Mr Ernest Sydney Eastell v Seymours Pty Limited T/A Seymours Transport
[2010] FWA 3226
•20 APRIL 2010
[2010] FWA 3226 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Ernest Sydney Eastell
v
Seymours Pty Limited T/A Seymours Transport
(U2009/5182)
COMMISSIONER ASBURY | BRISBANE, 20 APRIL 2010 |
Termination of employment - jurisdiction - extension of time.
Background
[1] On 12 December 2009, Ernest Sydney Eastell made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). The Respondent in the matter is Seymours Pty Ltd trading as Seymours Transport (Seymours). On 23 December 2009, Seymours filed a Response to the application (Form F3) raising a jurisdictional objection to the application, on the basis that the application was not made within the time required in s.394(2) of the Act.
[2] It is contended for Seymours that Mr Eastell’s employment was terminated on 25 November 2009, and the termination was communicated to Mr Eastell at a meeting on that date with Mr Seymour, the Managing Director of the Company. Accordingly, Seymours maintains that the application for an unfair dismissal remedy was required to be filed by 9 December 2009. Seymours also contends that there are no exceptional circumstances in this case such that an extension of time should be granted.
[3] It is contended for Mr Eastell that the date the dismissal took effect was 3 December 2009, when Mr Eastell received written notice of the termination, and that the application for an unfair dismissal remedy was filed within the fourteen day time limit set out in s.394(2) of the Act. In the alternative, it is contended that the date the dismissal took effect was 1 December 2009, when Mr Eastell received payment in lieu of notice. Mr Upton of Counsel on behalf of Mr Eastell stated at the hearing on 25 February 2010, that Mr Eastell did not rely on s.394(3) of the Act and that there are no exceptional circumstances in the present case. The position on behalf of Mr Eastell in relation to this matter is reflected in the following exchange between Mr Upton, Counsel for Mr Eastell, and the Tribunal:
“MR UPTON: …We say that the effect of s.394(2) is that you need to determine when the contract of employment comes to an end.
THE COMMISSIONER: I see.
MR UPTON: In our submission it does not come to an end on 25 November 2009. It comes to an end at a point in time later than that.
THE COMMISSIONER: So you’re saying that there’s no need for an extension of time ---
MR UPTON: That’s right.
THE COMMISSIONER: ---because the contract of employment ended later than 25 November 2009?
MR UPTON: That’s right.
THE COMMISSIONER: All right. I understand. Okay. So if that argument is wrong, then do you have a fallback ---
MR UPTON: If that argument is wrong, then we fail. Simple as that. 1”
The facts
[4] The application for an unfair dismissal remedy was made on behalf of Mr Eastell by his representative RSM Law, a firm of Solicitors. The following statement is made in the application under the heading “What was the period of your employment?”:
“Date employed: 1/12/2002
Date notified of dismissal: 25/11/2009
Date dismissal took effect: 25/11/2009”
[5] Accompanying the application was a letter from RSM Law dated 12 December 2009, headed “LATE APPLICATION FOR UNFAIR DISMISSAL”, setting out the following sequence of events said to have lead to the late application:
“We act for Ernest Sydney Eastell whose employment was terminated by Seymours Pty Ltd on 25 November 2009.
The following sequence of events lead to the late application:
1. 25/11/2009 Mr Eastell did not receive his termination papers or final payment from Seymours Pty Ltd on the date of termination;
2. 27/11/2009 RSM Law’s entire computer system crashed.
3. Between 25/11/2009 and 3/12/2009 Mr Eastell on several occasions asked Seymours Pty Ltd, for his termination papers and final payment, without success;
4. 3/12/2009 Mr Eastell sought advice from RSM Law regarding unfair dismissal;
5. 3/12/2009 on returning home Mr Eastell received his termination papers and posted them to RSM Law;
6. 4/12/2009 Friday late afternoon, RSM Law’s computer system was back up and running.
