Mr Todd Brown v Kingskipp Pty Ltd as trustee for the RJ King Family Trust T/A Gateway Printing

[2016] FWC 6974

[2016] FWC 6974

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Mr Todd Brown
v
Kingskipp Pty Ltd as trustee for the RJ King Family Trust T/A Gateway Printing
(U2016/10168)

COMMISSIONER HARPER-GREENWELL MELBOURNE, 3 OCTOBER 2016

Application for relief from unfair dismissal—Jurisdictional objection—extension of time not granted—application dismissed.

[1] Mr Todd Brown was employed as a Production Team Leader with the R J King Family Trust trading as Gateway Printing (Gateway Printing) on 4 June 2015 prior to his termination on 11 July 2016.

[2] Mr Brown lodged his unfair dismissal application pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act) on 11 August 2016, 31 days after his dismissal took effect.

[3] The matter was the subject of a jurisdictional hearing before me by telephone on 23 September 2016.

[4] Mr Brown attended the hearing and gave evidence on his own behalf. Mr David Bates, paid agent, appeared with permission for Gateway Printing and Mr Richard King and Mrs Amanda King, Directors of Gateway Printing attended and gave evidence.

[5] Mr Brown named the Respondent to his application as ‘Gateway Printing Pty Ltd’. Gateway Printing’s Form F3 Employer Response refers to the employing entity as ‘Kingskipp Pty Ltd acting for the R J King Family Trust trading as Gateway Printing’. The ABN referenced on the Employment Separation Certificate 1 is associated with the entity name ‘R J King Family Trust’ with the business name ‘Gateway Printing’. The ABN referenced on both Mr Brown’s application and Gateway Printing’s Form F3 Employer Response is associated with the entity name ‘R J King Family Trust’ with the business name ‘Gateway Printing.

[6] During the hearing I took submissions from both Mr Brown and Gateway Printing in relation to the name of the correct employing entity. On the evidence before me, I am satisfied that the name of the employer in this matter is Kingskipp Pty Ltd as trustee for the RJ King Family Trust trading as Gateway Printing. I have utilised the discretion in s.586 of the Act to amend the application accordingly.

[7] It is not in contention that Mr Brown has worked with Gateway Printing since 4 June 2015.

[8] Mr Brown’s application states he was dismissed on 8 July 2016 but that dismissal did not take effect until 22 July 2016.

[9] Gateway Printing raised a jurisdictional objection to the application on the grounds that the application was lodged out of time.

[10] Gateway Printing submits Mr Brown’s employment was terminated with immediate effect on 11 July 2016 as a result of concerns with Mr Brown’s performance and conduct. Gateway Printing also alleged that Mr Brown had falsified his application to the Commission by incorrectly stating his termination date as 22 July 2016.

[11] The initial matters to be determined are:

● when the employment relationship ended;
● whether or not Mr Brown’s application was made within time; should I find the application was made out of time, I will then consider;
● whether there are exceptional circumstances warranting an extension of time.

[12] The evidence put before me by Mr Brown was that he was notified of his dismissal, which was to take immediate effect, in a meeting with Mr King on 11 July 2016. Mr Brown gave further evidence that:

● He was informed at that meeting he was no longer employed by Gateway Printing;
● He did not perform any duties for Gateway Printing after that date; and
● He was informed that he would be paid in lieu of notice.

[13] It was Mr Brown belief that as he was advised that he would be paid in lieu of notice, his date of dismissal would take effect at the end of the notice period and not immediately.

[14] Gateway Printing submitted that Mr Brown was dismissed with immediate effect at the time he was notified of his dismissal. He was not paid in lieu of notice and that it was an administrative error that caused Mr Brown to receive a letter setting out his final payment, including a payment in lieu of notice. It was further submitted that as Mr Brown was employed as a casual employee he was not entitled to be paid notice.

[15] Regardless of whether or not Mr Brown was a casual or a full time employee and whether or not he was entitled to be paid out in lieu of notice, it is clear to me from the evidence that Mr Brown was advised his employment was to end on 11 July 2016.

[16] Where payment in lieu of notice is made the dismissal usually takes effect immediately upon the person being advised they are being dismissed.

[17] This is different to where the notice period is worked, or when the employee is on sick leave or some other approved leave as in those circumstances the dismissal usually takes effect at the expiry of the notice period. This is because the date of effect of dismissal is the date the employment relationship comes to an end.

[18] Even though Mr Brown received a letter stating he would be paid in lieu of notice and there subsequently was no payment in lieu of notice made to Mr Brown, it was communicated that the dismissal would take effect on 11 July 2016. It was Mr Brown’s evidence that the dismissal did take immediate effect.

[19] Therefore I conclude for the purposes of s.394(2)(a) of the Act, the date of Mr Brown’s dismissal was 11 July 2016 and his application was made out of time.

[20] Mr Brown submits he disputed the matter with the Fair Work Ombudsman and he was told at the time he could make an application to dispute his dismissal with the Commission, however he did not make the application at the time because he didn’t know that he could run the matters concurrently.

[21] Mr Brown submits once he was advised by the Ombudsman that the respondent had complied with their obligations he then took advice from an employment law centre on the 9 August 2016. He submits he was advised to lodge an application for remedy of his unfair dismissal with the Commission.

[22] It took Mr Brown another 3 days before he lodged his application. Mr Brown was unable to provide a reasonable explanation for those days.

[23] Having considered the matters in Section 394(3) of the Act and the evidence put before me by the parties, I am not satisfied that there are exceptional circumstances warranting an extension of time for Mr Brown’s application to be made.

[24] I am not satisfied that Mr Brown has provided a reasonable explanation for the whole of the delay. Mr Brown’s application for an extension of time is refused and his unfair dismissal application is therefore dismissed.

[25] An order 2 dismissing Mr Brown’s application will be issued with these Reasons for Decision.

COMMISSIONER

Appearances:

T Brown on his own behalf.

D Bates, paid agent for Kingskipp Pty Ltd as trustee for the RJ King Family Trust trading as Gateway Printing.

Hearing details:

2016.

Melbourne (by telephone):

23 September.

 1   Exhibit A1.

 2   PR585903.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR585902>