Mr Stephen McCasker v Heart Beats Fitness Studio Pty Ltd

[2014] FWC 2754

[2014] FWC 2754

FAIR WORK COMMISSION

DECISION

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

Mr Stephen McCasker
v
Heart Beats Fitness Studio Pty Ltd
(U2013/15745)

COMMISSIONER SIMPSON BRISBANE, 8 MAY 2014

Application for relief from unfair dismissal.

[1] The following Decision, now edited, was issued during proceedings on 1 May 2014.

[2] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr McCasker (“the Applicant”) who alleges that the termination of his employment with Heart Beats Fitness Studio Pty Ltd (“the Respondent”) was unfair in accordance with the definition contained within s 385 of the Act.

[3] The application was filed on 11 November 2013 and conciliation didn't resolve the matter. The matter has been listed for jurisdictional and arbitration hearing. If I find for the respondent Heart Beat Fitness Studio on the jurisdictional issue the matter will need to be dismissed. If I don't then I will need to consider whether or not the dismissal was unfair.

[4] The applicant in his application said he could not nominate a date of dismissal as he only found out about it through WorkCover. He said he injured himself on 29 April 2013 and he found out about two weeks ago from the date of filing, that's the language in the application. In the application form an answer to the question what was the reason for dismissal the applicant wrote, "Working in an area where council had closed down due to no building permits. Insurance will not cover the 24 Hour Gym." A file note was made by an employee of the Fair Work Commission dated 11 November 2013 which records as follows, "Also attempted to clarify the date notified of dismissal, date dismissal took effect but the applicant advised that because he was away from the workplace he was not notified he had been dismissed and was not aware of when the dismissal took effect."

[5] The Fair Work Commission wrote to the applicant on 12 November requesting a specific date in relation to question 1 on his form 2 application. The applicant was advised that in the absence of any advice by 25 November his application would be dismissed. The applicant sent correspondence to the Fair Work Commission on 12 November but did to specifically address the issue of a date of termination. A file note made on the file by an employee of the Fair Work Commission records that in the course of a phone conversation with the applicant he advised an approximate date he was notified of dismissal as 28 October 2013 and the date of dismissal took effect from 28 July 2013. He said he hadn't heard from his employer directly but received the information through WorkCover.

[6] On 2 December 2013 the respondent filed a response to the application attaching a letter addressed to the Fair Work Commission stating as follows, "Stephen McCasker has not been dismissed from 24 Hour Gym. At no point have we received a clearance from Stephen's surgeons to return to any form of work." I conducted a mention hearing on 18 March and the matter was listed for hearing of the jurisdictional objection and the arbitration question. In terms of the submissions filed the applicant states that he injured himself in late April as I've said. He said he saw his doctor who treated him and he went on to WorkCover. He said his doctor arranged for him to see a specialist at St Stephens hospital. He said Dr McGee treated him and booked him in for surgery on 21 September 2013.

[7] The applicant said he contacted his case manager at WorkCover Tania Tanelli in mid-August and told her what was happening and that it looked like it was going to be a long recovery for him to return to work at the respondent. The applicant said that Tania was quite surprised to hear this as she had spoken to Mr Andy Gunn, the owner of the respondent, and he had told her that the applicant no longer had a job at the respondent because the premises where the applicant was working had been closed down due to a number of building regulations. The applicant claimed that he contacted Mr Gunn and asked him about this and whether it was true or false. The applicant claimed Mr Gunn said that it was true and the applicant would receive a CC email on his computer to show his termination from the respondent. The applicant said that to date he had not received it.

[8] The applicant said that he had asked about his entitlements but that Mr Gunn turned off his phone without an answer. The applicant said the phone call was in late September 2013. The applicant said he had been requested by WorkCover to perform host-employment and that he has been involved at CRS at Hervey Bay from February this year. The applicant attached to his application what appear to be WorkCover documents under a heading, "Verbal and unsuccessful communication report, dated 18 March 2013." On page 16 of the 40 pages in the document the following appears as part of an entry on 15 October, "E at ADV IW is no longer employed and letter was provided to AW. CA requested a copy and E ADV will arrange." The employer has said that in May 2012 the applicant started working for it and at the time the respondent was operating out of two addresses, both 47 and 51 Torquay Road, Hervey Bay.

