Mr Michael McFarlane v F Vitale & Sons Pty Ltd T/A F Vitale & Sons

[2014] FWC 5629

[2014] FWC 5629

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Michael McFarlane
v
F Vitale & Sons Pty Ltd T/A F Vitale & Sons
(U2014/6669)

COMMISSIONER CRIBB MELBOURNE, 25 AUGUST 2014

Application for relief from unfair dismissal - jurisdiction - extension of time.

[1] Mr Michael McFarlane (the Applicant) has made an application, under section 394 of the Fair Work Act 2009 (the Act), for an unfair dismissal remedy. It is alleged that his dismissal by F Vitale & Sons Pty Ltd T/A F Vitale & Sons (the respondent, the company) is harsh, unjust or unreasonable.

[2] The company raised a jurisdictional objection to the application on the grounds that it was lodged outside the prescribed time limit. This was on the basis that Mr McFarlane was told he was dismissed by Mr Domenic Vitale, on 25 March 2014, during a telephone call between Mr Vitale and Mr McFarlane. On the other hand, Mr McFarlane argued that he was not dismissed by Mr Vitale on 25 March 2014 but rather, on 31 March 2014.

[3] Therefore, the issue to be determined is whether Mr McFarlane was dismissed on 25 March 2014 or on 31 March 2014. If the date is found to be the former (25 March 2014), Mr McFarlane’s extension of time application will need to be determined. If it is found that the relevant date is 31 March 2014, there is no necessity to deal with the extension of time application as the application will have been lodged within time.

[4] As the company wished the objection to be dealt with prior to conciliation, the extension of time application by Mr McFarlane was heard on 14 July 2014.

[5] Mr McFarlane gave oral evidence. On behalf of the company, Mr Domenic Vitale, Mr Giacamo Vitale and Ms Jacqueline Vassallo gave oral evidence.

[6] Mr McFarlane was represented by Mr G Dircks, Consultant whilst the company was represented by Mr J Hooper, of Counsel.

THE EVIDENCE

(a) The Company

Mr Domenic Vitale

[7] Mr Vitale is a Project Manager for the company. He provided a written statement, 1 in addition to giving oral evidence.

[8] It was Mr Vitale’s evidence that, on Tuesday 25 March 2014, at about 7.00am he was on a job in Pascoe Vale South. He recalled that he was standing at the entrance to the end unit and that Mr McFarlane and Mr McSweeney (Site Supervisor) were inside. It was stated that Mr McSweeney asked Mr McFarlane how long he thought he would be in this unit for. In a very aggressive manner, Mr McFarlane was said to have said “Fuck off, you fat cunt. Why don’t you try doing it?” or words to this effect. As Mr McSweeney is clinically deaf in one ear, he had approached Mr McFarlane and asked him what he had said. Mr Vitale stated that he had then intervened and told Mr McFarlane to pack up his stuff and that he would be in contact with him later. 2

[9] There was said to have been no further conversation between Mr McSweeney and Mr McFarlane nor between himself and Mr McFarlane. Mr Vitale stated that there was no physical contact between Mr McFarlane and Mr McSweeney. He indicated that he had heard and seen all of the incident between Mr McFarlane and Mr McSweeney. 3

[10] Mr Vitale explained that he had informed the Director (Mr Jim Vitale), around 9.00am, about what had happened. Mr Jim Vitale had told him that he was going to have a discussion with another Director, Mr Sam Vitale, and would get back to him. It was recalled that, when he told Mr Jim Vitale what had happened, Mr Jim Vitale had been outraged. 4

[11] It was recalled by Mr Vitale that Mr Jim Vitale had got back to him between 5.00pm and 6.00pm that day. Mr Jim Vitale was said to have told him that Mr McFarlane was to be summarily dismissed due to what had happened on site that morning. He was told to contact Mr McFarlane immediately and to tell him that his employment was terminated immediately. 5

