Luke Kitzelmann v Reardon Operations Pty Ltd
[2023] FWC 2008
•29 NOVEMBER 2023
| [2023] FWC 2008 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Luke Kitzelmann
v
Reardon Operations Pty Ltd
(C2023/3160)
| COMMISSIONER HUNT | BRISBANE, 29 NOVEMBER 2023 |
Application to deal with contraventions involving dismissal – determination of date of dismissal – whether application made within 21-days – dismissal occurred on 18 May 2023 – application made within the 21-day time limit.
On 29 May 2023, Mr Luke Kitzelmann made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Mr Kitzelmann stated that he had been dismissed from his employment with Reardon Operations Pty Ltd (the Respondent) in contravention of the general protection provisions of the Act.
The Respondent completed the Form F8 – Response to general protections application, raising a jurisdictional objection to the application on the grounds that it was lodged more than 21 days after the dismissal took effect.
Mr Kitzelmann was employed on a casual basis as a farmhand. In addition to an hourly rate of pay he was provided with free accommodation, subject to a residential tenancy agreement.
Attached to the employment agreement provided to him by the Respondent is an annexure titled “Annexure B - Occupancy”. It reads as follows:
“38.1 Subject to the provisions described below, the Company shall grant you the right to occupy the house located on the property Kingswood for a period of your employment, in consideration of the performance of the tasks, duties and responsibilities prescribed by your Contract, job description and the Award.
38.2 Subject to any legislative provision to the contrary, your right to occupy the Premises shall end on either:
38.2.1 your last day of employment with the Company; or
38.2.2 the last day of any notice given to you to vacate the premises in accordance with the Residential Tenancies Act 2010;
38.2.3 whichever is the earliest.”
The Respondent asserted that the employment ended at its initiative on 7 March 2023 when Mr Kitzelmann completed his last casual shift. Alternatively, it asserted that the employment ended on 24 April 2023 when Mr Tristram Hertslet, General Manager attended on the house and according to Mr Hertslet, informed Mr Kitzelmann that he had no further casual work for him as the workload was dying off.
Mr Kitzelmann denied he was terminated on either 7 March 2023 or 24 April 2023. He stated that he first learned of his dismissal on 18 May 2023 when he was issued a Residential Tenancy Authority notice to leave form.
It is necessary for the Commission to determine the date of the dismissal. If the date of the dismissal was 7 March 2023 or 24 April 2023, the Commission must determine whether to grant Mr Kitzelmann an extension of time to bring his application. If the date of the dismissal was 18 May 2023, the application has been made in time.
Section 366 of the Act states:
“366 Time for application
(1)An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
(2)The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
Hearing
Directions were issued, providing the parties with an opportunity to file witness statements and submissions. A hearing by Microsoft Teams was convened on 7 August 2023. Mr Kitzelmann was supported by his brother, Mr Michael Kitzelmann. Mr Tristram Hertslet, and Mrs Melissa Lewis, Administration appeared for the Respondent. Ms Isabel Kitzelmann made a witness statement in the matter but was not required for cross-examination. Her evidence went to a Facebook post made by her in February 2023. I do not consider the evidence of Ms Kitzelmann, or the Facebook post made by her, to be relevant to the consideration before the Commission.
Ms Debbie Johnston, Administration was called during the hearing to give oral evidence on account of the evidence given by the parties.
Evidence of Mr Hertslet
Mr Hertslet is employed by the Respondent as the General Manager, having worked for the Respondent or associated entities for 16 years. The sole director of the group of companies is Mr Robert Reardon, a local Australian farmer. The ownership of the entities is held by Mr Reardon and Mrs Jennifer Reardon. The group is often referred to between staff and within the community as Reardon Farms.
Mr Kitzelmann was employed on a casual basis for predominantly dryland cropping.
There had been reduced rainfall which resulted in a reduction of dryland cropping from 11,350ha last year to 2,824ha this year, a reduction of around 80%. The outlook for irrigated cropping this season was for around 2,000ha out of a possible 7,511ha which equates to approximately 27% production.
