Leslie Manallack v Kangaroo Flat Bus Lines T/A Bendigo Coach Lines

[2017] FWC 4660

[2017] FWC 4660

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leslie Manallack
v
Kangaroo Flat Bus Lines T/A Bendigo Coach Lines
(U2017/5684)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 SEPTEMBER 2017

Application for relief from unfair dismissal - application not made in accordance with the Fair Work Act 2009 - irregularity in the application waived.

[1] Mr Leslie Manallack made an application for unfair dismissal remedy on 29 May 2017 under s.394 of the Fair Work Act 2009 (the Act). In its Form F3 – Employer Response filed on 5 June 2017, Kangaroo Flat Bus Lines T/A Bendigo Coach Lines (Bendigo Coach Lines) objected to the application because it was made prior to the effective date of dismissal.

[2] Mr Manallack stated in his Form F2 – Application that he was notified of his dismissal on 16 May 2017 and that it took effect on 29 May 2017. At the time of lodging its Form F3, Bendigo Coach Lines maintained that it notified Mr Manallack of his dismissal on 16 May 2017 and that it took effect on 1 June 2017.

[3] The matter was referred to conciliation on 15 June 2017 but it did not resolve. Following this, the matter was referred for further programming and directions were issued by the Fair Work Commission (the Commission). Subsequently, the Commission sent correspondence to parties on 13 July 2017 regarding the objection of Bendigo Coach Lines that Mr Manallack’s application is invalid because it was made prior to the effective date of his dismissal.

[4] The correspondence referred parties to the decision of the Full Bench of the Commission in Mihajlovic v Lifeline Macarthur 1(Mihajlovic) as authority for the proposition that the Commission has discretion to amend the application, pursuant to s.586(b) of the Act, in “circumstances where an application has been filed before a dismissal has taken effect”.

[5] As such, parties were directed to file and serve statements, submissions and any other relevant material in support of the date upon which they say the termination of Mr Manallack’s employment took effect.

[6] This correspondence further provided that in the event of a finding that Mr Manallack’s termination took effect after 29 May 2017, parties were directed to file submissions as to whether or not the discretion in s.586(b) of the Act should be exercised to waive the irregularity in the manner in which the application was made.

Submissions of Mr Manallack

[7] Mr Manallack submitted that his termination took effect either on 6 May 2017, when Bendigo Coach Lines sent him a letter advising he was suspended without pay, or alternatively, on 16 May 2017.

[8] Mr Manallack said the letter to him from Bendigo Coach Lines received on 6 May 2017 indicated his suspension was based on allegations involving “unwarranted and inappropriate comments and behaviour” by him towards staff of Leumeah Lodge, an accommodation facility in Canberra where he had stayed during a recent work trip.

[9] This letter indicated the management of Leumeah Lodge had advised he was no longer welcome there and that his suspension would be “until the matter can be resolved.” Mr Manallack submitted this made it apparent that resolution was not likely and he considered he had been dismissed.

[10] On 16 May 2017, an email was received by Mr Manallack from Bendigo Coach Lines. He submitted this email purported to terminate his employment if he did not, by the end of the month, provide written confirmation that Leumeah Lodge had either accepted an apology from him or had reached a “satisfactory outcome” regarding the matter that had led to Bendigo Coach Lines suspending him.

[11] Mr Manallack submitted that when he received this email, he was “already effectively dismissed, having been suspended from at least 6^th May 2017”. Mr Manallack contended that “termination, whenever it occurred, was without pay and so was immediate notwithstanding that the final e-mail stated that dismissal was effective at the end of the month”.

[12] In support of this proposition, Mr Manallack:

● referred to the approach taken by the Industrial Relations Court of Australia (Wilcox CJ) in Siagian v Sanel Pty Ltd 2(Siagian);

● stated “In that case Wilcox CJ, quoting MR Freedland (The Contract of Employment (1975)), noted that ‘It would seem that a lawful termination of employment by payment in lieu of notice normally results in an immediate termination of the contract of employment. The termination will not be projected to the end of the notional period of notice’”;

● argued that despite there not having been a payment in lieu of notice made to him by Bendigo Coach Lines, there was an immediate dismissal of his employment without a notice period; and

● the approach in Siagian should be followed.

