Martin Hormann v Mediaware International Pty Ltd T/A General Dynamics/Mediaware

[2014] FWC 1352

[2014] FWC 1352

The attached document replaces the document previously issued with the above code on 26 February 2014.

A typographical error was made in paragraph 4 of the decision. The mistake has now been rectified.

Sarah Meier

Associate to Commissioner Deegan

Dated 27 February 2013.

[2014] FWC 1352

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Martin Hormann
v
Mediaware International Pty Ltd T/A General Dynamics/Mediaware
(U2013/2498)

COMMISSIONER DEEGAN CANBERRA, 26 FEBRUARY 2014

Application for relief from unfair dismissal.

[1] On 26 July 2013 Mr Martin Hormann (the applicant) lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act). The applicant was seeking a remedy in respect of his alleged unfair dismissal from his employment with Mediaware International Pty Ltd trading as General Dynamics/Mediaware. The matter was listed for conciliation on 27 August 2013 and was understood to have settled. In October 2013 the Fair Work Commission (the Commission) was informed that the matter had not settled and was to be pursued. On 1 November 2013 the applicant declined to participate in a second conciliation and requested that the application be listed for hearing.

[2] Directions were issued for the lodging of submissions and witness statements in preparation for a determination of the application. On 17 December 2013 the respondent lodged an objection to the Commission exercising jurisdiction in the matter. The basis for the objection was that, at the date the application was filed, the applicant’s employment with the respondent was ongoing. It was the respondent’s position that there had been no dismissal and therefore the applicant was precluded from making an application pursuant to s.394 of the Act.

[3] New directions were issued for a hearing of the jurisdictional objection.

[4] At the hearing on 15 January 2014 the applicant appeared in person and permission was granted for the respondent to be represented by a lawyer, Ms Jacquie Seemann of Thomsons Lawyers.

Background

[5] The applicant commenced work with the respondent on or about 17 August 2009 as a senior software engineer. The applicant held a s.457 visa (temporary skilled migration) for which the respondent was the sponsoring employer. The visa expired on 6 August 2013.

[6] In late 2012 the applicant made application for permanent residency in Australia.

[7] From 8 March 2013 until 3 July 2013, the applicant did not attend for work. A number of medical certificates were supplied during the period. The entire period of leave was unpaid as the applicant had no paid personal leave accrued.

[8] The applicant attended for work, without any prior notice, on 3 July 2013.

[9] On 4 July 2013 the applicant did not attend for work and sent an email 1 advising that he was unwell.

[10] On 5 July 2013 the applicant sent an email 2 advising that he would attend work later in the day. On the same day the respondent sent an email advising the applicant that he would need to obtain a medical clearance before returning. The applicant attended for a short time later that day but did not return subsequently.

[11] On 12 July the respondent sent an email 3 to the applicant regarding his fitness for work and his visa status. A number of emails were exchanged over the next two weeks concerning the applicant’s visa status and state of health. The applicant was not working during this time.

[12] On 26 July 2013 the applicant lodged this application.

[13] On 6 August 2013 the applicant’s s.457 visa expired.

[14] On 7 August 2013 the respondent checked the applicant’s visa status and sent an email 4 informing him that it was unable to continue to employ him as he no longer had the right to work in Australia.

[15] On 8 August 2013 the applicant advised 5 the respondent that he had made an unfair dismissal claim on 26 July, claiming constructive dismissal.

[16] On 9 August the respondent sent an email 6 to the applicant denying that he had been constructively dismissed. Later that same day the respondent was served by the Commission with the applicant’s s.394 application.

