Mr Reginald Butcher v Specialist Diagnostic Services Pty Ltd T/A Dorevitch Pathology
[2010] FWA 2856
•21 MAY 2010
[2010] FWA 2856 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Reginald Butcher
v
Specialist Diagnostic Services Pty Ltd T/A Dorevitch Pathology
(U2010/390)
SENIOR DEPUTY PRESIDENT ACTON | MELBOURNE, 21 MAY 2010 |
Jurisdiction.
Introduction
[1] Mr Reginald Butcher has made an application under s.394 of the Fair Work Act 2009 (Cth) (the FW Act) for an unfair dismissal remedy. The application is made against Specialist Diagnostic Services Pty Ltd trading as Dorevitch Pathology (Dorevitch). Dorevitch objects to Mr Butcher’s s.394 application on the basis that Mr Butcher was never an employee of Dorevitch.
[2] Section 394 is contained within Part 3-2–Unfair Dismissal of the FW Act. It is apparent from various provisions 1 of Part 3-2 of the FW Act that a person cannot have been unfairly dismissed by an employer unless the person was at the time of the dismissal an employee of the employer.
Agreed Facts
[3] It is common ground between Mr Butcher and Dorevitch that Mr Butcher was employed by Kanina Banner Pty Ltd trading as PathLab (PathLab).
[4] Sometime prior to 1 March 2010, PathLab and Dorevitch entered into an agreement for Dorevitch to purchase the business of PathLab. The contract of sale provided for the purchase to be completed on 1 March 2010 and clause 15 of the contract provided as follows:
“15 Employees
15.1 Offer of employment
The Buyer must offer employment to each of the Employees no later than 5 Business Days prior to the Completion Date.
The Buyer’s offer of employment to those Employees must:
(a) be conditional on and effective from Completion;
(b) be on terms no less favourable than the Employee’s terms of employment with their Employer immediately prior to the Completion Date;
(c) be on terms that the Buyer will recognise the Employee’s Prior Service and assume liability for the Employee’s leave entitlements accrued in respect of the Prior Service; and
(d) provide that if the Employee accepts the offer their employment with their Employer will cease by agreement on the Completion Date.
15.2 Prior Service
The Buyer agrees that, for the purpose of calculating any service related benefit of a Transferring Employee:
(a) each Transferring Employee’s Prior Service is to be taken as service with the Buyer; and
(b) the continuity of each of the Transferring Employee’s employment is to be taken as not broken because they cease to be an employee of their Employer and become an employee of the Buyer.
This clause 15.2 does not require the Buyer to provide a Transferring Employee with credit for a period of Prior Service when calculating a particular benefit to the extent that the Transferring Employee’s entitlement to that particular benefit has been paid or discharged by their Employer.
15.3 Seller’s obligations at or before Completion
At or by Completion, the Seller must (and must procure the other Employers to):
(a) release each Transferring Employee from their employment;
(b) pay to each Transferring Employee all amounts due to the employee on account of any wages, salary, allowances, remuneration or other benefits in respect of service up to and including the Completion Date; and
(c) pay to each Transferring Employee any payments in lieu of termination notice and severance or redundancy payments required to be made by law to the Transferring Employees on or prior to the Completion Date.
15.4 Buyers obligation after Completion
The Buyer is solely responsible for:
(a) all wages, salary, allowances, remuneration and other benefits due to the Transferring Employee in respect of service with the Buyer from the Completion Date; and
(b) the leave entitlements of the Transferring Employees accrued out of service both prior to and after the Completion Date but only to the extent that these have been included in the calculation of the Redundancy Amount and the Seller will indemnify the Buyer for any Claims for leave entitlements arising out of Prior Service to the extent these have not been included in the calculation of the Redundancy Amount.”
[5] By letter dated 15 February 2010 Dorevitch offered employment to Mr Butcher. The letter of offer required Mr Butcher to provide written acceptance by signing and returning the letter of offer by 23 February 2010. It is agreed that subsequently 23 February 2010 was changed to the close of business on 25 February 2010.
[6] On 1 March 2010 Mr Butcher received the following letter from PathLab:
“Dear Reginald
Re: End of employment
Further to previous correspondence regarding sale of our business, I note that you did not accept and return the letter of offer from Dorevitch Pathology that was enclosed with the correspondence.
As you are aware transmission of our business with Dorevitch Pathology will be occurring effective 1 March 2010, subject to final conditions having been met. As you have not accepted the employment offer made by Dorevitch Pathology, your resignation with PathLab will come into effect from close of business 28 February 2010.
May I take this opportunity to thank you for your contribution to PathLab and I wish you well in your future endeavours.
