Lee Trott v Hardwick Way Pty Ltd T/A West City Marine & Tackle

[2013] FWC 6792

[2013] FWC 6792

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lee Trott
v
Hardwick Way Pty Ltd T/A West City Marine & Tackle
(U2013/7412)

COMMISSIONER WILSON MELBOURNE, 11 SEPTEMBER 2013

Application for Unfair Dismissal Remedy - preliminary issues; extension of time; whether end of training arrangement ended employment; resignation; genuine redundancy.

[1] The following are my edited reasons for decision, originally given in transcript at Wangaratta on 19 August 2013.

[2] This matter concerns an application by Lee Trott alleging unfair dismissal against his former employer, Hardwick Way Pty Ltd Trading As West City Marine. Mr Trott’s application to the Fair Work Commission is date stamped 12 March 2013.

[3] The employer argues four preliminary jurisdictional matters. Success on any one of these points would end Mr Trott’s application. These matters include;

• That the application is out of time and that the circumstances of the matter are such that an extension of time should not be granted;



• Whether the termination of Mr Trott’s training arrangement on or around 24 January 2013 means his employment finished on that date as well;



• That circumstantially Mr Trott resigned his employment, rather than Hardwick Way terminating it for him. This arises because of a contention by the employer that by signing the termination of the training arrangement Mr Trott knew that there was no ongoing work with his employer and that therefore he was in effect resigning his position.



• As an alternative argument to the claim of resignation if there was instead a termination at the initiative of the employer, it was on the grounds of genuine redundancy for the reasons set out in the separation certificate. The argument is made the Mr Trott was made redundant; that he has not been replaced in his employment at Hardwick Way and as a result there has been a genuine redundancy and as such he is not entitled to make an application for unfair dismissal.

[4] Because of the way that the matter has been argued and the factual base that underpins the matter, I will deal with these four matters as follows: firstly, to consider the issue of whether or not there is a fixed employment arrangement coming to an end; secondly, whether there has been a resignation on the part of Mr Trott; thirdly, to examine whether this is a case of genuine redundancy; and lastly, to consider whether an extension of time should be granted to Mr Trott for his application of unfair dismissal.

[5] Before I do that, though, I will consider the factual circumstances. The following matters are either agreed between the parties or there is consistency in the evidence on these matters.

[6] Mr Trott was first engaged by Hardwick Way as an adult apprentice at some stage in 2009. While that is agreed, the precise starting date for Mr Trott is not. His unfair dismissal application states that employment started on 22 April 2009 whereas the employer response form indicates that employment started on 1 December 2009.

[7] A dispute arose between Mr Bedendo and Mr Trott in January 2013 over the payment of RDOs. This appears to have capped a relationship that had been deteriorating for some months.

[8] On or around 11 January 2013 Mr Trott approached Ms Spence who works for ATEL AusNAC, a training broker for the Australian Government. Mr Trott explained to her that he was having difficulties with his employer and wanted to know what to do. She offered some advice and subsequently spoke with Mr Bedendo. She contacted in turn Mark Cottee, who is an apprenticeship field officer with the Victorian Regulations and Qualification Authority.

[9] In her evidence Ms Spence advises that Mr Cottee advised that there were several options available to all parties. Firstly, Mr Trott could “early complete” the apprenticeship thus terminating the apprenticeship contract between both parties. If Mr Trott had completed his off-the-job training this option was available to him. Secondly, the parties could terminate their apprenticeship contract with each other and part ways, signing the apprentice and employer cancellation forms. This second option would allow Mr Trott to continue his apprenticeship with a new employer in the future.

[10] Ms Spence gave evidence on summons in these proceedings and I note that I unreservedly accept Ms Spence’s evidence in these proceedings and prefer her evidence to both that of Mr Trott and Mr Bedendo where their evidence is in conflict.

[11] Critically, Ms Spence’s evidence is that she does not know what might be the industrial relations implications for Mr Trott finishing his contract of training early and that she told Mr Trott that fact. She also told him these implications would depend on the facts of his particular case which she did not know.