The Respondent’s Case

[17] Evidence for the respondent was given by Ms Sharon Windle, Director Human Resources and Administration for the respondent. A written statement 7 of the evidence of Ms Windle was filed. Ms Windle set out the details of the applicant’s employment with the respondent. It was her evidence that:

• The applicant’s performance review conducted in 2011 noted that he had issues with time management and required constant supervision;



• Despite the applicant having his supervisor changed there were continuing performance issues identified in the 2012 performance review;



• In March 2012 she was informed that the applicant was exploring options for study and looking for other work;



• In late 2012 the company actively sought details of the status of the applicant’s application for permanent residency as the applicant had advised that he would leave the company once his residency was achieved;



• When requested to complete documents required for his performance review in late January 2013 the applicant did not comply; and



• When directed on 8 March 2013 to complete his performance documentation the applicant left the workplace and did not return until 3 July.

[1] It was the evidence of Ms Windle that during his absence from work the applicant provided medical certificates ‘sporadically’. 8

[2] According to Ms Windle, when the applicant returned to work without any notice on 3 July she advised him that his computer had been moved because there had been changes made as a result of a number of redundancies. She then convened a meeting with the applicant and Mr Leibowitz, the applicant’s overall manager, in order to get a better understanding of the applicant’s state of health, his intentions regarding his return to work and his visa status. The applicant asked that any such questions be put to him in writing, which Ms Windle did through an email later that day.

[3] On 4 July, when the applicant notified that he would be absent from work due to illness, Ms Windle sent an email advising the applicant that the respondent required a medical certificate stating that he was unfit for work, or a medical clearance stating that he was fit to work. When Ms Windle was notified that the applicant had sent a text on 5 July indicating his intention to attend for work later that day, Ms Windle sent the applicant an email instructing him that he was not to attend work without medical clearance. In spite of this, the applicant attended work later that afternoon and was advised by Mr Liebowitz that he should not return to work without a medical clearance. The applicant left the workplace.

[4] It was the evidence of Ms Windle that on 12 July she sent the applicant an email enquiring about his fitness for work and his visa status. On 18 July the applicant sent an email to Michael Manzo of the respondent concerning his visa status. On 22 July the applicant replied to Ms Windle’s email of 12 July. Also on 22 July Mr Garrick Simeon, (Managing Director of the respondent) sent an email to the applicant asking for more detailed information about his permanent residency status and documentation from the relevant government department indicating his visa status. The applicant replied to that email the same day, saying once he had official confirmation, which he expected that week, he would send Mr Simeon a copy straight away. Mr Simeon replied by email the following day noting that “...we cannot continue to employ you later than 6 August 2013 unless we receive official confirmation from DIAC that you have the right to work in Australia beyond that date”. The applicant responded to that email with a copy of the ‘ACT gov nomination decision’ (sic) he had received on 18 July. On 23 July Mr Simeon sent an email to the applicant reiterating the respondent’s inability to employ the applicant after 6 August 2013 unless he had the right to work in Australia after that date. The email also denied that the respondent had bullied the applicant, and indicated that if the applicant wished to discuss an amicable separation from the respondent he should contact him by 5pm on 26 July to arrange a meeting.

[5] It was also Ms Windle’s evidence that on 24 July 2013 the respondent contacted the applicant’s immigration lawyer to request information concerning the applicant’s visa status. Further emails were exchanged between the applicant and Mr Simeon on 26 July 2013.

[6] Finally, according to Ms Windle’s statement, on 7 August 2013, the respondent checked with the relevant authority to determine whether the applicant’s s.457 visa had, in fact, expired as it was due to do on 6 August. This check showed that the applicant was, on 7 August 2013, in Australia on a s.600 (visitor) visa which was due to expire on 6 September 2013 and which did not entitle the applicant to work in Australia. As a consequence of receiving this information Mr Simeon wrote to the applicant advising that his employment was terminated, because the respondent could no longer employ him as he did not have the right to work in Australia. On 8 August the applicant responded to Mr Simeon to inform him that he had, on 26 July, lodged an unfair dismissal application against the respondent.

[7] Under cross-examination Ms Windle stated 9 that she thought it was appropriate to speak to the applicant upon his return to work on 3 July 2013 as there had been significant changes in the organisation since he had commenced his leave. She also wanted to talk to him about his health and whether a return to work plan was necessary, and to determine his visa status.

