Leighton Cowley v Dust-A-Side Australia Pty Ltd

[2015] FWC 2024

[2015] FWC 2024 [Note: An appeal pursuant to s.604 (C2015/5818) was lodged against this decision - refer to Full Bench decision dated 24 May 2016 [[2016] FWCFB 3220] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

Leighton Cowley
v
Dust-A-Side Australia Pty Ltd
(C2015/186)

DEPUTY PRESIDENT ASBURY

BRISBANE, 25 AUGUST 2015

Application in relation to industry specific long service leave.

1. BACKGROUND

[1] Mr Leighton Cowley applies under s. 739 of the Fair Work Act 2009 (the FW Act) for the Fair Work Commission to deal with a dispute in accordance with a dispute settlement procedure. The Respondent is Dust-A-Side Australia Pty Ltd (Dust-A-Side). The dispute is said to be in relation to Mr Cowley’s long service leave entitlements under the Coal Mining Industry (Long Service Leave) Administration Act 1992 (the LSL Act).

[2] Mr Cowley states that he was dismissed on 19 January 2015 and applied to the Coal Mining Industry (Long Service Leave Funding) Corporation (the LSL Corporation) for a long service leave benefit from the Coal Mining Industry (Long Service Leave) Fund (the LSL Fund) maintained by the LSL Corporation on the basis that the reason for his dismissal was “retrenchment”. That application was refused by the LSL Corporation. Mr Cowley further states that the reason for the refusal is that Dust-A-Side provided incorrect information to the LSL Corporation in relation to the reason his employment terminated.

[3] Mr Cowley asserts that he was told by Dust-A-Side, both orally and in writing, that he was being retrenched and that Dust-A-Side subsequently asserted a different reason for the termination of his employment to the LSL Corporation. The relief sought by Mr Cowley in respect of his application under s. 739 of the Act is expressed as follows: “I would like the employer to agree that the termination is retrenchment as the letter I was provided states.”

2. RELEVANT PROVISIONS OF THE LSL ACT

[4] The LSL Act establishes a statutory scheme to provide minimum entitlements and rights for eligible employees employed in the black coal mining industry in respect of long service leave. This is achieved by the establishment of the LSL Fund and the appropriation of money for the purposes of the LSL Fund by way of a payroll levy paid by employers under the Coal Mining Industry (Long Service Leave) Payroll Levy Collection Act 1992. 1 An eligible employee is an employee defined in s.4 of the LSL Act to include an employee employed in the black coal mining industry whose duties are carried out at or about a place where black coal is mined and are directly connected with the day to day operation of a black coal mine.

[5] The LSL Act provides, at s. 39A, that an eligible employee who completes a period of qualifying service, or periods that add up to at least eight years, is entitled to long service leave in respect of that period or those periods of qualifying service. By virtue of s. 39C of the LSL Act, an employee who ceases to be an eligible employee (other than by death) and has a period of untaken long service leave can request the employer to make a payment which must be no less than the amount that would have been payable to the employee had the employee taken the period of long service leave, less any amount previously paid to the employee with respect to long service leave.

[6] Section 39CB of the LSL Act reduces the qualifying period to six years for employees who cease to be eligible employees because of redundancy. That section is in the following terms.

“Payment on cessation--redundancy

(1) This section applies if:

(a) an employee ceases to be an eligible employee because he or she is made redundant; and
(b) at the time of so ceasing, the employee has completed a period, or periods, of qualifying service (being a period that is, or periods that add up to, at least 6 years) in respect of which the employee is not entitled to long service leave under this Part; and
(c) at any time after so ceasing, the employee requests the employer, in writing, to make a payment under this section.

(2) The employer must, within 30 days after the request is made, pay the employee no less than the amount that would have been payable to the employee under this Part had the employee:

(a) been entitled to long service leave for the period, or periods, of qualifying service; and
(b) taken that long service leave immediately before ceasing to be an eligible employee;

less any amount previously paid to the employee under this section.

(3) Subsection (2) is a civil penalty provision.”