[12] On Friday, 11 January 2013, Mr Bedendo and Mr Trott had a full and frank exchange of views. That led to Mr Trott proceeding on leave for two weeks. The terms of the leave are not clear. Mr Bedendo suggested it was annual leave. However, Mr Trott obtained a medical certificate which is dated 14 January 2013 and certifies Mr Trott as being unfit due to a “medical condition” and he was allowed leave from his normal work between 14 January 2013 and 28 January 2013 inclusive. Mr Trott did not provide this certificate to Mr Bedendo until he mailed it by registered mail and which is postmarked 29 January 2013.

[13] On 24 January 2013, Mr Bedendo wrote to Mr Trott in the following terms;

“Dear Lee, I am writing in regard to termination of your employment.” And then in the third paragraph “Please find attached final payslip, cheque and separation certificate. I have paid you as per advice from Fairwork Australia”. 1

[14] The letter was signed for Hardwick Way Pty Ltd by Mr Joe Bedendo.

WHETHER END OF TRAINING ARRANGEMENT ENDED EMPLOYMENT

[15] The first jurisdictional matter I turn to is whether the training contract finishing was in all the circumstances a fixed employment arrangement that came to an end.

[16] I note there is considerable disagreement between parties on the subject, and in particular on whether or not the events in January meant Mr Trott’s employment finished at the same time as the contract of training.

[17] Mr Bedendo argues that Mr Trott’s employment came to an end when they agreed to terminate the training arrangement between them. That argument arises because of the provisions of section 386(2)(b) of the Fair Work Act (the Act), which provides as follows;

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that

effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

[18] The effect of the section is to provide an exception to the definition of who is a person who has been dismissed. Relevantly it provides that a person has not been dismissed if a training arrangement applied to them and their employment was for a specified period of time or was for any reason limited to the duration of the training arrangement and their employment was terminated at the end of the training arrangement.

[19] The Dictionary to the Act is contained within section 12, and provides the following definition of “training arrangement”:

training arrangement means a combination of work and training that is subject to a training agreement, or a training contract, that takes effect under a law of a State or Territory relating to the training of employees

[20] I am satisfied that Mr Trott was engaged pursuant to a training arrangement as defined by the Act. Whether, however, he is caught by the exclusion contained within section 386(2)(b) of the Act will depend on the circumstances of the arrangement entered into by he and Mr Bedendo at the time of the employment. Not every training arrangement will be of the type that means employment was for a specified period of time or was for any reason limited to the duration of the training arrangement. In this respect I note the findings of the Australian Industrial Relations Commission, as it then was in the matter of Kinniburgh v Printers Press Pty Ltd trading as Print City 2. In that particular matter Williams SDP found there could be a separation between a contract of training and a contract of employment;

“In my view, although an apprentice may perform duties under a contract, the primary purpose of which is to provide training in a particular vocation, a distinction may be drawn between the “contract of employment” and the “contract of training”. Whilst the two may coexist and operate in tandem, it is not necessary that the terms of both coincide. Clearly in his case, the applicant was engaged under a contract of training. He was, however, also engaged under a “contract of employment”. The contract of training was an agreement between the respondent and the applicant whereby the former agreed to provide the latter with vocational education. The contract of employment was an agreement between the respondent and the applicant whereby the former agreed to employ the latter and the latter agreed to work for the former. In so far as any time period might have been specified, that time period related to the period of training, not the period of employment.

It follows from the existence of the distinction between the two that the fact that a contract of training is for a specified period does not necessarily mean that the contract of employment is for the same period. Whether or not the periods are the same will depend upon the circumstances of each case. In this matter, the respondent did not suggest that, independently of the contract of training, there was any agreement for employment for a specified period. The respondent relied entirely on the contract of training as the sole grounds for determining the period of employment. There is, therefore, no evidence that would lead me to a conclusion that, prior to the commencement of the applicant’s employment, there had been any discussions with him as to the intended length of that employment. In those circumstances, I cannot be satisfied that there was any time period specified for the “contract of employment” under which the applicant was engaged”. 3

[21] The evidence before me on this matter is not strong. It consists firstly of the evidence of Mr Trott and Mr Bedendo, neither of which provide anything which would verify Mr Bedendo’s contention and secondly of the evidence provided by Ms Spence, to which I have already referred and thirdly, the training contract submitted with Hardwick Way’s submissions. I do not see anything in the contract which leads me to the view that there was an explicit agreement the employment would only be for the duration of training contract.

