Martin Williams v Longview Real Estate Pty Ltd

[2019] FWC 31

[2019] FWC 31

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Martin Williams
v
Longview Real Estate Pty Ltd
(U2018/10932)

COMMISSIONER WILSON MELBOURNE, 3 JANUARY 2019

Application for an unfair dismissal remedy – effective date of dismissal.

[1] The matters requiring to be dealt with in this decision are the date upon which Mr Martin Williams was dismissed from his employment with Longview Real Estate Pty Ltd (Longview) and, depending upon the Commission’s finding in relation to the date of dismissal, whether his unfair dismissal application is within the time period allowed for in the Fair Work Act 2009 (the Act) and if not whether an extension of time for the filing of his application may be granted.

[2] On 23 October 2018, Mr Williams applied to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Act in connection with the cessation of his employment by Longview.

[3] Longview objects to the application and says that it was lodged out of time because the dismissal took effect on 27 September 2018. If Longview is correct about the date of dismissal, then the application is five days late.

[4] A hearing was held on 17 December 2018 to deal with the jurisdictional objection.

[5] Ms Sonia Williams, Mr Williams’ wife, appeared for him during the hearing, while Mr Tommy Delatychi, Longview’s Financial Controller, appeared for the Respondent.

BACKGROUND

[6] Mr Williams commenced employment with Interface Property Group Pty Ltd on 7 November 2017 as Partner Relationship Manager. At the start of October 2018, the company name was changed to Longview Real Estate Pty Ltd. 1

[7] Mr Williams was engaged as a Partner Relationship Manager and commenced employment on 8 November 2017. The terms of his employment are set out in a written “Offer of Employment” dated 7 November 2017 (Letter of Offer), which stipulated that the offer, if accepted would be subject to certain conditions attached to the letter of offer (the General Terms) as well as the Real Estate Industry Award 2010 (the Award). Mr Williams classification under the Award was as a Property Management Representative. The Letter of Offer and General Terms set out that his employment was to be on a fixed term basis, with the term running between 8 November 2017 and 8 February 2018. Longview contends that since the latter date, Mr Williams has been engaged on a monthly contract of hire. The Letter of Offer and General Terms do not specifically deal with a period of notice that is required to be given by or to Mr Williams in order to bring the employment relationship to an end after the expiry of the fixed term; however, the Award provides that the notice of termination provisions in the NES apply as well as that an employee giving notice must give one week’s notice to the employer to terminate employment. 2 In this regard, it is noted that the section in the General Terms document headed “Termination of Employment” states merely that it is “not applicable”, presumably being a reference in relation to the original fixed term nature of the relationship.3

[8] The material before the Commission indicates that Longview is a relatively small employer although not a small business employer within the meaning of the Act, since at the time Mr Williams left its employment it employed 33 employees.

[9] Mr Williams was due to take annual leave during September 2018 in order to travel to the United States of America with his wife, Ms Sonya Williams, who also acted as his representative in the hearing of this matter, on Saturday, 1 September 2018 and him returning to Melbourne on 1 October 2018. Both Mr and Ms Williams submit that part of the purpose of them going to United States was to seek treatment for a medical condition Ms Williams was experiencing.

[10] On 30 August 2018, before Mr Williams commenced on annual leave, a meeting occurred between Mr Aaron Rau, Chief Executive Officer of Longview Real Estate and himself in which discussions took place regarding the Mr Williams’ continued employment and his remuneration with Longview. Mr Williams submits that during this meeting he was advised that upon his return from annual leave his remuneration structure would change from salaried to part-salaried, part commission and that he would no longer be an employee of the company but rather would work as a sub-contractor. Alternatively, Longview submit that during this meeting, Mr Williams was advised that his employment was being terminated, effective 27 September 2018, with him being giving four weeks’ notice of such.

[11] What was discussed in the meeting on 30 August 2018 is a matter of contention between the two parties.

