Mr Neville Kingsbury-Carr v Macquarie Discount Pharmacy
[2011] FWA 7
•6 JANUARY 2011
[2011] FWA 7 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Neville Kingsbury-Carr
v
Macquarie Discount Pharmacy
(U2010/14496)
COMMISSIONER DEEGAN | CANBERRA, 6 JANUARY 2011 |
Application for unfair dismissal remedy - whether made in accordance with s.394(2) - question of date of effect of dismissal - exercise of discretion under s.394(3).
[1] This decision relates to an application for unfair dismissal remedy filed with Fair Work Australia on 29 November 2010 by the applicant, Mr Neville Kingsbury-Carr, under s.394 of the Fair Work Act 2009 (Cth) (the Act).
[2] On 1 December 2010 the respondent objected to Fair Work Australia accepting the application on the basis that it was made more than 14 days after the dismissal had taken effect and therefore not within the statutory limit under s.394(2) of the Act.
[3] The respondent claimed that the dismissal had taken effect on 8 November 2010. The date of dismissal was disputed by the applicant.
[4] The matter was listed for hearing on 17 December 2010 to determine whether the application was lodged within the statutory time limit and, if not, whether the application would be accepted.
Background
[5] Following a complaint made by a customer the applicant was invited to attend a meeting with Mr Luke Murray on the evening of 8 November 2010. During the conversation Mr Murray informed the applicant that his services were no longer required. A further meeting took place between the parties on 12 November 2010. Later that day Mr Murray sent a termination letter to the applicant. The applicant received the letter on 16 November 2010.
The applicant’s case
[6] It was the applicant’s contention that the dismissal did not take effect until 16 November 2010 when he received the termination letter dated 11 November 2010 sent by Mr Murray.
[7] At the hearing the applicant supplied a copy of the termination letter 1 and the original registered post envelope2 which had been date stamped at the point of delivery and receipt. The markings on the envelope indicated that the letter was dispatched from Charnwood post office on 12 November 2010 and received by the Ainslie post office on 15 November 2010. The applicant stated that he had received a ‘registered article collection card’ in his letter box on 15 November 2010 and collected the article, which was the termination letter, the next day.
[8] The applicant gave evidence about the conversations he had with Mr Murray on 8 November 2010 and 12 November 2010 and about the letter he had written to Mr Murray on 9 November 2010.
[9] According to the applicant:
- he had no forewarning of the meeting of 8 November 2010
- Mr Murray had told him at the meeting that he had breached a patient’s confidentiality and affected the reputation of the pharmacy
- Mr Murray had informed him that he would not be required for his shifts on 20, 21, 27 and 28 November
- he sent a letter on 9 November 3 requesting Mr Murray to review his decision and explaining the circumstances of the incident surrounding the customer complaint
- on 12 November he visited Mr Murray at his premises to hand him a hard copy of the letter he had emailed on 9 November and again asked him to review his decision
- At the end of that meeting he thought there was some prospect that the decision may be reviewed.
[10] Under cross-examination the applicant stated that he had asked Mr Murray if it was a termination at the meeting on 8 November 2010. He claimed he could not recall the answer to the question but stated that he got the impression that Mr Murray had formed a decision in his mind that he was terminated no matter what he said. He agreed that his letter to Mr Murray of 9 November 2010 included the phrases “...of which you advised me that you were terminating my employment” and “...your decision to terminate my employment”. When it was put to him that he knew his employment was terminated the applicant replied that he did not think the decision was “set in stone” and that once given a proper explanation “...they would in all the circumstances be prepared to look again at their decision”. 4
[11] It was the applicant’s case that his application was lodged in time as the dismissal did not take effect until he received the termination letter on 16 November 2010.
[12] In the alternative, the applicant submitted that Fair Work Australia should be satisfied that there are exceptional circumstances, taking into account the factors listed in s.394(3), which justify allowing him a further period in which to make an application.
[13] According to the applicant until he received the termination letter on 16 November 2010 he remained hopeful that Mr Murray would review the termination decision. He had rendered three and a half years of reliable service without complaint and did not consider the substance of the customer’s complaint serious enough to warrant his termination.