The Applicant’s Case

[8] The applicant gave evidence on his own behalf. On 15 January 2014 he filed a response to the respondent’s jurisdictional objection. In his response he noted that he had submitted the unfair dismissal application on 26 July 2013 and that ‘the final dismissal step’ taken by the company occurred on 5 July 2013 when he was prevented from returning to work. By his response the applicant appeared to be claiming constructive dismissal as a result of the respondent’s breach of its employment obligations and bullying. Further he claimed that Ms Windle and Mr Leibowitz pressured him to resign during January and March 2013. According to the response the applicant became ill as a result of the pressure and did not attend work, and was not paid, from early March 2013 until 3 July 2013.

[9] It was the applicant’s claim that:

‘While the Company never gave me anything in writing, and was very careful to keep me formalistic ‘as if’ employed until Aug.7 2013, on factual terms the Company’s multiple INITIATIVES factually terminated my employment before 5 July 2013 (sic)’ 10

[10] At the hearing the applicant gave an account of his actions on 5 July 2013. He stated that he had to attend his bank so advised the respondent that he would be late into work. Dr Leibowitz sent him a text message asking him to contact Ms Windle before attending work. He received a message from Ms Windle asking him to call her. He did not do so but sought advice from the Fair Work Ombudsman, by telephone and by attending the office. He then received an email from Ms Windle advising him that he could not return to work without a medical clearance.

[11] It was also the applicant’s evidence that he attended at the office of his GP on 9 July 2013. His GP gave him a certificate clearing him for work from 3 July 2013. The applicant stated that he did not supply that certificate to Ms Windle as he believed she was seeking a clearance from a psychiatrist, and he considered that his employment had ended on 5 July when he was sent home by the respondent. He also got a referral from his GP to a psychiatrist about 19 July but did not provide a copy of that document to the respondent.

[12] Under cross-examination the applicant agreed that his employment contract contained a provision by which his employer could terminate his employment by giving one month’s notice in writing. 11 He also agreed that he had not received any notice in writing of the termination of his employment. The applicant also conceded that in response to the question about his period of employment on the Form 2 - application for Unfair Dismissal - he had written, ‘Date employed August 2009 to the present’ and that he had also stated on the same form that he had been notified of his dismissal on 5 July 2013. Further he conceded that he had written that the respondent had ‘been preventing me from returning to work since 5th of July’.

[13] The applicant agreed that the information supplied in a document lodged with his unfair dismissal application and dated 16 July 2013 contained the statement ‘currently I am employed by General Dynamics / Mediaware’. 12 Further in another document supplied with the application the applicant had claimed that ‘(i)t is my opinion that Sharon Windle simply made up this latest excuse out of revenge and to prevent or at least delay my return to work’.13

[14] When asked what had occurred when he attended his workplace late on the afternoon of 5 July the applicant agreed that Dr Leibowitz had said words to the effect ‘Martin, look there’s been a decision made that you can’t come in until you’ve got some sort of certificate from your doctor to say you can return to work’. 14 Further he agreed that the email sent by Ms Windle on 5 July contained the statement ‘[i]n the email I sent you yesterday we indicated that you would need to provide a doctor’s clearance before you could return to work so that we could better fulfill our responsibility in providing a safe working environment’.

Submissions

[15] The respondent tendered written submissions and made oral submissions in relation to the jurisdictional objection at the conclusion of the evidence.

[16] In essence it was the respondent’s submission that the application lodged by the applicant did not comply with the Act as the applicant had not been dismissed as at the date the application was made. It was put that the applicant was still employed by the respondent on 26 July 2013 (the date of the application). The applicant had been on sick leave for an extended period during 2013 and consequent upon his return to work on 3 July 2013 he had been advised, on 4 and 5 July, that he could not commence work until he provided the respondent with a medical clearance stating that he was fit for work. The applicant did not provide the clearance requested and did not communicate any concern to the company that he considered that his employment had been terminated, or offer a resignation to the respondent.