[12] Mr Rau’s evidence about the meeting on 30 August 2018 is that he advised Mr Williams that the role of Relationship Manager was no longer needed and that as result he was giving Mr Williams four weeks’ notice of the termination of his employment. Mr Rau further submits that in the course of the conversation, he offered Mr Williams an opportunity to come back as an independent contractor. His evidence is that he discussed with Mr Williams that the ongoing relationship would be an independent contracting role and that Mr Williams should consider the matter over his break. According to Mr Williams, he was told in the meeting by Mr Rau that upon his return from annual leave his remuneration would change from a salary arrangement and that in future, part of his remuneration would be based upon commission. In his evidence about the meeting, Mr Rau also says that he noted Mr Williams referred that he was “only in the business to help Evan out”, being a reference to the Executive Chairman, Mr Evan Thornley, and that Mr Williams had said about his forthcoming trip to the USA that he was going to see some venture capitalists. 4 Mr Rau also gave evidence that on the same day of the meeting with Mr Williams, the former was going to meet with Findex, a potential future client for Mr Williams in his capacity as an independent contractor and that the meeting also was to include Mr Antony Cohen, another director of Longview.

[13] Mr Williams says that he was told by Mr Rau that the latter would organise a meeting with him when he returned, at which time they would both go through matters relating to the new arrangement. Mr Williams is adamant that termination of his employment was not discussed in the meeting and that neither was the possibility that he move to an independent contracting arrangement. Instead, Mr Williams says that Mr Rau told him there would be changes to his compensation structure in the course of a general catch-up meeting and that he was blindsided:

“So I was asked as a general catch-up before I left for my leave with Findex, hence no agenda. Called on the fly. I was deep in organisation and putting together the agenda and what I was to achieve in that meeting with Findex. It was a - which was an important meeting that I'd been putting together with Antony Cohen, the director of Longview. So my head space wasn't in the meeting with Aaron when he blindsided me with "There's going to be some changes" to my compensation. All I could think of "I'm about to leave on an overseas holiday for four weeks with my wife to get medical treatment over in America, with my family. I've got an important meeting to do here."

I've got to finish with the client activity that I was doing at the time before I finished that afternoon and we flew out that Saturday. So my head space wasn't in the meeting. I asked Aaron after the meeting, after - at the meeting "Can you summarise that in an email or a letter of documentation so I've got clarity over what you've just said?" To date I've never received an email with that clarity which would bring an end to all of this pretty quickly.” 5

[14] Mr Williams’ evidence is that there was no reference to the forward role being that of an independent contractor instead of being an employee, or that he was told he would be given notice of the termination of his employment. 6

[15] After the meeting with Mr Williams, Mr Rau communicated by email and WhatsApp message with a number of other people, including others on the company’s Executive Committee and said to them things to the effect that he had “given Martin 4 weeks’ notice”. The communications include:

•  A text message to Mr Antony Cohen on 30 August 2018 at 12:02 PM, in which Mr Rau communicates:

“Hi mate, spoke to Martin. He is all good.

I told him that I want him to think around a commission only type structure for him when he returns.

He was happy with that. …” 7

•  An email to the Executive Committee shortly after on the same day in which Mr Rau states:

“Martin Williams: 1 have given Martin 4 weeks notice on his current comp (he is taking annual leave during this period). 1 have asked Martin to consider a commission/referral partnership which will be 100% pay for performance. Martin received the news well and was generally optimistic about a pay for performance referral role moving forward. Tim and Antony this is something that we will need to run the numbers on over the next few weeks. The optics of Martin and his role do not change at this point in time (he goes on leave tomorrow for four weeks).” 8

•  A WhatsApp message to Ms Atkin on 1 September 2018 in which Mr Rau says:

“FYI- I had a good discussion with Martin Thursday. He took the news very well and has a desire to stay involved in a perform to pay/referral/commission only structure.

This works for me but will be guided by you.” 9

[16] Mr and Ms Williams proceeded on their trip to the United States of America and did not return until sometime around 1 October 2018.

[17] Mr Rau and others in the company, including Ms Atkin, Longview’s Head of Business Development and Mr Delatychi, its financial controller, took the view that what occurred in the meeting on 30 August 2018 had been the giving of four weeks’ notice of termination of employment to Mr Williams. As a consequence, on 27 September 2018, Longview acted as if Mr Williams’ employment had been terminated, with wages to him being stopped and annual leave accruals being paid out to him. 10

[18] On Friday, 28 September 2018, when Mr Williams was still in United States of America, he emailed Mr Rau with the following enquiry:

“Hi Aaron,

Greeting from the US. I hope this email finds you well mate.

Just in preparation for my return, could you please summarise our lasting meeting – clarifying your intentions and expectations with the change to my remuneration.

You made mention to the existing referral relationships, that I have been managing to date, in particular: Unison & Findex ... can you also include your proposed business development referral remuneration structure.

I appreciate you providing this to myself, prior to my return on 3 October.