[12] Mr Vitale recounted that he had received a text from Mr McFarlane at 5.34pm asking what was “happening with tomorrow?”. 6 Mr Vitale had then called Mr McFarlane at 7.00pm and 7.01pm and had got his message bank. He did not leave a message. His phone records showed that, at 7.13pm, he and Mr McFarlane had a conversation for 13 minutes and 52 seconds.7 During this conversation, it was Mr Vitale’s evidence that he had told Mr McFarlane that he could not carry on that way on the job site; that the matter was out of his hands; that the Directors had made a decision and that he was dismissed effective that night and that he was to finish up immediately. It was recalled that Mr McFarlane had said that it was bullshit that he got the sack and that his dismissal was not fair as people blow up all the time. Mr Vitale indicated that his response was that he could not have that attitude, swearing and aggressiveness, on site. Mr Vitale explained that they went around in circles a bit.8

[13] Later in his evidence, Mr Vitale did not recall Mr McFarlane telephoning him later that day and having a conversation with him. Mr Vitale stated that he had called Mr McFarlane at 7.13pm. He did not recall that Mr McFarlane had called him and that they had had a conversation. He also indicated that he did not recall that, during the alleged conversation, he had told Mr McFarlane that he had to speak to his uncles but that it was not looking good for him and that he would probably get the sack because of his run-in with Peter. 9

[14] Mr Vitale indicated that, the next day (26 March 2014), he had received a text from Mr McFarlane saying that he does not think “it’s fair that I get the sack without a chance to apologise or a warning…..”. 10 He explained that what he thought the text meant was that Mr McFarlane was complaining that he had got the sack the night before and that it was not fair.11 He confirmed that he had received a subsequent text asking if he was in a meeting.12 Mr Vitale explained that he did not respond to the text messages as he felt that he had made himself clear the night before.13

[15] It was recalled by Mr Vitale that the next contact from Mr McFarlane was a text message on Monday 31 March 2014 asking for someone to contact him to tell him if he had been sacked and to fix up his annual leave. He said that he had not responded to the text but thought that there was a phone call afterwards, from him to Mr McFarlane, confirming that he thought he had made himself clear the previous Tuesday that Mr McFarlane had got the sack. Further, it was stated that Mr McFarlane had not turned up for work at any time after 25 March 2014. 14

[16] During cross examination, Mr Vitale said that he had made a mistake when he stated that he had responded to Mr McFarlane’s text. He indicated that he had said in his statement that there was no message or that he did not respond. He then said that he stood by his statement and that he did not believe that he had responded. 15

Mr Giacamo Vitale

[17] Mr Vitale is a Director of the company. He provided a written statement 16 in addition to giving oral evidence.

[18] Mr Vitale gave evidence that:

• On the morning of 25 March 2014, Mr McSweeney contacted him and told him that Mr McFarlane had abused him and called him a fat fucking idiot and was generally subordinate. 17 It was explained that Mr McSweeney has a hearing impediment and that it was Mr McSweeney’s impression that Mr McFarlane did not want to be there.18



• There had been a previous altercation between Mr McFarlane and Mr McSweeney a few days earlier. He had no knowledge of this prior to Mr Mc Sweeney’s call and Mr McSweeney did not tell him about this during the call. Mr McSweeney also did not tell him that Mr Domenic Vitale had sent Mr McFarlane home. 19



• Later that day, Mr Domenic Vitale had rung him and told him that Mr McFarlane had called Mr McSweeney names and was subordinate. He also said that he had sent Mr McFarlane home because he did not want to risk it getting worse or more violent. He told Mr Domenic Vitale that he would speak to another Director. 20 He (Mr Giacamo Vitale) was concerned about a physical altercation occurring between Mr McFarlane and Mr McSweeney. It was his understanding that there had not been anything physical.21



• He could not recall whether he had told Mr Domenic Vitale that he already knew about the incident or whether Mr Domenic Vitale had told him that Mr McFarlane had used the C- word. 22



• He spoke with another Director, Mr Sam Vitale and it was decided to terminate Mr McFarlane’s employment. 23



