Milos Sekulovski v Metal Cutting Technology Pty. Ltd
[2022] FWC 3086
•29 NOVEMBER 2022
| [2022] FWC 3086 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Milos Sekulovski
v
Metal Cutting Technology Pty. Ltd.
(U2022/10119)
| DEPUTY PRESIDENT BELL | MELBOURNE, 29 NOVEMBER 2022 |
Application for an unfair dismissal remedy – whether application filed out of time – application filed within 21 days – jurisdictional objection dismissed.
On 17 October 2022, Mr Milos Sekulovski (Applicant) made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The Applicant alleges he was unfairly dismissed by Metal Cutting Technology Pty. Ltd. (Respondent) on 23 September 2022. It is not in dispute that the Applicant was dismissed at the initiative of the Respondent.
Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect. Based on the material before the Commission it appears that the Applicant made his unfair dismissal application outside the 21-day timeframe. The Commission must therefore determine in the first instance if an extension of time should be granted for the making for the application.
The Applicant’s ‘Form F2’ filed on 17 October 2022 states that he was notified of the dismissal on 21 September 2022 and the date the dismissal took effect was 23 September 2022.
The Respondent’s ‘Form F3’ states that the notification and effective date of the dismissal were both on 21 September 2022.
Taking the later of these two dates, for the application to have been made within 21 days after the dismissal took effect (assuming 23 September 2022), it needed to have been made by midnight on Friday, 14 October 2022.
Notwithstanding, the Applicant’s witness statement and Form F2 states that he was asked to return to work on 27 – 29 September 2022. If the Applicant’s effective date of dismissal was 27 September 2022, then for the application to have been made within 21 days after the dismissal took effect (assuming 27 September 2022), it needed to have been made by midnight on Tuesday, 18 October 2022. In this scenario, the Application would be within time.
Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.
When must an application for an order granting a remedy be made?
Section 394(2) of the FW Act provides that such an application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Commission allows.
There being contested facts involved, the Commission is obliged by s.397 of the Act to conduct a conference or hold a hearing. After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter (s.399 of the Act).
The Applicant gave evidence on his own behalf, and filed a three-page statement and various supporting documents. The Respondent filed a witness statement from Mr Byron Linsell, General Manager, and various supportive documents. Also appearing for the Respondent was Mr Saxon Fletcher, director.
Neither witness was sought to be cross-examined, although I asked each some questions. There were no issues of credit arising, and I consider both Mr Sekulovski and Mr Linsell were doing their best to give truthful evidence, albeit (and unsurprisingly) each were occasionally uncertain about matters which they appeared to regard as evidence about legal matters.
When did the dismissal take effect?
It was not in dispute that the Respondent had, in writing and otherwise, raised concerns about the Applicant’s performance in his role, beginning over 12 months prior to the termination of his employment. It is not necessary to traverse those, although it appears they are disputed by the Applicant.
By a letter dated 1 July 2021, various performance matters were raised. The letter concluded that this was the Applicant’s “first written warning” and then stated that “in 12 weeks (or as near to the 30th September, 2021) we will have another meeting to discuss the results of your reporting and daily activities then.”
A further warning letter, dated 17 June 2022, made reference to a meeting with the Applicant on 14 June 2022 to discuss the Applicant’s employment performance, and set out various performance concerns and matters raised in that meeting. The letter stated that in the event the Applicant was unable to increase his sales by 40%, his position was not sustainable. The letter concluded that this was the Applicant’s “second warning letter” and that “in 2 weeks we will have another meeting to discuss your sales growth and planned activities to try and reverse the potential outcome”.
A third letter, dated 29 July 2022 and titled “Employment Review” followed. It appears from that letter that the Respondents were not satisfied with the improvements they thought were needed. The letter indicates the Respondents were intending to give the Applicant an opportunity to find work elsewhere rather than moving towards an immediate dismissal. The letter offered to speak positively to “potential future employers” and stated “We expect you to received welcoming responses as you explore the labor [sic] market would hope you have a clear direction in the next 4 weeks.”
It appears that the next key event took place on 21 September 2022, when the Applicant was informed he was being dismissed. The Applicant was not provided with a letter of termination.
I noted the different (and somewhat inconsistent) explanations by the parties above regarding the date of dismissal. For those reasons, I wrote to the parties through chambers on 16 November 2022 in the following terms:
“ - Mr Sekulovksi says in his statement at paragraph [15] (Digital Court Book page 12) that there was a meeting on 21 September 2022 where his telephone, fuel card and computer were taken back.
- Mr Sekulovksi then says “[Saxon] changed his mind & asked me to assist him with office renovations on 27 to 29 September 2022, which I did.”
- The Deputy President notes that this evidence is not disputed in the Respondent/MCT’s material.
- If the Respondent/MCT does intend to dispute this evidence, he requires the Respondent/MCT to file and serve the following documents by midday, Monday, 21 November 2022:oAny payroll documents recording or showing any work or attendance by Mr Sekulovski for the dates 21 September 2022 to 29 September 2022 (inclusive).
oAny documents recording communications (including text messages) to or from Mr Sekulovski for the dates 21 September 2022 to 29 September 2022 (inclusive) including, but not limited, to any work performed on 27 – 29 September 2022.