[22] Mr Trott’s employment was plainly not for a specified period of time and the evidence does not show on the balance of probabilities that his contract of employment was limited to the training arrangement. As a result, I find against the employer on this aspect of their claim.

WHETHER A RESIGNATION?

[23] The submission that Mr Trott’s termination of employment was a resignation is a submission that Mr Trott was not “dismissed”, which is in turn a reference to the four criteria in section 385(a) of the Act which refers to what is an “unfair dismissal” The section provides;

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[24] Effectively if Mr Trott has not been “dismissed” within the meaning of the Act his application will fall away.

[25] While the term “dismissed” is referred to in s.386 as well as s.385 the context of the provisions of s.386 do not add to the factors that need to be considered in this case.

[26] The submission that Mr Trott effectively resigned his employment amounts to a contention by the employer that by signing the termination of the training arrangement Mr Trott knew there was no ongoing work with his employer and that consequently, in effect, he resigned his position. Further, it is also relevant that Mr Trott proceeded on leave on 11 January. While the circumstances in which the leave came to be arranged might be questionable, as might the likelihood of a positive employment relationship continuing on the other side of the leave, Mr Trott nonetheless proceeded on leave. He had not thought he had resigned and neither had Mr Bedendo.

[27] On the basis of the evidence before me, I am not persuaded that Mr Trott resigned his employment. The evidence on this issue is principally that of Mr Trott and Mr Bedendo. I am not persuaded that Mr Trott, by asking for his training arrangement to be completed, understood that the subsequent pay increase he may be entitled to in becoming a full trades-person, was effectively putting his continued employment beyond the financial capacity of Mr Bedendo.

[28] I have referred previously to a letter being sent by Mr Bedendo to Mr Trott dated 24 January which was written in regard to termination of employment and which attached a separation certificate. The separation certificate attached to the letter refers to Mr Trott’s employment ceasing on 24 January 2013 and the reasons given for separation were shortage of work and end of seasonal contract.

[29] I therefore find that there was a termination of employment at the initiative of the employer on 24 January 2013.

WHETHER A GENUINE REDUNDANCY?

[30] I turn now to consider the issue of genuine redundancy. This submission also relies upon the criteria set out in section 385 of the Act, set out above, and relevant to this issue, is the criterion in section 385(d). For an employee to have been unfairly dismissed, FWC needs to be satisfied “the dismissal was not a case of genuine redundancy.”

[31] The meaning of genuine redundancy is in turn set out in section 389 of the Act and the relevant test in that provision includes the following:

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) ...

[32] While the evidence before me discloses the employer has not re-employed a person in Mr Trott’s position since he left, this is different from being persuaded that he was dismissed for the reasons associated with genuine redundancy. Instead I find the circumstance by which Mr Trott has not been replaced as a happenstance after he finished with Hardwick Way. In order to find that Mr Trott was dismissed for reasons of genuine redundancy I would need to be satisfied that the reasons were known as the preferred course of action on the part of the employer before termination was effected.

[33] Accordingly, I decline to find in favour of the employer in relation to genuine redundancy.

EXTENSION OF TIME

[34] In respect of extension of time, Mr Trott’s employment came to an end on Thursday, 24 January 2013. He filed his application for unfair dismissal in the Fair Work Commission on Tuesday, 12 March 2013.

[35] Unless an extension of time is granted by the Commission, applications for unfair dismissal must be made within 21 days after the dismissal took effect. As previously indicated, I find that the termination took effect on 24 January 2013. As a result, an application for unfair dismissal should have been made no later than 14 February 2013, which is within 21 days after the termination took effect. The application, as made by Mr Trott, is therefore 19 days out of time.

[36] The capacity of the Fair Work Commission to extend the time for making an unfair dismissal application is set out within section 394 of the Act. The Act provides a discretion for extension where the Commission is satisfied there are exceptional reasons for doing so, taking into account six criteria, which are set out in subsection 394(3), which provides as follows;

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.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.

[37] The Commission may extend the time period for lodging an unfair dismissal application only if there are exceptional circumstances. However, in previous hearings the Commission has determined that in considering what may be exceptional circumstances, it can look for circumstances that are out of the ordinary course, are unusual, special or uncommon. The circumstances need not be unique, unprecedented or very rare.