• He rang Mr Domenic Vitale and told him that the decision was that Mr McFarlane’s employment with the company would cease straightaway. It was his understanding that Mr Domenic Vitale did as he was requested. It was explained that, if Mr Domenic Vitale had anything to say, he would normally say it. Mr Domenic Vitale did not report back to him on this matter. 24



• He did not know whether Mr Domenic Vitale had terminated Mr McFarlane that night although he said that Mr Vitale would have done that. 25



• The dismissal was not put in writing as it was very very clear. This was because Mr McFarlane would have been clear that he did not get sent home for a cup of tea. 26



• He was aware that Mr McFarlane had sent a text to Mr Domenic Vitale after 25 March 2014 asking to be told if he had been dismissed or not. He was not aware that Mr McFarlane had sent Mr Vitale other texts as well. 27

Ms Jacqueline Vassallo

[19] Ms Vassallo provided a written witness statement 28 in addition to giving oral evidence.

[20] It was Ms Vassallo’s evidence that:

• The telephone call with Mr McFarlane began before she and Mr Domenic Vitale (her husband) took the dog for a walk. 29 Mr Vitale and she were sitting on the deck out the back and, before Mr Vitale had started the call, she had gone inside.30 Before he started the call, Mr Vitale had told her that he was making a call to Mr McFarlane.31 Mr Vitale was on the phone for 5 - 10 minutes before the dog walking started.32



• She could hear Mr Vitale’s end of the conversation as they were walking along but she was not paying much attention to what was being said. 33



• At the corner of Grevillea and Edith Streets, she heard Mr Vitale say that Mr McFarlane is no longer employed; that it was out of his hands and that the decision was made by his uncles. 34 This was said towards the end of the conversation with Mr Vitale saying that he had to go shortly after.35 Mr Vitale had not used the word “terminated” to Mr McFarlane.36



• She remembered where she was when Mr Vitale said to Mr McFarlane that he was no longer employed. This was because her ears pricked up because she was taken aback. She had never heard Mr Vitale fire anyone in the three years she had been with her husband. 37



• After the call concluded, she had asked Mr Vitale what had happened. His response was that it was out of his hands and that he did not want to talk about it. 38 He said that he had spoken to his uncle or uncles. He had not discussed with her that he was going to terminate Mr McFarlane.39

(b) Mr McFarlane

[21] Mr McFarlane provided a written statement 40 in addition to giving oral evidence.

[22] It was Mr McFarlane’s evidence that:

• On the morning of 25 March 2014, he was standing by the ensuite in the unit and Mr McSweeney was telling him to hurry up and to get the job done. He (Mr McSweeney) just kept on telling him to hurry up. 41



• He had snapped and aggressively told Mr McSweeney that he was an effing idiot. Mr McSweeney had then come over and asked him what he had said. He had repeated that Mr McSweeney was an effing idiot and Mr McSweeney had then pushed him against the doorway/wall. 42 He had not gone back at Mr McSweeney because he thought he would lose his job if he pushed Mr McSweeney as he had pushed him.



• In response to the proposition that Mr Barnes’ evidence would be that Mr McFarlane and Mr McSweeney were not close enough for him to intervene, he said that it was a lie. He gave the same response to Mr Vitale’s evidence that there had been no physical pushing or shoving of him by Mr McSweeney. 43



• Mr Domenic Vitale had then told him to go home and cool off and that he would be in contact with him. 44 He did not think/was not sure that Mr Vitale had been there the whole time.45 He was positive that Mr Vitale was standing at the doorway after the push by Mr McSweeney.