[7] The LSL Act confers jurisdiction on the Commission to deal with disputes relating to long service leave by s.39D which provides as follows:

“39D FWC may deal with disputes relating to long service leave

(1) Despite subsection 595(1) of the Fair Work Act 2009, the FWC may deal with a dispute (an LSL dispute) about matters in relation to long service leave under this Part.

(2) For the purposes of the FWC dealing with an LSL dispute, the Fair Work Act 2009 applies as if:

(a) the dispute were a dispute in relation to the National Employment Standards; and
(b) subsection (1) of this section were a term referred to in section 738 of that Act; and
(c) a reference in subsection 739(5) of that Act to “this Act” were a reference to “the Coal Mining Industry (Long Service Leave) Administration Act 1992 “.”

[8] Part 7 of the Act provides for payments out of the fund to reimburse employers who make payments to eligible employees. It appears from the material filed by the parties that the practical effect of the LSL Act is that employees apply directly to the LSL Corporation for a long service leave benefit on termination of employment and the Corporation pays the benefit directly to the employee.

[9] It also appears from the material provided by the parties that when an application for a long service leave benefit on termination is made, the LSL Corporation requires that the employee and the employer each complete a form. The form requires that one of a number of codes encapsulating various reasons for termination of employment is used to record the manner in which employment terminated. The relevant termination Codes set out on the form from which a selection is required to be made are:

● 01 Retirement;
● 02 Ill health/Incapacity;
● 04 Retrenchment;
● 05 Resignation/End of Contract and
● 06 Dismissal.

(There is no code 3 on the form).

3. JURISDICTION OF THE COMMISSION TO DEAL WITH THE DISPUTE

[10] It is necessary to consider the jurisdiction of the Commission to deal with the application. The submissions of the parties did not deal with the matter of jurisdiction. As previously noted, s. 39D of the LSL Act confers jurisdiction on the Commission to deal with an “LSL Dispute” as if it were a dispute in relation to the National Employment Standards (NES). Section 595 of the LSL Act sets out the Commission’s power to deal with disputes, and states:

“595 FWC’s power to deal with disputes

(1) The FWC may deal with a dispute only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.

(2) The FWC may deal with a dispute (other than by arbitration) as it considers appropriate, including in the following ways:

(a) by mediation or conciliation;
(b) by making a recommendation or expressing an opinion.

(3) The FWC may deal with a dispute by arbitration (including by making any orders it considers appropriate) only if the FWC is expresslyauthorised to do so under or in accordance with another provision of this Act.

Example: Parties may consent to the FWC arbitrating a bargaining dispute (see subsection 240(4)).

(4) In dealing with a dispute, the FWC may exercise any powers it has under this Subdivision.
Example: The FWC could direct a person to attend a conference under section 592.

(underline and emphasis added)

[11] Section 738 of the Act provides as follows:

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.”

[12] Section 739 of the Act is in the following terms:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.”

[13] It is not in dispute that Mr Cowley’s employment with Dust-A-
Side ended on 19 January 2015. It is also not in dispute that Mr Cowley was covered by the Black Coal Mining Industry Award 2010 with respect to his employment by Dust-A-Side. There is no evidence that an enterprise agreement applied to Mr Cowley in relation to his employment with Dust-A-Side and accordingly I am satisfied that the Black Coal Mining Industry Award 2010 applied to him.

[14] In relation to dispute resolution, clause 9 of the Black Coal Mining Industry Award is in the following terms:

9. Dispute resolution
[Varied by PR994553, PR542121]

9.1 In the event of a dispute about a matter under this award, or a dispute in relation to the NES, in the first instance the parties must attempt to resolve the matter at the workplace by discussions between the employee or employees concerned and the relevant supervisor. If such discussions do not resolve the dispute, the parties will endeavour to resolve the dispute in a timely manner by discussions between the employee or employees concerned and more senior levels of management as appropriate.

[9.2 varied by PR994553, PR542121 ppc 04Dec13]

9.2 If a dispute about a matter arising under this award, or a dispute in relation to the NES is unable to be resolved at the workplace, and all appropriate steps under clause 9.1 have been taken, a party to the dispute may refer the dispute to the Fair Work Commission.

