Mr Anthony Hewitson v Viterra Limited
[2012] FWA 6339
•16 AUGUST 2012
[2012] FWA 6339 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Anthony Hewitson
v
Viterra Limited
(U2012/844)
COMMISSIONER HAMPTON | ADELAIDE, 16 AUGUST 2012 |
Termination of employment - jurisdiction - whether protected from unfair dismissal - whether dismissal at the employers initiative - whether extension of time to lodge application required and if so whether warranted - no exceptional circumstances - extension of time refused - application dismissed.
BACKGROUND AND CASE INTRODUCTION
[1] The matter arises in the context of an application made by Mr Anthony Hewitson (Mr Hewitson or the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The respondent employer is Viterra Limited (Viterra or the respondent).
[2] The applicant worked for Viterra at its Port Lincoln grain handling facility between June 2011 and January 2012. He was apparently engaged as a casual employee and was rostered and paid on that basis. His last day of actual work was 13 January 2012. After that time, no further shifts were rostered and by February 2012, the applicant had sought alternative work.
[3] In mid and late January 2012 there were discussions between Mr Hewitson and the respondent’s local management about his future employment. There is a dispute as to what was said or done in those conversations and its effect. In late March 2012, having taken some advice, the applicant wrote the respondent and gave, in effect, 24 hours to confirm the status of the employment relationship. No response was given by the respondent. About two weeks later, the applicant filed this application.
[4] Given the relevant provisions of the Act, three related preliminary points arise from these circumstances; namely:
- Was there a dismissal within the meaning of the Act (s.386) and is so when? - the dismissal issue;
- Depending upon the dismissal issue, whether an extension of time is required for the lodgement of the application and if so, should an extension of time be granted pursuant to s.394(2)? - the extension of time issue; and
- Did the applicant have sufficient relevant service as a casual to be protected under the Act given the provisions of s.383 and s.384? - the casual service issue.
[5] The applicant appeared in his own right and contended that in effect he was employed as a casual employee on a probationary period in the expectation that he would become a full-time employee. Further, he contended that he had over six months service as a casual who had worked regular and systematic hours with the expectation of ongoing employment.
[6] The applicant also contended that he was not formally dismissed by the employer and remained hopeful of further work right up until late March 2012 when his status was confirmed by the non-actions of the respondent. Having learnt that other casuals had obtained further employment, he then sought to contest his unfair dismissal. In terms of the extension of time issue, the applicant claimed that the dismissal occurred in late March 2012 and that an extension was not required. I also understand that if an extension was required, Mr Hewitson contended that it should be granted in the circumstances.
[7] The respondent was represented with permission by Mr Short. The applicant did not oppose permission being granted and I note that Mr Short’s involvement assisted the Tribunal (and indirectly the applicant) in hearing this matter consequent upon the applicant’s former representative withdrawing in rather unhelpful circumstances.
[8] Viterra contended that the applicant did not have sufficient service given the nature of his casual employment and in particular, the lack of a reasonable expectation of ongoing work. Further, it contended that there was not a dismissal at its initiative. Finally, the respondent argued that if there was a dismissal it occurred in January 2012 and an extension of time should not be granted.
[9] I have now heard evidence and submissions from the parties dealing with all three preliminary issues. Ultimately, it has only become necessary to determine the extension of time matter. I have however considered the other issues to the extent that they are relevant to the issue determined. The reason for that course of action will become clear.
THE STATUTORY CONTEXT FOR THE EXTENSION OF TIME ISSUE
[10] Section 394 of the Act in dealing with applications for a remedy in relation to dismissals provides relevantly as follows:
“….
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[11] Section 396 of the Act relevantly provides that Fair Work Australia must determine (amongst other matters) whether the application was made within the period required by s.394(2), which includes the potential extension to the 14-day period, before dealing with the merits of the application.
THE EVIDENCE AND GENERAL FACTS OF THE MATTER
[12] Mr Hewitson gave evidence in the matter and also relied upon that given by Mr Paul Nicholls, a Terminal Operator and Leading Hand employed by Viterra.
[13] Viterra led evidence from the following personnel engaged at its Port Lincoln facility:
- Mr Douglas McLeod - Operations Coordinator;
- Mr Nicholas Pratt - Site Supervisor; and
- Ms Paula Kenny - Senior Administrator.
[14] I found the applicant’s evidence to be genuine however his recall of the detail of some discussions was not good. I have treated that evidence with caution.
