Mr Gabor Kiska v W & R C Milisits T/A Vili's Cakes

[2013] FWC 907

[2013] FWC 907

FAIR WORK COMMISSION

DECISION

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

Mr Gabor Kiska
v
W & R C Milisits T/A Vili's Cakes
(C2012/6174)

SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 14 FEBRUARY 2013

Application to deal with contraventions involving dismissal - Extension of time.

[1] On 28 November 2012 Mr Kiska lodged an application pursuant to s.365 of the Fair Work Act 2009 (the FW Act), through which he sought relief with respect to what he alleged was the termination of his employment by W & R C Milisits T/A Vili’s Cakes (Vili’s) on 18 May 2012. Mr Kiska’s application was made on the basis that he asserted that this termination of employment was in breach of the general protections provisions of the FW Act.

[2] Mr Kiska’s application was the subject of a conference pursuant to s.368 before Hampton C on 8 January 2013 but no agreement was reached. The Commissioner did not issue a certificate pursuant to s.369 pending the determination of an objection made by Vili’s that Mr Kiska was not dismissed and that, in any event, the application was lodged outside of the 60 day time limit specified in s.366. The application was referred to me for determination of this objection.

[3] The extension of time issue was the subject of hearing in Adelaide on 7 February 2013. At this hearing Mr Kiska represented himself and Vili’s was represented by its Operations Manager, Mr Nichol. On 17 January 2013 I issued directions which specified dates upon which both parties were required to file and serve material, including witness statements in support of their respective positions. I received limited material from Vili’s consistent with these directions but nothing was received from Mr Kiska. Notwithstanding that these directions confirmed that a failure to comply may disadvantage the party concerned, Mr Kiska was given, and availed himself, of a substantial opportunity to explain his position at this hearing. Mr Kiska declined to give sworn evidence and made a substantial number of assertions which I have concluded were deliberately self-serving and, in a number of cases, simply false.

[4] Subsequent to the hearing, Mr Kiska provided additional submissions in support of his application. Whilst I do not consider there is any obligation to do so, I have taken these additional submissions into account.

[5] Mr Kiska was engaged by Vili’s on 25 March 2011. He was employed under terms and conditions which referred to three-months probationary employment 1. Whilst Mr Kiska does not dispute that he was paid as a casual and was only paid for time worked, he asserts that the concept of probationary employment is fundamentally inconsistent with a casual employment relationship and, accordingly, that he should be regarded as a part-time employee. There is nothing that indicates that Mr Kiska raised that issue with Vili’s whilst he was an employee. Mr Kiska requested and was granted approval for an unpaid absence from his employment in November and December 2011. Whilst the duration of his absence is not agreed there is no dispute that his employment was preserved pending his return from that absence.

[6] On 9 April 2012 Mr Kiska requested 30 days absence to commence on 23 April 2012. He sought this absence to return to Hungary to deal with urgent and important family issues including being present for his father’s heart operation. Mr Kiska’s advice is that Vili’s management refused this application. Mr Kiska subsequently sought legal advice about a range of issues including his right to leave to attend to family responsibilities and the possibility of dismissal. His initial advice to me was that he was given no advice from Vili’s management as to what would happen if he returned to Hungary but, after inconsistencies in his advice to me were identified, Mr Kiska agreed that the Assistant Production Manager had given him permission to travel but had advised him that he would need to “re-apply to Vili’s” on his return. Mr Kiska asserted that he understood that this meant he would need to re-apply to be regarded as a probationary employee but that he did not understand that it meant he would need to re-apply for employment. I do not regard Mr Kiska’s assertion to me to be credible in this respect. It is inconsistent with his subsequent steps to obtain legal advice. It is also inconsistent with his advice that he was aware that at least one other employee had been required to re-apply for his position after an extended period of absence.

[7] Mr Kiska advised that, having obtained legal advice, he determined to travel to Hungary and to initiate legal action against Vili’s on his return. In the hearing he was either not able, or prepared to be specific about the basis for any such legal action. His advice to me was that he deferred his proposed travel arrangements. There is no material before me which establishes that Mr Kiska advised Vili’s of the revised travel proposal.

[8] On 18 May 2012 Mr Kiska told his supervisor that this would be his last day at Vili’s before he went to Hungary. Whilst Mr Kiska’s position about his supervisor’s response changed in the course of the hearing, I have not concluded this is relevant to the issues before me. Mr Kiska could not recall if he remained at work after that discussion with the supervisor. Mr Kiska’s wife is also an employee at Vili’s. In response to a request a few days later, he returned his security card through her. Mr Kiska left for Hungary 7 to 10 days later. His advice to me in the hearing and through his latest submissions was that, at that time he thought he was still an employee. In this respect Mr Kiska referred to an attachment to his Terms and Conditions of Employment 2 which specified that if he left Vili’s employment all items belonging to Vili’s were to be returned. Mr Kiska noted that he had not been asked to return his locker key and relied on this as further support of his continuing employment.

[9] I simply do not accept Mr Kiska’s position in this respect. His advice to his supervisor was not qualified. He simply advised that he was leaving Vili’s to go to Hungary. He did not specify a return day or assert that, despite an instruction to the contrary, he had decided to take leave.

[10] On 27 October 2012 Mr Kiska returned from Hungary. His advice to me was that he considered it odd that he had not received any further advice from Vili’s given his assertion that he was a part-time employee. Shortly after his return to South Australia he again sought legal advice and was told he should seek advice to clarify his employment standing. On 1 November 2012 Mr Kiska telephoned Vili’s and was advised that he would be provided with an “Employment Separation Certificate”. His wife brought this home to him on that same day.