Thanks,

Martin” 11

[19] Mr Rau’s response, sent the same day, confirms that the company would like to retain Mr Williams on a commission only structure and suggested that he and Ms Atkin meet to discuss arrangements an early time:

“Hi mate,

I hope the trip was great.

As discussed the company would like to retain you on commission only structure.

Can I suggest you, Rachel (copied) and I make a time to meet and discuss on Monday. I would prefer to workshop the referral structure together so we get something that works for all.

Let me know a time that suits best.

Have a safe flight home.

Aaron” 12

[20] While the above refers to a potential meeting between the parties on “Monday”, being 1 October 2018, Ms Atkin sought to delay the meeting by a short time, to Wednesday, 3 October 2018, which was on Mr Rau’s request, in order to ensure both Mr Atkin and Mr Rau could attend. 13

[21] The meeting with Mr Rau and Ms Atkins took place on 3 October 2018. During this meeting there were further discussions regarding Mr Williams’ remuneration and employment with Longview. Similar to the meeting on 30 August 2018, there is dispute regarding the precise content of the meeting, however, both parties agree that there were discussions surrounding Mr Williams working as a sub-contractor for Longview on an entirely commission based arrangement from that point forward. As a result, by that date at least, Mr Williams knew that Longview no longer wanted him as an employee and that if there was to be an ongoing relationship, it would be as an independent contractor. He learned on that occasion that the company expected him to obtain an ABN in order to work as a contractor. 14

[22] Mr Williams says this discussion about Longview’s intentions came as a shock and that he had not known these things at an earlier time. Mr Williams’ evidence about meeting on 3 October 2018 is that it was amicable and that since he was shocked about the circumstances he did not want to appear angry.

[23] Mr Rau’s evidence is that it was clear that the company’s intention that he be a contractor and not employee had been communicated to Mr Williams in the previous meeting, on 30 August 2018. Ms Atkin essentially corroborates this understanding, although does not have direct knowledge of the formation of the understanding, at least as it pertains to Mr Williams, since she was not in the meeting with him on the occasion of 30 August 2018.

[24] On 4 October 2018, Mr Williams wrote to Mr Rau and Ms Atkin seeking confirmation of the outcome of the meeting on 3 October 2018 as follows:

“Hi Aaron & Rachel,

Thank you for the opportunity to meet with you both yesterday.

Just confirming the discussion:

Effective immediately I am not 100% commission only that means with no minimum base salary/retainer, is that correct?

Who will be providing details of how the new referral arrangement will work, is that something you will require me to prepare?

Next week we will meet to have a working meeting to design how the referral process will work, likely marketing resources needed, people & steps involved, timing, transferring the referrals, how to build scale, etc…

Thank you,

Martin” 15

[25] Mr Rau responded to this email on the same day stating “Spot on. My view is that this will be a contractor option (ie ABN and invoiced)”. 16

[26] On 12 and 17 October 2018, Mr Williams followed up with Mr Rau regarding the meeting on 3 October 2018 seeking clarification of the terms discussed during the meeting. During this time, several emails were exchanged between Mr Williams’ and Mr Rau as follows:

● Friday, 12 October 2018 – from Mr Rau:

“Hi Martin,

Was there any progress re Findex?

Thanks

Aaron” 17

● Wednesday, 17 October 2018 – from Mr Williams:

“Hi Aaron,

Are you able to send me the LongView Real Estate referral contract/agreement, detailing the proposed terms, referral fees, invoice & payment timing/progress, target incentives, key expectations, etc…

Thanks

Martin” 18

● Wednesday, 17 October 2018 – from Mr Rau:

“Hi Martin,

It was agreed two weeks ago that you would meet with Findex and then meet with Rachel and I (and most likely Anthony) with forecast volumes, timelines and your proposed referral structure.

Happy to discuss over the phone if you require further clarity.

Cheers

Aaron” 19

[27] Mr Williams then wrote to Mr Rau on 23 October 2018 advising that he was resigning from his position at Longview Real Estate. Acknowledgement of Mr Williams’ email occurred the following day from Mr Rau stating, “I appreciate your email and accept”. 20

[28] As indicated above, the principal issue to be determined in this decision is the date on which Mr Williams’s employment was terminated and, depending on the answer to that question, consideration of whether an extension of time for the filing of an unfair dismissal application is required and, if so, finally whether an extension of time may be granted.

