Mr George Panagiotidis v Loleta Holdings Pty Ltd T/A Five Star Automotive Services
[2023] FWC 421
•2 MARCH 2023
| [2023] FWC 421 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr George Panagiotidis
v
Loleta Holdings Pty Ltd T/A Five Star Automotive Services
(C2022/5998)
| DEPUTY PRESIDENT CROSS | SYDNEY, 2 MARCH 2023 |
Application to deal with contraventions involving dismissal -objection that application out of time- application filed within time.
Mr George Panagiotidis (the Applicant) made an application (the Application) to the Fair Work Commission (the Commission) under s 365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from his employment with Loleta Holdings Pty Ltd T/A Five Star Automotive Services (the Respondent) in contravention of Part 3-1 of the Act.
In the Application, the Applicant claimed that he was notified of his dismissal on 9 August 2022, and that the dismissal took effect on that date.
In response to the Application, the Respondent raised the jurisdictional objection that the Application was filed out of time as, it alleged, the dismissal took effect on 8 August 2022. Pursuant to s.366(1) of the Act, General Protections applications involving dismissal must be made within twenty-one (21) days after the dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. If the Applicant’s original contention regarding the termination date is correct, the Application has been lodged outside of the time prescribed, and one day after the last day on which such an application could have been made.
On 8 December 2022, directions were issued to program the manner in which the Application was to proceed (the Directions). The Directions required the filing of materials for the determination of whether the Applicant was out of time, and if so, whether he would be allowed an additional period within which to lodge the Application.
The parties complied with the Directions. In particular:
(a) On 29 December 2022, the Applicant filed an Outline of Submissions, a
Statement of the Applicant, and a Statement of Ms Indigo Crosweller, a Paralegal;(b) On 19 January 2023, the Respondent filed an Outline of Submissions, and Statement of Mr Larry Lozides and Mr James Vassiliadis, both Directors of the Respondent; and
(c) On 30 January 2023, the Applicant provided a further Outline of Submissions.
On 30 January 2023, the matter was heard. Subject to various agreements regarding evidence before the Commission, no deponents of statements in the matter were required for cross-examination, and each party supplemented their written submissions with further oral submissions.
It is a matter of record that the Application was made on 30 August 2022.
Background Facts
On 8 August 2022, the Applicant had a dispute with Mr Loizides at the Respondent’s premises and left the workplace at around 8.30 in the morning. The Respondent asserted the Applicant’s behaviour that morning constituted misconduct.
On 8 August 2022 at approximately 4.50pm Mr Lozides and Mr Vassiliadis drove to the Applicant’s last known address at 128 Fitzgerald Avenue Maroubra, where Mr Lozides hand delivered a termination letter at 4.50pm (the Termination Letter).
On 9 August 2022, the Applicant received a text message from Mr Loizides at 2.02 pm which said:
“We advise you that your employment with five star automotive services has been terminated for serious misconduct of your behaviour yesterday and that your termination letter was delivered to your nominated address at 128 Fitzgerald Avenue Maroubra – regards Larry.”
On 9 August 2022, after receiving the text message, the Applicant telephoned his father, asked him to check his mailbox at 128 Fitzgerald Avenue Maroubra, New South Wales. The Applicant’s father advised that there was a letter for him at the house.
The Applicant’s father has limited mobility, checks his mailbox every day as a way to get out of the house, and telephones the Applicant if there is correspondence for him.
While the Respondent was aware that the Applicant did not actually live at 128 Fitzgerald Avenue Maroubra, and instead lived in Mortdale or Bexley, it was agreed between the parties, upon the candid and appropriate concession of the Applicant, that 128 Fitzgerald Avenue Maroubra was his nominated address for receiving post.[1]
On 26 August 2022, the Applicant spoke to Ms Crosweller over the telephone to provide instructions. During that call, the Applicant advised Ms Crosweller that on 9 August 2022, the Applicant received a text from Mr Loizides advising that he had left a termination letter in the Applicant’s mailbox. The Applicant further advised that after receiving the text his father checked the mailbox and found the termination letter dated 8 August 2022.