[11] Mr Kiska obtained further legal advice. Presumably on the basis of this advice, he disputed the assertion in this Employment Separation Certificate that he had left Vili’s employment voluntarily on 18 May 2012. Further, the legal advice to him identified the possibility that he may have been constructively dismissed. Mr Kiska then forwarded four separate letters to Vili’s. Whilst the intention of these letters is not immediately clear, I have taken it that their objective was to re-establish the employment relationship. Mr Kiska ultimately lodged this application on 28 November 2012.

[12] Vili’s provided no new evidence in this matter but relied upon the correspondence and material lodged by Mr Kiska to support its position that he had not been dismissed and that in any event there was no basis upon which to found an extension of time.

The issues.

[13] Section 366 states:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 60 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (2).

(2) FWA may allow a further period if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[14] Vili’s dispute that Mr Kiska was dismissed. This is the initial issue which must be determined. The time limit for the making of a s.365 application commences from the time the dismissal took effect. Hence, if there was no dismissal there can be no basis upon which to found an extension of time. Consequently, I have initially considered whether there is any doubt about whether Mr Kiska was dismissed. In reaching my conclusions in this respect I have had regard to the Australian Industrial Relations Commission Full Bench decision in O’Meara v Stanley Works Pty Ltd 3. This decision considered the concept of “termination at the initiative of the employer”.

[15] Section 386 defines dismissal in the following terms:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[16] None of the exclusions set out in s.386(2) have application to Mr Kiska’s circumstances. I have concluded that, notwithstanding that s.386 relates to dismissal in the context of Division 3 of Part 3-2 and applies to unfair dismissals, the concept of dismissal as being an action at the initiative of the employer remains central to the concept of dismissal for the purposes of s.365.

[17] In O’Meara v Stanley Works Pty Ltd the Full Bench stated:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” [Mohazab at page 205] Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[18] I do not consider that Mr Kiska has established an action or actions on the part of Vili’s which were either intended or had the probable result of bringing the employment relationship to an end. Mr Kiska changed his position with respect to what he was told about his request for time off. His last position was to the effect that Vili’s acknowledged that he could leave to travel to Hungary but that he would need to re-apply. I think that this could only mean that Vili’s required that, if he wished to take that amount of time off work he would need to re-apply for employment on his return. I do not consider Mr Kiska’s argument that he should be regarded as an ongoing part-time employee such that he was seeking to take leave is consistent with his employment arrangements. To the extent that Mr Kiska asserts that he was an ongoing part-time employee he may elect to pursue this issue in another jurisdiction but this does not alter the character of the advice he provided to his supervisor on 18 May 2012.

[19] I have concluded that Mr Kiska chose to leave Vili’s despite being advised that this would mean that his job would not be kept open for him and he would need to seek re-employment at a future time. I do not accept Mr Kiska’s position that this advice could only have referred to the re-establishment of probationary employment as being credible. There is simply no evidence or logic to support that position. Mr Kiska may have had a good reason for returning to Hungary but the facts are that he did so knowing that this bought his employment to an end. Mr Kiska’s own advice to me simply does not establish that Vili’s set out to bring the employment relationship to any end or support the proposition that he was either dismissed or constructively dismissed. Mr Kiska elected to terminate his employment relationship and his own recollection of the advice he provided to his Supervisor on 18 May 2012 to the effect that he was leaving Vili’s that day, confirms this.

[20] In the event that there was some doubt about whether, or when a particular dismissal took effect, there may still be a basis for consideration of an extension of time pursuant to s.366. Accordingly the Commission in that situation may conceivably decide that s.366(2)(d) mitigates against an extension of time on the basis of the merits of the matter. In this particular circumstance I do not think that there is any basis upon which the jurisdiction established by s.366 is open to me. I simply do not think there is any doubt that Mr Kiska was not dismissed. He left Vili’s of his own accord.

[21] Accordingly, I do not consider that I have a capacity to determine an extension of time application. Any consideration of the factors set out in s.366(2) then becomes a hypothetical exercise in that I would need to assume that Mr Kiska was dismissed. This would be contrary to all of the credible material before me. The Vili’s extension of time objection must be dismissed on the basis that I agree with Vili’s that Mr Kiska was not dismissed at the employer’s initiative.

[22] That said, even if I accepted Mr Kiska’s position that Vili’s actions represented a constructive dismissal with effect from 18 May 2012, the extent to which he had access to legal advice before going overseas means that I would have refused an extension of time application as unexceptional.

The Standing of the Application

[23] I have concluded that Mr Kiska was not dismissed. Dismissal is a fundamental prerequisite for the making of an application pursuant to s.365. It follows that I do not think that Mr Kiska has made a valid application. However, the FW Act does not establish a jurisdiction upon which the Fair Work Commission can dismiss an application on this basis.

[24] A certificate pursuant to s.369 will be issued. This certificate will advise that I consider Mr Kiska’s application has no reasonable prospect of success in that he was not dismissed and accordingly, on the material before me, the application cannot properly be made.

SENIOR DEPUTY PRESIDENT

Appearances:

G Kiska on his own behalf.

A Nichol, Operations Manager for W & R C Milisits T/A Vili's Cakes.

Hearing details:

2013.

Adelaide:

7 February

 1   Exhibit K1.

 2   Exhibit K2

 3   PR973462

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