[9.3 varied by PR994553, PR542121 ppc 04Dec13]

9.3 The parties may agree on the process to be utilised by the Fair Work Commission including mediation, conciliation and consent arbitration.

[9.4 varied by PR994553, PR542121 ppc 04Dec13]

9.4 Where the matter in dispute remains unresolved, the Fair Work Commission may exercise any method of dispute resolution permitted by the Act that it considers appropriate to ensure the settlement of the dispute.

9.5 An employer or employee may appoint another person, organisation or association to accompany and/or represent them for the purposes of this clause.

9.6 While the dispute resolution procedure is being conducted, work must continue in accordance with this award and the Act. Subject to applicable occupational health and safety legislation, an employee must not unreasonably fail to comply with a direction by the employer to perform work, whether at the same or another workplace, that is safe and appropriate for the employee to perform.

[15] The application subject of this Decision was made on 29 January 2015. It is not clear whether Mr Cowley put the matter of his long service leave entitlements into dispute before his employment was terminated. It is arguable that the Commission does not have jurisdiction to deal with the dispute in circumstances where Mr Cowley’s employment ceased before the application under s. 739 of the Act was made and where the matter was not in dispute under the terms of the Dispute resolution procedure in the Award, while Mr Cowley was employed. This matter was not argued before me by either party.

[16] If the Commission does have jurisdiction to deal with the application, it is not expressly authorised to deal with the dispute by arbitration and the extent of the power to deal with the dispute is conciliation.

4. PROCEEDINGS IN THE COMMISSION

[17] A Conciliation Conference was convened on 26 February 2015. During that conference, Mr Cowley referred to a letter that he asserted had been received from Dust-A-Side informing him of the termination of his employment. The letter is dated 19 January 2015 under the signature of Mr Hoskin and is in the following terms:

“Re: Your retrenchment of employment with Dust-A-Side Australia Pty Ltd (Dust-A-Side)

Further to the verbal notification provided to you this morning, this letter serves to inform you that your employment with Dust-A-Side has been terminated with effect from 19 January 2015. You will therefore not be required to return to work for your next rostered shift due on 23 January 2015.

Your final pay and any outstanding accrued entitlements will be processed on Wednesday 21st January as part of the usual fortnightly payroll period.”

[18] The letter was appended to Mr Cowley’s application and is dated 19 January 2015. Mr Cowley asserted, in an email sent with his application, that he received the letter appended to his application on 19 January 2015. At the Conference on 26 February 2015, Mr Cowley said that he had received the letter by post on 21 January 2015 and not by email. Mr Cowley also said that Dust-A-Side had subsequently completed documentation for the LSL Corporation stating that his dismissal was for different reasons to that set out in the letter of 19 January 2015 and that as a result, he had been unable to access his long service leave entitlements.

[19] Mr Hoskin who represented Dust-A-Side at the Conference of 26 February 2015 asserted that the letter tendered by Mr Cowley had not been sent by Dust-A-Side and that Mr Cowley had altered the letter sent to him by the Company by inserting the word “Retrenchment”. Mr Hoskin further asserted that Mr Cowley was a short term casual employee whose services were no longer required because he was not a suitable employee. There had been no discussions or consultative process with Mr Cowley about the reason for his dismissal and the dismissal was not a redundancy.

[20] Given the disputed facts, it was necessary to issue Directions requiring the parties to file further material. Directions were issued requiring the parties to file and serve statements in the form of statutory declarations and to attach to those declarations all relevant documentation that they claimed had been sent and to detail the manner in which this had occurred. Mr Cowley was directed to forward the original version of the letter he claimed to have received by post and was provided with a reply paid, self-addressed envelope for this purpose.

[21] Documents were filed by the Applicant, by post on 9 March 2015. A scanned copy of the original version of the disputed letter was sent to Mr Hoskin, by the Commission, on 10 March 2015. The Respondent filed a bundle of documents on 16 March 2015 including statutory declarations made by various managers who had dealings with Mr Cowley in relation to the termination of his employment.

