Mr David Evans v MPDT Pty Ltd T/A Mossman & Port Douglas Treelopping

[2016] FWC 7695

[2016] FWC 7695

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr David Evans
v
MPDT Pty Ltd T/A Mossman & Port Douglas Treelopping
(C2016/5456)

COMMISSIONER SAUNDERS NEWCASTLE, 2 NOVEMBER 2016

Application to deal with contraventions involving dismissal – application made within time

Introduction

[1] On 28 October 2016, I heard an application for an extension of time in relation to the general protections application filed by Mr Evans on 11 September 2016. For the reasons set out below, I have concluded that Mr Evans’ employment with MPDT Pty Ltd trading as Mossman & Port Douglas Treelopping (MPDT) came to an end on 23 August 2016. It follows that Mr Evans’ general protections application was filed within the 21 day period prescribed by s.366(1)(a) of the Fair Work Act 2009 (Cth) (the Act).

Cessation of employment

[2] Mr Evans was employed by MPDT as a casual employee. He was injured at work on 21 July 2016 and, as a result of his workplace injury, was unavailable for work for a short period of time.

[3] MPDT did not offer Mr Evans any casual work after he was fit to return to work in July 2016. According to MPDT, the reasons he was not offered such work include the existence of an issue between Mr Evans and some of the crew members with whom he had been working and the lack of available work in New South Wales as a consequence of adverse weather. However, there is no dispute and I am satisfied on the evidence that MPDT continued to look for work for Mr Evans to undertake as a casual employee and Mr Evans was ready, willing and able to undertake such work in the period from about 24 July 2016 to about 23 August 2016. The following text messages 1 sent between Mr Evans and Mr Tim Carbis, MPDT Operations Manager, support this finding:

“2 August 2016 text from Mr Evans to Mr Carbis at 3:24pm

Hi Tim,.. Hope all’s well,.. I gather there will be no more work for me with MPDT,… I have washed, folded and bagged the shirts you guys gave me ready to send back up your way,. Cheers,… and I would like to know, do I need a separation certificate even though I was only casual??

2 August 2016 text from Mr Carbis to Mr Evans at 4:57pm

Hi Dave, keep the shirts for now as I am still trying to find suitable works for you. It is ask [sic] ways quiet at the start of the financial years so this is not unusual. If you would like a separation certificate I can speak to Karen and get one sorted if it helps you financially but I will continue to see if I can find work, might just take a while as there is not much happening at the moment due to wet weather in NSW.

2 August 2016 reply text from Mr Evans to Mr Carbis

Ok mate I will do what I have to do to get through,. Cheers mate.

22 August 2016 text from Mr Evans to Mr Carbis at 11:51am

Ay mate,. No work Stihl aye??

22 August 2016 text from Mr Evans to Mr Carbis at 11:51am

Could you please send my statements of attainment for recent upgrade of regs training and a separation certificate also to me, thank you.

Am currently seeking legal advice on this situation.

22 August 2016 text from Mr Carbis to Mr Evans at 3pm

Hi Dave sorry for the late reply I am currently off work at the moment. As previously stated happy to supply you with a separation certificate and will email Kath to send through the recent training done. Disappointed with your last message as I have bent over backwards to try and help you when we thought you were someone down on your luck. I have genuinely been looking for work for not just you but about 15 other people who are currently out of work at the moment but as with most things at the moment there is not a lot happening.

[There then followed a series of texts between Mr Carbis and Mr Evans in which a range of accusations were made and responded to. The end result was the following text messages being sent by Mr Carbis to Mr Evans on 23 August 2016]

Hi Dave, I have referred you onto Phoebe Kitto our human resource consultant. She will handle any issues you have from here on out.”

[4] On 23 August 2016, MPDT prepared an Employment Separation Certificate for Mr Evans and sent it to him. The Employment Separation Certificate is dated 23 August 2016, but states that the date employment ceased was 24 July 2016 and the reason for dismissal was “shortage of work”.

[5] Regardless of the fact that the Employment Separation Certificate states that the date employment ceased was 24 July 2016, I am satisfied for the reasons set out in this decision that Mr Evans remained employed by MPDT as a casual employee up until 23 August 2016, notwithstanding that he was not given any shifts to work during that time.

[6] A dismissal is not effective until it is communicated to an employee. 2 Accordingly, any attempt by MPDT to dismiss Mr Evans on 24 July 2016 by sending him a copy of an Employment Separation Certificate shortly after 23 August 2016 was ineffective. At all times prior to 23 August 2016, MPDT was trying to find casual work for Mr Evans and he was ready, willing and able to accept such work. It was only as a result of the communications between Mr Evans and Mr Carbis on and leading up to 23 August 2016 and the preparation of the Employment Separation Certificate on 23 August 2016 that it became clear that Mr Evans would not be offered any further casual shifts by MPDT after 23 August 2016. I therefore find that Mr Evans’ employment with MPDT came to an end on 23 August 2016.

Conclusion

[7] Because Mr Evans filed his general protections application within 21 days of 23 August 2016, there is no need to consider any out of time question.

[8] There remain issues between the parties as to whether Mr Evans was dismissed by MPDT and, if so, what were the reasons for that dismissal. The matter will now be referred for conciliation to see whether those outstanding issues can be resolved by the parties.

COMMISSIONER

Appearances:

Ms N Tackney, on behalf of Mr Evans;

Ms P Kitto, Human Resource Consultant from HR Dynamics, on behalf of the respondent;

Hearing details:

2016.

Newcastle:

October, 28.

 1   Exhibit A5

 2   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

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