Mr Joshua Larry Rose v Outdoor Supacentre
[2022] FWC 1471
•10 JUNE 2022
| [2022] FWC 1471 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Joshua Larry Rose
v
Outdoor Supacentre
(U2021/10684)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 10 JUNE 2022 |
Application for an unfair dismissal remedy – minimum employment period not completed – jurisdictional objection upheld – application dismissed.
Introduction
Mr Joshua Rose commenced employment with Outdoor Supacentre Pty Ltd T/A 4WD Supacentre (4WD Supacentre) on 17 May 2021. There is a dispute as to whether Mr Rose was dismissed on 15 November 2021, as contended by 4WD Supacentre, or 17 November 2021, as contended by Mr Rose. Mr Rose contends that he was unfairly dismissed within the meaning of the Fair Work Act 2009 (Act). 4WD Supacentre contends that Mr Rose was not protected from unfair dismissal on 15 November 2021 because he had not completed a period of employment with 4WD Supacentre of at least the minimum employment period.
Jurisdictional hearing
On 25 May 2022, an initial hearing was conducted by telephone in relation to the jurisdictional issue of whether Mr Rose had completed the minimum employment period at the time of his dismissal. Mr Rose gave evidence in support of his case.
In light of evidence given by Mr Rose at the initial hearing, I issued orders for the production of documents from (a) Mr Rose’s general practitioner and (b) Mr Rose for his telephone records in respect of the period from 14 to 18 November 2021. Once documents were produced in response to those orders, my associate informed the parties that I intended to list the matter for further hearing and make an order for Mr Rose’s wife to attend that hearing, by telephone, to give evidence. Mr Rose objected to any order being made requiring his wife to give evidence in the matter. Mr Rose also made a concession about his use of his mobile phone during the relevant period. In light of that concession, I decided that a further hearing was no longer required and invited the parties to make any final submissions they wished to rely on in relation to the minimum employment period issue. Both parties filed and served such submissions, which I have read and considered.
Legal principles
A person is not protected from unfair dismissal unless the requirements in s 382 are met. Section 382 of the Act provides:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period…”
Section 383 of the Act provides:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
Section 384 of the Act defines “period of employment” 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…”
Section 22 of the Act defines “continuous service” as follows:
“22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
(i) a period of absence under Division 8 of Part 2‑2 (which deals with community service leave); or
(ii) a period of stand down underPart 3‑5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.
(3) An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly…”
A month means a calendar month.[1] A calendar month begins on the employee’s first day at work and, where there are multiple months, finishes immediately before the corresponding day in the final month.[2]
A dismissal takes effect when an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.3 In Ayub v NSW Trains,4 the Full Bench of the Commission explained the situation with respect to email communications to employees as follows:
“In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.”
Relevant facts
It was not disputed, and I am satisfied on the evidence before me that:
(1) 4WD Supacentre was not a small business at the relevant time and therefore the minimum employment period for Mr Rose is 6 months.[3]
(2) Mr Rose commenced employment with 4WD Supacentre on 17 May 2021.
(3) The minimum employment period for Mr Rose expired at midnight on 16 November 2021.
On Friday, 12 November 2021, Mr Rose became aware that the Regional Manager of 4WD Supacentre, Mr Will Chalhoub, would be attending the Coffs Harbour store on Sunday, 14 November 2021.
On Saturday, 13 November 2021, Mr Rose telephoned Mr Chalhoub. There is a dispute as to what was said during this call. 4WD Supacentre contends that Mr Rose asked Mr Chalhoub why he was attending the Coffs Harbour store in person. Mr Rose says that he called to invite Mr Chalhoub to dinner. I do not need to determine what was said during this call. It is agreed that Mr Rose did not meet with Mr Chalhoub on 13 November 2021.
On Sunday, 14 November 2021, Mr Rose called Mr Chalhoub at 7:07am. Mr Chalhoub missed this call. Mr Rose then sent a text message to Mr Chalhoub in the following terms:
[Time unknown]
“Hi will I tried calling and left you a message also but I am feeling unwell today and won’t be in. I have called Scott and will have a team member to cover my shift. I will go see a doctor today also.”
Mr Chalhoub tried to call Mr Rose at 8:29am on Sunday, 14 November 2021. Mr Rose did not answer the call. Mr Chalhoub then sent the following text message to Mr Rose:
[8:29AM]
“Hi Josh,
That’s ok, are you able to meet me at the store for 5 minutes as I need to discuss something with you please.
You don’t need to be in uniform at all, we just need to have a 5 minute conversation regarding an important topic.
