9 February 2020. He commenced receiving workers compensation payments from 10 February 2020. The applicant attended work on February 3 and 4 and performed light duties despite having a medical certificate stating he was unfit to work.

[19] The applicant stated that the respondent knew that he could not work up until at the time of the dismissal 28 February 2020, they only paid him for what he had worked and nothing more.

Statutory Framework

[20] Section 396(a) of the Act states that the Fair Work Commission (the Commission) must determine whether the application was made within the period required by s.394(2) of the Act. Section 394(2) of the Act reads as follows:

(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).

[21] If an application was lodged outside of the 21-day timeframe prescribed by s.394(2)(a), the Commission must be satisfied that exceptional circumstances exist in order to grant a ‘further period for the applicant to submit his application. Section 394(3) of the Act determines under what circumstances the Commission may allow a further period.

Conclusion

[22] In this application the respondent does not request an extension of time to file his unfair dismissal application maintaining that it has been filed within the prescribed 21-day time frame. Reliance is placed on the termination letter of 6 February 2020 which clearly states that Mr Fares’ employment will cease on 28 February 2020 being a Friday. The 21-day period from 28 February 2020 results in Mr Fares having to file his application by 20 March 2020, the application was filed on 4 March 2020, well within the prescribed period.

[23] Mr Fares states that he had a meeting with Ms Liu on 5 February 2020 and provided her with notice that he had a work-related injury and would be submitting a worker’s compensation claim. The following day, 6 February 2020, he did not attend work and around 1:15pm he emailed Ms Liu his workers compensation claim. At approximately 3:19pm he received an email from Ms Liu advising that his employment was to be terminated for unsatisfactory performance.

[24] As the termination letter clearly states that the termination of employment will take effect from 28 February 2020, the onus lies on the respondent to demonstrate that Mr Fares’ employment ended at an earlier date of his own volition.

[25] On what has been placed before the Commission the respondent has not demonstrated the unfair dismissal application has been filed out of time on the basis that Mr Fares’ termination was effective from 6 February 2020 resulting in the requirement to file his unfair dismissal application by 27 February 2020.

[26] It is not disputed that the applicant did not attend work on the day of his dismissal and has not done so since. This does not, considering the circumstances, result in his termination of employment taking effect on 6 February as opposed to the notified date of 28 February 2020. Mr Fares’ evidence was that he has not attended work since 6 February on the basis of his work-related medical injury of which he notified his employer.

[27] During the hearing further evidence was produced in the form of text messages between the applicant and Ms Liu dated 12 February 2020. 2 On 12 February at 9:46am Mr Fares advised Ms Liu by text that he will drop off his workers compensation papers and Ms Liu responds by enquiring about his injury, she then asks Mr Fares to call her when free which Mr Fares stated he did. During this conversation, Mr Fares stated that he made it clear to Ms Liu that he was unfit to return to work due to his work-related injury. He has obtained medical certificates to certify his unfitness for work which have been forwarded to the worker’s compensation insurer. Mr Fares’ evidence was that as of today he remains unfit to work and is receiving worker’s compensation payments.

[28] Ms Liu was unable to demonstrate why Mr Fares’ termination of employment date should be considered as 6 February in lieu of the stated date of 28 February on his written dismissal notice. While the respondent may have wished for Mr Fares to have worked out his notice period, he was unable to do so due to a work-related injury. The respondent took no action to advise Mr Fares that they considered his inability to attend for work on and from 6 February amounted to his termination of employment on that date. As such there is no reason for Mr Fares to have considered his employment was terminated any earlier than 28 February as notified by his employer.

[29] I find that that applicant’s dismissal was effective from 28 February 2020 in accordance with the respondent’s termination notice, and as such the applicant’s unfair dismissal application has been filed within the prescribed 21-day period allowed under the Act. Hence, the jurisdictional objection is dismissed, and the matter will be referred within the Commission to be dealt with by conciliation and if required arbitration on the merits of the claim.

DEPUTY PRESIDENT

Appearances:

Mr Anthony Iuliano Solicitor on behalf of the Applicant.

Ms Helen Liu for the Respondent.

Hearing details:

By Telephone

2020.
Sydney:
4 June

Printed by authority of the Commonwealth Government Printer

<PR719955>

 1   See extra curial publication (1997) 9 Judicial Officers’ Bulletin, per Gleeson CJ at 25

 2   Exhibits R1 and A2