[15] Mr McLeod was an impressive witness and I generally accept his evidence where it involves events that he was directly involved in. I found the evidence of Mr Nicholls, Mr Pratt and Ms Kenny to be genuine. However, Ms Kenny’s recall of a particular meeting with the applicant was not clear. There was a mistake in the written evidence of the respondent’s witnesses as to the date of a meeting with the applicant. This arise from a diary entry recorded on the wrong date however this does not undermine their evidence as to what occurred in that meeting.
[16] There are conflicts as to the events that occurred during January 2012 involving discussions between or involving Mr Pratt and Mr Hewitson about his employment. I generally prefer the evidence of Mr Pratt in relation to those conflicts.
[17] Having regard to the evidence before Fair Work Australia I find that the following events have set the context for the determination of this matter.
[18] The applicant commenced employment with Viterra on 20 June 2011. He had earlier applied for a position as a full-time terminal operator at the Port Lincoln facility but was offered and accepted a position as a casual employee. Although the concept of being a seasonal casual was used in some of the respondent’s employment documentation concerning the applicant, it is evident that this term was not used in relation to his actual engagement and he was, along with others, engaged and paid as a casual employee. 1
[19] It is likely that the concept of the applicant working initially as a casual employee in order to be considered for future full-time employment was discussed during the initial interview. However, I do not accept that he was engaged as a casual on a three months probationary basis as claimed. Viterra do not use three months probationary periods and nothing in the relationship was consistent with that understanding. This includes the fact that the concept of a three months probationary period was not raised by the applicant at the relevant time or during the later discussions about future employment.
[20] The business of Viterra is seasonal in nature. That is, there is an underlying level of work throughout the year at the Port Lincoln terminal and a full-time workforce is engaged in that context. However, there are peak periods of grain handling associated with the grain harvest and the respondent significantly increases its workforce through the use of casuals (and labour hire) during those peak periods. The extent of the season depends upon the volume and timing and the grain harvests in the region and will vary from year to year.
[21] The applicant worked significant hours during most of his time with Viterra and this involved working something between 33 hours and at times in excess of 70 hours per week. Other than for a period of agreed absence, the applicant worked in each week between June 2011 and 13 January 2012. Although the applicant had to check the roster to see what hours were to be made available, he had at that point a reasonable expectation that some hours would be provided during that immediate period.
[22] On 20 December 2011, Mr McLeod advised the casuals at the terminal, including the applicant, that as the harvest receipts were declining, the hours for the casual staff would also be declining and the numbers of staff reduced in the next few weeks. It is also likely that this message was reinforced at other discussions involving the applicant and the other casuals around this time.
[23] Between 29 December 2011 and 10 January 2012, the applicant was absent from work due to a holiday. There is a dispute as to whether the applicant was requested to commence work a day earlier than expected, however he did advise of his availability and this did happen.
[24] By mid January 2012, Viterra considered that the harvest period had effectively concluded.
[25] The last day that Mr Hewitson worked for Viterra was 13 January 2012. On that day, the roster for the following week was displayed and although there were hours allocated to the applicant in one column, he was shown as being off for the entire period of the roster. I note that five other casual employees were also rostered off for that entire roster period. Mr McLeod spoke generally to the group and more specifically to a group of casuals including Mr Hewitson and advised them that there would be little or no hours for him beyond that point and he would need to check the roster on a daily basis to see whether any hours were available.
[26] I also find on balance that Mr McLeod had an earlier discussion with Mr Hewitson in the week concluding 13 January during which the prospect of the work for him coming to an end was foreshadowed.
[27] On Monday 16 January 2012, Mr Hewitson attended the terminal and found that the roster still indicated that there was no work available for him. On Wednesday 18 January, he rang for Mr McLeod and also left a message for Mr Pratt. On 19 January 2012, the applicant spoke to Mr Pratt who indicated that Mr Nicholls was doing the rosters. Mr Hewitson confirmed that he wanted to speak with Mr McLeod.
[28] On 20 January, a phone discussion took place involving the applicant, Mr Nicholls and Ms Kenny in the context of the applicant’s concerns that no hours were being made available to him. The applicant confirmed that he had not received a return call from Mr McLeod. Mr Nicholls confirmed that the roster for the next period had already been drafted and this did not include the applicant. Further, it was explained that only Mr McLeod could confirm what was happening.
[29] On Monday 23 January 2012, a meeting took place involving the applicant, Mr Pratt and Ms Kenny at the terminal. The applicant complained that Mr McLeod had not returned his calls and that he was no longer being given hours. The meeting also discussed whether the applicant was a casual or a “Harvest casual” and Mr Hewitson asked why he had been rostered off. Mr Pratt explained that the work had slowed down and in effect that all of the casual workforce had been informed of this and been impacted. This involved five or six others being rostered off at the same time as the applicant. The applicant was informed that he should take other employment and not rely upon Viterra for further work. The applicant confirmed that he did want Mr McLeod to contact him.