[17] It was the company’s submission that it was unaware of the applicant’s unfair dismissal application until the applicant sent an email on 8 August 2013 advising that the application had been lodged on 26 July. This email had been sent in response to an email of 7 August from the respondent advising the applicant that his employment had been terminated as a result of his having lost the right to work in Australia. The respondent relied on a number of decisions 15 in support of the argument that an applicant cannot lodge a valid s.394 application before a dismissal takes effect.

[18] As the applicant was self-represented he was offered and accepted the opportunity to make written submissions having had the benefit of giving full consideration to the transcript and the respondent’s written submissions.

[19] On 29 January 2014 the applicant lodged written submissions in response to the respondent’s jurisdictional objection. The applicant submitted that the evidence was that on 5 July 2013 the respondent had requested that he obtain a medical clearance from a psychiatrist and not just a standard medical clearance. He also claimed that, at 5 July, the psychiatrist the respondent had referred to had not been his treating psychiatrist and that Ms Windle had no authority to send him to a psychiatrist. The applicant referred to emails he had exchanged with the Commission on 17 July and 22 July which evinced an intention on his part to make an application for constructive dismissal at that time. Finally the applicant stated that claims made by the respondent that he had not informed it of his intention to lodge an unfair dismissal application prior to him doing so could not be accepted in light of an email he sent to Mr Simeon on July 20 which contained the following statement:

‘3. Your ‘waiting for a medical certificate’ is a part of my complaint-s about the abusive and inappropriate behavior of Sharon Windle against me in 2012 - July 2013. I have been submitting to:

- Fair Work Australia

- ACT gov

- Department of Immigration and Citizenship

- Minister for Immigration and Citizenship The Hon Tony Burke MP’ 16

[20] On 3 February 2014 the respondent lodged a written response to the applicant’s submissions. It was submitted that it was reasonable for the respondent to request a medical certificate from the applicant and that, in circumstances where the applicant had given the respondent the name of his psychiatrist, it was also reasonable for the respondent to request a clearance from that practitioner. The respondent noted that it was open to the applicant to explain the role of the psychiatrist and provide a clearance from his general practitioner. It was noted that, in his email of 25 July, Mr. Simeon merely requested a ‘medical certificate’ from the applicant. Finally it was also put that the evidence was that the applicant was first asked to provide a medical clearance on 4 July but returned to work on 5 July, an act not consistent with him equating the request to a constructive dismissal.

[21] The respondent also noted that the letter written by the applicant’s GP on 9 July 2013 (which had not been provided to the respondent prior to the lodgment of the application) gave no indication that the applicant considered that his employment had been terminated. It was also put that the document of 9 July was in fact a medical clearance.

[22] Finally it was submitted for the respondent that the fact that the applicant indicated that he was intending to lodge ‘an unspecified complaint or claim’ with Fair Work was no indication that his employment had been terminated. It was noted that the applicant had earlier (in April and June) indicated an intention to lodge a claim with Fair Work. The respondent reiterated that in the period 5 July to 26 July the applicant at no time advised the respondent that he considered that his employment had ended.

[23] On 14 February the applicant purported to file written submissions in response to the respondent’s submissions. The response did not include submissions but consisted of a number of documents. To the extent that these documents were not included in the evidence before the Commission at the time of the hearing, I am unable to take them into consideration as the time for presenting evidence had passed.

The Legislation

[24] Section 394 of the Act relevantly provides:

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).

(my emphasis)

Consideration

[25] Subsection 394(1) of the Act provides that a person who has been dismissed may apply for an unfair dismissal remedy. Subsection 394(2) provides that an application must be made within 21 days after the dismissal took effect. Section 36(1) of the Acts Interpretation Act 1901 (Cth) deals with the calculation of time. Item 6 provides that where the period is expressed to begin after a specified day, the time period does not include that day. Consequently, an application must be made after the dismissal took effect.

[26] In order to determine whether the application has been validly made it is necessary to determine the date the dismissal took effect.