[9] The respondent said that 90 per cent of the applicant's work at 51 Torquay Road was where he was tasked with renovating the building. The respondent said on 29 April 2013 the applicant injured his shoulder helping staff move exercise equipment. The respondent provided some details in its submissions as to the history of medical certificates provided by the applicant. In regard to the conversation between Mr Gunn and a WorkCover employee the respondent in its submission has said as follows,

"WorkCover told us that Stephen would only be able to come back on the condition that he did not list more than two kilograms. I explained to WorkCover that Stephen was employed as a maintenance man. We no longer had the building that Stephen had been working in, as the landlord refused to build the car park that was required by council, he then refused to give us certification on the building.

The only other property that we have is 47 Torquay Road which is a gym. The smallest weight we have in the gym is 2.5 kilograms which Stephen would not be allowed to move. So I told WorkCover that he would not be able to return to work under those conditions. I did not say that he was sacked and WorkCover had no business telling one of my employees that he was sacked. The respondent said further that on 15 October 2013 the conversation between Mr Gunn and WorkCover over the closing down of 51 Torquay Road, I instructed WorkCover that Stephen would not be able to return to work in the same capacity as he was previously employed as we no longer leased the premises. So he would be returning as the maintenance man for just 47 Torquay Road. WorkCover asked me if I had told Stephen this and I told him that I hadn't. WorkCover then asked me that I write to him a letter and copy her the letter. I didn't do this as he was still signed off from work."

[10] In determining the matter on the basis of the submissions I have heard and the evidence this morning, firstly I will deal with the alleged conversation between Mr Gunn and a WorkCover employee on 15 October 2013. Mr Gunn has said in oral evidence today that while the notes attached to the submissions filed by the applicant appear to reduce the conversation to about 12 lines, in fact the conversation lasted for some 45 minutes. There are two competing versions of the discussion as I said between Mr Gunn and the respondent. One of those is the notations made and one of those is the evidence of Mr Gunn. The notation itself says that, "E advised IW," meaning injured worker, "is no longer employed and the letter was provided to injured worker. CA," being the WorkCover employee, "requested a copy and the employer advised he will arrange."

[11] However, Mr Gunn has said he merely explained the part of the business where the applicant worked where he was injured no longer existed and he would not be able to return to work in those conditions. On the issue of the letter Mr Gunn maintains it was in the context of the same conversation, the letter was about the applicant being unable to return to work at 51 Torquay Road, not that he was sacked. The submissions of the respondent say the letter was never sent. I have heard direct evidence from Mr Gunn. However, I can only deal with the material from WorkCover on the basis that it was hearsay in the sense that they are notations the applicant says he had a conversation with the representative of WorkCover about which reflects it would appear the notations.

[12] But I have heard no direct evidence from anyone from the perspective of the applicant, only indirect evidence from him. Further, the explanation given by Mr Gunn for what he would argue must have been a misinterpretation I expect by the WorkCover employee is a plausible one in that if he said words to the effect that the applicant could no longer be employed where he had been working it may well be the WorkCover employee mistakenly interpreted that to mean that he was no longer employing the applicant. A letter advising the applicant he was no longer employed, that seems to be raised or requested in the notation from the WorkCover document, does not appear to exist. No one has suggested the letter was ever sent. The respondent's material says it wasn't sent.

[13] The notation on 15 October sits between two other notations I have noticed in the WorkCover notes, one being on page 20, that's dated 31 July 2013, a record of a conversation between a WorkCover employee and Mr Gunn which appears to record a conversation fairly consistent with Mr Gunn's version both in the submissions and today about his explanation about the changes in the respondent's business. The other notation is on page 8 and it records a discussion on 20 January. Interestingly at the top of that notation it says, "CA," that being the WorkCover employee, "provided an update on injured worker in (indistinct). CA would like to clarify employment status."