- If the Respondent/MCT does not intend to dispute the evidence regarding work on 27 to 29 September 2022, the Deputy President expects the parties to address him on the following at the determinative conference/hearing:
oWhy the date the dismissal took effect would be earlier than 27 – 29 September 2022.
oOn what basis the application was not made within 21 days from when the dismissal took effect. As the application was made on 17 October 2022, the 21 day period prior to that was 26 September 2022.”
In response to the above correspondence, the Respondent filed a short letter signed by Mr Linsell, dated 21 November 2022. Mr Linsell also adopted that letter when giving evidence. Relevantly, that letter stated (my emphasis):
“On Wednesday 14 September a phone call from Saxon Fletcher to Milos Sekulovski confirmed he would be able to “handover” his customer base to his colleague, Murughan Jayaram by Wednesday 21 September, note Thursday 22 and Friday 23 September 2022 were public holidays in Victoria. This also meant Milos would have a month to work out his notice. Saxon asked Milos to help in the Melbourne factory during the 4 weeks notice period which Milos did by assisting working several days the following week before claiming he had other things to do.
On Wednesday 21 September 2022 Saxon Fletcher met with Milos at the MCT office in Melbourne where Milos handed over his telephone, fuel card and laptop computer.
Based on the date of Monday 26th September MCT paid 4 weeks in lieu of notice and 1 week due to being over the age of 45yrs and employed for longer than 2 years.
We understand the clarification that the Deputy President is seeking. All we can offer is that Milos’ official end-of-work date was the 21st of September, evidenced by the handover of MCT’s property and cessation of any expectations of contact with his customers or performance of his sales role.”
At the determinative conference before me, the Applicant confirmed he performed work on 27 – 29 September 2022. So much was undisputed and I accept it. The nature of the work, also undisputed, was in the nature of renovations work. It is fair to conclude that this work was significantly different to the Applicant’s ordinary duties as a Technical Sales Engineer. The Applicant indicated, and I accept, that he had helped out as part of his work in similar tasks previously, although I infer they were uncommon and largely in the nature of a small-team environment where everyone available might pitch in to get things done.
Putting aside the different tasks being performed on those days, the Applicant’s evidence (which was not disputed) in response to my questions about that work included the following:
· He believed he was paid for the work.
· The payment for the work was made in his final payslip, which was dated 24 October 2022.
· He was not separately paid for the work undertaken on 27 – 29 September 2022 (whether in cash, by invoice, or by some other arrangement).
The final payslip was not in evidence, although in discussion with the parties at the conclusion of the hearing, it was accepted that it would be sent to me.
The payslip appears to have been generated on 24 October 2022. Among other matters:
· It indicates the Applicant was a “Non Award Employee”.
· The “Payment Date” for the amount in that payslip was 24 October 2022.
· The payments included a description of “4 weeks in lieu of notice” and an additional week for being over 45 years.
Applicable principles
Where an employee is given notice of the termination of their employment, the dismissal will take effect at the end of the period of notice that has been given to the employee.[1]
Whether a dismissal takes effect immediately when payment is made in lieu of notice is a question of fact.[2] Where the employer’s communication is clear and there is no evidence of a contrary intention, termination by payment in lieu of notice will result in immediate termination of the contract of employment when the dismissal is communicated to the employee.[3]
In the present case, there was no payment made in lieu of notice at the time notice was given. Putting aside that hurdle, the evidence (unchallenged) was that the Applicant continued to work during the notice period. While the amount of days worked appeared limited, it was sufficient that he worked on 27 – 29 September 2022. If the initial intention was that the Applicant was not going to work during that period, it evidently changed when he was asked to do so (and did).
On my inquiries, I sought to determine if the character of the work that occurred after notice being given on 21 September 2022 was of such a different nature that it could be explained by a different contractual arrangement (i.e. something to the effect of a side arrangement designed to take the sting out of loss of employment by a person who was otherwise viewed as a loyal employee). I am satisfied that the working arrangements were simply a part of the Applicant’s notice period. He was not paid separately for them and the payment that was made was included in the final payout for his ordinary wages and notice.
In summary, I am satisfied that the dismissal did not take effect until after 29 September 2022. Given the possibility of further ad hoc work during the notice period, it is likely the dismissal did not take effect until that notice period elapsed and the Applicant received his final pay.
However, the exact date is moot. As I noted above, it is sufficient if the date the dismissal took effect was on or after 26 September 2022 for the application to have been made within time. The dismissal did take effect on or after that date.
It follows that the application for an unfair dismissal remedy was made within time and therefore in accordance with s.394(2)(a).
The jurisdictional objection (based on lateness) is dismissed. An Order[4] to this effect will be issued in conjunction with this decision. Further directions to the parties will shortly follow that will address the filing of evidence and submissions for the substantive unfair dismissal claim.
DEPUTY PRESIDENT
Appearances:
M Sekulovski on his own behalf
B Linsell with S Fletcher from the Respondent
Determinative Conference details:
2022.
Melbourne (by video link via Microsoft Teams):
November 23.
[1] Ayub v NSW Trains[2016] FWCFB 5500, [17].
[2] Siagian v Sanel Pty Ltd (1994) 54 IR 185.
[3] Siagian v Sanel Pty Ltd (1994) 54 IR 185.
[4] PR748148
Printed by authority of the Commonwealth Government Printer
<PR748147>
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