• He was not sure aware at the time of the incident that Mr McSweeney was a bit hard of hearing. 46



• He denied calling Mr McSweeney a fat C. 47



• He sent a text message to Mr Domenic Vitale at 5.34pm on 25 March 2014 asking about what was happening the next day. 48



• Mr Vitale tried to call him at about 7.00pm and 7.01pm that night. He had sent Mr Vitale a text saying he had noticed his missed calls. 49



• He received a call from Mr Domenic Vitale at 7.13pm that night (25 March 2014) which went for about 13 minutes. He said that he had tried to ring Mr Vitale back but they had both missed each others’ calls. He acknowledged that his statement was not accurate where it said that he had rung Mr Vitale. He said that he must have been a bit confused as it was so long in between recalling what had happened. 50



• In respect of the telephone call, he said that it was not really a memorable phone call but that he remembered waiting three days until Mr Vitale contacted him. He did remember the call but he got mixed up about the day it happened (25 March 2014). 51



• He recalled being silent for most of the phone call. He stated that Mr Vitale told him that he had spoken to his uncles and that it was out of his hands and that it was not looking good for him. Mr Vitale had not said anything about being sacked or about being paid what he was owed. Therefore, he was left up in the air for a few days which was why he sent the text messages. 52



• He acknowledged that he had carried on in relation to Mr McSweeney and that he is sorry that he did. 53



• In examination in chief, he did/did not recall saying to Mr Vitale, on 25 March 2014, that it was bullshit/not fair, nor Mr Vitale telling him that his entitlements would be paid shortly. 54



• During cross examination, he stated that he had said to Mr Vitale that it is a bit unfair that he get sacked for the incident that morning. 55



• On 26 March 2014, he sent a text to Mr Vitale saying that he did not think that it was fair to get the sack without a chance to apologise or a warning. He denied that he had sent the text because he had been sacked or that he wanted the company to re-consider his dismissal. 56



• After sending Mr Vitale a further text on 26 March 2014, he thought he would leave things alone until the Monday (31 March 2014). He had texted Mr Vitale on the Monday following non payment of his annual leave. He said that, if his annual leave had been paid, it would have been a sure sign that he had been sacked. 57



• On Monday 31 March 2014, he had sent Mr Vitale a text asking him if he was sacked and asking about his entitlements. He thought that he still had a chance of employment. 58



• Mr Vitale had rung him on his mobile that night (about 8pm) and told him that he had been sacked. 59



• He said that it was on 31 March 2014 that his employment was terminated by Mr Vitale. 60



• He had no idea whether Mr Vitale rang him from his mobile on 31 March 2014 but thought it might have been. When shown the records for 31 March 2014 for Mr Vitale’s mobile, which did not contain Mr McFarlane’s phone number, he said that he did have a conversation with Mr McFarlane after he had sent the text message. He said that the conversation was not straight after. He was not absolutely 100% sure now that the conversation took place on 31 March 2014. He was pretty sure that Mr McFarlane had rung him although he was not positive about that either. He was positive that his employment had not been terminated by Mr Vitale on 25 March 2014. 61



• Following being terminated on 31 March 2014, he had seen Mr Dircks on 17 April 2014 (about 17 - 18 days after he found out about his termination). 62

SUBMISSIONS

(a) The Company

[23] With respect to the evidence, Mr Hooper submitted the following:

• Mr Domenic Vitale gave clear and cogent evidence that, at about 7.00am on 25 March 2014, Mr McFarlane was verbally abusive to Mr McSweeney but that there was no physical contact between them. The applicant was said to agree except as to which expletive was used and how often. The parties were stated to agree that it was aggressive between the parties. The applicant was recalled to have indicated that an apology from him might be appropriate. 63



• Following the incident, Mr Vitale followed proper process and sent Mr McFarlane home immediately to cool down, on the basis that he would get back to him later in the day. 64



• It was the evidence of both Mr Domenic Vitale and Mr Jim (Giacamo) Vitale that Mr Vitale had rung and reported the incident. Mr Jim Vitale had rung back towards the end of the day and told Mr Domenic Vitale to terminate Mr McFarlane’s employment. 65



• Both of the Mr Vitale’s gave the same evidence - Mr Domenic Vitale was to terminate the applicant’s employment immediately, due to his unacceptable conduct, with no discretion to do other than that. There was no questioning of the decision by Mr Domenic Vitale. 66



• Mr Jim Vitale had discussed the situation with his co -Director, Mr Sam Vitale. He (Mr Jim Vitale) had been notified of the incident in the morning. 67