[22] The matter was listed for Conference/Hearing on 24 March 2015. The hearing was conducted by telephone at the insistence of both parties on the basis that they did not wish to incur the expense of travelling and having witnesses available in person. The evidence set out in the Statutory Declarations filed by the parties and the oral evidence given at the hearing is summarised below. It is convenient to deal with the evidence of witnesses for the Company first.

[23] Dust-A-Side filed Statutory Declarations made by Mr Hoskin, Mrs Miempe Coetzer, Administration Manager, and Mr Des Hetherton, Superintendent. Mr Hoskin states that Mr Cowley commenced casual employment with the Company on 2 December 2014. Mr Cowley undertook training for a period of 60.45 hours and worked for 121.2 hours in the period from 14 December 2014 to 18 January 2015. Mr Cowley was issued with a final warning for a safety incident on 9 January 2015. Mr Hoskin said that due to Mr Cowley’s unsatisfactory work performance, it was decided to terminate his employment and this was conveyed to Mr Cowley by Mr Hewitt, Technical Manager, in a telephone call on 19 January 2015. Mr Cowley was absent from rostered work for the period 16 to 18 January 2015.

[24] Mr Cowley’s role was filled by another operator. According to Mr Hoskin there were twelve operators at the site at which Mr Cowley was working who were on the payroll and operating machinery before Mr Cowley was dismissed and the same number after the dismissal. Mr Hoskin further states that numbers at that site were only reduced from 30 January when one operator left the Company due to resignation.

[25] Mr Hoskin said that on 19 January 2015 he drafted a termination letter for Mr Cowley and forwarded it to Mrs Coetzer, Administration Manager, to issue. That letter, also dated 19 January 2015 and under the signature of Mr Hoskin, is in the following terms:

“Re: Your employment with Dust-A-Side Australia (Dust-A-Side)

Further to the verbal notification provided to you this morning, this letter serves to inform you that your casual employment with Dust-A-Side has been terminated with effect from 19 January 2015. You will therefore not be required to return to work for your next rostered shift due on 23 January 2015.

Your final pay and any outstanding accrued entitlements will be processed on Wednesday 21st January as part of the usual fortnightly payroll period.”

[26] The letter tendered by Mr Hoskin, and which he states was sent to Mr Cowley by email from Mrs Coetzer on 19 January 2015, differs from the letter tendered by Mr Cowley in that it does not include the words “retrenchment of” before the word “employment” in the subject matter and the word “casual” is included before the word “employment” in the body of the letter.

[27] Mr Hoskin made a number of assertions in his statutory declaration including that:

● Contrary to Mr Cowley’s claims Dust-A-Side has not bought two new water trucks;
● The employee that Mr Cowley claims replaced him was employed by Dust-A-Side prior to Mr Cowley’s dismissal and had been on an extended period of sick leave and working at another site;
● The retrenchment letter claimed to have been received by Mr Cowley was not authorised by Mr Hoskin or sent by anyone from Dust-A-Side;
● Mr Hoskin had not seen the retrenchment letter tendered by Mr Cowley until it was provided with Mr Cowley’s application in these proceedings; and

● The only letter in relation to Mr Cowley’s dismissal was the one tendered by Mr Hoskin and sent under his signature to Mr Cowley by Mrs Coetzer by email on 19 January 2015.

[28] Mrs Miempe Coetzer, Administration Manager, who also provided a statutory declaration, verified Mr Hoskin’s evidence about the content of the termination letter. Mrs Coetzer said that the letter terminating Mr Cowley’s employment was forwarded to Mr Cowley by email on 19 January 2015. A covering email said to have been forwarded with the letter was tendered. That email indicates that it was sent on Monday 19 January 2015 at 3.47 pm, under the electronic signature of Mrs Coetzer.

[29] Mrs Coetzer also tendered an email delivery receipt to Mr Cowley. The email address on that delivery receipt is the same email address that has been used by Mr Cowley to communicate with the Commission in respect of his application. Mrs Coetzer states that the letter appended to the email was the letter drafted by Mr Hoskin and set out above. Mrs Coetzer further states that she did not see the letter tendered by Mr Cowley prior to being shown it by Mr Hoskin after the first Conference in the Commission. Mrs Coetzer also said that the version of the letter tendered by Mr Cowley is not on Mr Cowley’s personnel file.

