Mr Michael Kelly v Jetstar Airways Pty Ltd
[2012] FWA 6257
•24 JULY 2012
[2012] FWA 6257 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Michael Kelly
v
Jetstar Airways Pty Ltd
(U2012/6852)
COMMISSIONER BULL | SYDNEY, 24 JULY 2012 |
Application for an unfair dismissal remedy - jurisdictional objection - filed out of time - held application in time.
[1] Mr Kelly (the Applicant) claims he was unfairly dismissed by his former employer Jetstar Airlines. An employer response opposing the application was filed by Jetstar Airways Pty Ltd (the Employer). The Tribunal relies on its powers under s.586 of the Fair Work Act 2009 (the Act) to correct the application to the extent that the true legal employer of the Applicant is correctly identified.
[2] The Employer submits that the termination of the Applicant occurred on Friday 16 March 2012, whereas the Applicant argues that he was not notified of his termination of employment until Wednesday 21 March 2012 when he received written notification in his residential mailbox, although the correspondence from his Employer was dated 16 March 2012.
[3] An employee has 14 days after the dismissal takes effect to file a claim alleging unfair dismissal under s.394(2) of the Act, although the Tribunal may allow a further period when satisfied that there are exceptional circumstances pursuant to s.394(3).
Employer’s Submissions
[4] The Employer argues that Mr Kelly’s unfair dismissal application was filed out of time and that there are no exceptional circumstances to satisfy the Tribunal to extend the time for filing. The Employer states that Mr Kelly’s termination of employment occurred on Friday 16 March 2012 when a letter signed by Mr David Magdic, Acting Head of Customer Service, was sent to the Applicant by Express Post to the Applicant’s residential address. While the letter stated that Mr Kelly’s termination was effective from Thursday 15 March 2012, Mr Magdic who was called to give evidence for the Employer stated that the termination date should have read Friday 16 March 2012. Mr Magdic’s evidence was that he also sent an email to Mr Kelly to his private email address on Monday 19 March 2012 and attached a copy of the termination letter.
[5] Mr Best, an Employee Relations Advisor for the Employer, argued that Mr Kelly’s termination took effect on Friday 16 March 2012, such that he would have needed to file his application by Friday 30 March 2012. A secondary argument was put by the Employer that if Monday 19 March 2012 is the effective dismissal date then Mr Kelly would have needed to file his application by Monday 2 April 2012. As Mr Kelly’s unfair dismissal application was filed with Fair Work Australia on Wednesday 4 April 2012, the Employer submits that it was filed out of time.
[6] The Applicant had been stood down from duties with pay since 22 December 2011, due to adverse allegations made about his conduct. The Applicant was not present when the decision to terminate his employment was made, although he was directed by his Employer in an email dated 13 March 2012 to attend a meeting on Wednesday 14 March 2012 to discuss the conclusion of the Employer’s investigation into the allegations made against him. Mr Kelly did not attend this meeting.
[7] As Mr Kelly was not told face-to-face of his dismissal, the date Mr Kelly became aware of his termination by letter or email is crucial to this determination. Despite the Employer using Australia Post’s Express Post service, the Employer did not produce any evidence as to when the letter of termination dated 16 March 2012 was said to be delivered to the Applicant by Australia Post, other than Mr Magdic stating that he arranged for the letter to be posted on Friday 16 March 2012 through the office receptionist. The Employer did not produce any evidence as to when the email sent to Mr Kelly on 19 March 2012 was received by Mr Kelly.
Applicant’s Submissions
[8] Mr Bull, a Legal Officer from the Transport Workers’ Union of Australia representing the Applicant, argued that the effective date of termination was Wednesday 21 March 2012 being the date Mr Kelly checked his mail and noticed that he had received a letter from his Employer. Mr Kelly gave evidence to support this position.
[9] Mr Kelly received advice from his union and was made aware that he needed to lodge his application within 14 days of his dismissal.
[10] In his evidence Mr Kelly stated that he had been under the care of two general practitioners since being stood down and had been referred to a psychiatrist. He gave evidence that he had asked his Employer to refrain from contacting him directly and to only contact him by email. He noticed a letter from the Employer on Wednesday 21 March 2012 when checking his residential mailbox. The letter dated 16 March 2012 advised of his termination of employment. He did not keep the envelope. Mr Kelly also gave evidence that he had no record of receiving an email from the Employer with a copy of the termination letter attached.