Yours sincerely,
Bill Anton & Peter Gotis”
[7] Later on 1 March 2010 Mr Butcher was told that the services of some of the employees of PathLab who had accepted employment with Dorevitch were no longer required by Dorevitch and they would be given a redundancy payment by Dorevitch. Unbeknownst to Mr Butcher, PathLab had, amongst other things, previously paid to Dorevitch an amount equivalent to the redundancy payments which would be due to all of the PathLab employees if their positions were made redundant by PathLab.
[8] What is in dispute between the parties is whether Mr Butcher signed and returned Dorevitch’s letter of offer.
Employment with Dorevitch?
[9] Mr Butcher gave evidence that he had reservations about accepting the offer of employment from Dorevitch due to some uncertainty about his hours of work and he did not sign and return the letter of offer and associated documents by 23 February 2010 even though at that date he was unaware the time for returning the documents was to be extended to 25 February 2010. However, he said that on 25 February 2010 he attended work at PathLab at approximately 8:00 am and went to Mr Malcolm Eaton, the Head of Microbiology for PathLab, with his signed letter of offer from Dorevitch and associated documents and asked Mr Eaton to whom he should give the signed letter of offer and associated documents. Mr Eaton told him to give them to Mr Philip Pharonides. Mr Butcher said that he immediately proceeded to Mr Pharonides’s office and at about 8:15 am he handed the signed letter of offer and associated documents directly to Mr Pharonides who immediately placed the signed letter of offer and associated documents in an internal mail tray. Later in oral evidence in respect of these times Mr Butcher said:
“PN670
DR KELLY: Well it does raise a question, Mr Butcher, about the time that you gave documents to Mr Pharonides?---Yes, well I- - -
PN671
His evidence is that he didn't get to work till after 9 o'clock in the morning?---Yes, well I definitely gave it to Phillip, there’s no question about that.
PN672
Well it’s just a question about the time?---I don’t think we record any times.
PN673
So you're not sure – I’ll rephrase that. What time – having – being aware that Mr Pharonides’ evidence is that he didn’t arrive till after 9, is it possible that that was the time- - -?---It’s possible that it was later than I thought. That's a possibility. But the thing is I intended to copy the forms when I got to work but somehow or rather the urgency of the situation overtook me and I omitted that.
PN674
THE SENIOR DEPUTY PRESIDENT: So what, is it the first thing you did virtually when you arrived?---Yes, it was – I discussed with Malcolm as to what I’d do or you know, where’s the correct place to put the forms and he directed me up to Phillip and – I can’t remember talking to anyone else about, you know, sometimes staff want to discuss a result with you and they give advice but I can’t recall doing any of that, which that would introduce a delay. But I can’t recall anything like that. And I didn't think that it would have been after 9 o'clock anyway.
PN675
And this was the Thursday. Was that actually a work day for you?---Yes. I was working four days a week Monday to Thursday with Friday off. But the Wednesday that week and or maybe a week or so before we were asked to drop about those hours. You see, I decided that rather than working – I was working 30 hours, they wanted to – I forget how much but it amounted to about one whole day. So I preferred it to come Monday, Tuesday and Thursday rather than cutting the hours short on every day.
PN676
And what time did you normally start?---I’d normally start around about 8.”
[10] Under cross-examination, Mr Butcher also gave the following evidence about the redundancy payments made by Dorevitch:
“PN824
When did you realise that with the position that you were in on the Monday [1 June 2009] when you left you weren't going to get a redundancy payment, when did you realise that?---Well, there was really no certainty of a redundancy payment anyway. There was promise of employment but there was no indication in any of the promotion beforehand that we're entitled to a redundancy and I think the whole scheme was to take on all the lower paid PathLab people, employ them in Dorevitch and dump the higher paid one, that sounded like a scheme to me.
PN825
Did you talk amongst your colleagues, speak with your colleagues after the meetings on Monday to compare notes on how everyone had been treated?---I guess there was some discussion, I can't remember any particular one though.
PN826
You would have found out that other employees on the Monday who had accepted employment with Dorevitch had received a substantial redundancy payment that you hadn't received, is that a fair comment?---Well, the redundancy - I hadn't actually calculated the amount so I was unaware of the redundancy amount and - - -
PN827
But you knew others had received a redundancy payment and you didn't?---It did seem rather strange that everything was organised to give people a redundancy calculated amount straight away, that did seem strange.
PN828
But you realised that you didn't receive a payment of that type and others did?---That's fairly obvious.
PN829
At what point did it become obvious, when did you realise others were getting the payment?---When everyone was told their services weren't required and they were to line up for redundancy payment.