[30] Mrs Coetzer tendered what she said was a response by Mr Cowley to her email sent on Monday 19 January 2015 at 3.47 pm, which was received at 4.01 pm on that date. That response is in the following terms:

“Dear Miempe

Did you receive the letter I sent this morning in regards to the termination. As so I spoke to the LSL Corp which I’m formed myself that the form I sent through needs to be sent to the LSL Corp for them to process my long service as I’ve been in the mining industry the eligible time.”

[31] The “letter” referred to in Mr Cowley’s email was not tendered by either party. An email sent by Mrs Coetzer to the LSL Corporation at 12.56 pm on 20 January 2015 was also tendered in which Mrs Coetzer states that Mr Cowley commenced work with Dust-A-Side on 2 December 2014 and that his casual contract was terminated on 19 January 2015. There was also further correspondence between Mrs Coetzer and the LSL Corporation in relation to the casual hours worked by Mr Cowley in December and January that was tendered by Dust-A-Side.

[32] Mrs Coetzer states that on 20 January she forwarded a form to the LSL Authority entitled “Employer Authority Number Request Form LSL Benefit on Termination of Employment” upon which she indicated that the Code for termination is 05 Resignation/End of contract. Mrs Coetzer said that she selected this code because Mr Cowley’s termination letter said that his employment had been terminated and she saw this as being covered by the code on the form for “End of contract”. Mrs Coetzer said that she received a telephone call from Ms Edwards of the LSL Corporation asking her for information about Mr Cowley as he was not on the member list for Dust-A-Side. This was because Mr Cowley had only commenced employment in December 2014 and would not appear on the Company’s list of employees lodged with the Fund until the end of January 2015.

[33] Mrs Coetzer said that she had an email exchange with Ms Edwards in which Ms Edwards told her that the code 05 was for resignation and that Mr Cowley would not be entitled to long service leave if he resigned his employment as he did not have sufficient service. After further discussions with Ms Edwards and with Mr Heatherton, Mrs Coetzer resent all of the documents to the LSL Corporation and put the code 06 Dismissal on the form as the reason for the termination of Mr Cowley’s employment. The email exchange between Mrs Coetzer and Ms Edwards, referred to by Mrs Coetzer, was not tendered.

[34] Mrs Coetzer also said that on 28 January 2015 she received a telephone call from Ms Edwards who informed her that the reason for termination of employment given by Mr Cowley on the form he had completed for the purposes of applying for a long service leave benefit, differed from the reason given by Mrs Coetzer on the form completed by her. Mrs Coetzer emailed Mr Cowley to tell him that the codes differed and Mr Cowley responded telling Mrs Coetzer to change her code. Mrs Coetzer said that she told Mr Cowley to discuss this with Mr Hoskin. This email exchange is not in evidence.

[35] Dust-A-Side issued an Employment Separation Certificate in respect of the termination of Mr Cowley’s employment dated 30 January 2015, which states that Mr Cowley was dismissed on 19 January 2015 for “unsatisfactory work performance”. Dust-A-Side asserts that the termination letter tendered by Mr Cowley and claimed to have been received by him on 21 January 2015 by post, has been fabricated. Dust-A-Side further asserts that the reason for the termination of Mr Cowley’s employment is unsatisfactory work performance.

[36] In his Form F10 application, Mr Cowley asserts that:

“I was terminated on the 19th January 2015, I had applied to receive my long service leave to LSL Corp and Dust-A-Side Australia Pty Ltd have now said that I was laid off by Dismissal (sic) not retrenchment and they won’t agree to sign of my termination which is required. The LSL Corp is investigating this also as well as the CFMEU and I have been advised to contact Fair Work Australia to hopefully resolve this also.
I am entitled to my long service leave by retrenchment and they provided me the termination letter which now 10 days later there (sic) giving another reason of termination.”