[11] On receipt of the termination letter he sent a letter addressed to Mr Magdic on the same day stating that he wished to be advised of the relevant appeal processes. Included in the letter was the following statement:
I refer to your letter dated 16 March 2012, which was received by me this date. (sic)
[12] Mr Kelly’s evidence was that he was unaware that his employment was terminated until Wednesday 21 March 2012.
Authorities
[13] The question of when a dismissal takes effect has been the subject of decisions of this Tribunal, its predecessors and Australian courts, some of which were referred to by both the Applicant and the Employer in this case.
[14] In Transport Workers' Union of Australia v National Dairies Limited (1994) 1 Keely J, said at p.184/185:
It was accepted by the respondent's counsel, for the purpose of the present hearing, that the employer's letter of purported termination was not received by the applicant until 30 March 1994. In my opinion the mere posting of the 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.
(My underline)
[15] In Commonwealth of Australia (Australian Taxation Office) v Wilson (2001) 2 a Full Bench of the Australian Industrial Relations Commission agreed with the conclusion of Justice Keely stating at [11]:
With respect we agree with His Honour's conclusion. Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination 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 physically been communicated to the employee. Those circumstances did not, however, exist in this matter and we therefore refrain from further discussion of the point.
And further at [13]:
It seems to us that in a case of this kind "termination" must be construed to refer to the date on which the termination is communicated to the employee. The same conclusion was reached by Senior Deputy President Williams in Grzelka v Peel Training and Employment (Inc) [Print T3393] at para [13].
Conclusion
[16] Having regard to the authorities cited above I consider the dismissal took effect on 21 March 2012, being the time when the Applicant became personally aware of his dismissal. Thus, the unfair dismissal application has been filed within the prescribed 14 day period and an extension of time is not required to be sought by the Applicant.
[17] While I accept that it is most probable that the letter of termination said to be posted on Friday 16 March 2012 by Express Post was delivered to the Applicant’s residential mailbox on the following Monday 19 March 2012, the Applicant gave sworn evidence that he did not receive it until Wednesday 21 March 2012. In the Applicant’s letter to Mr Magdic on the same day, he makes specific reference to receipt of the correspondence from Mr Magdic on 21 March 2012. As the effective date of termination was not a matter of controversy at this time I see no reason for the Applicant to misstate the receipt date of the correspondence, or to ignore receipt of the Employer’s email of 19 March 2012 which he says he never received.
[18] I do not find it unreasonable to allow a period of two days to elapse for Mr Kelly to check his mailbox particularly as he had previously and constantly asked his employer to direct all its communications via email.
[19] As the Employer has attempted in good faith to communicate the Applicant’s termination, had I formed the view that the Applicant knew of his impending termination and was deliberately avoiding receipt of this communication, my conclusion would not have been in the Applicant’s favour.
Exceptional Circumstances
[20] The Applicant argues that I should be satisfied that exceptional circumstances exist to grant an extension of time as per s.394(3) of the Act if required, while the Employer argues that no such exceptional circumstances exist.
[21] In this case had I not concluded that the application was filed in time I would have been satisfied that there exist exceptional circumstances to grant an extension of time of the two days necessary without prejudice to the Employer. The Applicant’s evidence was that he did not know he had been dismissed until 21 March 2012 and took immediate action to dispute the dismissal by requesting the appeal process details in his correspondence of 21 March 2012 to the Employer.
[22] I also note as relevant that Mr Magdic in a letter dated 1 April 2012 to Mr Kelly confirmed Mr Kelly’s termination payments as having been calculated based on an effective termination date of 21 March 2012 “given your statement that you received the letter of termination on 21 March 2012.” It is somewhat disingenuous for the Employer to acknowledge without exception the Applicant’s statement that he received the letter of termination on 21 March 2012 and base the employee’s termination payments on this date and subsequently at a later date argue that the Applicant was effectively informed of his termination at an earlier date.
[23] With respect to the merits of the application, Mr Kelly’s claim proceeds on the basis that he had previously given evidence at a Senate Committee concerning safety breaches within the workplace of the Employer. Further that the allegations of misconduct relate to out of hours conduct. The Employer submits that the Applicant acted in a manner contrary to its Code of Conduct. I am not able to form a conclusive view that the application is lacking in merit without hearing more from both parties.
[24] Based on the reasons outlined above, the unfair dismissal application has been filed within the prescribed 14 day period by the Applicant. The jurisdictional objection raised by the Employer is dismissed.
COMMISSIONER
Appearances:
S Bull on behalf of Mr M Kelly.
C Best on behalf of Jetstar Airways Pty Ltd.
Hearing details:
2012.
Sydney.
20 July.
1 57 IR 183.
2 PR901127.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR526758>
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