Mr Stephen Robert Horsley v Adelaide Elite Constructions Pty Ltd
[2024] FWC 3309
•28 NOVEMBER 2024
[2024] FWC 3309
The attached document replaces the document previously issued with the above code on 28 November 2024.
The decision has been edited to amend typographical errors that appeared.
Associate to Commissioner Thornton.
Dated 29 November 2024.
| [2024] FWC 3309 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Mr Stephen Robert Horsley
v
Adelaide Elite Constructions Pty Ltd
(C2024/4452)
| COMMISSIONER THORNTON | ADELAIDE, 28 NOVEMBER 2024 |
Application for breach of the general protections – jurisdictional objection – application filed out of time – date of dismissal – whether application within time – held: date of dismissal results in application being filed within time – no order for an extension of time is required – valid application before the Commission.
Mr Horsley (or the Applicant) lodged a Form F8 claiming that he had been dismissed in breach of the general protections provisions of the Fair Work Act 2009 (Cth) (the Act) on 11 June 2024 after almost 7 years of employment with Adelaide Elite Constructions (AEC or the Respondent). In the Form F8 Mr Horsley asserts he was dismissed after he made enquiries about when he was eligible to receive pro-rata long service leave.
Mr Horsley lodged his claim on 1 July 2024, being 20 days from the date of what he says was his dismissal. Mr Horsley confirmed in his application that his claim was being lodged within the 21-day statutory time period.
The Respondent asserted in its Form F8A Response to the claim that the date of Mr Horsley’s dismissal was “31 May 2024 at the latest”[1] and therefore, Mr Horsley’s application was filed 31 days after the date of dismissal. The Respondent says that Mr Horsley was a casual employee who last worked in the pay period 8 to 14 April 2024. The Respondent says that from March or April 2024 there was a “lack of available work”[2] and “no work was available due to a down-turn in the business and removal of the division manager on the grounds of gross misconduct.”[3] The Respondent relies on the down-turn in the work being done by the Respondent as the reason for terminating Mr Horsley’s employment.
In the course of this proceeding the Respondent also argued that Mr Horsley resigned on 7 March 2024 when he provided nine months’ notice of his resignation on account of retirement and was dismissed by the Respondent during the notice period in a telephone conversation of 20 May 2024.
The matter was listed for hearing to address the date of dismissal and in the event a finding was made that the dismissal occurred as asserted by the Respondent resulting in the application being outside of the statutory 21 day time limit, whether exceptional circumstances exist such that the Commission’s discretion to extend time should be exercised.
Mr Horsley represented himself and the Respondent was represented by Mr Proctor, the Chief Financial Officer of the Respondent. Mr Horsley gave evidence on his own behalf and Mr Proctor and Mr Elmi, the Respondent’s Managing Director gave evidence for the Respondent.
The Applicant did not advance a case addressing the matters the Commission must have regard to under section 394(3) of the Act in determining whether exceptional circumstances exist. This is because Mr Horsley’s position was that the application was made within the statutory time period. He does not claim to have experienced any exceptional circumstances that prevented him from filing his application on time.
For the reasons set out below, I find that Mr Horsley was dismissed from his employment on 11 June 2024 and his application was made within time. As such, there is no need for an extension of time to be considered in this matter and a valid application is before the Commission.
Background
The Respondent company has three divisions, ‘Outscape’, a landscaping business, ‘All-Fence’, the fencing division in which Mr Horsely worked and ‘Maintain’, a garden maintenance business[4]. Mr Elmi is the founder of the business which was opened 12 years ago.
Mr Horsley was first engaged as a contractor with the Respondent approximately 8 and a half years prior to his dismissal. He says that he only worked for the Respondent in that time but was engaged “under an ABN number”[5]. After approximately 18 months, Mr Horsley became an employee of the Respondent. He worked 5 days a week for the first 4 years and thereafter was employed to work a regular 4 days per week. He worked for 8 hours a day unless work could not take place due to rain.