The Respondent had increased its casual staff in January 2023 up to 30 employees. The following table demonstrates how many casual employees were employed per fortnight:
4 January 2023 21
18 January 2023 30
1 February 2023 29
15 February 2023 28
1 March 2023 32
15 March 2023 34
29 March 2023 28
12 April 2023 26
26 April 2023 19
10 May 2023 18
24 May 2023 15
Mr Hertslet’s evidence is that he had to let some casual employees go, some of those who were also provided with accommodation. Usually, employees will move out within a couple of days to a week without issue. He stated that had not experienced any issues with any other employees ‘refusing’ to leave their accommodation once they had been notified (verbally for casual employees) there were no further hours that could be offered to them.
Mr Kitzelmann suffered a workplace injury in November 2022 and made a workers’ compensation claim which was accepted.
Mr Hertslet’s evidence is that following Mr Kitzelmann’s last shift on 7 March 2023, when he visited him on 24 April 2023, it had been six weeks since he last worked and Mr Kitzelmann would have known, based on seasonal conditions and the forecasted outlook there would be no further work available.
On 24 April 2023, Mr Hertslet attended the house in which Mr Kitzelmann was residing in known as “Kingswood”. He said the following conversation occurred:
Mr Hertslet: We’ve just been going through where we’re at and the workloads all dying off now so going forward I don’t think we’re gonna have anything
Mr Kitzelmann: yeh no that’s fair enough
Mr Hertslet: Which it’ll still mean your WorkCover stuff will stay open
…Now it’s turned dry and we’re a long way through picking and everything and the workload’s dropped a hell of a lot.
Mr Kitzelmann that’s fair enough, well quite honestly mate I’ve been looking around anyway so sort of picked the picture way back. I know there’s no work like – everything’s finishin’ up you’d be a fair way through ya plantin’ and everything by now wouldn’t you
Mr Hertslet: yeh that’s right
Mr Kitzelmann: Harvest is just about fucked like I know there’s no work – blokes are on the move everywhere at the moment but trust me mate like as soon as this is settled we’ll, we’ll be outa your hair.
Mr Hertslet stated that he said on at least four occasions during the conversation that there was no further work and Mr Kitzelmann was no longer employed by the Respondent. On these occasions, Mr Hertslet said, words to the effect, “from today on you won’t be employed by Reardon Farms but your WorkCover claim will still be there”.
Mr Hertslet said he wanted to make it clear that the Respondent had no further work for him and therefore, he was no longer employed. Mr Hertslet’s understanding of how a WorkCover claim works is that Mr Kitzelmann would continue to receive the WorkCover benefits whilst the injury was ongoing, but this was a separate issue to his employment with the Respondent and its provision of accommodation to him which was directly linked to his employment.
During the conversation, Mr Kitzelmann said words to the effect:
“…we’ve been lookin’ around for houses ‘cause I’m in and outa the doctors all the time so I said to the missus oh well we’ll get a house in town if it continues on out here and I get work well I’ll just drive back out but you know getting a house in town I think it’s pretty impossible. The last house we applied for in there was 45 other people applied for it”.
In oral evidence given during the hearing, Mr Hertslet said the conversation went for around 15 minutes. He agreed that Mr Kitzelmann was hunched over. Mr Hertslet repeated that Mr Kitzelmann said on a few occasions during the conversation that he was looking for work elsewhere.
I asked Mr Hertslet who would take on a person who is visibly incapacitated, and had an upcoming surgery planned? He did not know.
I asked Mr Hertslet if Mr Kitzelmann made inquiries as to how long he’d be permitted to live in the house if he was informed of a dismissal? Mr Hertslet said that the following conversation occurred:
Mr Hertslet: We’ll have to come up with a solution until you have to move out.
Mr Kitzelmann: I’ll be here until I’m off WorkCover.
