Leigh Wallace v Duo Trading Pty. Ltd

[2024] FWC 28

[2024] FWC 28

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Leigh Wallace
v

Duo Trading Pty. Ltd.

(U2023/10078)

COMMISSIONER LEE MELBOURNE, 5 JANUARY 2024

Application for an unfair dismissal remedy-dispute as to when dismissal took effect

1. This is an edited version of the decision given in transcript on 20 November 2023.

2. My decision in this matter is as follows. 

1. There is a dispute as to when the dismissal of the Applicant took effect.  The Respondent has asserted that the dismissal took effect on 22 September 2023.  The Applicant, Mr Wallace submits that the dismissal took effect on 25 September 2023.  The parties made submissions on this matter before me during the hearing on 20 November 2023.

1. Essentially, in the circumstances where there is a letter of termination of employment that's been given to the Applicant which has as the first paragraph – and the letter is dated 22 September 2023[1]

“Dear Leigh, as per our conversation earlier today over the phone, we have decided to terminate your employment with Duo Trading Pty Ltd, effective 25 September”

1. It seems abundantly clear that the dismissal took effect on 25 September, notwithstanding the reasons that the Respondent has articulated at the hearing for providing that later date of 25 September. [2]

1. The key reason for nominating 25 September as articulated by Mr. Stopp, the author of the letter, was that he wanted to ensure that the Applicant remained an employee while he maintained possession of the company vehicle.[3] Consistent with the intent of Mr. Stopp, it was clearly communicated to the Applicant that there was an effective date of 25 September for his employment to end.[4]

1. Therefore, my determination is the dismissal took effect on 25 September 2023, and for relevant purposes that means that the application for unfair dismissal remedy that was made by the Applicant was made within the statutory time period. 

2. I note that the Respondent has conceded that the Applicant meets the minimum employment period.[5]

3. Therefore, there are no jurisdictional barriers to this matter proceeding to a hearing on the merits.

COMMISSIONER

Appearances:

L Wallace for the Applicant
B Fergusson for the Respondent       

Hearing details:

2023.
Melbourne (Video via Microsoft Teams):
20 November.

[1] PN48.

[2] PN50

[3] PN35

[4] PN50

[5] PN10-PN15.

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