Neil Bruns v Goodmans Groundforce Pty Ltd

[2019] FWC 2555

[2019] FWC 2555

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Neil Bruns
v
Goodmans Groundforce Pty Ltd
(U2019/536)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 12 APRIL 2019

Application for relief from unfair dismissal – whether application filed out of time – when dismissal took place.

Introduction

[1] The Fair Work Act 2009 (Cth) (Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission may allow a further period for the application to be made in exceptional circumstances.2

[2] This decision concerns whether Mr Bruns filed his unfair dismissal application within 21 days after his dismissal from Goodmans Groundforce Pty Ltd (Goodmans) took effect. Mr Bruns filed his unfair dismissal application on 17 January 2019. He contends that he was dismissed on 2 January 2019. If Mr Bruns is correct, his unfair dismissal application was filed within time. Goodmans contends that it dismissed Mr Bruns on 21 December 2018, with the result that Mr Bruns filed his unfair dismissal application out of time.

[3] On 11 April 2019, a hearing was conducted, by telephone, in relation to the question of when Mr Bruns’s dismissal took effect. Mr Bruns gave evidence, as did Mr Goodman for Goodmans.

Applicable legal principles

“Dismissed” is defined in s 386(1) of the Act as follows:

“A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[4] A dismissal takes effect when the employment relationship has ended. 3 The termination of the employment relationship is a different concept from the termination of an employment contract.4

[5] Whether an employment relationship continues to exist is a question of fact. 5 The range of facts or factors which may need to be examined to answer the question of whether an employment relationship continues to exist will be determined by the circumstances of a particular case, and may include, without limitation, whether the employee is being paid a wage or other benefits or entitlements, whether the employee is attending or performing work for the employer, whether the employer is exercising, or has the ability to exercise, control over the execution of work by the employee,6 and the terms of the employment contract.

[6] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 7

Relevant Facts

[7] Mr Bruns was employed by Goodmans from about 10 March 2010 until late 2018 or early 2019 as a casual garden labourer. He worked, on average, about 30 to 38 hours per week in the summer and fewer hours in the winter. Mr Bruns was informed on the day or week prior whether he would be required for work on the following day or week. Mr Bruns was paid on a weekly basis by Goodmans.

[8] Mr Bruns was not provided with a written contract of employment in relation to his employment with Goodmans. He was, however, covered by the Gardening and Landscaping Services Award 2010.

[9] Early in the week commencing 17 December 2018, Mr Goodman held a meeting with employees of Goodmans, including Mr Bruns, in relation to the work and jobs that needed to be completed prior to 25 December 2018. Mr Goodman informed the employees of work requirements on 24 December 2018, in order to complete the bookings made by regular clients of Goodmans and to maintain ongoing future work. The period leading up to Christmas is typically extremely busy for Goodmans and 2018 was no different. At no time during this meeting did Mr Bruns object to working on 24 December 2018 or state that he would not work on that day.

[10] On 21 December 2018, two employees of Goodmans arrived back at the work depot at around 3:30pm without Mr Bruns because he had been dropped where his car was parked. The employees informed Mr Goodman that Mr Bruns would not be attending work on 24 December 2018. Mr Goodman was concerned that he would not be able to complete the work that had to be undertaken by 24 December 2018 for clients of Goodmans and there was a risk of losing contracts if Mr Bruns did not attend work on 24 December 2018. As a result, Mr Goodman sent the following text message to Mr Bruns at 3:45pm on 21 December 2018:

“We need you to work Monday please. 7 my place cheers.”

[11] Mr Bruns had not responded to the text message sent to him at 3:45pm, so Mr Goodman sent him a further text message at 5:25pm on 21 December 2018:

“Can you respond so I know?”

[12] At 6:18pm on 21 December 2018, Mr Bruns responded as follows:

“I can’t work Monday sorry.”

[13] Commencing at 6:39pm on 21 December 2018, Mr Goodman and Mr Bruns exchanged the following text messages:

Mr Goodman:

“well if you can’t work Monday which we discussed earlier in the week, then I will have to find someone else to PERMANENTLY fill in. It’s about helping each other out when needed. It’s YOUR decision.”

Mr Bruns:

“OK”

Mr Goodman:

“working or not??”

Mr Bruns:

“no sorry. Don’t know why it’s always a big drama, wasn’t long ago you told Nick you didn’t really need me because the boys can work, I’ve got family here it’s Christmas eve that’s all”

Mr Goodman:

“Ok have a good Christmas and New Year”

Mr Bruns:

“Yeah you too”

[14] There was no further communication between Mr Bruns and Mr Goodman until 2 January 2019. Goodmans’ business was shut down over the Christmas break.

[15] On the morning of 2 January 2019, Mr Goodman and Mr Bruns exchanged the following text messages:

Mr Bruns:

“Hey mate we working today?”

Mr Goodman:

“No sorry Bruns you made your decision before Christmas.”

Mr Bruns:

“Oh right what does that mean. I’m not working today or not working full stop?”

Mr Goodman:

“Not working at all. I believe it’s time for you to find another job. I’m happy to talk to you later if you like. This is not an easy decision to make but I think it will be better for you eventually.”

[16] On about 4 January 2019, Mr Bruns and Mr Goodman had a telephone discussion. Mr Goodman asked Mr Bruns whether he needed help to get another job. Mr Bruns asked for a separation certificate. Mr Goodman said he would give Mr Bruns a separation certificate, but Mr Bruns did not follow the issue up, so a certificate was never provided.

Conclusion

[17] The text message communications between Mr Goodman and Mr Bruns on 21 December 2018 did not constitute notification to Mr Bruns that he had been dismissed. Taken at their highest, those text message communications informed Mr Bruns that Mr Goodman would “find someone else to PERMANENTLY fill in” for Mr Bruns, but they did not inform Mr Bruns when that would happen or what was to occur in the interim period before a permanent replacement was found. Accordingly, I find that there was no communication of a dismissal to Mr Bruns on 21 December 2018. It was not until 2 January 2019 that Mr Bruns was informed of Mr Goodman’s “decision” that Mr Bruns was “not working at all” and it was time for him “to find another job”. The text message sent to Mr Bruns on 2 January 2019 was a clear communication to him that he had been dismissed.

[18] Mr Bruns’s dismissal took place on 2 January 2019. Accordingly, Mr Bruns’s unfair dismissal application (lodged on 17 January 2019) was filed within the 21 day time period prescribed by the Act. It follows that Goodmans’ jurisdictional objection is dismissed and the matter will be listed for directions shortly to progress the matter.

DEPUTY PRESIDENT

Appearances:

Mr Bruns appeared on his own behalf.

Mr Goodman, director of the Goodmans, appeared for Goodmans.

Hearing details:

2019

Newcastle

11 April

Printed by authority of the Commonwealth Government Printer

<PR706989>

 1 Section 394(2)(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 394(3) of the Act.

 3   Siagian v Sanel Pty Ltd [1994] IRCA 2 (Wilcox CJ); Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]

 4   Visscher v Giudice and Others (2009) 258 ALR 651 at [53] to [55] per Heydon, Crennan, Keifel and Bell JJ; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]-[22]; Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [31]-[50]

 5   Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 428; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [27]

 6   Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 404; Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16 at 24 & 35; Forstaff v Chief Commissioner of State Revenue (2004) 144 IR 1 at [91]

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