[13] It was further submitted by Mr Manallack that he would suffer hardship if his application was not heard. In this regard, he asserted the following:

● he is unlikely to find suitable alternative employment;

● his name in the industry has been besmirched; and

● he has experienced depression and anxiety due to the nature of the allegations and his insistence that they are incorrect.

[14] In all of the circumstances, Mr Manallack submitted that if the Commission finds that his application was made prior to the effective date of his dismissal, it should exercise the discretion provided in s.586(b) to waive the irregularity in the manner in which his application was made.

Submissions of Bendigo Coach Lines

[15] Bendigo Coach Lines received notification on 31 May 2017 that Mr Manallack had made application for unfair dismissal remedy and in submissions filed on 25 July 2017, it submitted that while it had initially stated that the dismissal had been effective as at 1 June 2017, it subsequently extended the termination date in its Form F3 filed on 5 June 2017 “until [it] received the transcripts and video from Leumeah Lodge staff”.

[16] Bendigo Coach Lines submitted that having read the transcripts and taken into consideration the fact that Mr Manallack had “not addressed the allegations or had the ban lifted”, it nonetheless gave him the opportunity to resign at the conciliation conference on 15 June 2017. With Mr Manallack having rejected that offer, Bendigo Coach Lines submitted it terminated his employment, effectively for breach of its discrimination and sexual harassment policy, with the termination taking effect from 19 June 2017.

[17] As to whether the Commission should exercise its discretion pursuant to s.586(b) of the Act, Bendigo Coach Lines made no submission.

Consideration

[18] There is no dispute between the parties that Mr Manallack has been dismissed. Mr Manallack contends the dismissal was effective either on 6 May 2017, when he received advice he was suspended without pay, or, at the latest, when he received the further correspondence from Bendigo Coach Lines on 16 May 2017.

[19] I do not accept either of Mr Manallack’s propositions.

[20] The letter Mr Manallack received on 6 May 2017 advised he was suspended without pay until the matter could be resolved and recommended he both address the allegations and write a letter of apology. It did not advise his employment had been terminated and I am not persuaded that Siagian applies to these circumstances. Mr Manallack assumed he would be dismissed regardless of any action he might take.

[21] As to the email dated 16 May 2017, I do not consider that this served to dismiss Mr Manallack. In it, Bendigo Coach Lines advised it required Mr Manallack to provide written confirmation that Leumeah Lodge had either accepted an apology from him or had reached a “satisfactory outcome” that had removed the “ban” placed on him by the end of the month and if this did not occur, it would have no alternative but to terminate his employment.

[22] Had Leumeah Lodge, in the period between 16 May 2017 and 31 May 2017, either accepted an apology from Mr Manallack or had reached a “satisfactory outcome” such that it had removed the ban it had placed on him, it is unclear what Bendigo Coach Lines would have done but it could not have been assumed that it would have dismissed Mr Manallack with effect from the end of the month. Mr Manallack assumed he was dismissed as at 16 May 2017 when the email to him said no such thing.

[23] Each of the positions regarding the date of dismissal Bendigo Coach Lines has adopted have the dismissal taking effect after Mr Manallack made an application for unfair dismissal remedy on 29 May 2017.

[24] The position ultimately adopted by Bendigo Coach Lines is that the termination of Mr Manallack’s employment took effect on 19 June 2017. This appears to be on the basis that Mr Manallack rejected an offer made at or shortly after the conciliation conference held on 15 June 2017 that he tender his resignation. The Commission’s case management system indicates that on 21 June 2017, Mr Manallack had advised of his preference for the application to proceed to a hearing.