• It was common ground (based on the telephone records) 68 that there was a telephone conversation between Mr Domenic Vitale and Mr McFarlane on 25 March 2014, when Mr Vitale and his wife were out walking the dog. Ms Vassallo’s evidence was said to be that she clearly overheard her husband saying things that made her “ears prick up” because she had never heard him terminate anyone before.69

[24] It was submitted that the evidence of Mr Domenic Vitale, his wife and Mr Giacamo Vitale all line up and makes sense. On the other hand, the respondent argued that Mr McFarlane’s evidence was unreliable and did not make sense. This was on the basis of - why would Mr Vitale ring Mr McFarlane and, having received clear instructions from his uncle, mislead him about the status of his employment? What makes sense was said to be the story that has been told by the respondent. 70

[25] The Commission was urged to find, on the balance of probabilities, that Mr McFarlane was unequivocally terminated during the phone call from Mr Vitale at 7.13pm on 25 March 2014. Further, the Commission should find that Mr McFarlane was dismissed for serious misconduct. 71

[26] As the dismissal took place on 25 March 2014, it was submitted that the application was made out of time by 2 days. 72 Therefore, with respect to the requirements of section 366 of the Act, the respondent argued that:

• Reason for the delay - if the termination occurred on 25 March 2014 and the applicant knew about it or should have understood the position, then there is no acceptable reason for the delay. The applicant was said not to have been in a hurry to see Mr Dircks and get advice. This factor does not favour granting the application. 73



• Any action taken - Mr McFarlane’s text of 26 March 2014 does not constitute a substantive action to dispute the dismissal. This factor favours not granting the application. 74



• Prejudice to the employer - this was said to be a neutral factor in this matter. 75



• Merits of the application - there is very little merit to the application. Mr McFarlane was said to have largely admitted to his unsatisfactory conduct. The employer considered that the conduct was repugnant to the employment relationship and creates an unacceptable occupational health and safety risk. 76 Further, the applicant’s conduct was said to amount to serious misconduct. This factor was said to not favour granting an extension of time.77



• Fairness - this was stated to be a neutral factor in this matter. 78

(b) Mr McFarlane

[27] Mr Dircks argued, on Mr McFarlane’s behalf, that the applicant was suspended on 25 March 2014 and that the applicant had sent a text message, on Monday 31 March 2014, querying whether he was sacked. It was observed that, up to this point, there is nothing in writing. There appears to have been payment of Mr McFarlane’s entitlements on 2 April 2014 with the application lodged on 17 April 2014. 31 March 2014 was said to be the date named as the termination date in the application. 79 It was submitted that this scenario is consistent with Mr McFarlane not being definitely informed that he was dismissed until 31 March 2014.80

[28] If the Commission accepted Mr Domenic Vitale’s evidence that he informed Mr McFarlane at the end of the conversation on 25 March 2014, it was contended that it was likely that there was a real world element operating. This was said to be that there was capacity for misunderstanding in circumstances where eyes glaze over and the applicant may have just been looking at things from his point of view and arguing without clearly understanding what was being put. 81

[29] In addition, it was argued that there is the issue of credit as to whether the termination occurred on 25 March 2014 or on 31 March 2014. The applicant contended that Mr Vitale had not, during his evidence, explained that the phone call on 25 March 2014 began at the back of the house before he commenced the dog walking. Further, it was stated that Mr Vitale had given conflicting evidence about whether there was a telephone call after the text message from Mr McFarlane on 31 March 2014. It was recalled that, during examination in chief, Mr Vitale said that there was a phone call afterwards and that he thought it was from him to Mr McFarlane. Further, Mr Vitale’s witness statement indicated that he did not believe that he had responded to Mr McFarlane’s text. 82

[30] The applicant submitted that, although it is not definite evidence at any point, Mr Vitale gave very clear evidence which is consistent with there having been a telephone call after Mr McFarlane sent his text message on 31 March 2014. That doubt was said to be sufficient for the Commission to prefer Mr McFarlane’s evidence that he was not definitely told that he was dismissed on 25 March 2014. Although Ms Vassallo may have come across as a very credible witness, it was contended that it would not be appropriate to rely on a partly overheard conversation held whilst walking along the street when only one party is audible. 83