Thanks
Will”
Mr Rose did not respond to this text message or Mr Chalhoub’s call.
Mr Chalhoub tried to call Mr Rose again at 12:48pm. Mr Rose did not answer the call. Mr Chalhoub then sent a further text message to Mr Rose in the following terms:
[12:48PM]
“Hi Josh,
I tried calling you.
Can you please call me for one minute.
Thanks
Will”
Mr Rose did not reply to this text message or the missed call from Mr Chalhoub.
At 8:48am on Monday, 15 November 2021, Mr Chalhoub tried to call Mr Rose. Mr Rose did not answer the call. Mr Chalhoub then sent a text message to Mr Rose in the following terms:
[8:45AM]
“Hi Josh,
I had tried calling your phone yesterday and this morning.
Outdoor Supacentre have decided to terminate your employment and not continue your employment beyond your probationary period. As a result your employment will end immediately, 14 November 2021.
You will receive one weeks pay in lieu of notice, payment for time worked but not yet paid and any accrued entitlements in your final pay.
You are required to return any company assets you may have, including keys , laptops, swipe cards etc. Your final payment will not be processed until all assets are returned.
I wish you well in your future endeavours.
Regards,
Will Chalhoub”
At 8:58am and 9:03am on Monday, 15 November 2021, the Human Resources Business Partner for 4WD Supacentre sent two emails to Mr Rose in the following terms:
[8:58AM]
“Good morning Josh,
As per the voicemail from Will Chalhoub, Regional Manager – Eastern Region, please find attached your termination letter for your records.
Please return all 4WD Supacentre assets at your earliest convenience.
We wish you well in your future endeavours.”
[9:03AM]
“Good morning again Josh,
Just wanted to confirm that Will sent you a text message as you do not have voicemail.
My apologies for my error in stating that you received a voicemail message.”
Attached to the first of these two emails was a letter of termination in the following terms:
“Dear Josh
Termination of Employment
As discussed with William Chalhoub, we have decided not to continue your employment beyond your probationary period. As a result, your employment will end immediately, 15 November 2021
We have decided not to continue your employment due to concerns with your performance. Specifically, your management of the Coffs Harbour store.
You will receive one week’s pay in lieu of notice, payment for time worked but not yet paid, and any accrued entitlements in your final pay.
You are required to return any company assets you may have, including keys, laptops, swipe cards etc. Your final payment will not be processed until all assets are returned.
Should you have any questions regarding the end of your employment, please do not hesitate to contact me on [phone number] and you may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman (FWO). If you wish to contact the FWO you can call 13 13 94 or visit their website at
Some termination payments may give rise to waiting periods for any applicable Centrelink payments. If you need to lodge a claim for payment you should contact Centrelink immediately to find out if there is a waiting period.
I wish you well in your future endeavors.”
At 6:24am on Wednesday, 17 November 2021, Mr Rose sent a text message to Mr Chalhoub in the following terms:
“Good morning will,
As I was on personal leave I did not see this message until this morning. As such I do believe that I have passed my 6 month probation and can not be terminated in this manner. As such I will be seeking professional advice in relation to this unfair dismissal. I will send my doctors certificate through now for your reference.”
Attached to this text message was a medical certificate from Dr Jeremy Allen. The medical certificate is dated 15 November 2021. It states:
“THIS IS TO CERTIFY THAT
Mr Joshua Rose has a medical condition, and will be unfit for work from 14/11/2021 to 18/11/2021 inclusive.”
At 9:54am on 17 November 2021, Mr Chalhoub sent a text message to Mr Rose in the following terms:
“Hi Josh,
Your probation ends at close of Business 5pm today. Thank you for acknowledging receipt of my text message.
Can you please ensure you return all company assets to the Coffs Harbour store, your final pay will be withheld until we receive these assets.
Thank you
Will”
Mr Rose gave oral evidence that:
(a)He had “the flu, man flu” from Sunday, 14 November 2021 until Wednesday, 17 November 2021.
(b)“We weren’t certain whether it was COVID at the time or anything, and with everything that was happening obviously, medical advice is if you had any type of symptoms at that stage was to stay home and isolate”.
(c)He slept for “three days straight”.
(d)He did use his phone at all, and did not send a text message, make a phone call or send an email to anyone in the period from the morning of Sunday, 14 November 2021 until early on the morning of Wednesday, 17 November 2021.
(e)He did not speak to his doctor, Dr Jeremy Allen. His wife made a telephone appointment with Dr Allen and she spoke to Dr Allen on 15 November 2021 because Mr Rose was asleep in bed and not well enough to speak to his doctor.
