Mr Robert Mueller v Mun Australia Pty Limited

[2016] FWC 4799

[2016] FWC 4799

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Robert Mueller
v
Mun Australia Pty Limited
(C2016/3274)

COMMISSIONER SAUNDERS NEWCASTLE, 21 JULY 2016

Application to deal with contraventions involving dismissal – when did the dismissal take effect?

Introduction

[1] The Fair Work Act 2009 (Cth) (the Act) provides that a person who has been dismissed and who applies to the Fair Work Commission (the Commission) for it to deal with a general protections application pursuant to section 365 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Commission may allow a further period for the application to be made in exceptional circumstances.2

[2] There is an issue in this case about when Mr Robert Mueller’s dismissal from his employment with Mun Australia Pty Limited (the respondent) took effect. The respondent contends that Mr Mueller’s dismissal took effect on 15 March 2016, with the result that his general protections application (the Application), which was filed on 6 April 2016, was made one day late and an extension of time is required. Mr Mueller contends that his dismissal took effect on 30 March 2016, with the result that his Application was made within the 21 day period required by the Act.

Hearing

[3] On 21 July 2016, a hearing was conducted by telephone in relation to this matter.

[4] Mr Mueller gave evidence and tendered some documents in support of his argument that he made his Application within time and, in the alternative, an extension of time should be granted in the event that I find his Application was made outside the 21 day time limit. The respondent called evidence from its director, Mr David Teng, and tendered some documents.

When was the applicant dismissed?

[5] Ordinarily a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 3 A dismissal can be communicated orally.4

[6] In Wilson v Australian Taxation Office 5 a Full Bench of the Australian Industrial Relations Commission considered the communication of a dismissal to an employee by letter and concluded (at [11]) that:

“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 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 the general proposition. It may be that, in some circumstances, the 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.”

[7] Mr Teng gave evidence that he posted the termination letter dated 14 March 2016 to Mr Mueller by registered post on 14 March 2016. Mr Teng also gave evidence that he arranged for a courier to deliver the termination letter to Mr Mueller’s home address on 15 March 2016. Mr Teng gave evidence that he addressed the letter to be delivered by courier to Mr Mueller’s home address.

[8] Mr Teng annexed to his supplementary statement a “screen shot” from the website of the courier company he engaged to deliver the termination letter to Mr Mueller’s home address. The “screen shot” states that:

• a parcel was picked up at 3:33pm on 14 March 2016;



• a parcel was “on-board for delivery” at 12:33pm on 15 March 2016; and



• “1 item has been delivered. Signed for by: IN LETTER BOX” at 1:46pm on 15 March 2016”.

[9] The “screen shot” does not state the address to which the “parcel” or “item” was delivered.

[10] The respondent did not adduce any evidence from the courier company or the courier who allegedly delivered the termination letter to Mr Mueller’s letterbox.

[11] Mr Mueller gave evidence that he does not often receive mail in his letterbox and he usually checks it once or twice a week. Mr Mueller denies ever receiving a copy of the termination letter in his letterbox.

[12] Mr Mueller accepts that he did receive a card from Australia Post in his letterbox on 24 March 2016. The card indicated that there had been an unsuccessful attempt to deliver a registered post envelope to Mr Mueller, but did not indicate who the letter was from. The card directed Mr Mueller to attend the West Ryde Post Office to collect the letter.

[13] The first business day after 24 March 2016 was Tuesday, 29 March 2016 (after the Easter long weekend). Mr Mueller was not well enough to collect the letter on that day. The first day he was well enough to attend the West Ryde Post Office was on 30 March 2016. Mr Mueller collected the termination letter from the West Ryde Post Office on 30 March 2016. That was the first date on which he says he was notified of the termination of his employment. He filed his Application in the Commission a short time later, on 6 April 2016.

[14] The respondent submits that I should not accept Mr Mueller’s evidence that he did not receive the termination letter until 30 March 2016 and should find that he received it on 15 March 2016, for the following reasons:

(a) First, I should accept the respondent’s evidence concerning delivery of the letter to Mr Mueller’s letterbox on 15 March 2016. Relying on Kukh v Sydney Ferries Corporation[2007] AIRC 217, dismissal should be held to have “taken effect” at the date of delivery by the courier, regardless of whether the employee received or read the letter;

(b) Secondly, on 21 March 2016 Mr Mueller received an email from a client of the respondent, forwarding an email from the respondent to the client in which the respondent informed the client, inter alia, that Mr Mueller had “left” the respondent and “we will now seek a replacement for” Mr Mueller. The respondent points out that Mr Mueller made no attempt to contact the respondent after he received this email. The respondent contends it is inconceivable that Mr Mueller would not attempt to contact the respondent after receiving this email, unless he already knew that his employment had been terminated;

(c) Thirdly, printed text messages show that on 17 March 2016 Mr Mueller responded to a week old text message from Mr Teng, attempting to indicate that he had sent his medical certificates to the respondent by Australia Post. The respondent contends there is no rational reason for Mr Mueller to reply to this message after waiting for a week unless some intervening event had occurred. The respondent submits that the intervening event was the receipt by Mr Mueller of the termination letter on 15 March 2016;

(d) Fourthly, the respondent points to the fact that Mr Mueller was aware from previous correspondence from the respondent that termination of his employment was a real possibility and Mr Mueller gave evidence to the effect that he was in contact with his solicitor at the time he received the email from the respondent’s client on 21 March 2016. The respondent submits that these matters support a finding that Mr Mueller in fact received the termination letter on 15 March 2016;

(e) Fifthly, the respondent contends that Mr Mueller attempted to mislead the Commission by providing an incomplete chain of text messages as part of his Application and his statement that he sent the text message to Mr Teng on 10 March 2016, rather than on 17 March 2016 as the printed text message shows; and

(f) Sixthly, the respondent contends that Mr Mueller, in refusing to provide his employer with his private email address after his work email had been disconnected by his employer and not checking his letterbox, was deliberately avoiding receipt of information from the respondent concerning his dismissal.