After receiving the information in the telephone call, Ms Crosweller calculated the 21-day filing period based on her understanding that notice had been received via text and the letter on 9 August 2022, and the final date for filing was 30 August 2022.
The Application was filed on 30 August 2022.
Consideration Regarding Date of Dismissal
The Respondent submitted that the date of dismissal was 8 August 2022, being the date on which the Termination letter was delivered to the Applicant’s nominated address. What the Respondent did to communicate dismissal was to place the Termination Letter in the letter box belonging to 128 Fitzgerald Avenue, Maroubra at 4.50 pm on 8 August.
The Applicant submitted that he did not know that he had been dismissed by the placement of that termination letter in the letterbox on 8 August 2022. He first gained knowledge of the dismissal when he received an SMS from Mr Loizides at 2.02 pm the following day on 9 August 2022 and submits that is the dismissal date.
To be effective, a notice of termination must be received by the recipient. As Keely J
observed in Transport Workers Union v National Dairies Limited[2] a matter involving a
notice of termination posted by an employer to an employee:
“In my opinion the mere posting of a letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee.”
In Ayub v NSW Trains[3] the Full Bench addressed circumstances involving communication by letter. The Full Bench held:
“We see no reason to depart from the above line of authority insofar as it is consistent with the general principle at common law that a dismissal may not take effect prior to it being communicated to the employee. Neither party submitted otherwise. However two questions remain. The first is whether there are any exceptions to this principle, the existence of which are suggested but not identified in Makenja and WorkPac. The second is whether the mere receipt of a communication (whether a letter, fax or email) is sufficient to constitute the communication of the dismissal to the employee in circumstances where the employee has not read the communication immediately upon receipt.
Having regard to the language, purpose and context of s.394(2)(a), we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited. Indeed s.394(2)(a) of the FW Act as originally enacted provided for a 14-day period only; this was extended to 21 days by the Fair Work Amendment Act 2012. On any view, the period allowed by s.394(2)(a) is extremely short having regard for the need for a dismissed person to take stock of his or her situation, seek advice or information about his or her rights, make a decision to seek a remedy, and complete and lodge an application. In that context it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be constructed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.”
There is no issue in the proceedings that the Applicant first became aware of the Termination Letter on 9 August 2022, and that was the date upon which the fact of dismissal was conveyed to the Applicant by way of the text message.
I reject the Respondent’s submission that the date of dismissal was 8 August 2022. There is no basis for concluding that the Applicant had a reasonable opportunity to become aware of the Termination Letter on that date. It was not delivered until 4.50pm, and was merely left at the mailbox rather than being delivered to an occupant of the premises.
Even were the Applicant’s father to have visited his mailbox between 4.50pm and 6.00pm (being the time nominated by the Respondent to which Australia Post “tend” to deliver parcels and letters)[4] on the 8 August 2022, and have found the Termination Letter, the father would not have known that the correspondence contained the Termination Letter unless he opened it. I reject the submission that the father was somehow the Applicant’s “agent”.
I find that the date of dismissal was 9 August 2022. As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[5]
As I found above, the dismissal took effect on 9 August 2022. The final day of the 21-day period was therefore 30 August 2022 and ended at midnight on that day. The Application was made on 30 August 2022, and so was not out of time. The Respondent’s objection that the application has been filed out of time is dismissed. The Application is referred to the Regional Co-ordinator to be dealt with pursuant to s.368(1) of the Act.
DEPUTY PRESIDENT
Appearances:
Mr Pen, for the Applicant
Ms Milan, for the Respondent
Hearing details:
2023.
January 31.
Sydney.
[1] Transcript PN 67 to 69.
[2] (1994) 57 IR 183, at pp. 184 to 185.
[3] [2016] FWCFB 5500, at [35] and [36].
[4] Transcript PN 98.
[5] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
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