[25] The validity of unfair dismissal applications filed on a date before the dismissal has taken effect was considered by the Full Bench in Mihajlovic, where it said:

“[42] Section 394(1) is, we consider, a procedural provision which identifies who may make an application, similar to the statutory provision considered in Emanuele v Australian Securities Commission. It does not go to the jurisdiction of the Commission to grant an unfair dismissal remedy under Part 3-2 of the Act. An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose to render any such application automatically invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made. We consider that Mr Mihajlovic’s premature filing of his application constituted an irregularity in the manner in which he made his application capable of waiver under s.586(b).” 3

[26] In Mihajlovic, the Full Bench remitted the matter back to Vice President Hatcher to determine whether the discretion in s.586(b) of the Act should be exercised. 4 In subsequently exercising his discretion to waive the irregularity, the Vice President stated:

“[6] The practical position in the matter before me is that there is no doubt that Mr Mihajlovic is, and has been since 5 September 2013, a person who has been dismissed within the meaning of that expression in s.386 of the Act. The Commission therefore has, subject to any separate jurisdictional objection, jurisdiction to entertain his claim for an unfair dismissal remedy. There is no suggestion that the fact the application was filed prematurely has caused any prejudice to the respondent. It has necessarily been on notice at all times since his dismissal took effect that Mr Mihajlovic contested his dismissal and sought an unfair dismissal remedy. This is not a situation whereby “exceptional circumstances” have to be demonstrated in order for a waiver to be granted, by contrast to an extension of time application under s.394(3). Prima facie, there is a strong case for the waiver to be granted.

…

[8]I am not prepared to conclude that his application is without merit. Its grounds are not confined to the issue of the payment of statutory entitlements; he contends for example that there was no valid reason for his dismissal and that he was (in substance) denied procedural fairness.

[9] If I were to dismiss Mr Mihajlovic’s current application, he would be compelled to make an application under s.394(3) of the Act for a further period in which to file the same application a second time. Such an application would undoubtedly be opposed by the respondent, and might well not succeed given the necessity to demonstrate exceptional circumstances. Further proceedings involving effort, inconvenience and cost to both parties would be necessary, and might result in a significant injustice being done to Mr Mihajlovic, for no discernible public policy reason. I consider this would be a perverse outcome, and that the discretion in s.586(b) should be exercised in Mr Mihajlovic’s favour.” 5

[27] I intend to have regard to similar considerations in determining whether to exercise my discretion to waive the irregularity in the manner in which Mr Manallack’s application for unfair dismissal remedy was made.

[28] This is an unusual set of circumstances. Rather than responding to allegations that were made against him, Mr Manallack simply assumed he would be dismissed. He also seems to have equated suspension without pay as a dismissal.

[29] For its part, Bendigo Coach Lines received notification of the application for unfair dismissal remedy on 31 May 2017, at which time it does not appear to have made a final decision as to whether or not to terminate Mr Manallack’s employment. In its Form F3 – Employer Response filed on 5 June 2017, Bendigo Coach Lines indicated it was prepared to “extend” Mr Manallack’s employment until it had received the transcript and video footage from Leumeah Lodge.

[30] This sequence of events leaves it open for me to conclude that there was a state of confusion.

[31] There is no suggestion by Bendigo Coach Lines that the fact the application was filed prematurely has caused it any prejudice. Bendigo Coach Lines has been on notice at all times since the application was filed on 29 May 2017 that Mr Manallack considers he has been dismissed and contests it.

[32] I am not in a position at this time to conclude Mr Manallack’s application is without merit. He maintains there was no valid reason for his termination because the allegations against him are incorrect.

[33] In all of the circumstances of this application, I consider the discretion in s.586(b) of the Act should be exercised in Mr Manallack’s favour.

[34] Pursuant to s.586(b) of the Act, I waive the irregularity in the manner in which Mr Manallack made his application for an unfair dismissal remedy. The matter will now be referred for further programming for its further disposition.

DEPUTY PRESIDENT

 1   [2014] FWCFB 1070.

 2 (1994) 54 IR 185.

 3   [2014] FWCFB 1070 at [42].

 4 Ibid at [44].

 5   [2014] FWC 1871.

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