Lance Power v Life Without Barriers

[2015] FWC 2080

[2015] FWC 2080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lance Power
v
Life Without Barriers
(U2015/2379)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 25 MARCH 2015

Application for relief from unfair dismissal.

[1] Mr Lance Power alleged that the termination of his employment by Life Without Barriers was unfair.

[2] In his application, Mr Power advised that his dismissal took effect on 24 December 2014 but he had been notified of his dismissal on 29 December 2014.

[3] On 19 January 2014, Mr Power was advised that his application may not have been filed within 21 days of his dismissal and he was invited to file material in support of an extension of time.

[4] Mr Power did so and included evidence from Australia Post of the delivery on 29 December 2014 of the letter of termination sent by Life Without Barriers by registered post.

[5] In the employer response, Life Without Barriers stated that Mr Power’s dismissal took effect on 24 December 2014.

[6] At the telephone hearing today, Life Without Barriers accepted Mr Power’s evidence that the letter sent on 24 December 2014 was not delivered until 29 December 2014. At the hearing, it was also conceded that this was the only communication to Mr Power of the termination of his employment.

[7] A Full Bench of the Australian Industrial Relations Commission considered this issue in Commonwealth of Australia (Australian Taxation Office v Wilson) 1 when a notice of dismissal was effective and held as follows:

“[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.” [Emphasis added]

[8] At the hearing, Life Without Barriers accepted that as Mr Power did not receive the letter of termination until 29 December 2014, that was the effective date of termination. In those circumstances, Mr Power’s application was filed within 21 days of the dismissal taking effect.

[9] I note that Life Without Barriers objected to the application on the grounds that Mr Power was a casual employee with less than 12 months service. The minimum period of employment for all employees is 6 months unless the employer is a small business. Life Without Barriers is not a small business. If Life Without Barriers wishes to object to Mr Power’s application on the basis that Mr Power was not protected from unfair dismissal because he was not employed as a casual employee on a regular and systematic basis, it should advise my chambers.

[10] This matter will be referred to conciliation and if the matter is not resolved, it will be referred to arbitration to determine if the termination of Mr Power’s employment was unfair.

DEPUTY PRESIDENT

Appearances:

L Power on his own behalf.

J Davis for the Respondent.

Hearing details:

2015.

Melbourne and Perth (telephone hearing):

March 25.

 1   PR901127

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