[31] Another issue which goes to credit was said to be the difference between the way Mr McSweeney described the verbal altercation between himself and Mr McFarlane (which is largely supported by Mr McFarlane’s evidence) to Mr Giacamo Vitale and what Mr Domenic Vitale reported to Mr Vitale Senior had happened. The difference between the accounts was described as Mr Domenic Vitale being the only person to allege that Mr McFarlane had used the C word to Mr McSweeney. 84

[32] With respect to the phone records, 85 it was submitted that they do not necessarily tell the whole story. This was on the basis that Mr Jim (Giacamo) Vitale’s mobile number did not appear in the phone records and there is only one very short phone call to the office number. Therefore, the fact that the records do not show a phone call to Mr McFarlane after the 31 March 2014 text was said to not be definitive of whether or not such a call was made.86

[33] Therefore, it was argued that, on the balance of probabilities, the Commission ought to accept that the termination did not take place on 25 March 2014. Rather, it took place anytime on or after 27 March 2014 which meant that the application is within time. 87

[34] If the Commission found that the application was lodged out of time, it was submitted that there was no valid reason for Mr McFarlane’s dismissal. It was conceded that there is evidence that Mr McFarlane swore at Mr McSweeney. However, the applicant contended that swearing, as a result of provocation, is not necessarily a valid reason for dismissal. The Commission was referred to a number of cases in this regard. 88 Further, the applicant argued that the employer had displayed a disproportionate response to the conduct of the applicant.89

[35] In terms of the reason for the delay, it was contended that Mr McFarlane was not explicitly informed of his dismissal until 31 March 2014. The genuineness of this view was said to be supported by Mr McFarlane’s texts on 25 March 2014, 26 March 2014 and 31 March 2014. It was argued that it was not clear to Mr McFarlane until he received a call, following his text message on 31 March 2014, that he had been dismissed. 90

[36] With respect to whether there are exceptional circumstances in this case, it was submitted that there are due to it being an unusual situation. It is unusual due to there being no written record of the dismissal and that the way it was done (via telephone calls) left it open to interpretation. The applicant contended that it is unusual these days for employees to not have any written notification of their dismissal. 91

[37] In addition, the applicant argued that he was not aware of the dismissal on 25 March 2014 and that he had disputed the fairness of the possible dismissal in his text on 26 March 2014. Further, it was contended that there is no prejudice to the employer caused by the delay and that there is no lack of merit in the application. 92

CONSIDERATIONS AND CONCLUSIONS

[38] The first issue for determination is whether Mr McFarlane was told by Mr Vitale on 25 March 2014 that he was dismissed or whether it was following Mr McFarlane’s text to Mr Vitale on 31 March 2014.

[39] I have carefully considered all of the evidence and material before me. There is conflicting evidence about:

• The contents of the telephone call between Mr Domenic Vitale and Mr McFarlane on 25 March 2014.



• Whether Mr Vitale spoke to Mr McFarlane following Mr McFarlane’s text on 31 March 2014.



• The contents of the 31 March 2014 conversation (if there was one).

[40] In assessing, on the balance of probabilities, as to whether Mr McFarlane’s employment was terminated on 25 March 2014 or following Mr McFarlane’s text on 31 March 2014, I have been guided by the following considerations:

• The Commission has concerns about Mr Domenic Vitale’s evidence. This is based on his demeanour in the witness box, the way in which he described how he had dismissed Mr McFarlane (it is unlikely that he would have told Mr McFarlane he was “terminated”) and his evidence appeared to be selective. For example, it was Ms Vassallo, and not Mr Vitale, who explained that Mr Vitale had commenced the telephone call to Mr McFarlane on the back deck/porch of the house.



• Mr McFarlane’s evidence was messy and not very polished. Under cross examination, he became unsure of the date of particular events.



• It is a fact that, on 31 March 2014, Mr McFarlane sent Mr Domenic Vitale a text asking if someone could contact him and tell him if he was sacked.