[14] In explanation of the timing of the lodgement the applicant noted that he did not start researching his rights until he received the termination letter, which is when he first became aware of the time limit. He had obtained legal advice that he had 21 days in which to make his application. He also believed that it was a requirement under the Act that the termination had to be communicated in writing. Finally the applicant claimed that “his dismissal did not crystallise until his receipt of the termination letter”. 5
The respondent’s case
[15] Mr Murray, for the respondent, gave evidence about the meetings of 8 November 2010 and 12 November 2010 and the dispatch of the termination letter.
[16] According to Mr Murray the reason for the meeting on 8 November 2010 was “to inform Mr Kingsbury-Carr that his employment was no longer required”. 6 His evidence was that he had received the letter7 sent by the applicant on 9 November 2010. Further, he claimed that the meeting of 12 November 2010 was short, and that he informed the applicant that “we will not be changing our decision and the decision would stand”.8
[17] When cross-examined by the applicant Mr Murray denied that he had not reached a final decision at the conclusion of the meeting on 12 November 2010 and reiterated that he had informed the applicant that the decision would be upheld. Further he did not accept that he could have been mistaken about the outcome of that meeting and was definite that he had told the applicant that the decision would stand. 9
[18] The respondent’s case was that Mr Murray had clearly made his decision to terminate the applicant’s employment and had communicated that decision to the applicant on 8 November 2010. The applicant was aware that his employment was terminated at that date.
[19] It was put that the applicant’s employment was terminated for serious misconduct and there was no requirement for any notice to be given. 10
[20] It was also submitted for the respondent that the applicant had demonstrated by his letter to Mr Murray of 16 November 2010 that he was capable of researching his employment entitlements and there was, therefore, no reason for his delay in filing the application. 11 Additionally, it was put that the applicant had only lodged the unfair dismissal application when the employer declined to meet the demands set out in his letter of 16 November 2010.12
The relevant statutory provisions
[21] Section 394(2) requires applications for an unfair dismissal remedy made under Division 4 of Part 3-2 to be made either:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under s.394(3).
[22] Section 394(3) confers a discretionary power on Fair Work Australia to allow a further period for an application to be made if:
“...FWA is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
Was the application made within 14 days after the dismissal took effect? (s.394(2)(a))
[23] Whether or not the application was within the statutory time limit depends on when the dismissal “took effect”. This is a question of fact to be decided on the circumstances of each case. 13 As a general proposition, however, a dismissal does not take effect until it is communicated to the employee.14
[24] In Burns v Aboriginal Legal Service of Western Australia 15a letter dated 18 April 2000 which purported to terminate the applicant’s employment retroactively (with effect from 14 April 2000) was delivered by courier to the applicant’s address on 19 April 2000. In relation to the issue of when the dismissal took effect the Full Bench concluded:
"...a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated. The earliest that such could be said to have occurred in this case was the date upon which the letter of termination was received at her home address, i.e. 19 April 2000." 16
[25] On the evidence of this matter I am satisfied that Mr Murray informed the applicant that he was dismissed at the meeting of 8 November 2010. A formal letter of termination was sent on 12 November 2010. While the letter of termination advised the applicant that his employment was to be terminated “with immediate effect”, I am satisfied that, although the wording is not particularly clear, both parties were aware that the applicant’s employment had been terminated on 8 November 2010 and that the letter was simply confirming that fact. It is well established that an employee can be informed of a dismissal orally. 17
[26] Based on the evidence before me I find that the dismissal took effect on 8 November 2010. To comply with the time limit in s.394(2) the application should have been filed by 22 November 2010. The application, filed on 29 November 2010, was not made within the time allowed under s.394(2)(a).
Are there ‘exceptional circumstances’ which justify an extension of time? (s.394(3))
[27] I now consider whether to allow the applicant a further period within which to make the application under s.394(2)(b). In the exercise of this discretion I must be satisfied that there are ‘exceptional circumstances’ which justify granting an extension of time, taking into account the six factors listed in s.394(3).