PN830
At that point you realised that well, if they had received the form or if they acknowledged they received the form you would have received a redundancy payment that you didn't get, that's right?---Who - who acknowledged - who was doing the acknowledging?
PN831
I'm sorry, if Dorevitch had received the job offer form completed by you, you would have stood to receive a substantial redundancy payment, you would have realised that?
---OK, well I think that's fair enough.
PN832
I put to you that at that point some time after the termination of employment and some time after you left the premises on the Monday you have realised you need to say that you got your form in?---Well, no one said that you could be terminated like this, as though you have resigned and that was very strange to me and I found that a little bit hard to swallow, that you could be dumped like that.
PN833
You were upset that PathLab had terminated your employment in that way?---Well, I don't think it's really a fair way to do it, that's true. I heard someone say it was company law but no one - - -
PN834
Sorry, you heard someone say it was - - - ?---It was company law for takeovers heard later on. But I don't know whether that's true or not.”
[11] Mr Eaton gave evidence that on 25 February 2010, Mr Butcher came to his office and asked to whom he should hand his signed letter of offer and associated documents. He noticed Mr Butcher had documents in his hand which he understood to be his signed letter of offer and associated documents. He told Mr Butcher to give the documents to Mr Pharonides.
[12] Mr Pharonides, who until 1 March 2010 was the Operations Manager for PathLab and is now the State Customer Service Manager for Dorevitch, gave evidence that on 25 February 2010 he arrived at work at PathLab at no earlier than 9:00 am due to taking his son who is in “prep” grade to school before work and he did not receive a signed letter of offer and associated documents from Mr Butcher.
Conclusion
[13] I am satisfied Mr Butcher did not accept Dorevitch’s offer of employment by signing and returning their letter of offer by the close of business on 25 February 2010.
[14] I prefer the evidence of Mr Pharonides to the effect that he arrived at work no earlier than 9:00 am on 25 February 2010 and he did not receive a signed letter of offer and associated documents from Mr Butcher, over the evidence of Mr Butcher to the effect that he handed the signed letter of offer and associated documents directly to Mr Pharonides at about 8:15 am on 25 February 2010.
[15] Although Mr Butcher attempted to attack the credibility of Mr Pharonides by, for example, querying him about the position Mr Butcher held at some point during his employment with PathLab, in my view he did not do so successfully. Mr Pharonides gave a credible reason as to why he was not at work until at least 9:00 am on 25 February 2010 and was unshaken in his evidence that he did not receive a signed letter of offer and associated documents from Mr Butcher. Further, there is no apparent reason why Mr Pharonides would deny having received the documents if he had received them.
[16] Mr Butcher, on the other hand, in his oral evidence indicated he had reservations about accepting the offer of employment from Dorevitch and was equivocal about the time he handed the documents to Mr Pharonides. Further, Mr Butcher’s evidence under cross-examination about the redundancy payments, including that to the effect that if Dorevitch had received the letter of offer signed by him he would have stood to receive a substantial redundancy payment from Dorevitch, provides a reason why Mr Butcher would want to maintain he gave the documents to Mr Pharonides even if he did not do so.
[17] While Mr Eaton gave evidence that Mr Butcher asked him to whom he should give the documents and that Mr Butcher had documents in his hand, he did not give evidence that Mr Butcher actually gave the documents to Mr Pharonides.
[18] I do not accept that any Jones v Dunkel 2 inference arises from Dorevitch not calling Ms Jenny Fraumano of Jenny Fraumano and Associates, the representative of Dorevitch in this matter and a person who assisted Dorevitch in dealing with the employees of PathLab and Dorevitch. I have no reason to believe Ms Fraumano could have given evidence about whether Mr Butcher handed the signed letter of offer and associated documents to Mr Pharonides.
[19] As I am satisfied Mr Butcher did not accept Dorevitch’s offer of employment by signing and returning their letter of offer by the close of business on 25 February 2010 as required, and there is no other bases before me on which I can be satisfied Mr Butcher was an employee of Dorevitch, I am satisfied Mr Butcher was not an employee of Dorevitch at the relevant time.
[20] Mr Butcher’s s.394 application against Dorevitch is, therefore, invalid. Accordingly, I dismiss the s.394 application of Mr Butcher against Dorevitch.
SENIOR DEPUTY PRESIDENT
Appearances:
Dr R. Kelly of the Health Services Union, for the applicant.
Mr R. Millar of counsel, for the respondent.
Hearing details:
2010.
May 14.
Melbourne.
1 See, for example, Fair Work Australia 2009 (Cth), ss.382(a) and 386(1).
2 [1959] HCA 8; (1959) 101 CLR 298.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR997184>
0