[29] On Longview’s construct of the circumstances, Mr Williams was given four weeks’ notice of the termination of his employment in the meeting on 30 August 2018. Following through with this construct, the date of effect of Mr Williams’ termination of employment would be 27 September 2018. Longview took the view, erroneously, that the period of notice of Mr Williams’ termination would run concurrently with the period of annual leave that he took during September. Such reasoning conflicts with the proposition that a period of notice cannot run concurrently with approved leave because to do so is to deprive the employee of their right to paid leave. 21

LEGISLATION

[30] An application for unfair dismissal must be made within 21 days after the dismissal took effect unless additional time is allowed by the Commission. 22 

[31] Relevant to the Commission’s consideration of this question are the provisions in s.394(3) of the Act:

“394 Application for unfair dismissal remedy

(1) ….

(3)  The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)  the reason for the delay; and

(b)  whether the person first became aware of the dismissal after it had taken effect; and

(c)  any action taken by the person to dispute the dismissal; and

(d)  prejudice to the employer (including prejudice caused by the delay); and

(e)  the merits of the application; and

(f)  fairness as between the person and other persons in a similar position.”

CONSIDERATION

[32] It is well established that a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated. 23 In Ayub v NSW Trains24, the Full Bench said:

“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. [(1986) 60 ALJR 78] Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. [(1984) 5 FCR 447] The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd [(2010) 201 IR 64] as follows:

[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at [99]).” 25

[33] In this case, the only direct evidence that supports Mr Williams being given notice of termination of employment in the meeting on 30 August 2018 is the evidence of Mr Rau, including the material he provided of messages sent to other executives in the company advising that a conversation had been had with Mr Williams and what was communicated.

[34] Against this are several matters in Mr Williams’ favour.

[35] Unlike the circumstances in which his employment was terminated, Mr Williams commenced his employment in quite a formal manner. The company provided a letter of offer to him as well as written terms of employment. The formality with which the relationship commenced is to be contrasted with the way in which it is said by Mr Rau to have ended.

[36] Mr Rau relies upon his communications to his colleagues on 30 August 2018 as corroboration both of what he said to Mr Williams and its intent. Those communications are set out above and include the text message to a colleague on 30 August 2018; the email to the executive committee board members shortly after on the same day; and the WhatsApp communication to Ms Atkin on 1 September 2018.

[37] Mr Williams’ understanding of what had been first indicated to him in late August was that his remuneration structure was to be changed to include commission payments, with him remaining an employee. The general terms provided to Mr Williams at the start of his employment do not encompass commission payments and provide that variation to the general terms is to be through written variation signed by both parties. 26 Mr Williams’ employment was also subject to the Award, which permits employment to be structured around various remuneration alternatives. On the one hand, such as in Mr Williams’ case, the Award allows for remuneration entirely through wages or salary. On the other hand, it permits both wages and commission arrangements and commission-only arrangements.27 A discussion about being paid under a commission structure is therefore not, of itself, an indicator that employment is being terminated and another form or contractual relationship being offered.

[38] No steps were taken by Longview to ever advise the terms of the independent contracting arrangement. At the minimum, it could be expected that Longview would set out to Mr Williams either verbally or in writing, a basic engagement and remuneration structure, and the work it was inviting him to do. No such information was ever provided to Mr Williams, despite him asking for it well into September and October 2018.

[39] Following on from the disputed 30 August 2018 conversation, the company argues that it took steps to settle up Mr Williams’ pay and accrued entitlements in the course of its last payments to him. Four payslips were provided by the Respondent in evidence: 28

•  Payment date 23 August 2018 – showing a gross pay of $3692.30, which is consistent with an annual salary of $96,000;

•  Payment date 6 September 2018 – also showing a gross pay of $3692.30, but including 30.40 hours of holiday pay (presumably referable to the period of annual leave taken until the end of the relevant pay period, 9 September 2018;

•  Payment date 20 September 2018 – showing a gross payment of $3301.88, comprised entirely of 54.37 hours paid holiday pay and 6.43 hours of unpaid annual leave (a total of 60.8 hours);

•  Payment date 4 October 2018 – recording a zero payments for reason of 60.8 hours unpaid annual leave.

[40] While the payslips evidence the payments that were made by Longview to Mr Williams on the relevant dates, they do not conclusively show that his pay arrangements were settled up consistent with a termination of employment.