[27] Section 386 of the Act provides:

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.

[28] Clearly subsection 386(1)(b) does not apply as there was no claim from the applicant that he had resigned his employment or any evidence of a resignation. The respondent states that the applicant’s employment was terminated on 7 August 2013, when the respondent ascertained that he had lost his right to work in Australia and it could no longer legally employ him.

[29] The applicant claims to have been ‘constructively dismissed’ on 5 July 2013 as a consequence of the respondent’s refusal to allow him to attend for work until he obtained a medical clearance.

[30] Normally a ‘constructive’ dismissal involves a resignation by an applicant. In this case the applicant appears to be claiming that the respondent’s insistence on a medical clearance before the applicant would be allowed to return to work was a termination of his employment on the initiative of the employer. On the evidence this proposition cannot be sustained. The respondent was entitled to request a medical clearance prior to allowing the applicant to recommence work given the applicant’s extended absence (four months) from the workplace. At no time did the communications from the respondent to the applicant suggest that his employment was being terminated. All communications advised that he could recommence work as soon as he provided a medical clearance. The applicant gained a medical clearance from his doctor on 9 July but did not provide that document to the respondent. Nothing in the applicant’s emails to the respondent between 5 July and 26 July indicated to the respondent that the applicant considered that the respondent had terminated his employment or that the applicant intended to lodge a claim concerning the termination of his employment.

[31] As at 5 July 2013 the respondent had taken no action to terminate the applicant’s employment, nor had the applicant resigned his employment. In the circumstances I am unable find that the dismissal took effect on that date. The earliest documentary evidence that supports the applicant’s claim that he believed he had been dismissed was the email 17 he sent to FWC on 22 July 2013. Earlier documents indicated that he considered he had grounds for a complaint to Fair Work but I accept the employer’s submission that the applicant had been suggesting such a thing for some time (see [39] above), and well before he was requested to provide a medical clearance. The applicant may have been confused by the term ‘constructive dismissal’ as his s.394 application and the documents provided with it suggested that he considered that his employment with the respondent was continuing.

[32] When the applicant filed the s.394 application on 26 July, it could be assumed that he thought his employment had ended although this is not clear given the reference in that document to his employment period being from ‘August 2009 until present’. 18 If the act of filing the s.394 application had the effect of terminating his employment then the application is invalid as it was not filed after the date on which the termination took effect.19 On the evidence before me it appears that the date the termination of the applicant’s employment took effect was 7 August 2013, when the respondent notified the applicant that his employment was terminated as a consequence of his visa status. In either case the application, lodged as it was on 26 July 2013, is invalid as it does not meet the requirements of s.386 of the Act.

Conclusion

[33] The application is invalidly made and is dismissed.

Appearances:

The applicant in person

Ms Jacquie Seemann, of Thomsons Lawyers, on behalf of the respondent.

Hearing details:

2014.

Canberra,

January 15.

Final written submissions:

Applicant: 29 January 2014; 14 February 2014

Respondent: 3 February 2014.

 1   Exhibit M2 at Annexure M

 2   Exhibit M2 at Annexure P

 3   Exhibit M2 at Annexure Q

 4   Exhibit M2 at Annexure BB

 5   Exhibit M2 at Annexure DD

 6   Ibid

 7   Exhibit M2

 8   Exhibit M2 at PN 16

 9   Transcript PN 369

 10   Submission filed by the applicant 15 January 2014.

 11   Transcript at PN481

 12   Attachment to Form F2.

 13   Ibid

 14   Transcript at PN716

 15   Beasley v Australian National University T/A ANU [2010] 7308; Wickenden v Far Pavillions [2013] FWC 2687; Kennedy v Complete Building Soultions Pty Ltd [2013] FWC 2777; Kane v BAE Systems Australia [2013] FWC 2767

 16   Submission filed by the applicant 29 January 2014.

 17   Submission filed by the applicant 29 January 2014.

 18   Form F2 Application for Unfair Dismissal Remedy

 19   Ibid

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