7. 7/12/2009 RSM Law wrote to Seymour Pty Ltd informing them that Mr Eastell would make an application for unfair dismissal if the matter was not resolved;
8. 11/12/2009 Friday 2.38pm it was discovered that an office timeline error had been made to the unfair dismissal application.”
Evidence
An affidavit by Mr Eastell sworn on 22 February 2010 was tendered and admitted into evidence as Exhibit 1. Under the heading “DISMISSAL” the following appears:
“6. After arriving at work on 25 November 2009 I had a conversation with Don Seymour.
7. Don Seymour told me words to the effect:
“There’s been trouble at the mill, clean out your truck and I’ll drive you home.”
8. I continued working thinking I had misheard Don Seymour. I thought he was kidding. Mr Seymour repeated the remark and I then cleaned out my truck.
9. I was given no reason for being dismissed. I thought it was because I delivered a bundle of timber to the wrong address the previous day. On the way home I told Karl Seymour (Don’s son) that the reason the wrong delivery was made was because the office at the Mill only supplies me with order numbers not the number of packs per order number, which was Seymour’s former policy.
10. Karl Seymour told me words to the effect:
“We’ll just have to work that out”.”
[6] Mr Eastell goes on to state in his affidavit that on 3 December 2009 he received a letter from Seymours notifying that his services as a truck driver had been terminated. That letter, dated 1 December 2009 was appended to Mr Eastell’s Affidavit (ESE-01) and relevantly states:
“Dear Ernie
I refer to our recent conversation and confirm that, as of Wednesday November 25, 2009 your employment with Seymours Pty Ltd has been terminated. Please find attached a pay slip for your final payment and a separation certificate for Centrelink.
As per our agreement we have paid five weeks wages in lieu of notice. We have also paid out your entitlements as at 25-11-09.”
[7] Mr Eastell also states that he could not believe that he was dismissed until he received the letter on 3 December 2009 and checked his pay on 4 December 2009. Further, Mr Eastell states that he was depressed after losing his job, as Christmas was coming up and he had been working at the same depot for almost 30 years. Mr Eastell was not cross-examined.
[8] Mr Seymour swore an affidavit in these proceedings on behalf of Seymours stating that on 25 November 2009 he spoke with Mr Eastell in order to seek an explanation about an incident at the Esk Mill. During the course of that discussion, Mr Seymour states that he informed Mr Eastell that he was dismissed. Mr Seymour was not cross-examined.
Submissions
[9] It was submitted by Counsel on behalf of Mr Eastell that Chapter 2-2 of the Act establishes a set of National Employment Standards (NES) which cannot be displaced by any contract of employment. Section 117(1) of the Act provides that an employer must not terminate an employee’s employment unless the employer has given written notice of the termination, and such notice cannot be before the date upon which it is given. The exceptions in s.123 do not apply, and in particular, there are contested facts in relation to whether Mr Eastell was dismissed for serious misconduct. Where grounds for a jurisdictional objection are inextricably linked to the circumstances surrounding the termination, such as in this case, the objection should be dealt with in the way a court deals with an interlocutory motion for summary judgement, and should uphold the jurisdictional objection only in the clearest of cases.
[10] For the purposes of s.394 of the Act, the dismissal did not take effect until 3 December 2009. The time in which the application should have been made was 14 days from that date, and as the application was filed on 12 December 2009, Seymours’ jurisdictional objection should fail. It was also submitted that there was an error in the form F2 filed on behalf of Mr Eastell in respect of the date of the termination of his employment. This error should be corrected by FWA using its powers under s. 587 of the FW Act.