[38] In considering whether an extension of time should be granted to Mr Trott for the filing of his application, I must have regard to the statutory criteria set out in the section and I am required to consider all of the criteria.

The reason for the delay

[39] In relation to Mr Trott, the evidence indicates there was plainly an argument in the workplace on or around 11 January 2013. The circumstances and follow-on events from the argument are relevant the first of the criteria, which is relates to the need to take into account the reason for the delay. While it is not relevant at this time to determine the nature of causes of the argument, it led to Mr Trott’s departure from the workplace, initially on leave but then permanently.

[40] On 14 January 2013 Mr Trott saw a medical practitioner. As I have referred to, the practitioner provided Mr Trott with a certificate of absence. On 24 January Mr Bedendo wrote a letter to Mr Trott in the terms already outlined. Mr Trott then made contact with the Fair Work Commission on 30 January 2013. In his outline of submissions, Mr Trott explains the following;

“1. I contacted Fair Work Commission (FWC) by telephone on the 30th Jan 2013, and explained my position in detail and what had happened at my workplace to the phone operator from FWC. The FWC lady then suggested that I telephone Fair Work Ombudsman (FWO) as it seemed to her to be a complaint for them.

2. I contacted the Fair Work Ombudsman on the 31st of January 2013. Only after weeks and weeks of waiting and a quick phone conversation here and there was the matter referred to mediation, to which I agreed. Through a conversation with a member of the Mediation team I was informed that it sounded like I had a case for unfair dismissal as well and that that was a FWC matter, as FWO did not handle unfair dismissal cases.

3. Due to the lack of communication and understanding between myself and the initial FWC Operator on the 30th January 2013, I proceeded as directed and as advised by FWC operator and lodged a complaint with FWO.” 4

[41] In the absence of alternate evidence I accept what Mr Trott has to say in the first three paragraphs of his Outline of Submissions. Mr Trott, continues in paragraph 4 to say that at the time he was unaware of his eligibility to lodge an unfair dismissal claim and in paragraph 5 he refers to an attached Fair Work Ombudsman email. Part of that email is from Christine Scott, who is a Mediator within the Fair Work Ombudsman. Within that email Ms Scott says, in part:

“Dear Lee,

I refer to the complaint lodged by you with the Fair Work Ombudsman (FWO) against Hardwick Way Pty Ltd (the company) on 31 January 2013.

I am writing to confirm that a resolution was unable to be achieved by mediation on 15 March 2013 as your former employer did not wish to participate in the mediation. This concludes my role in the process. Your complaint will now be referred to a Fair Work Inspector (FWI) to be considered for further action.

...” 5

[42] By way of an email to both parties dated 11 June 2013, I disclosed that until recently I was the Fair Work Ombudsman and the Chief Executive of the Office of the Fair Work Ombudsman. I advised the parties that the Office of the Fair Work Ombudsman is a completely separate organisation to the Fair Work Commission and things said to one organisation and its officers are not provided to the other. I advised the parties that, as Fair Work Ombudsman, I did not have personal knowledge of this particular matter and did not believe that my previous position would cause any problems in making a determination in this particular matter.

[43] There is no evidence before me as to what was said to either the Fair Work Commission or the Fair Work Ombudsman about the reasons for Mr Trott’s communication with them.

[44] In making this finding, I note the communication from my Chambers to both Mr Trott and Mr Bedendo on 25 June 2013, which indicated that since the submissions of each party referred to documents and particular dealings with the Fair Work Ombudsman in their submissions they could make an application for orders for the production of relevant documents including from the Fair Work Ombudsman if they did not currently have a copy of the documents. Such an order was not sought and Mr Trott did not provide evidence of his communications with either the Fair Work Commission or the Fair Work Ombudsman other than the information contained within his submissions, which includes nothing further than an email from a Fair Work Ombudsman mediator .

[45] After considering the evidence given by the Applicant in this matter, together with the written submissions he has provided, and taking those into account with the evidence and submissions of the Respondent, I am satisfied that Mr Trott’s primary motivation in contacting firstly the Fair Work Commission and then the Fair Work Ombudsman was his concern about his pay and principally the removal of RDO credits and the failure by Mr Bedendo to pay notice on termination.