Mr Horsley confirmed in his evidence that around 7 March 2024 he asked Mr Elmi if he could look into when he was eligible to receive his pro-rata long service leave. Mr Horsley gave evidence that in that conversation he told Mr Elmi that he was going to retire at the end of the year but wanted to know when his anniversary of employment was so he could understand when he would accrue his entitlement to pro-rata long service leave.
Mr Elmi agreed with the date offered by Mr Horsley and gave evidence that the conversation occurred while they were in the shed at the workplace, discussing a project to install a couple of gates. Mr Elmi recounted that Mr Horsley said that he was leaving at the end of the year and that no other context was offered for that statement.[6]
Mr Elmi says that he acknowledged what Mr Horsley said but that no date for his last day of employment was mentioned by Mr Horsley and Mr Elmi did not know after that conversation the date that Mr Horsley would finish his employment with the Respondent. Mr Elmi conceded in his evidence that employees usually offer a date by which they will finish work when they resign from employment, but in this case Mr Horsley did not give a date and Mr Elmi did not request one.[7]
Mr Horsley said Mr Elmi advised him on 8 March 2024 that he was trying to work out the work schedules, a job previously done by Mr Horsley’s supervisor who had been dismissed, and that Mr Horsley would have to “have a couple of weeks off until he could work it all out.”[8]
From 11 March 2024 the Respondent did not provide regular work to the Applicant. In his evidence, Mr Elmi agreed that he did not have a conversation with Mr Horsley to the effect that his hours would be reduced on an ongoing basis from the 4 days he had performed for a number of years to sporadic work from 11 March 2024 because of “a lot of changes happening in the business at that time.”[9] Mr Elmi gave evidence that there was a later in person conversation between him and Mr Horsley, likely in late April 2024, where Mr Elmi told Mr Horsley that there was not enough work available to keep him busy.[10]
The Respondent uses a smart phone application called “Slack” to communicate with its employees and provide work schedules or rosters to employees. Employees can engage in communication with the Respondent using Slack. The Respondent confirmed that the Slack application is the primary method of communication in their workplace and is used instead of email.[11]
Two weeks after Mr Elmi advised him that he was to have two weeks off while he sorted out the work schedules, Mr Horsley began regularly checking the roster on the Slack application to see when he was working.
For the weeks 11 and 18 March 2024 Mr Horsley was not rostered for any work, the week of 25 March he was given one day of work, the week of 1 April 2024 Mr Horsley was rostered for his usual Tuesday to Friday shifts and the week commencing 8 April Mr Horsley worked only on 12 April 2024[12]. Thereafter he was not rostered for any work with the Respondent.
On Friday 3 May 2024, Mr Horsley commented on the Slack application ‘noticeboard’ in the section headed “all-fence-working-schedule”: “Does that mean I’ve got no work again next week” and Mr Elmi responded: “unfortunately not mate.”
On 10 May 2024, Mr Horsley commented in the same section of Slack: “I see that there is no work again next week” to which Mr Elmi responded: “Sorry Steve, there isn’t enough work to keep everyone busy at the moment.”
On 17 May 2024, Mr Horsley again commented on the Slack noticeboard: “Thanks again for no work.”
The Respondent placed into evidence a screen shot of call records on Mr Elmi’s phone showing a telephone call with Mr Horsley on 20 May 2024. The submissions of the Respondent, that they also relied on as witness evidence of both Mr Elmi and Mr Proctor, was that the purpose of that telephone call was to advise Mr Horsley “that there would again be no work for at least the next two weeks, due to a downturn in the business and the construction industry in general.”[13]
Mr Elmi’s evidence was that the telephone call on 20 May 2024 was initiated by Mr Horsley and went for approximately 20 minutes. The call commenced with questions from Mr Horsley and answers given by Mr Elmi about why there was insufficient work available for Mr Horsley to perform. Mr Elmi stated in his witness evidence that the conversation “escalated and became negative in nature and tone, as the Applicant became frustrated and angry”[14]. Mr Elmi said Mr Horsley became frustrated and kept asking “are you sacking me?” and Mr Elmi said “yeah Steve, I guess I am, I am really sorry I don’t have the work.” Mr Elmi says in that conversation “I made it very, very clear in that [telephone call] that was it”.