Mr Hertslet: That’s not my understanding, we’ll have to understand what is fair for both parties. I’ll have to go back and get directions as it needs to be fair and reasonable.
Mr Kitzelmann: Once I’m off WorkCover I’ll be out of your hair.
Mr Hertslet: I don’t think that’s how the process works. I’ll have to find out and get back to you regarding the house.
He said that he and Mr Kitzelmann could not come up with a time to meet, and Mr Kitzelmann sent him a text message to say all future correspondence should be by email.
Mr Hertslet noted a Facebook post by Ms Isabel Kitzelmann was made to a public site Goondiwindi/Texas/Inglewood Community Notice Board of which Mr Hertslet is a member. The post was brought to his attention by a number of staff members who had also seen the post. Mr Hertslet has since reviewed this Facebook page and it has over 5,500 members. The post was not located by Mr Hertslet going to Ms Kitzelmann’s or any other family members Facebook page. The post was made by Ms Kitzelmann on 22 February 2023.
Mr Hertslet did not explain the relevance of Ms Kitzelmann’s Facebook post on 22 February 2023 to his visit to the home on 24 April 2023. It is not necessary to produce it here as I do not think it assists with the determination before the Commission. He produced other Facebook posts where Mr Kitzelmann was, in late 2022, and while incapacitated, looking for other properties in which to live and offering himself for work.
Mr Hertslet gave oral evidence during the hearing that following the 24 April 2023 visit to Mr Kitzelmann, he told Ms Johnston that he had visited Mr Kitzelmann and informed him there was no more work for him.
On 18 May 2023, Ms Johnston sent an email to Mr Kitzelmann attaching a Residential Tenancy Authority notice to leave form. The box ticked by the Respondent is “ending of entitlement under employment”.
The notice was given on 18 May 2023 for Mr Kitzelmann to vacate the premises by 16 June 2023. The form prescribes that minimum periods of notice must be given, which in respect of termination of employment is four weeks. The period of notice given is four weeks.
On 24 May 2023, Mr Michael Kitzelmann sent the following correspondence to Ms Johnston:
“Good afternoon Ms Johnston,
Please be advised that I am acting as Mr Luke Kitzelmann’s authorised representative with effect 23/05/2023. As such, all future correspondence is to be directed through my office on the below details.
In reference to your email and attached RTA Form 12, I note that the reason for the notice to leave has been documented as “Ending of entitlement under employment”. Please respond with detail as to why you believe the entitlement under Mr Kitzelmann’s employment is ending.
I appreciate that normal business activities may delay your response to this email, I respectfully request that this matter and the subsequent response to this open email be prioritised.
Once again, I reiterate that I am acting as Mr Kitzelmann’s authorised representative and all future communication, whether that be in writing, email, telephone or in person, goes through my office.
I thank you for your assistance in this matter and I look forward to your timely response.”
On 29 May 2023, the same day that Mr Kitzelmann filed this application, the Respondent’s legal representative sent the following letter to Mr Michael Kitzelmann:
“Dear Mr Kitzelmann
Reardon Farms employment advice
We act for Reardon Operations Pty Ltd (Reardon Operations).
Luke was employed as a casual employee as set out in his employment contract.
As a casual employee there is no advance commitment to continuing work.
Reardon Operations has not had any work available for Luke since the hours offered and accepted by Luke on 7 March 2023.
We are instructed that Reardon Operations does not have any further work to offer Luke. Due to the seasonal nature of the agriculture industry, Luke is not the only casual employee that has been notified that there will be no further upcoming hours.
Yours faithfully
Fox and Thomas Pty Ltd”
Evidence of Ms Johnston
Ms Johnston was contacted during the hearing to give oral evidence. She stated that on or around 24 April 2023, Mr Hertslet advised her that he had informed Mr Kitzelmann that he had ‘let him go’. She stated that ‘down the track’, Mr Hertslet requested she inform WorkCover of that fact.
