Nicholas Ross v Embertec Pty Ltd

[2020] FWC 4753

[2020] FWC 4753

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicholas Ross
v
Embertec Pty Ltd
(U2020/9396)

COMMISSIONER PLATT ADELAIDE, 7 SEPTEMBER 2020

Application for an unfair dismissal remedy – request for an extension of time – application lodged within time – extension of time not required.

Introduction

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

Background

[2] Mr Ross has lodged an application pursuant to s.394 of the Act in relation to the termination of his employment with Embertec Pty Ltd (Embertec) which his form F2 Unfair Dismissal Application advised took effect on 17 June 2020.

[3] The application was lodged on 7 July 2020.

[4] On 17 August 2020, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 3 September 2020. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties.

[5] On 15 August 2020, the Respondent filed a Form F3 Employer Response, which indicated that Mr Ross ceased employment on 31 March 2020.

[6] Both parties filed written submissions and supporting correspondence. This material included a copy of a letter written by Mr Gelonese to Mr Ross which appeared to confirm his termination and was dated 17 June 2020.

Hearing

[7] A hearing was conducted by way of telephone conference on 3 September 2020. A sound file record of the telephone conference was kept. Mr Ross was represented by Ms Liu (of counsel) permission being granted unopposed, pursuant to s.596 of the Act on the basis of complexity and efficiency, with any adverse impact on the unrepresented Respondent ameliorated by conducting the hearing as a determinative conference. Mr Gelonese represented Embertec.

Consideration

[8] I have reviewed all of the material provided before and during the hearing. There was a dispute as to the date employment ceased.

[9] Whilst the material before me was not tested, it appears that Embertec was in the process of selling some or all of its business to a separate entity 369 Labs Pty Ltd. There was evidence of communications with its staff about their ‘transfer’ to 369 Labs. It appears that Embertec was advised that it could simply ‘transfer’ ‘its’ employees. None of the communications provided clearly identify that employment with Embertec would cease on a certain date. It is inferred that by taking up employment with 369 Labs, their employment would cease. Mr Ross did not accept employment with 369 Labs. There was a period which aligned with the COVID-19 Pandemic that employees of Embertec were not paid, with Mr Gelonese making exgratia payments in this period. There appears to have been a delay on the completion of the sale or engagement by 369 Labs. There was evidence that 369 Labs (through Mr Gelonese) continued to negotiate with Mr Ross as to an offer of employment as late as 31 May 2020.

[10] Embertec could not point me to any written correspondence with Mr Ross which supported its contention that his employment ceased on 31 March 2020.

[11] Embertec’s case, at is highest, was that Mr Ross questioned Embertec’s view that he had been dismissed at a meeting on 5 June 2020 and sought written confirmation of Embertec’s position.

[12] A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 3 I find that the dismissal was communicated to Mr Ross on 17 June 2020.

[13] On this basis Mr Ross’ application has been made within the time permitted and does not require an extension of time.

[14] The parties have indicated a desire to continue conciliation conversations at the conclusion of the hearing. I commend this approach.

[15] Directions have been issued in respect of the hearing of this matter in the event that conciliation is unsuccessful.

[16] An Order⁴ reflecting this decision will be issued.

COMMISSIONER

Appearances (by telephone):

Ms Liu of counsel on behalf of the Applicant.

Mr Gelonese on behalf of the Respondent.

Hearing (Conference) details:

2020.
Adelaide:
September 3.

Printed by authority of the Commonwealth Government Printer

<PR722529>

 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   Ayub v NSW Trains [2016] FWCFB 5500 at [35], [41] & [48]-[49]

4 PR722530