[37] In the covering email sent with his application, Mr Cowley states that the termination letter attached to it was received on 19 January 2015.

[38] In a Statutory Declaration made on 6 March 2015, Mr Cowley states that on the morning of 19 January 2015, he received a phone call from Mr Rory Hewitt, site manager for Dust-A-Side, and was told that he would not be required to turn up to his next shift on 23 January 2015. Mr Cowley states that the reasons given to him for the dismissal during the telephone conversation were that Dust-A-Side had two new Caterpillar 773 water trucks coming and that he was being laid off due to cost cutting to make up for the purchase of the equipment. Mr Cowley also states that he was told that it was the last people that are put on that are first off.

[39] Mr Cowley tendered what he said was a letter of termination dated 19 January 2015, and asserted that he received that letter by post on 21 January 2015. The document provided by Mr Cowley bears Mr Hoskin’s signature. The signature is not an original signature and appears to have been electronically scanned on to the letter. The letter has a logo which is in colour as is the scanned signature which is blue, in contrast with the type face in the letter, which is black.

[40] Mr Cowley disputed evidence of witnesses for Dust-A-Side that the termination letter was emailed to him on 19 January 2015 and maintained that he received the letter by post on 21 January 2015. Mr Cowley denied that he received an email on 19 January 2015 attaching the Company’s version of the termination letter and said that he telephoned Mrs Coetzer on that date to discuss the form that was required to be completed so that he could apply to the LSL Corporation for a long service leave benefit. In relation to the email that he sent Mrs Coetzer at 4.01 pm on 19 January 2015, Mr Cowley maintained that it was not a response to the email Mrs Coetzer claimed to have sent him on that date and that he did not receive an email on that date from Mrs Coetzer attaching the Company’s version of the termination letter.

[41] Mr Cowley also said that he had a discussion with Mrs Coetzer about Mrs Coetzer indicating on the LSL form that the reason for the termination of his employment was dismissal. According to Mr Cowley, Mrs Coetzer told him that he should talk to Neil [Hoskin] about the matter. Mr Cowley said that he then contacted Mr Hoskin who accused him of poor work performance and having no work ethic. Mr Cowley said that he denied this and told Mr Hoskin that it was a false allegation. Mr Cowley said that Mr Hoskin did not respond to a question from Mr Cowley about why Mr Hewitt had given him a different reason for the termination of his employment. Mr Cowley did not clarify the date upon which he had these discussions with Mrs Coetzer or Mr Hoskin.

[42] Mr Cowley further states that the reason for dismissal stated on the LSL form is incorrect as he was not involved in any misconduct. The LSL Corporation has informed Mr Cowley that “dismissal” means an employee has been involved in misconduct or a breach, while retrenchment means a full time, casual or part-time employee is no longer required for work due to operational requirements or shortage of work. Mr Cowley tendered emails referring to a new Watercart on the site. Mr Cowley also tendered rosters to show that an employee who was said to have replaced him was an existing employee.

[43] Mr Cowley also states that he received a letter from Mr Hoskin on 18 February 2015, which stated different reasons for the termination of his employment than were stated in the letter he received by post on 21 January 2015.

5. CONSIDERATION

[44] It does not appear to be in dispute that Mr Cowley has less than eight years but more than six years eligible service in the Black Coal Mining Industry as defined in the LSL Act. It is also apparent that Mr Cowley’s service with Dust-A-Side is qualifying service as defined in s. 39A of the LSL Act in that it has been credited to him by the LSL Corporation. What Mr Cowley seeks to agitate in this application is his allegation that Dust-A-Side has provided incorrect information to the LSL Corporation by stating that he was dismissed.

[45] I do not accept that in the circumstances of this case that the Commission has jurisdiction to deal with the dispute. The evidence demonstrates that Mr Cowley was verbally informed of his dismissal on 19 January 2015 and that it had already been effected at the point he raised the issue of his LSL entitlements with Mrs Coetzer. This is apparent from the email that Mr Cowley sent to Mrs Coetzer at 4.01 pm on 19 January 2015 which refers to the “termination”. It is not in dispute that Mr Cowley was a casual employee. Accordingly he was not entitled to notice and even if it is accepted that the email communication and any discussion with Mrs Coetzer was sufficient to activate the operation of the Dispute resolution procedure in the Black Coal Mining Industry Award 2010¸ Mr Cowley could not commence a dispute under that procedure until after his employment was terminated.