[30] I will return to the significance of this meeting shortly, however following that meeting, the applicant did not seek to contact the respondent again (other than to return an accidental phone call from Mr McLeod in late January 2012 and again later in March 2012 in relation to a letter), did not return to workplace to check the roster and immediately sought other employment. In essence, Mr Hewitson had given the work with Viterra away. 2
[31] In mid March, the applicant became aware that at least some of the other casuals who had been rostered off with him in mid January had obtained further employment. After taking advice, the applicant rang again for Mr McLeod on 28 March and wrote a letter to the respondent on 29 March 2012. That letter read as follows:
“Anthony Hewitson
...
29/03/12
Dear Mr McLeod
I have been attempting to contact you on numerous occasions without success since the 16 January 2012 to discuss my ongoing employment with Viterra.
Can you please contact me by the close of business 30 March 2012.
If I do not hear from you by this date and time I will take it that my employment with Viterra has been terminated.
Regards
Anthony Hewitson”
[32] The letter was not read by Mr McLeod prior to 30 March and he did not contact the applicant as the nominated period had expired.
[33] The unfair dismissal application was lodged with Fair Work Australia on 13 April 2012. There is little or no explanation for the delay between 30 March and 13 April however I am prepared to accept that at some stage in that period the matter was placed into the hands of the applicant’s then representative.
[34] Although there is some dispute between the parties, I find that there is an objective explanation as to why a number of those casuals who were rostered off with the applicant in mid January 2012 subsequently obtained further employment. 3 I also note that the applicant does not claim that he was singled out by Viterra in the manner in which he was treated.4
[35] There is some evidence as to a conversation that took place between the applicant and Mr Pratt after the commencement of these proceedings. This occurred in the context of the applicant arranging for a friend to ring Mr Pratt and pose as a prospective employer. It is not necessary that I deal with the outcome of that discussion given the other findings that I have made.
CONSIDERATION
[36] Section 394(2) of the Act provides a 14-day period within which to lodge an unfair dismissal application. The period is defined as being 14 days after the dismissal took effect and the 14-day period is exclusive of the day of the event, in this case, any dismissal. 5
[37] The applicant claims that he was dismissed on or about the 30 March 2012 and as this application was lodged on 13 April, an extension of time was not required. The respondent denies that there was any dismissal, but acknowledged that if it did take place, it could only have been in January 2012.
[38] On that basis, it is necessary for present purposes to undertake some assessment of the relevant events in the context of the dismissal issue.
The dismissal issue
[39] Although it is not necessary to determine whether a dismissal took place within the meaning of s.386 of the Act, if there was a dismissal within the meaning of the Act it could only have been at the time of the 23 January 2012 meeting. At that point, it was evident that the nature of any casual work being offered to Mr Hewitson had changed, that there would be no regular work and little if any actual work offered, that he should not rely upon Viterra for employment and should take other work. 6
[40] Mr Hewitson’s response from that point also confirms that he knew that the previous, mostly regular, casual employment had in effect concluded.
[41] The letter sent by the applicant in late March 2012 was in my view merely a device to attempt to create a later point for an alleged dismissal.
[42] In that light, the application should have been lodged with Fair Work Australia by 6 February 2012. Further, an extension of time is required if this matter is to be considered on its merits.
Should an extension of time be granted?
[43] Section 394(3) of the Act provides Fair Work Australia with discretion to extend the time for lodgement beyond the 14-day period where it is satisfied that exceptional circumstances exist to warrant that action. In considering whether exceptional circumstances exist for this purpose, I am required to take account of the considerations outlined in paragraphs (a) to (f) of s.394(3) of the Act. I have done so in this matter.
[44] Although the statutory discretion in s.394(2) requires the considerations in s.394(3) relating to the existence of exceptional circumstances to be assessed in an overall manner and these are interrelated, it is convenient to discuss the issues under the various factors raised by the respective subsections of the Act. In assessing these matters I have been mindful of the approach to the concept of exceptional circumstances as summarised by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd. 7
The reason for the delay
[45] The delay of over nine weeks beyond the stated period is significant in relative terms. This did occur in a particular context that must be considered as part of any explanation for the delay.
[46] It is evident to me that Mr Hewitson accepted that his casual employment had in effect come to an end in January. He was annoyed that Mr McLeod had not contacted him but he had moved on and obtained further employment.
[47] Some allowance should be made for the fact that the applicant could have reasonably expected some contact from Mr McLeod however by the conclusion of the 23 January meeting the applicant knew what had happened. If he considered that this was not consistent with his expectation of ongoing employment, it should have been evident that this was the time to deal with the matter.