The Respondent said in its evidence and submissions that due to the downturn in business and the “negative content of the phone conversation” Mr Elmi told the Applicant during the telephone call of 20 May 2024 “that no further work would be required,” and that was “effectively dismissing the Applicant.”[15] The Respondent relied on that evidence to assert the date of dismissal was 20 May 2024.
Mr Proctor gave evidence about what Mr Elmi told him after the conversation with Mr Horsley on 20 May 2024. Mr Proctor did not overhear the conversation. The screen shot of calls from Mr Elmi’s phone on 20 May 2024 showed that Mr Elmi called Mr Proctor after he spoke with Mr Horsley. Mr Proctor says he was aware that Mr Elmi was intending to call Mr Horsley to inform him that no work was available for the next fortnight but when Mr Elmi phoned him, he said the call with Mr Horsley had not gone well and that he had told Mr Horsley that there was no work available for the foreseeable future.[16]
In cross examination the Respondent put to Mr Horsley that as the conversation was negative in tone that Mr Elmi said “I don’t know if there will be further work ever”[17]. Mr Horsley did not agree with this statement or the evidence given by Mr Elmi about the telephone call of 20 May 2024 (which he initially thought was 31 May 2024). Mr Horsley said that Mr Elmi was more upset than he was during the telephone call and kept repeating that there was no work available.[18]
Mr Horsley says that the conversation as recounted by Mr Elmi as occurring on 20 May 2024 in fact occurred on 11 June 2024.
Mr Horsley had no recollection of a telephone conversation between himself and Mr Elmi on 20 May 2024. Mr Horsley’s evidence was that Mr Elmi had called him on 31 May 2024 and advised him that there was no work available for another two weeks. Mr Horsley said that he asked why there was no work available for him when other employees were working, and that Mr Elmi had only restated that there was no work available.[19] Mr Horsley says that he did not check the Slack application for another two weeks after that telephone conversation.
After the Respondent produced Mr Elmi’s telephone records in evidence, it became apparent that there was a conversation between Mr Elmi and Mr Horsley on 20 May 2024 and not 31 May 2024. Mr Horsley then accepted that he had been incorrect about the date of the telephone conversation but was resolute in his evidence about what was said to him by Mr Elmi in that telephone conversation. He was clear in his evidence that Mr Elmi had told him there was no work available for another two weeks but had not dismissed him from his employment.
When asked about why the Respondent nominated 31 May “at the latest” as the termination date, Mr Proctor gave evidence that it was the date that Mr Horsley’s employment had been recorded as terminated in the Respondent’s accounting software system as part of the end of month procedures[20]. Mr Proctor said that the termination therefore could not have been later than 31 May 2024. He clarified in his evidence that when preparing the Form F8A Mr Proctor had referred to 31 May 2024 as a ‘conservative’ estimate of the date of dismissal but after doing further work to prepare for the hearing, and speaking with Mr Elmi, the Respondent put at hearing that 20 May 2024 was the date of dismissal.
On 10 June 2024 Mr Horsley again checked the Slack application and commented: “I see that I am not on the schedule” and Mr Elmi responded: “As discussed.” Mr Horsley then says his access to the Slack application was cut off very soon after he posted that comment.
Mr Elmi in his evidence said that the Respondent had not taken away Mr Horsley’s “log ins” to the slack application as at 10 June 2024 despite asserting they had terminated the Applicant’s employment on 20 May 2024.