[14] The remainder of that notation appears to also be consistent with the version of the conversation Mr Gunn has said occurred the previous year. It's possible that both of those conversations are what Mr Gunn has been referring to. In any event as I have only heard direct evidence from Mr Gunn on what transpired in the conversation and given the view expressed about his explanation being plausible, on balance I prefer the view that he did not say to the WorkCover employee the applicant had been dismissed. In any event, even if Mr Gunn did which I have found that he didn't, the words the notation appears to attribute to him would not constitute a dismissal anyway. Normally speaking a dismissal does not take effect until it is communicated to an employee. In a full bench decision of the Australian Industrial Relations Commission in P.T. Wilson v. Australian Taxation Office 1 the full bench said as follows, "Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation unless there is a 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."

[15] The other element of this matter which I need to deal with is the alleged conversation between the applicant Mr McCasker and Mr Gunn. Mr Gunn has said, he has raised a question which is if a conversation did occur between the applicant and an employee of WorkCover in mid-August where the applicant says he was told by the WorkCover employee that they had been advised he no longer had a job with the respondent, then why did Mr McCasker wait until late September to contact the respondent as he appears to say in his own material to deal with that issue. That has been raised by the respondent, it's a valid issue to raise. The findings I have made earlier bring us to this question which really is the only issue that needs to be dealt with. There is a difficulty with the dates that Mr McCasker has identified in his material.

[16] He claims that the conversation occurred with WorkCover in mid-August as I said where he was told he no longer had a job, it would have to be inferred from what is set out on that basis that a conversation the applicant is relying on from which the WorkCover employee must have acquired this information from Mr Gunn. However, the notations that have been provided by the applicant appear to place this conversation some considerable period after that, being the notation on 15 October, not mid August. The conversation in which the applicant claimed he spoke to Mr Gunn in order to discuss what he had been told by the WorkCover employee he claims to have occured in late September. He doesn't give a precise date. Again this is several weeks before 15 October, which is the date which appears to be the material the applicant relies upon which is a record of a conversation between Mr Gunn and a WorkCover employee from the notations from WorkCover.

[17] Now, Mr Gunn flatly denies ever having told the applicant he was no longer employed. The other factor that raises doubts about the applicant's version of the conversation he claims to have had with Mr Gunn in late September is that there is no mention made of it in the originating application and then from the file it appears when he was pressed by Fair Work Commission staff to nominate a date of termination for the purposes of processing the application when it was filed back in November, there is a file note recording a telephone discussion on 15 November between an employee of the Commission and the applicant which says as follows, "Telephone call to applicant. He advised the approximate dates for date notified of dismissal as 28 October 2013 and date dismissal took effect 28 July 2013. He said he hadn't heard from his employer directly but received the information through WorkCover."

[18] Again this is consistent with what was said in the original application. Both of these pieces of evidence would appear to indicate, or material, would appear to indicate - raises the question as to why Mr McCasker didn't say anything about the alleged conversation he had with Mr Gunn when he had opportunities to do so. The imprecision in the applicant's recollection of dates and the general timing of when he says the conversation occurred with Mr Gunn sits uncomfortably with other evidence. The failure to identify the alleged conversation in the originating application, the language in the originating application coupled with the Fair Work Commission file note of 15 November indicating at those times he was saying he had not been directly advised by his employer he had been dismissed, and the flat denial of the claim by Mr Gunn, lead me to conclude that on the balance of probabilities the applicant was not dismissed by the respondent.

[19] I am also influenced by the applicant's version of the time and the fact there would appear to be a six week delay between the conversation with the WorkCover employee if it occurred and raising the issue with Mr Gunn which would seem unusual. I am satisfied on the evidence the applicant has not been dismissed by the respondent. He made a WorkCover claim at the relevant time which he has given evidence about. The WorkCover claim was accepted and he was receiving income support from WorkCover from about May. It appears to me that the respondent has treated the applicant as having been on WorkCover and the relationship has been treated on that basis. As I have determined the applicant has not been dismissed by the respondent there is no jurisdiction to go on and proceed to deal with the unfair dismissal application itself any further and on that basis the application must be dismissed.

COMMISSIONER

Appearances:

Mr McCasker the applicant

Ms Bouffler for the respondent

Hearing details:

Brisbane

May 1

2014

 1   PR901127

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