[15] I find, on the balance of probabilities, that Mr Mueller did not receive the letter of termination in his letterbox on 15 March 2016 or at any other time. I find that the first time Mr Mueller’s dismissal was communicated to him was when he collected the letter of termination from the West Ryde Post Office on 30 March 2016. I make these findings for the following reasons:

(a) As to the respondent’s first argument, I prefer the evidence given by Mr Mueller to the effect that the termination letter was not delivered to his letterbox by a courier company or any other person over the evidence adduced by the respondent in relation to this issue. Mr Mueller was cross examined on that evidence, but was unshaken. He gave direct answers to the questions put to him and came across as a credible witness, as did Mr Teng. I accept Mr Teng’s evidence that he addressed the letter to Mr Mueller’s residential address and instructed the courier company to deliver the letter to that address. However, no evidence was adduced directly from the courier company or the courier who allegedly delivered the letter to Mr Mueller’s letterbox and the “screen shot” relied on by the respondent does not include any reference to Mr Mueller or the address of the letterbox into which the letter was allegedly “delivered”. Mr Mueller lives in a block of eight villas. The letter could have been placed by the courier company into the wrong letterbox, at the wrong address, or it may not have been delivered at all. Having regard to these matters, together with the other reasons set out below, I am not prepared to find that Mr Mueller was dishonest in the evidence he gave as to when he first received the termination letter. I find Mr Mueller to be a credible witness;

(b) As to the respondent’s second argument, the respondent accepted in submissions that the client forwarding its email on to Mr Mueller did not constitute communication of the dismissal to Mr Mueller. Further, I accept Mr Mueller’s explanation that he was not well enough to speak with Mr Teng or have a conversation of an adversarial nature with Mr Teng at about the time he received the email (21 March 2016). That was why Mr Mueller did not contact Mr Teng after receiving the email from the client. Mr Mueller’s evidence in that regard is consistent with the medical evidence tendered on his behalf from his general practitioner and his social worker;

(c) As to the respondent’s third argument, I accept, on the balance of probabilities, that Mr Mueller’s text message was sent to Mr Teng on 17 March 2016, rather than 10 March 2016. The printed text messages show that to be the date on which the text was sent. However, I am not satisfied that Mr Mueller sent the text message on 17 March 2016 because he had received the termination letter on 15 March 2016. The chain of text messages show that Mr Mueller had already informed Mr Teng on 10 March 2016 that he had sent the medical certificates to him. All Mr Mueller was doing on 17 March 2016 was informing Mr Teng of the method by which the medical certificates had been sent, namely by Australia Post. In addition, I accept Mr Mueller’s evidence that he was having difficulty with his computer and iPhone at this time and those difficulties may have contributed to the delay in his response to Mr Teng;

(d) As to the respondent’s fourth argument, there is no doubt that Mr Mueller was aware from earlier correspondence sent to him in February 2016 that his employment may be terminated. In those circumstances and having regard to the terms of the communications sent by Mr Teng to him, it is not surprising that Mr Mueller was seeking advice from his solicitor in relation to those matters on about 21 March 2016. However, I do not find that these events demonstrate or tend to suggest that Mr Mueller received the termination letter on 15 March 2016;

(e) As to the respondent’s fifth argument, I do not accept that Mr Mueller attempted to mislead the Commission by providing an incomplete chain of text messages with his Application or by stating that he sent the text message to Mr Teng on 10 March, rather than 17 March 2016. Mr Mueller’s computer and iPhone difficulties explain the incomplete chain of emails. In addition, it is not uncommon for an applicant to attach some of the important documents, or part thereof, to an application filed in the Commission. Mr Mueller believes his text message was sent to Mr Teng on 10 March 2016. I have found that he is likely to be mistaken about that, but I am not prepared to, and do not, find that he gave dishonest evidence about his belief as to when he sent the text message; and

(f) As to the respondent’s sixth argument, Mr Mueller is, and was at the time, of the view that the respondent acted unreasonably in disconnecting him from his work email address on about 3 March 2016. In those circumstances, Mr Mueller was not prepared to provide the respondent with his private email address. However, Mr Mueller continued to remain in regular contact with Mr Teng by text message from 3 March 2016. Mr Mueller also continued to check his letterbox about once or twice a week in accordance with his usual practice. I am satisfied that he did not deliberately avoid looking in his letterbox in March 2016. I also find that Mr Mueller did not deliberately avoid receipt of information from the respondent concerning his dismissal. It follows that the exception referred to by the Full Bench in Wilson v Australian Taxation Office does not apply in this case.

Conclusion

[16] Because Mr Mueller’s dismissal did not take effect until it was communicated to him on 30 March 2016, I find that he filed his Application within the 21 day time period.

COMMISSIONER

Appearances:

Ms L Kyriacou, solicitor, for the applicant.

Ms H Carter, solicitor, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

July, 21.

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2   Section 366(2) of the Act.

 3   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24].

 4   Plaksa v Rail Corporation NSW[2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 5   PR901127; [2001] AIRC 163

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