Michael Kellam v Competitive Foods Australia T/A Hungry Jacks

[2015] FWC 7831

[2015] FWC 7831

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Kellam
v
Competitive Foods Australia T/A Hungry Jacks
(U2015/12154)

COMMISSIONER ROE MELBOURNE, 13 NOVEMBER 2015

Application for relief from unfair dismissal - extension of time.

[1] Mr Kellam failed to attend for his rostered shift on 6 September 2015. Hungry Jacks say that Mr Kellam was dismissed by letter sent by email to Mr Kellam on 8 September 2015. Mr Kellam says that he did not receive notification of the termination until 18 September 2015. The Application for unfair dismissal was made on 6 October 2015. The 21^st day after the day of dismissal is therefore 29 September 2015, if the termination was on 8 September as submitted by Hungry Jacks. If the dismissal took effect on 18 September 2015, as submitted by Mr Kellam, then the 21^st day after that day is 9 October 2015.

[2] Hungry Jacks say that an email was sent and a voice mail left on 6 September 2015 requiring Mr Kellam to attend a disciplinary meeting on 8 September 2015. Mr Kellam accepts that he was notified that he was not to work any shifts after 6 September 2015. Mr Kellam did not attend the meeting. Hungry Jacks say that further attempts were made to contact Mr Kellam on 8 September 2015. Mr Mills gave evidence that a termination letter dated 6 September 2015 was sent to Mr Kellam at the email address regularly used for payroll and other communications on 8 September 2015. Hungry Jacks says that there was an agreement reached at a meeting on 11 July 2015 that Mr Kellam would attend all rostered shifts and that this agreement was broken on 6 September 2015 and that Mr Kellam was dismissed with immediate effect and that he would be paid up to and including that day. A final pay slip shows Mr Kellam was paid for 7 September 2015 and that he had an entitlement to 30.31 hours annual leave as at that date. The annual leave was paid out on a pay slip dated 9 September 2015.

[3] Mr Kellam says that he called in sick on 6 September 2015. Mr Kellam says that he spoke to a manager “Ash” and was asked to post to our group communication wall and cover the shift himself which he says he did. Mr Kellam says that he was called and notified that he cannot work any shifts after Sunday 6 September 2015. Mr Mills says that this call was on the 6 September 2015 and that he told Mr Kellam at that time he had to attend the disciplinary meeting on 8 September 2015. Mr Kellam says that he did not receive notification of the termination until 18 September 2015.

[4] The termination letter says that the dismissal took effect on 6 September 2015. Hungry Jacks concedes that this cannot be correct given that they say that Mr Kellam was required to attend a meeting on 8 September 2015. Mr Mills says that the date was a typing error.

[5] The reason for the delay is that Mr Kellam says that he was not notified of the dismissal. If this is the case then this is a strong explanation which would contribute to a finding that exceptional circumstances exist. However, Mr Kellam did not attend the hearing of this matter on 13 November 2015. Mr Kellam failed to provide material as directed and so I ensured that he was advised on 9 November 2015 that if he failed to attend the hearing the matter would proceed to be determined on the basis of the material before me. In the absence of Mr Kellam I am obliged to accept Mr Mills’ evidence that he did email the dismissal letter to Mr Kellam using the correct email address on 8 September 2015. In the absence of alternative tested evidence from Mr Kellam I must prefer this evidence to the statement of Mr Kellam that he was not aware of the dismissal until 18 September 2015. Given my finding that Mr Kellam was aware of the dismissal on 8 or 9 September 2015 there is no reason for the delay. This is a factor which stands against a finding of exceptional circumstances.

[6] Mr Kellam says that he was not aware of the dismissal until 18 September 2015. If this was established it would be factor which strongly supports a finding of exceptional circumstances. However, I have accepted the evidence of Mr Mills and found that Mr Kellam was aware of the dismissal on 8 or 9 September 2015. This is therefore a neutral factor.

[7] Mr Kellam took no action to dispute the dismissal prior to the lodging of the application. This factor stands against a finding of exceptional circumstances. However, given the short period of delay this is not a strong factor.

[8] The length of the period of the delay is short which makes it unlikely that there could be any prejudice to the employer. There was no evidence or submission of any particular or significant prejudice. This is a neutral factor.

[9] Hungry Jacks submits, and Mr Kellam does not appear to contest, that there were a number of warnings about similar behaviour prior to the dismissal. However, Mr Kellam’s submissions raise significant alleged deficiencies in procedural fairness. The parties have not had the opportunity to fully present their cases concerning the merits. I do not conclude that the case is wither particularly strong or without merit. The merits are a neutral consideration in this case.

[10] There is no issue of fairness between Mr Kellam and other persons in a similar position which arises from the circumstances of this case.

[11] Considering all of the factors I am not satisfied that there are exceptional circumstances justifying an extension of time. The Application is therefore dismissed.

COMMISSIONER

Appearances:

Mr D Makhoul appearing for the Respondent

Hearing details:

2015.

Melbourne.

13 November.

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