Reason for the delay (s.394(3)(a))
[28] The applicant gave no reason for the delay in filing which satisfies the requirement for the existence of exceptional circumstances. The applicant may have been relying on his claim that the date of effect of the dismissal was 16 November 2010 and not 8 November 2010 as a factor constituting an exceptional circumstance. I do not accept this claim. The applicant’s evidence about his reasons for considering that 16 November 2010 was the date the dismissal took effect was not convincing.
[29] His claim that he was unaware that he had been terminated until receiving the letter of 16 November 2010 is contradicted by the terms of the letter he wrote on 9 November 2010. Nor am I convinced by his evidence concerning the meeting of 12 November 2010. Mr Murray’s evidence as to that meeting is to be preferred. I am satisfied that the applicant was in no doubt as at the end of the meeting on 8 November 2010 that he had been dismissed from his employment with the respondent.
[30] The applicant also alluded in his submissions to having obtained incorrect legal advice as to the time limit for lodging applications of this type, but there was no evidence upon which I could be satisfied as to the existence of any representative error that might have established an exceptional circumstance.
Whether Mr Kingsbury-Carr first became aware of the dismissal after it had taken effect (s.394(3)(b))
[31] As set out above, on the evidence before me I am satisfied that the applicant was made aware that his employment had been terminated at the meeting on 8 November 2010. The language of the letter he wrote to Mr Murray on 9 November 2010 is clear evidence of this fact. The applicant may have hoped that Mr Murray would reverse his decision. This does not alter the date of effect of the termination or the fact that the applicant was aware that his employment had been terminated.
Any action taken by Mr Kingsbury-Carr to dispute the dismissal (s.394(3)(c))
[32] The applicant clearly disputed the reasons for his dismissal in his letter of 9 November 2010 and requested Mr Murray review his decision. His letter of 16 November 2010 does not suggest that he intends to contest the termination The applicant apparently took no other steps to contest the dismissal with his employer until lodging the application pursuant to s.394 of the Act on 29 November 2010.
Prejudice to the respondent (s.394(3)(d))
[33] There was no evidence of any prejudice caused to the respondent by the delay in this case.
The merits of the application (s.394(3)(e))
[34] On the evidence before me I am unable to conclude that the application is totally without merit. This is a neutral factor in this case.
Fairness as between Mr Kingsbury-Carr and other persons in a similar position (s.394(3)(f))
[35] This factor has no particular application to this matter.
Conclusions
[36] Mr Murray informed the applicant of the decision to terminate his employment on 8 November 2010 and the applicant’s conduct after this meeting is evidence that he knew a conclusive decision had been made.
[37] There are no exceptional circumstances surrounding the applicant’s failure to lodge his application until 29 November 2010.
[38] I refuse to allow any further time for the lodgement of the application. The application is dismissed. An order to that effect is published separately.
COMMISSIONER
Appearances:
Mr Neville Kingsbury-Carr self represented.
Mr Steve Peters, Industrial Advocate, Oi Group, for the respondent
Hearing details:
Canberra, Friday, 17 December 2010
1 Exhibit K1 Transcript Reference PN8.
2 Exhibit K2 Transcript Reference PN8.
3 Exhibit P1.
4 Transcript reference PN134.
5 Transcript Reference PN201.
6 Transcript Reference PN57.
7 Exhibit P1.
8 Transcript Reference PN66.
9 Ibid.
10 Fair Work Act 2009 (Cth) s.123.
11 Transcript Reference PN33 and PN161.
12 Transcript Reference PN162.
13 Byrne & Frew v Australian Airlines Ltd (1995)185 CLR 410 at 428 (Brennan CJ, Dawson and Toohey JJ).
14 Makenja v Baptist Community Services [2007] AIRCFB 38 at para [18] (Giudice J, Lawler VP, Deegan C).
15 Burns v Aboriginal Legal Service of Western Australia Inc (2000) T3496 (Williams SDP, Acton SDP, and Gregor C).
16 Ibid at para [24].
17 See, eg, Plaska v Rail Corporation NSW [2007] AIRC 333 at paragraph [9] (Cartwright SDP); Iliadis v Rail Corporation NSW [2007] AIRCFB 1041 (Giudice J, Lacy SDP & Cargil C).
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