Following the hearing, the Respondent obtained a copy of the transcript of correspondence between it and WorkCover. The relevant parts are reproduced below:
5 April 2023: Medical Certificate received by WorkCover Queensland
05 April 2023 02:19 PM
Diagnosis – Sciatic back pain secondary to lumber disc bulge
Worker’s capacity for work
* No capability for any type of work 05 Apr 2023 to 05 May 2023
Medical management
* Worker will be reviewed again on 06 May 2023
11 April 2023: Discussion with WorkCover Queensland [KS]
11 Apr 2023 10:51 AM
Phone call from PH
PH adv they’re selling some of their farms, wont need Worker any longer, he was on a casual contract, wanting to make sure it is fine to terminate him? CSR adv protection under Act for 1 year, however if the business would no longer require him in any case this should be fine, offered to get Employer through to Customer Advisor to discuss. Employer adv she will call Customer Advisor Christie back today.
Privacy checked with policy number, full name and address
CSR – [KS]
11 April 2023: Discussion with WorkCover Queensland [KJ]
11 April 2023 11:27 AM
Phone call from Employer
Discussion of claim
-What are the rules around termination?
-We have sold 7 branches of the business
-We are restructuring our business and staff
-He lives on one of the farms that is going to be retained however, for the restructure of the farms his accommodation needs to be refurbished, we asked if he would like to move to another property whilst we were doing a refurb on his but he said no
-I would like to have thought his claim would be finished by now, but I don’t think that’s the way it’s going to work out
You cannot terminated employment due to the work injury in the first 12 months
If a termination or redundancy is for performance issues, business decisions, restructure, re sale etc that isn’t do with his injury, WC won’t interfere
He could take it to Fair Work if thought it was related to his injury
-I’ve run Fair Work and they’ve said the same thing as you, but asked me to ring and check first
[KJ]
Customer Advisor
11 April 2023: Discussion with WorkCover Queensland [CG]
11 Apr 2023 11:54 AM
Phone call to Debbie @ 11:30am
- Looking at terminating Worker due to changes in the business
- Termination is not due to the work related injury
- Employer advised that she had been in contact with fair trade to talk through the potential changes to the business
- Customer Advisor advised that she would do some research to ensure she’s across the information if the situation arises
- Employer explained that up to 12 casuals had finished up with the business last week
- Employer explained that they will only have permanent staff and contractors on farms moving forward.
- Employer will continue to update on any developments with the changes to the structure and to the business.
[CG] Customer Advisor
9 May 2023: Medical Certificate received by WorkCover Queensland
09 May 2023 10:34 AM
Diagnosis – Sciatic back pain secondary to lumber disc bulge
Worker’s capacity for work
* No capability for any type of work 04 May 2023 to 30 Jun 2023
Medical management
* Worker will require treatment from 04 Nov 2022 to 30 June 2023
17 May 2023: Discussion with WorkCover Queensland [CG]
17 May 2023 12:44 PM
Phone call from Tristam @ 12:23pm
- Employer calling to get an update in regards to claim
- Customer Advisor provided update and advised that Worker was due to have an appt with specialist to get guidance on surgery
- Customer Advisor advised that IME report came back supporting the need for surgery
- Employer advised that he had been in contact with Worker on 24.4.2023 to let him know that they had no work for him
- Worker works as a casual and his role and work is seasonal – The Employer has had to let other casuals go because of the lack of work
- Employer explained that Worker is still living in the house on the property and Worker has stated that he wont be moving out until his WC claim comes to an end.
- Customer Advisor advised that the separation may need to be formalised otherwise the Worker would remain employed and on the books as a casual
- Employer explained that he will be seeking guidance in regards to process
- Separation from Employer has nothing to do with WRI and is due to the Employer not having any work available
- Customer Advisor advised that she would keep Employer updated where required[CG] Customer Advisor
23 May 2023: Email you sent to WorkCover Queensland
23 May 2023 9:40 AM
Good morning [CG]
On behalf of Tristram Herslet, I am informing Work Cover that on the 24th of April, Luke Kitzelmann was informed that, as per the conditions of his contract as a casual employee, there would be no work for him going forward due to the seasonal nature of available employment.