[41] According to his contract of employment, Mr Williams ordinary hours work were performed over four days per week. His pay was constructed around an obligation to work 60.8 hours per week or 7.6 hours per day. Mr Rau’s evidence is that when Mr Williams went on annual leave on 30 August 2018 “[h]e was paid out his leave entitlement. He took unpaid annual leave for the final portion of his four week notice period as he had used up his accrued entitlement”. 29

[42] It is said in evidence before the Commission that Mr Williams was paid out his final benefits as part of Longview’s termination of him. 30 While that contention is advanced, examination of the payslips themselves do not lead to such a finding. Critically, the payslips from 20 September 2018, being comprised entirely of paid and unpaid annual leave; and 4 October 2018, comprised entirely of unpaid annual leave, have not been connected with any reliable explanation to the effect that either or both are ostensibly final payments upon termination of employment; are somehow different from the payments which would be made to an employee who proceeded on annual leave; and was entitled to be paid for part of the annual leave and not paid for other parts of it due to insufficient leave accrual. I am therefore unable to accept payslips with the payment date of 20 September 2018 and 4 October 2018 as conclusive evidence that Mr Williams was paid out his termination entitlements because he had been dismissed.

[43] Both Mr and Ms Williams report feelings of shock when it became clear to them on 3 October 2018 that what was being said was that Mr Williams would no longer be an employee of the company but instead would be an independent contractor. The reported shock is to do with the Williams’ immediate understanding of the financial consequences of a shift from an employment relationship. 31

[44] No steps were ever taken by Mr Williams to obtain an ABN, which may well be necessary to work as an independent contractor. It may be concluded that the absence of an application for an ABN, at least in the period prior to 3 October 2018 when it became clear to Mr Williams that he was no longer be employed, is consistent with him not understanding that he was expected to be in an independent contractor. Of course, the failure by him to obtain an ABN after 3 October 2018 might be said to be an indicator that he had been aware of the expectation that he become a contractor since 30 August 2018, but he simply did not wish to take up the opportunity.

[45] It is also the case that there is a lack of clarity about the totality of the work Mr Williams was expected perform to for Longview in moving to an independent contractor relationship. While there is some evidence that Mr Williams was expected to work as an independent contractor in relation to the Findex account, the evidence of Mr Rau appears to indicate that the account was likely to be somewhat incidental, with Longview being uncertain of what was going to come out of the relationship:

“THE COMMISSIONER: Sure, can I understand the significance of Findex, I suppose? What were you expecting that Mr Williams do in relation to Findex after 3 October?

MR RAU: Absolutely, so from our perspective with the referral partnerships, we were not getting volume or value out of the relationship. We were working towards some things and from our view it was that we would like Martin to provide us with some indicative figures around forecasting, around what that relationship can provide us. Then for us to work as a partnership and Martin as a fixed term contractor to ensure that he would receive a commission structure that would be commensurate with the volumes that would come through.

So for us, given Martin had worked with Findex and he was the touch-point, the business was unaware of the types of volumes that were going to be coming through. The role Martin was employed as a 0.8 FTE. The requirement for that 0.8 was deemed not required moving forward and it was a maintenance relationship side of things that we obviously wanted Martin to work on.

Our view was that it was very much because it was in good faith it was Martin you tell us what your relationship with Findex can yield and that we're keen to sit down with you to work through how that we restructure as an independent contractor, refer business into Longview.

THE COMMISSIONER: So the way I hear that, and I'm just going to put this to you so I can check whether my understanding is correct. The way I hear that is, Findex for you at that point in early October was a potential client of interest. You weren't quite sure what was going to come out of it.

MR RAU: Correct.

THE COMMISSIONER: Hopefully it would be good, but it may not be and you were waiting for Mr Williams to actually tell you what he could mine from that client.

MR RAU: Yes.

THE COMMISSIONER: So it's not quite in the category of he's a major client over here who's going to be very very good for us and we need Mr Williams to do a lot of work in the meantime.

MR RAU: No, because we would have maintained the role in its capacity if we believe that was the case.” 32

[46] That evidence gives the impression that Mr Williams was being asked to step aside from the certainty of a salary package including superannuation of $105,120 per year for four days work per week and move to an arrangement which was altogether somewhat more risky, in which it would be necessary for Mr Williams to build up an income stream from an entirely new enterprise to be run by him. Given that eventuality, one would expect that if Mr Williams really was being asked in the meeting on 30 August 2018 to step away from an employment relationship, he would have been acutely aware of what was being put to him. Instead the evidence from Mr Williams, which I accept, is that he was shocked once it dawned on him in the meeting on 3 October 2018 that he was being asked to end his employment and moved to a contracting arrangement. Such shock is consistent with the knowledge of his termination of employment only being learned about on that date.