[48] It is evident to me that it was only later in mid March 2012, when he became aware that some casual employees had obtained further work, that he sought to consider his position. Having done so, there is some explanation of the further delay in lodging this application but such is not strong.
[49] In summary, there is some explanation for elements of the delay in lodging the application however much of the delay has not been satisfactorily explained.
When the person first became aware of the dismissal after it had taken effect
[50] Mr Hewitson was never formally notified of his dismissal. It is however evident that by 23 January 2012, he knew or should have known that he would no longer be given any regular shifts by Viterra. This was a significant change in the nature of the arrangements. His subsequent conduct, in seeking alternative work and no longer approaching the respondent to check whether any work was available, is also consistent with an understanding that the former relationship had in effect ceased.
[51] Although the absence of a formal dismissal is a relevant consideration, the overall context reveals that the applicant should have been aware of the apparent dismissal by 23 January 2012.
Any action taken by the person to dispute the dismissal
[52] This consideration is clearly related in this case to the reasons for the delay as discussed above.
[53] The applicant took no action to seek advice or apparently consider contesting the issue until late March 2012. He did then take advice and made contact with the employer.
Prejudice to the employer (including prejudice caused by the delay)
[54] The respondent relies upon the prejudice of running the substantive case. Given the broad nature of the statutory consideration, this may be relevant however nothing in particular was identified beyond the basic assertion.
The merits of the (unfair dismissal) application
[55] The consideration of the merit of the application in this context is limited to the prima facie merits. 8
[56] It is in this context that I have considered the casual service issue.
[57] In order to be protected from unfair dismissal, the applicant must have sufficient relevant service. Given that Viterra is not a small business, that period of continuous service must be at least six months. 9 The period over which Mr Hewitson was engaged was longer than six months.
[58] However, as a casual employee, the nature of that service must be such as to count towards the period of employment. Section 384 of the Act provides as follows:
“384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”
[59] It is arguable that as at 13 January 2012, the applicant’s service was both regular and systematic. It is also conceivable that he had an expectation of ongoing casual work, however this may not have been for regular and systematic work.
[60] I would also note that if the employment was considered to be on foot until late March 2012, as contended by the applicant, there would in my view have been no reasonable expectation of continuing employment at that point. This would raise serious doubt as to whether there was sufficient relevant service within the meaning of s.384(2) of the Act.
[61] In terms of the merits of the case, given the position of the applicant as foreshadowed on the merits there does not appear to be a strong ground that any dismissal was harsh, unjust or unreasonable. In many senses the application is a complaint about not being re-employed rather than a contention that the dismissal itself was unfair.
[62] It is sufficient for present purposes to confirm that the applicant has an arguable case that he was protected from unfair dismissal as at mid January 2012 however there appears to be little merit in the substantive case.
Fairness as between the person and other persons in a similar position
[63] This consideration as it applies to other employees of the respondent does arise in this matter. There were others whose casual service ended at the same time as the applicant. In my view, the consistent application of principles adopted by Fair Work Australia in similar matters is in line with this consideration and I have sought to adopt that approach in this case.
CONCLUSIONS
[64] In the context of the facts of this application and the extension required, and having considered each of the statutory considerations, I am not persuaded that there are exceptional circumstances as contemplated by s.394(3) of the Act.
[65] As a result, there is not a valid application before Fair Work Australia and the unfair dismissal application must be dismissed. An order to the end has been made in conjunction with this decision.
COMMISSIONER
Appearances:
A Hewitson, the applicant, in person
A Short, of Minter Ellison (with permission) for Viterra Limited
Hearing details:
2012
Port Lincoln
July 25
1 See: Hamzy v Tricon International Restaurants trading as KFC [2001] FCA 1589 FB; and Bluesuits Pty Limited t/as Toongabbie Hotel v Graham, (1999) 101 IR 28, 3 November 1999, per Giudice J, McIntyre VP, Jones C.
2 Transcript PN66.
3 This is associated with particular skills and length of service.
4 Transcript PN160.
5 S.36 of The Acts Interpretation Act 1901.
6 See Ciccia v Yarra Junction Medical Centre AIRC PR944031, 24 February 2004 per Whelan C.
7 [2011] FWAFB 975, 16 February 2011 per Lawler VP, Sams DP and Williams C. Although decided in the context of a general protections application, the general approach outlined at pars [12] to [15] is applicable to the present considerations.
8 Although also determined in a slightly different statutory context the decision in H Kyvelos V Champion Socks Pty Limited AIRC Print T2421, 10 November 2000, per Giudice J, Acton SDP, Gay C remains apposite.
9 Section 383 of the Act.
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