Regards
Debbie Johnston, Administration
Evidence of Mr Kitzelmann
Mr Kitzelmann commenced casual employment with the Respondent on 30 March 2022. He was provided accommodation at no cost, with a fortnightly deduction of $96 from his wages to pay for electricity.
On 16 August 2022, he underwent surgery for a non-workplace medical condition. He was unfit for work until 26 August 2022. Following the surgery, Mr Kitzelmann advised Mr Hertslet that due to ongoing complications with the surgery, he was unable to do heavy manual labour for a period of four weeks.
On 3 November 2022, Mr Kitzelmann suffered a workplace injury which was accepted by WorkCover. He stated that the injury occurred as a result of lifting a heavy draw bar on the chaser bin.
He returned to work on 12 November 2022 but was experiencing pain. He performed work on 22 November 2022, but was then unfit for work until February 2023. He commenced a return-to-work program from 21 February 2023. He said he worked up until 9 March 2023 when the pain became too severe to continue working.
Mr Hertslet visited him at home on 24 April 2023. Mr Kitzelmann said the visit was for a period of 5-10 minutes, conducted at the front of the house where he was sitting on a lawnmower and then stood up because he was uncomfortable and rested on the bull bar of Mr Hertslet’s vehicle. Mr Hertslet had made other visits to the residence, but they were not regular.
In his written evidence, he said that Mr Hertslet informed him that there would be no more hours for him while he was on workers compensation. It was noted that the return-to-work plan had been abandoned. Mr Kitzelmann denied that Mr Hertslet informed him that that his casual employment was terminated.
In oral evidence, Mr Kitzelmann agreed that he was on strong pain killers at this time and required assistance to perform basic household tasks and needed assistance to use the bathroom. He denied that he said to Mr Hertslet that he was keen to find other employment as he was heavily incapacitated and was not in any state to look for other work.
In evidence given during the hearing, Mr Kitzelmann stated that Mr Hertslet had inquired how he was going with doctors, specialists and the upcoming operation. Mr Hertslet remarked that the operation would be a good thing. He said that there was not much more that could be done with WorkCover and the return-to-work plan.
Mr Kitzelmann denied that Mr Hertslet said once, or four times as claimed by him, that his casual employment had been terminated. He said that it was clear to him that Mr Hertslet had come to the residence to inquire about his capacity.
Mr Kitzelmann denied that he said to Mr Hertslet that he had been looking to rent a place in Goondiwindi and that there were 45 other people inspecting the same property.
Mr Kitzelmann noted that there had been regular text messages between the two when he had been at work. Mr Hertslet did not text him following the 24 April 2023 meeting to advise that he had been terminated.
Mr Kitzelmann stated that the first time he was advised his employment had been terminated was on 18 May 2023 through the RTA notice to vacate his residence. The reason for the notice was that the entitlement for housing had ended due to end of employment. He contacted his brother, Michael Kitzelmann for advice when he received the notice.
Mr Kitzelmann is of the view he filed his application within the 21-day time limit.
Consideration
It is necessary to determine on which day Mr Kitzelmann’s employment was terminated.
Ordinarily, a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[1] A dismissal can be communicated orally.[2]
In Ayub v NSW Trains [2016] FWCFB 5500, the Full Bench of the Commission considered a matter on appeal in which the appellant was notified of their dismissal several days following the date of termination asserted by the employer. The Full Bench stated the following in consideration of section 386 of the Act at [48]:
“Our conclusion is that, in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.”
There is a contest before the Commission as to what Mr Hertslet said to Mr Kitzelmann on 24 April 2023 when he attended upon his home. What is clear is that Mr Kitzelmann was incapacitated, visibly in pain, and needed assistance with household tasks. It is noted that he was on pain killers.