[46] Mr Trott strikes me as articulate and confident and capable of explaining what he is after. I am therefore satisfied that he explained things to the Fair Work Commission advisor in such a way as for them to conclude the issues he sought help with were about underpayment of wages. I am satisfied in the absence of evidence to the contrary that the Fair Work Commission advisor correctly advised Mr Trott he should contact the Fair Work Ombudsman which he did. I am also satisfied, again, in the absence of evidence to the contrary that the Fair Work Ombudsman assisted Mr Trott in matters relating to the underpayment of wages and that it was only at a point in March when it became clear that the Fair Work Ombudsman was not going to be able to assist him further, that Mr Trott decided to commence an unfair dismissal application.

[47] The decision of Nulty v Blue Star Group Pty Ltd  6 is not dissimilar to the issues in these proceedings, in that it refers to a matter which also involved contact with the Fair Work Ombudsman. In that case the full bench said;

“We accept that, generally speaking, acting on incorrect advice from a relevant government agency will constitute an exceptional circumstance for the purposes of s 366(2). The appellant’s complaint about the FWO advice appears to be that FWO should have recognised that the appellant did not have a viable unfair dismissal claim (because she had not completed the qualifying period) but that she did have a potential claim under s 365 and advised her to consider commencing an application under s 365.

It is not clear on the evidence before the Commissioner that the FWO was aware that the appellant had been dismissed after only five months let alone that the FWO was in a position to recognise that the appellant had a potential claim under s 365. We are not persuaded that there is a sufficient evidentiary foundation for a finding that the FWO gave incorrect advice in relation to the facts as the appellant conveyed them to the FWO.” 7

[48] As a result of Mr Trott’s circumstances which I have outlined, and in the absence of evidence that would show he actively sought to challenge his termination of employment, as contrasted with the steps he took to challenge his payments, I am not satisfied the reasons for the delay in Mr Trott making an unfair dismissal application are sufficient to warrant an extension of time.

[49] I turn and consider the other criteria.

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

[50] I am satisfied on the evidence before me that Mr Trott first became aware of the termination of his employment when he received the letter Mr Bedendo sent to him, dated 24 January. That letter indicates Mr Trott first became aware of the dismissal after it had taken effect.

[51] I find that while he was notified after the date on which the dismissal took effect, he found out not long after.

Any action taken by the person to dispute the dismissal

[52] In respect of the third criterion, any action taken by the person to dispute the dismissal, as referred to earlier, I find that Mr Trott’s motives in approaching firstly the Fair Work Commission and secondly, the Fair Work Ombudsman from the end of January were to determine what he regarded as an underpayment, rather than to dispute his dismissal. I find that Mr Trott did not take action to dispute his dismissal until the time that he made the application to the Fair Work Commission dated 12 March 2013.

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

[53] The fourth relevant criterion is prejudice to the employer, including prejudice caused by the delay. While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits hearing is not likely to bring forward much additional material to that already before the commission.

The merits of the application

[54] The fifth criterion refers to a consideration of the merits of the application. This criterion requires consideration of whether the limited evidence I have seen to date discloses a likely unfair dismissal. Because of what I have seen to date I do not make that finding.

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

[55] In considering whether I should grant an extension of time I need to have regard to whether it is fair to other unfair dismissal applicants who might not receive an extension of time to their applications. Principally for the reason that I do not consider there to be an adequate explanation for the delay in making the unfair dismissal application, I consider it would be unfair to other applicants if I were to accede to Mr Trott’s application on this occasion.

[56] For the reasons I have given I decline to grant an extension of time pursuant to section 394 of the Act. An order dismissing Mr Trott’s application was issued on 5 September 2013. 8

COMMISSIONER

Appearances:

Mr L. Trott on his own behalf

Mr C Morgan, solicitor, and Mr J Bedendo on his own behalf

Hearing details:

2013.

Wangaratta:

July, 9 and August, 19.

 1   Exhibit R4.

 2 Williams SDP, 30 October 1997 P6340.

 3   Ibid, pp 2-3.

 4   Applicant’s Outline of Submissions, 10 May 2013.

 5   Email from FWO to Applicant, undated.

 6 [2011] 203 IR 1. Lawler VP, Sams DP and Thatcher C.

 7   ibid, para 26-27.

 8   PR541325.

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<Price code C, PR541570>