Michael Glancy v Mega Admin Services Pty Ltd T/A Mega Energy

[2017] FWC 4587

[2017] FWC 4587

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Michael Glancy
v
Mega Admin Services Pty Ltd T/A Mega Energy
(U2017/4954)

DEPUTY PRESIDENT DEAN CANBERRA, 5 SEPTEMBER 2017

Application for an unfair dismissal remedy.

[1] The following decision, now edited, was delivered ex tempore at the conclusion of the proceedings on 4 September 2017.

[2] On 10 May 2017 Mr Michael Glancy filed an application pursuant to s.394 the Fair Work Act 2009 (the Act) for a remedy in respect of his alleged unfair dismissal by Mega Admin Services Pty Ltd trading as Mega Energy (Mega Energy).

[3] The matter was listed for hearing on 4 September 2017 to determine the date the employment relationship between the parties ended and consequently whether an extension of time is necessary for Mr Glancy to pursue his claim. At the hearing, Mr Glancy appeared on his own behalf. There was no appearance on behalf of Mega Energy.

[4] I determined it was reasonable to continue to determine the matter in the absence of Mega Energy for the reasons set out below.

[5] The Commission sent emails to Mega Energy on 18 July 2017 and 1 August 2017 indicating that there appeared to be a dispute as to the date of dismissal of Mr Glancy’s employment, and requested that Mega Energy complete and return a Form F3, Employer Response. No reply was received. A further email was sent on 14 August 2017 and the Commission received an automatically generated email reply indicating that the email was unable to be delivered.

[6] The matter was listed for a jurisdictional hearing by telephone to determine the effective date of dismissal. The notice of listing was provided to Mega Energy by registered mail and email. The listing stated that “if any party fails to attend the hearing will proceed in their absence”.

[7] Directions were also made, and included in the notice of listing, as to the filing of any submissions, witness statements and other documentary material the parties wish to rely upon. No material was received by either party.

[8] The Commission made a number of attempts to contact Mr Paul Flackmorr, owner of Mega Energy, at the time scheduled for the hearing on his mobile telephone number. The telephone was not answered. The Commission was able to contact Mr Nick Drennan of Mega Energy, however, he was unaware of the matter and unable to appear at the hearing. He did not seek an adjournment.

[9] I am satisfied that Mega Energy was aware of the hearing. Mega Energy has not sought an adjournment or replied to any correspondence from the Commission. I find that it is reasonable in the circumstances to proceed to determine Mr Glancy’s date of dismissal.

Date of dismissal

[10] In his application Mr Glancy indicated that he was notified of his dismissal on 21 April 2017. He also indicated that his application had been made outside 21 calendar days of his dismissal taking effect. His explanation for the reason for this delay is as follows:

“I have an ongoing workcover claim for work related stress that was lodged on the 9th of march 2017.

The first time I was informed that I was dismissed was by a workcover email I received on 21st of april 2017. My employers took Seven weeks to respond to workcovers original questions and on the 21st of april 2017 claimed by email that they had dismissed me verbally BEFORE I returned to work from a month leave on 7th of march 2017. After workcover sent my employer a 5 min recording I had from the day I returned to work which clearly states I was not dismissed on that day the 7th of march or before, my employer blatantly lies and changes his story and sends an email to workcover a few days later claiming NOW that they had a meeting AFTER my call and called me back to dismiss me verbally later that day. This is totally untrue I have never ever received any calls from my employer after my taped call on the 7th of march where he states “no im not firing you, go home and ill let you know when you can come back”

I have NEVER received ANY notification by email or post or any other way . I have not had ANY severance pay whatsoever. I have had no income whatsoever from work or centrelink for 12 weeks as I have been in limbo about my employment status. (sic)” 1

[11] Mr Nick Drennan, General Manager of Mega Energy, provided some information to the Commission on 14 June 2017, that information being a copy of a response it provided to WorkCover Queensland on 20 April 2017. However, there is no evidence that was filed or relied upon in these proceedings.

[12] In the absence of any evidence to contradict that of Mr Glancy I am satisfied and find that Mr Glancy’s employment with Mega Energy ended on 21 April 2017. Accordingly his application has been made within the statutory timeframe. The matter will now be referred for arbitration.

DEPUTY PRESIDENT

Appearances:

M. Glancy, on his own behalf.

Hearing details:

2017.

Sydney (by telephone).

September 4.

 1   Form F2, Application for an unfair dismissal remedy at 1.5.

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