[47] After considering these matters, I am unable to come to the proposition that Mr Williams in fact was given notice of termination of his employment by Mr Rau in the meeting on 30 August 2018.

[48] While Mr Rau may have gone into the meeting with Mr Williams with the intent of terminating his employment, at best what was said to the latter was an unclear communication about changes to the latter’s payment structure. It is more likely than not, having said to Mr Williams that his payment arrangements were to change, that Mr Rau never went further and said words that signalled Mr Williams’ employment contract was to end. He may have thought he was clear and specific and may have said to his colleagues that he was, however, an assessment of the overall circumstances leads to the conclusion that he likely was not.

[49] Following from this conclusion is that the earliest Mr Williams was given notice of the termination of his employment was 3 October 2018 and I find that the conversation in that meeting amounted to a termination of Mr Williams employment, with the requisite notice running from that date. At the time of termination, Mr Williams was 44 years of age. 33 In the absence of mutual agreement or contractual provisions to the contrary, the applicable period of the notice of termination of employment required to be given to Mr Williams was the one weeks’ notice provided for within the National Employment standard for a person whose continuous service with their employer was not more than one year.34 Since Mr Williams’ application to the Fair Work Commission for unfair dismissal remedy was made on 23 October 2018, it follows that the application was within time.

[50] While Mr Williams gave a written resignation to Longview on 23 October 2018, such was not strictly necessary since in any event he had been terminated on the initiative of his employer on 3 October 2018.

[51] Accordingly, there is no impediment to Mr Williams’ application proceeding to determination on the merits, and his file will be returned to the Commission’s case management team for programming for that purpose.

[52] This decision plainly does not deal with the merits of Mr Williams’ application. While so, I am conscious from dealing with the parties in the hearing before me that it would be in their best interest to resolve this matter amicably without the need for to go to a full hearing. It should be borne in mind by Mr Williams that his employment with Longview was for an altogether short period, of only 11 months. Similarly Longview should appreciate that their treatment of the ostensible period of notice during September 2018 running concurrently with a period of leave appears contrary to their obligations, and that on any likely analysis, some period of payment in lieu of notice is due by them. If the matter proceeds to hearing, it is foreseeable that significant additional work will be required by both parties.

[53] Should the parties both desire further conciliation of this matter before me, I would be prepared to assist upon application to my Chambers.

COMMISSIONER

Appearances:

Ms S Williams for the Applicant.

Mr T. Delatychi for the Respondent.

Hearing details:

2018.

Melbourne:

17 December.

Printed by authority of the Commonwealth Government Printer

<PR703585>

 1   Respondent's email correspondence, 2 January 2019.

 2   MA000106, clause 11.

 3   Exhibit R2, Respondents Documents, Attachment R1.

 4   Transcript, PN 71 – 73.

 5   Transcript, PN 203 – 204.

 6   Transcript, PN 265 – 283.

 7   Ibid, Attachment R5.

 8   Ibid, Attachment R4.

 9   Ibid, Attachment R6.

 10   See, for example, Transcript, PN 338; 389.

 11   Ibid, Attachment R8.

 12   Ibid, Attachment R7.

 13   Exhibit A2, Applicant's Documents, Attachment A7; Transcript, PN 315 – 331.

 14   Transcript, PN 426 -436.

 15   Ibid, Attachment A2.

 16   Ibid.

 17   Exhibit R2, Attachment R10.

 18   Ibid, Attachment R9.

 19   Ibid.

 20   Exhibit A2, Attachment A3.

 21   LHMU & Anor v Cuddles Management Pty Ltd [2009] FMCA 463, (2009) 183 IR 89, [116].

 22   Fair Work Act 2009 (Cth), s.394(2).

 23   Burns v Aboriginal Legal Service of Western Australia Inc (2000) T3496.

 24   [2016] FWCFB 5500.

 25   Ibid, [17].

 26   Exhibit R2, Attachment R1.

 27   Clauses 15 and 16.

 28   Exhibit R2, Attachment R2.

 29   Exhibit R3.

 30   Transcript, PN 389.

 31   Transcript, PN 458 – 470.

 32   Transcript, PN 488 – 497.

 33   Transcript, PN 501 – 584.

 34   Fair Work Act 2009, s117(3); Real Estate Industry Award 2010, clause 11.1.