(f)Dr Allen’s medical practice sent Mr Rose an email on 15 November 2021, attaching a copy of the medical certificate dated 15 November 2021. Mr Rose did not look at that email until the morning of 17 November 2021.
(g)He receives emails on his mobile phone.
(h)Because he was in bed with the flu, Mr Rose did not read any of the text messages or emails from Mr Chalhoub or 4WD Supacentre’s Human Resources Manager in the period from the morning of Sunday, 14 November 2021 until early on the morning of Wednesday, 17 November 2021. During that time Mr Rose’s phone was not switched off, but was on silent.
Mr Rose did not get a COVID-19 test in connection with his flu in the period from 14 to 17 November 2021. He says that he was not advised by his doctor that he was required to take a COVID-19 test, so did not do so.
(j)Neither Mr Rose nor his wife called an ambulance for him in the period from 14 to 17 November 2021. Nor did Mr Rose go to hospital in that period of time. He did not do so because he did not think he was dying and believed he just needed rest.
The documents produced by Mr Rose’s general practitioner in response to the order for production of documents include “consultation notes” for Mr Rose in respect of a telephone consultation on 15 November 2021. The notes state “phone consult bulk, unwell, gastro”. The receptionist emailed a medical certificate to Mr Rose on 15 November 2021. The medical certificate states that Mr Rose “has a medical condition, and will be unfit for work from 14/11/2021 to 18/11/2021 inclusive”.
The telephone records produced by Mr Rose in response to the order for production of documents issued to him show that:
(a)On 14 November 2021, 19 calls were made from Mr Rose’s mobile telephone between 6:58am and 7:20pm, and the data usage on Mr Rose’s mobile telephone was 85.30MB.
(b)On 15 November 2021, 6 calls were made from Mr Rose’s mobile telephone between 8:28am and 7:34pm, and the data usage on Mr Rose’s mobile telephone was 64.45MB.
(c)On 16 November 2021, 11 calls were made from Mr Rose’s mobile telephone between 7:32am and 5:20pm, and the data usage on Mr Rose’s mobile telephone was 55.05MB.
On 31 May 2022, after Mr Rose had produced his telephone records to the Commission in answer to the order for production of documents and I had indicated that I intended to list the matter for further hearing and make an order requiring Mr Rose’s wife to give evidence, Mr Rose’s support person made the following concession to the Commission on Mr Rose’s behalf:
“Having now had an opportunity to review the phone records with Josh [Mr Rose] he acknowledges that he must have made calls during the period under review. He still has no recollection of making those calls but the records are clear. This would demonstrate the severity of his illness at the time.
His wife … also made some calls on his phone during the period including one to the Doctor.”
Consideration
Mr Rose’s concession that he made telephone calls on his mobile phone in the period from 14 to 16 November 2021 is supported by the mobile telephone records he produced to the Commission in response to the order for production of documents. In light of that concession, I do not accept Mr Rose’s earlier oral evidence that he did not use his phone or send a text message or email to anyone in the period from the morning of Sunday, 14 November 2021 until early on the morning of Wednesday, 17 November 2021. Further, I do not accept that Mr Rose was incapable by reason of any illness of reading an email or text message on 15 or 16 November 2021.
Given that Mr Rose made telephone calls on his mobile phone in the period from 14 to 16 November 2021, I am satisfied that he had a reasonable opportunity to know of his dismissal on 15 November 2021, on which day an email was received in Mr Rose’s inbox (which he could access on his mobile telephone) informing him of his dismissal and a text message was received on Mr Rose’s mobile telephone informing him of his dismissal.
Mr Rose’s dismissal took effect on 15 November 2021. That was the day on which he either knew, or at least had a reasonable opportunity to find out, that he had been dismissed.
Conclusion
Mr Rose was employed by 4WD Supacentre from 17 May 2021 until 15 November 2021. It follows that Mr Rose’s “period of employment” with 4WD Supacentre was less than 6 months and he was not a person protected from unfair dismissal on 15 November 2021. 4WD Supacentre’s jurisdictional objection is therefore upheld, and Mr Rose’s application for relief from unfair dismissal is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J Rose, on behalf of himself
Ms K Turnbull, on behalf of the respondent
Hearing details:
2022.
Newcastle (by telephone):
25 May 2022.
[1] Acts Interpretation Act 1901 (Cth), s 2G
[2] Ibid
[3] Written submissions of 4WD Supacentre at [9]
Printed by authority of the Commonwealth Government Printer
<PR742537>
0
0
0