[11] Further, it was also submitted that a distinction should be drawn between termination of the employment relationship and the contract of employment. In this regard, the employment relationship could only be terminated by some unequivocal act or conduct. There is some doubt, on the basis of Mr Seymour’s affidavit, that there were unequivocal actions or conduct on 25 November and this inference can be drawn from the termination letter. That letter refers to payment in lieu of notice and that payment did not occur until 1 December 2009. If the employment had been brought to an end on 25 November 2009, then payment would have been made on that day. The delay in making the payment could be explained by the opening words of the termination letter which suggest that there were further discussions between the parties after 25 November 2009, where agreement was reached as to the payment in lieu of notice. If s.117 did not apply at the time of the termination of Mr Eastell’s employment, an unequivocal act on the part of the employer was nonetheless required to bring the employment relation to an end. That unequivocal act in the present case, was the payment in lieu of notice on 1 December 2009.
[12] It was submitted on behalf of Seymours that the NES including s.117 of the Act, did not come into effect until 1 January 2010, and that there was no requirement for the termination to be in writing before it was effective. Reference was made to the decision of Deputy President McCarthy in Applicant v Respondent 2 where it was held that comments placed by the employer on the applicant’s “Facebook” site, and a telephone conversation with the applicant’s mother, were effective to terminate the applicant’s employment, notwithstanding that the applicant did not receive a letter of termination until some time later. It was further submitted that in the present case, the applicant was informed of the dismissal on Wednesday 25 November 2009 and acknowledged that it took effect on that date. The applicant did not report for work thereafter, and the fact that he received a letter confirming the termination of his employment and his termination payment some time later, is irrelevant.
Conclusions
[13] Regardless of whether Mr Eastell’s employment was terminated on 25 November, 1 December or 3 December, the date of the termination was prior to 1 January 2010. The National Employment Standards including s.117 of the Act did not commence until 1 January 2010. 3 Accordingly there was no legislative provision to the effect that a termination of employment is not effective until it is communicated to the employee in writing, and that the date of termination cannot precede the date upon which the written notice is given. What was required to terminate Mr Eastell’s employment was that the termination was communicated to him. As a Full Bench of the Australian Industrial Relations Commission observed in Commonwealth of Australia (Australian Taxation Office) v Wilson:4
“Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is a special provision in the contract to the contrary, that a contract could be terminated without communication to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not been physically communicated to the employee.” 5
[14] It has not been the case at common law, or generally under the terms of awards or other instruments dealing with termination of employment, that the only effective way to terminate employment is by communicating with the employee in writing.
[15] After considering all of the evidence and the material before me, I am satisfied that Mr Eastell’s employment was terminated on 25 November 2009. Mr Eastell’s application for an unfair dismissal remedy states that Mr Eastell was notified of his dismissal on 25 November 2009, and that it took effect from that date. The application was made on Mr Eastell’s behalf by a firm of solicitors. A letter accompanying the application from that firm of solicitors concedes that the application is late and sets out a sequence of events said to have lead to the late application. Significantly the letter states the first event was on 25 November 2009, and that Mr Eastell did not receive his termination papers or final payment on the date of termination. Mr Eastell’s affidavit in these proceedings also makes it clear that Mr Eastell was dismissed on 25 November 2009. That date was a Wednesday. Mr Eastell received the letter confirming the termination of his employment on Friday 4 December 2009. Mr Eastell was a full time employee. He did not attend work after 25 November 2009 and provided no explanation for this. The fact that Mr Eastell did not attend work after 25 November 2009 is indicative that his employment was terminated on that date.
[16] It is not relevant that Mr Eastell states that he could not believe that he had been dismissed until he received the letter confirming the termination of his employment. Mr Eastell’s subjective belief about the matter is not determinative. What is determinative is that on Mr Eastell’s evidence and statements in his application for an unfair dismissal remedy, the termination of his employment was communicated to him on 25 November 2009 and took effect from that date. The fact that the letter confirming the termination of Mr Eastell’s employment refers to a conversation and an agreement to pay five weeks wages in lieu of notice, does not establish that there were ongoing discussions after 25 November 2009 and that the termination of Mr Eastell’s employment was not effective until that letter was received or the payment in lieu of notice was made. There is no evidence of any discussions after 25 November from either Mr Eastell or Mr Seymour, and it is equally probable that an agreement to pay five weeks wages in lieu of notice was made on 25 November 2009. Even if there were discussions after 25 November during which agreement about payment in lieu of notice was reached, such discussions are not inconsistent with the dismissal taking effect on 25 November 2009.