Mr Horsley gave evidence that the following day he called Mr Elmi to “find out what was going on” and ask why he was cut off the Slack application. He said that on the telephone call Mr Elmi said that Mr Horsley had been cut off for reasons discussed, but Mr Horsley said that nothing like that had been discussed in their telephone conversation of 20 May 2024.[21]
Mr Horsley said he then asked Mr Elmi “what are you doing? Are you sacking me?” and Mr Elmi responded: “I suppose I am”.[22] Mr Horsley then said that he understood from that conversation that his employment had been terminated. He asked Mr Elmi: “are you going to pay my pro-rata [long service leave] and put it in writing?” and Mr Elmi said: “I am not doing that.”[23]
Mr Elmi agrees that there was a conversation between him and Mr Horsley on 11 June 2024 that went for about half an hour but that conversation was about Mr Horsley “giving me the option to pay his pro rata [long service leave] because that was just the right thing to do, he kept saying “you should pay this” because of his belief that I was getting rid of him because of his pro rata”.[24] Mr Elmi did not agree that Mr Horsley had an entitlement to pro rata long service leave because he did not reach seven years of service.
Mr Horsley gave evidence that he contacted the Fair Work Commission within days of his termination on 11 June 2024, was informed that he had to lodge the application within 21 days of his dismissal, did internet research to better understand his options and then sought legal advice about his case. He then proceeded to file his application on what Mr Horsley understands to be the twentieth day after his dismissal.
Consideration
The Respondent offered three different dates on which they say the Applicant either resigned or was dismissed during the course of this matter that included a resignation from the Applicant on 7 March 2024, a termination in the telephone conversation of 20 May 2024 and a termination that occurred on 31 May 2024 “at the latest”. It is notable that the Respondent could not be precise about the date of termination in the Form F8A and rather referred to an approximate date.
The Respondent submitted in the hearing that 31 May 2024 was the date on which Mr Horsley’s termination was entered into their accounting system and had it had later refined the date to 20 May 2024 after further consideration of the matter in preparation for the hearing. The Respondent also put forward an argument that Mr Horsley resigned on 7 March 2024, but it seems that they assert that his employment was then terminated on 20 May 2024 during what they have referred to as a notice period following Mr Horsley’s resignation.
On the evidence presented by both Mr Horsley and Mr Elmi about what occurred on 7 March 2024, it is clear that a brief discussion took place about Mr Horsley’s likely future retirement and an approximate time frame in which that might occur. It did not amount to a resignation. No definite date was offered by Mr Horsley. No firm commitment to leave within a specified period of time was given by Mr Horsley. It has not been asserted that any language was used to give notice that the employment relationship was being brought to an end by the Applicant at that time. It is incorrect of the Respondent to describe the period following 7 March 2024 as a “notice period.”[25]
With respect to the Respondent’s assertion that Mr Horsley’s employment was terminated no later than 31 May 2024, that date could not have been the date of termination. 31 May 2024 is a date that someone noted in the accounting system that Mr Horsley’s employment had ended. It therefore cannot be the date of termination absent a communication with Mr Horsley that confirmed employment had come to an end on that date. The Respondent asserts the termination therefore must have occurred earlier, and ultimately it was its case at hearing that the termination occurred on 20 May 2024.
What was said by Mr Elmi in the conversation of 20 May 2024 was the subject of inconsistent evidence. The submission of the Respondent was that in the telephone call of 20 May 2024, Mr Elmi had “effectively” dismissed the Applicant by telling him that “no further work was required”.
I note that the evidence of Mr Proctor about the conversation with Mr Elmi after his conversation with Mr Horsley on 20 May 2024 is hearsay evidence which has led me to place little weight on it. In considering the evidence, however, I note that Mr Proctor did not say that Mr Elmi told him he had clearly advised the Applicant that his employment was terminated during the telephone call but rather that he had advised him there was “no work for the foreseeable future”.
The first occasion that it was asserted by the Respondent that words conveying a termination were used on 20 May 2024 was when Mr Elmi gave oral evidence that Mr Horsley had asked “are you sacking me?” and Mr Elmi had said words to the effect: “I guess I am”. This evidence was different to the written evidence put by the Respondent in advance of the hearing and the evidence of Mr Proctor.
I accept Mr Horsley’s evidence about what was said in the telephone conversation of 20 May 2024, taking into account that Mr Horsley initially believed the telephone call of 20 May 2024 occurred on 31 May 2024. Mr Horsley gave consistent evidence that was not embellished and appropriately conceded he was wrong about the date of the telephone call.