[41] In terms of the 31 March 2014 text, the obvious question is why Mr McFarlane sent that text if his employment had been terminated six days earlier, on 25 March 2014? Despite Mr McFarlane’s evidence being messy and not very polished, I accept that he genuinely did not know, at the time he sent the text on 31 March 2014, that his employment had been terminated. Therefore, it is my view that the answer to the question is that Mr McFarlane sent the text because he did not know whether or not he had been dismissed.

[42] Taking all of this into account, I find that, on the balance of probabilities, Mr McFarlane was not dismissed by Mr Domenic Vitale on 25 March 2014. In the alternative, I find that it is most probable that Mr McFarlane was not clearly advised by Mr Vitale, on 25 March 2014, that he was dismissed so that he understood that his employment had ended that day.

[43] With respect to whether or not Mr Vitale telephoned Mr McFarlane following receipt of his text on 31 March 2014, on the balance of probabilities, I find that Mr Vitale did call Mr McFarlane. Mr Vitale’s evidence on this issue was inconsistent with it first being:

“Did you respond in any way?---Don't believe I responded at all. Or actually there was a phone call, I think, afterwards.

From you to him, or him to you?---I think it was me to him or – just confirming that I thought I’d made myself clear the following Wednesday, or the following Tuesday sorry, that he had got the sack.” 93

[44] During cross examination, which immediately followed the evidence above, Mr Vitale referred back to his statement which said that he did not respond. He stated that his oral evidence was a mistake and that he stood by his statement and that he did not believe that he had responded. 94

[45] In his statement, Mr Vitale indicated that he did not believe that he had responded to Mr McFarlane’s text. 95

[46] Given the fact that Mr McFarlane sent Mr Vitale a text asking to be told if he was sacked, I am inclined to accept Mr Vitale’s initial oral evidence that he had called Mr McFarlane in response to his text. Further, in terms of the content of that telephone call, on the balance of probabilities, I find that, during the telephone call on 31 March 2014, Mr McFarlane was either told for the first time that he was dismissed or that he was told clearly, for the first time, so that he understood, that his employment had ended.

[47] Therefore, on the balance of probabilities, I find that Mr McFarlane was either not told or it was not clear to him, on 25 March 2014, that he was dismissed. Further, on the balance of probabilities, I find that, following his text on 31 March 2014 to Mr Vitale, Mr McFarlane was then told that he was dismissed or that it was made clear to him that this was the case.

[48] As I have found that, on the balance of probabilities, Mr McFarlane was dismissed on 31 March 2014, the application has been lodged within time. Therefore, there is no necessity to deal with the respondent’s jurisdictional objection.

[49] Accordingly, Mr McFarlane’s application will be referred for conciliation.

Appearances:

Mr G. Dircks, consultant, for the Applicant

Mr J. Hooper of Counsel for the Respondent

Hearing details:

2014.

Melbourne:

July 14.