Whilst I have had regard to the fact that Mr Kitzelmann may not have had full comprehension of the conversation with Mr Hertslet on account of being on pain killers, I do not accept that Mr Hertslet informed Mr Kitzelmann that he was being dismissed.
I accept Mr Kitzelmann’s evidence that Mr Hertslet made inquiries about his incapacity and his future surgery. If there was any conversation about when Mr Kitzelmann might leave the residence, I accept that Mr Kitzelmann informed him that it would be when the WorkCover matter was resolved.
I am fortified in this view as I consider it improbable that Mr Kitzelmann said to Mr Hertslet that he was looking for work elsewhere, given the poor physical condition he was in. He was, in all likelihood, unemployable by any prospective employer at that time.
I do, however, accept that Mr Kitzelmann said to Mr Hertslet that he had been looking at a property in Goondiwindi, competing with 45 others, and it being close to the doctors he was required to visit. It is too striking of a comment for Mr Hertslet to have made up. That being said, having found that Mr Kitzelmann did make that comment to Mr Hertslet, it does not correlate that Mr Kitzelmann was acknowledging he had been informed of the termination of his employment. He would be free to move away from the employer’s residence, if he wished, if his workers’ compensation injury was far from being resolved and he would be unlikely to be fit for work for some time. I find that Mr Kitzelmann said both things; that he would leave the premises when the WorkCover matter was resolved, and that he had looked for another residence. They are choices he was entitled to make and discuss.
While I accept that Mr Hertslet informed Ms Johnston on his return to the office that he had told Mr Kitzelmann that he was dismissed from his casual employment, I do not accept that is what he told Mr Kitzelmann in clear and certain terms.
I find that Mr Kitzelmann was incredibly shocked on 18 May 2023 when he received the notice to vacate. He contacted his brother who explained to him the notice. His brother then embarked on representing him to stave off eviction and protesting the notification of dismissal.
Mr Hertslet’s actions in directing the notice to vacate be issued on 18 May 2023 does not lend itself to a finding that he informed Mr Kitzelmann on 24 April 2023 that he was dismissed. The contractual terms between the parties provide at [4] that the right to occupy the premises concludes on the last day of employment with the Respondent, or the last day of any notice to vacate, whichever comes first. If Mr Hertslet’s account were to be accepted, Mr Kitzelmann would have been required to vacate the premises on 24 April 2023. Even if some leeway was given as described by Mr Hertslet in respect of practices of other departing casual employees, it would be a week or so for the dismissed employee to depart. No pressure at all was applied to Mr Kitzelmann until he was informed on 18 May 2023 that the reason the notice had been issued was due to the employment ending.
The email sent by Ms Johnston to WorkCover on 23 May 2023 at [34] constitutes hearsay and does not have, in my view, any probative value.
Of note, the 29 May 2023 letter from the Respondent’s legal representative to Mr Michael Kitzelmann at [32] does not assert that Mr Kitzelmann was informed of the cessation of his employment on 24 April 2023. The first time this was raised by the Respondent to Mr Kitzelmann is within the Form F8A.
Conclusion
I find that Mr Kitzelmann was informed on 18 May 2023 on receipt of the notice to vacate that his employment had come to an end. I am not satisfied that he was informed of the dismissal on 24 April 2023 or at any other time.
Accordingly, the application has been made within the 21-day time limit.
I will convene a conference between the parties to determine if the matter can be resolved. If the matter is unable to be resolved, a certificate will be issued pursuant to s.368(3) of the Act.
COMMISSIONER
Appearances:
M Kitzelmann and L Kitzelmann for the Applicant
T Hertslet and M Lewis for the Respondent.
Hearing details:
2023.
Brisbane.
Video by Microsoft Teams.
7 August.
[1] Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24]; Ayub v NSW Trains[2016] FWCFB 5500.
[2] Plaksa v Rail Corporation NSW [2007] AIRC 333(unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.
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