I do not accept that words clearly conveying a termination of employment were said to Mr Horsley on 20 May 2024. A belief formed by the Respondent that it had terminated the Applicant’s employment on that date, such that the accounting system was updated to reflect a termination on 31 May 2024 does not make it a fact that a dismissal had occurred or been communicated to Mr Horsley.
I also prefer the evidence of Mr Horsley about the telephone call of 11 June 2024 and find that the exchange in which Mr Horsley asked if he was being dismissed, to which Mr Elmi responded with a confirmation of the dismissal, occurred on that date. 11 June 2024 is the date of dismissal.
The extrinsic evidence supports a finding that the dismissal occurred on 11 June 2024 and not 20 May 2024. After 20 May 2024 Mr Horsley continued to check on the Slack application about whether he was rostered for work and commented on Slack on 10 June 2024 “I see that I am not on the schedule”. Mr Horsley was not excluded from the Slack platform after 20 May 2024 which would be expected if he was no longer an employee. Once he was informed his employment had been terminated on 11 June 2024, Mr Horsley took decisive and prompt steps to investigate his options and dispute his termination. Further, Mr Elmi spoke with the Applicant about his employment on 11 June 2024 in circumstances that he asserts was well after his employment concluded.
Of note, but not determinative of this matter, Mr Proctor gave evidence that the Respondent did not provide Mr Horsley with a letter of termination and that it is not the usual practice of the company to provide employees with letters of termination or separation certificates[26]. In this case, the Respondent has no written evidence to point to in order to confirm the Applicant’s employment was terminated on 20 May 2024 as it asserts.
Conclusion
After considering the evidence of the respective witnesses regarding the telephone conversations that occurred between Mr Horsley and Mr Elmi, and the extrinsic evidence submitted in this matter, I find that the termination of Mr Horsley’s employment occurred on 11 June 2024.
Consequently, Mr Horsley filed his application on the twentieth day after his termination and the application is within the statutory timeframe and validly before the Commission.
The matter will now be referred for conciliation.
COMMISSIONER
Appearances:
S Horsley, the Applicant on his own behalf.
M Proctor for Adelaide Elite Constructions Pty Ltd, the Respondent.
Hearing details:
Adelaide
2024
5 September.
[1] Respondent Form F8A at paragraph 1.2
[2] Ibid at paragraph 1.4
[3] Ibid at paragraph 1.2
[4] Audio recording of hearing – Part 1 at 70:53 – 71:08
[5] Audio recording of hearing – Part 1 at 8:31
[6] Audio recording of hearing – Part 1 at 95:46 – 96:24
[7] Audio recording of hearing – Part 1 at 97:50 – 98:43
[8] Audio recording of hearing – Part 1 at 16:15
[9] Audio recording of hearing – Part 1 at 101:38
[10] Audio recording of hearing – Part 1 at 107:37 – 108:00
[11] Audio recording of hearing – Part 1 at 80:51
[12] The Applicant provided his own time records and the Respondent had the opportunity to review the records.
[13] Submissions of Respondent at paragraph 4.
[14] Ibid at paragraph 5.
[15] Submissions of Respondent at paragraph 6.
[16] Audio recording of hearing – Part 1 at 67:11 – 67:41
[17] Audio recording of hearing – Part 1 at 43:42
[18] Audio recording of hearing – Part 1 at 44:49
[19] Audio recording of hearing – Part 1 at 26:13 – 26:32
[20] Audio recording of hearing – Part 1 at 60:31 – 62:39
[21] Audio recording of hearing – Part 1 at 23:36 – 24:00
[22] Audio recording of hearing – Part 1 at 24:07
[23] Audio recording of hearing – Part 1 at 24:35 – 24:40
[24] Audio recording of hearing – Part 1 at 120:27 – 120:54
[25] Submissions of Respondent at paragraph 6.
[26] Audio recording of hearing – Part 1 at 63:10 – 63:18
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