 1   Exhibit R1

 2   Transcript PN 88 - 97 and 100

 3   Ibid PN 98 and 102 - 104

 4   Ibid PN 106 - 114 and Exhibit R1 at paragraph 5

 5   Ibid PN 115 - 122 and ibid at paragraph 6

 6   Ibid PN 139 - 144 and ibid at paragraph 7

 7   Ibid PN 123 - 134 and Ibid at paragraphs 7 - 8

 8   Ibid PN 124 - 138 and ibid at paragraph 8

 9   Ibid PN 145 - 148

 10   Ibid PN 149 and Exhibit R1 at paragraph 10

 11   Ibid PN 151

 12   Ibid PN 150

 13   Ibid PN 152 - 154 and Exhibit R1 at paragraph 12

 14   Ibid PN 157 - 163 and ibid at paragraphs 13 - 14

 15   Ibid PN 165 - 169

 16   Exhibit R4

 17   Ibid PN 308 and Exhibit R4 at paragraph 2

 18   Ibid PN 326

 19   Ibid PN 327 - 330 and Exhibit R4 at paragraph 2

 20   Ibid PN 309 and ibid at paragraphs 3 - 4

 21   Ibid PN 310 - 311

 22   Ibid PN 332 - 335

 23   Ibid PN 312 - 313 and Exhibit R4 at paragraph 5

 24   Ibid PN 314 - 319 and ibid at paragraph 6

 25   Ibid PN 336 - 338

 26   Ibid PN 339 - 340

 27   Ibid PN 346 - 350

 28   Exhibit R5

 29   Transcript PN 359 - 360, 382 and 377

 30   Ibid PN 363

 31   Ibid PN 371

 32   Ibid PN 381 - 382

 33   Ibid PN 360 and 362 and Exhibit R5 at paragraph 1

 34   Ibid PN 361, 364, 385 - 387 and 391 - 392 and Exhibit R5 at paragraph 2

 35   Ibid PN 368 - 369 and 390

 36   Ibid PN 384

 37   Ibid PN 365 - 366

 38   Ibid PN 370

 39   Ibid PN 388 - 389

 40   Exhibit A1

 41   Ibid and Transcript PN 448

 42   Ibid PN 448 and 474

 43   Ibid PN 475 - 476

 44   Ibid PN 448 and 477 - 479 and Exhibit A1 at paragraph 18

 45   Ibid PN 448 - 449 and 473

 46   Ibid PN 470

 47   Ibid PN 450 and 460

 48   Ibid PN 451, 480 and 505 and Exhibit A1 at paragraph 21

 49   Ibid PN 481 - 482

 50   Ibid PN 451, 483 - 493, 494, 506 - 507, 559 and 600 - 602

 51   Ibid PN 496 - 498

 52   Ibid PN 451 - 453, 499, 504, 562 - 563, 568 - 570 and 572 and Exhibit A1 at paragraph 22

 53   Ibid PN 577 - 578

 54   Ibid PN 454 - 455

 55   Ibid PN 508 and Exhibit A1 at paragraph 27 and 35

 56   Ibid PN 573 - 574 and 579 and Exhibit A1 at paragraph 25

 57   Ibid PN 580 - 585 and Exhibit A1 at paragraph 26

 58   Ibid PN 456 and 510 - 511

 59   Ibid PN 456 - 459, 512 - 517 and 550 and Exhibit A1 at paragraph 29

 60   Ibid PN 509, 543 - 548 and 610 - 611

 61   Ibid PN 515 - 528, 543 - 553, 560, 604, 606 and 608

 62   Ibid PN 610 - 614 and Exhibit A1 at paragraph 33

 63   Ibid PN 628 - 629

 64   Ibid PN 629

 65   Ibid PN 629

 66   Ibid PN 630

 67   Ibid PN 631

 68   Exhibit R3

 69   Transcript PN 632 - 633

 70   Ibid PN 633 - 634

 71   Ibid PN 635 and Exhibit R6 at paragraph 5

 72   Ibid PN 635 and ibid at paragraph 3

 73   Ibid PN 636 and ibid at paragraphs 42 - 44

 74   Ibid at paragraphs 45 - 46

 75   Ibid at paragraph 47

 76   Transcript PN 637

 77   Exhibit R6 at paragraphs 48 - 49

 78   Ibid at paragraph 50

 79   Transcript PN 644 and Exhibit A2 at paragraphs 2 - 3 and 16

 80   Ibid PN 645

 81   Ibid

 82   Ibid PN 646

 83   Ibid PN 647

 84   Ibid PN 648

 85   Exhibit R5

 86   Transcript PN 649 and Exhibit A2 at paragraph 19

 87   Ibid PN 650

 88   Ibid 650 - 652

 89   Exhibit A2 at paragraph 39

 90   Ibid at paragraphs 24 - 27 and Transcript PN 655

 91   Ibid at paragraphs 31 - 32 and ibid PN 654

 92   Ibid at paragraphs 34 - 38

 93   Transcript PN 161 - 162

 94   Ibid PN 165 - 169

 95   Exhibit R1 at paragraph 13

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