[46] If I am wrong on the question of jurisdiction, I would not find in favour of Mr Cowley or grant him the relief sought in his application. The effect of granting the relief sought by Mr Cowley would be to Order or Recommend that Dust-A-Side provide specified information to a third party - the LSL Corporation. Any Order or Recommendation to that effect would not bind the LSL Corporation so that it was required to release the funds it holds on behalf of Mr Cowley.

[47] I am not satisfied that Mr Cowley has established a basis for an entitlement to the payment from the fund in any event. Mr Cowley has not provided evidence of his total service in the black coal mining industry to establish that the service with Dust-A-Side would make any difference to his right to claim a benefit from the LSL fund at this time.

[48] I am also not satisfied that Mr Cowley was retrenched. The evidence in support of this proposition is:

● a letter Mr Cowley claims to have received by post on 21 January 2015;
● an assertion that he has been replaced, based on rosters said to establish that an existing employee at the point of Mr Cowley’s dismissal is now working a role formerly performed by Mr Cowley; and
● an assertion that Dust-A-Side has bought two new water trucks based on a number of emails referring to new water trucks authored by various managers of Dust-A-Side.

[49] Mr Cowley’s evidence about the letter he claims to have received by post on 21 January 2015 is not convincing. Mr Cowley’s evidence that he did not receive the version of the letter tendered by Dust-A-Side until 18 February when it was attached to the Company’s response to his unfair dismissal application is also not convincing. In a covering email attached to his application to the Commission Mr Cowley states that he received that letter on 19 January 2015. Mr Cowley made no mention of having received the letter by post until the Conference in the Commission on 26 February.

Mrs Coetzer tendered an email sent to Mr Cowley on 19 January 2015 and provided a statutory declaration to the effect that the version of the letter tendered by Mr Hoskin was attached to that email and that she had not seen the version attached to Mr Cowley’s application until after the first conference in the Commission. There is an email to Mrs Coetzer from Mr Cowley sent on 19 January 2015 almost immediately after her email to Mr Cowley and it is more probable than not that Mr Cowley’s email was a response to Ms Coetzer’s email attaching the Company’s version of the termination letter. It is improbable that Mr Cowley decided to email Ms Coetzer within fifteen minutes of her email to him. I do not accept Mr Cowley’s evidence in this regard.

[50] I make no finding that the letter tendered by Mr Cowley was falsified. Such an allegation is serious and requires cogent proof. In circumstances where the hearing in relation to Mr Cowley’s application was conducted by telephone, it is not appropriate to make such a finding. Regardless of the authenticity of the version of the letter tendered by Mr Cowley, I am satisfied and find that he received the version of the letter emailed to him by Mrs Coetzer on 19 January 2010 stating that his casual employment had been terminated.

[51] The fact that Mrs Coetzer made an error when she completed the first form that was submitted by her to the LSL Corporation, does not transform Mr Cowley’s dismissal into a case of retrenchment. At no time has Dust-A-Side provided any information to the LSL Corporation stating that Mr Cowley was retrenched.

[52] The fact that there are new water carts on the site that Mr Cowley worked at does not establish that he was retrenched, even if the carts were purchased by Dust-A-Side. It is equally probable that – consistent with Mr Hoskin’s evidence – the carts were hired rather than being purchased. The reference to new water carts could simply mean that they are new at the site and not that they have been recently purchased. The rosters tendered by Mr Cowley and the fact that his place may have been filled by an existing employee, does not establish that Mr Cowley was retrenched.

[53] For these reasons there is no basis for the Commission to make a Recommendation in the terms sought by Mr Cowley or to otherwise deal with the dispute subject of his application under s. 739 of the Act. That application is dismissed and an Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

 1   Coal Mining Industry (Long Service Leave) Administration Act 1992 s. 3.

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