[17] I do not accept that there was anything equivocal about the situation as it existed on 25 November 2009. Mr Eastell had been informed that his employment was terminated. The fact that Mr Eastell was not paid notice on termination or his accrued entitlements until 1 December 2009, does not change the date of the termination in the circumstances of this case. I do not accept that this is a case where it could be argued that the employment relationship and the contract of employment ended at different times. It is apparent from Mr Eastell’s affidavit and the statements made in his application for an unfair dismissal remedy, that he was told on 25 November 2009 that his employment was terminated. Thereafter, Mr Eastell cleaned out his truck as requested, left the employer’s premises and did not attend work again. In short, all of the evidence and Mr Eastell’s conduct points to the employment relationship ending on 25 November 2009.
[18] Accordingly, the application for an unfair dismissal remedy filed on behalf of Mr Eastell on 12 December 2009 was made outside the time required by s.394(2) of the Act. The application was required to be made on or before 9 December 2009. FWA may extend the time for an application for an unfair dismissal remedy to be made, if satisfied that there are exceptional circumstances taking into account the matters in s.395(3). There is a letter attached to the application for an unfair dismissal remedy setting out a number of circumstances that are said to be exceptional. There are also matters in the applicant’s affidavit which could be argued to constitute exceptional circumstances.
[19] However, the applicant’s legal representative specifically stated at the hearing on 25 February 2010 that the applicant does not seek to rely on s.394(3). Further, the applicant’s legal representative declined to advance an argument under this section in the alternative, if the primary argument that the application was made within the required time was not accepted, and indicated that if the primary argument failed the applicant failed.
[20] Because Mr Eastell’s legal representative did not seek to establish that there were exceptional circumstances, there was no requirement for Mr Eastell to be cross-examined and the representative for Seymours elected not to do so.
[21] In circumstances where a legally represented applicant elects not to pursue an argument about exceptional circumstances, it would not be appropriate for the Tribunal to consider whether there were such circumstances. It would also be unfair to Seymours in circumstances where it elected not to cross-examine Mr Eastell, in reliance on the submissions made on his behalf. Seymours was entitled to rely on those submissions in circumstances where they were made by Mr Eastell’s legal representative, and the decision not to cross-examine Mr Eastell was appropriate in the circumstances in which it was made.
[22] The application involves contested facts, and I accept that it should not be dismissed on the basis of merit or lack thereof other than in the clearest of cases. However in this case, where exceptional circumstances are not argued or established, and there is no application for an extension of time, merit is not relevant.
[23] By virtue of s.394(2) of the Act the application for an unfair dismissal remedy on behalf of Mr Eastell was required to be made within fourteen days of the date that Mr Eastell’s dismissal took effect, or within a further period allowed by FWA under s.394(3). The application was not made within the required period and for the reasons set out above, no further period has been allowed by FWA under s.394(3). The application in U2009/5182 cannot proceed and is dismissed. I Order accordingly.
COMMISSIONER
Appearances:
Mr C. Upton of Counsel on behalf of the Applicant.
Mr T. Degen of the Australian Road Transport Industry Organisation on behalf of the Respondent.
Hearing details:
2010.
Brisbane:
February 25.
1 TRANSCRIPT OF PROCEEDINGS 24998-1 25 February 2010 PN23 – PN31.
2 [2010] FWA 1062
3 Fair Work Act Proclamation (26/06/09) Legislative Instrument F2009L02563 which fixed 1 January 2010 as the date on which sections including sections 59 – 168 commenced.
4 PR901127 per Giudice J, Williams SDP and Bacon C.
5 Ibid at [11].
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