Paul Leman v UGL Infrastructure Pty Ltd

[2012] FWA 9273

[2012] FWA 9273

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Leman
v
UGL Infrastructure Pty Ltd
(U2012/11307)

COMMISSIONER WILLIAMS PERTH, 2 NOVEMBER 2012

Termination of employment - jurisdiction.

[1] This matter involves an application made on 10 July 2012 by Mr Paul Leman (Mr Leman or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is UGL Infrastructure Pty Ltd (the respondent).

[2] The matter was dealt with by a Fair Work Australia Conciliator however was not resolved and has been referred to myself for determination.

Background

[3] The applicant commenced employment with the respondent in mid-2011.

[4] He was employed as an Electrician working on the construction of a substation near Tarong in Queensland known as the Halys Project.

[5] The respondent employed approximately 20 electrical employees on the Halys Project.

[6] As a consequence of the Halys Project nearing completion the respondent identified the positions its employees were working in which were no longer required to be performed by anyone and began a redundancy process in accordance with its enterprise agreement.

The issues

[7] There is a contest between the applicant and the respondent as to whether the respondent dismissed the applicant or he resigned.

[8] Further the respondent submits that the application has been made outside the 14 day statutory time limit and that Fair Work Australia should not extend time for the application to be made and so it should be dismissed. The relevant section of the Act, section 394, is set out below:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when FWA may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

Factual findings

[9] Having considered the evidence of the applicant and the evidence of the various witnesses for the respondent I make the following findings.

[10] Mr Leman kept no record of the various conversations he had in person and on the telephone with representatives of the respondent and was not certain of many of the dates of particular events. Generally I accept the evidence of the respondent’s witnesses as to the dates of the various conversations that occurred.

[11] The applicant along with other employees was advised by Ms Drew, the respondent’s Human Resources Coordinator, on Tuesday, 24 April 2012 that the Halys Project was nearing completion, that it was uncertain whether alternative employment could be found for them and that she would meet with each employee to determine their skills, capabilities and interest in possible redeployment. That day Ms Drew met individually with Mr Leman and went through these issues with him.

[12] Initially no redeployment opportunities were identified for the applicant and on 29 April 2012 Mr Richard Daniels Junior, a Foremen of the respondent, located Mr Leman on site and told him that he was being given one weeks notice. I accept that in response the applicant queried whether this meant one weeks notice of transferring to another site or whether it was one weeks notice of termination of employment. This was not clarified by Mr Richard Daniels Junior.

[13] I find that the respondent’s intention at this time was to give Mr Leman one weeks notice of the termination of his employment. Accordingly I find that the applicant’s employment would have terminated at the end of that notice period on Sunday, 6 May 2012.

[14] I accept the evidence of Mr Rogers, the Construction Supervisor on the Halys Project, that Mr Leman’s final day on site was Tuesday, 2 May 2012.

[15] Mr Rogers was telephoned by Ms Drew who advised that there was an electrician’s position available on the Kareeya site for a two week period. Mr Rogers asked Mr Leman on that afternoon whether he would be interested in two weeks work at Kareeya. On balance having considered the evidence of Mr Rogers, Mr Leman and Mr Davies my conclusion is that it is more likely than not that Mr Leman then replied to Mr Rogers words to the effect of “Don’t do this to me Trevor, I’m off to Bali.”

[16] Ms Drew having been advised of Mr Leman’s response interpreted his response as him having resigned and processed the applicant’s separation from the respondent accordingly.

[17] The applicant did not return to site after 2 May 2012.

[18] I accept the applicant was unclear as to what his employment situation was and spoke to Ms Drew about this on the telephone on a number of occasions. Specifically the applicant says that late in May 2012 he spoke to Ms Drew and she told him she understood he had resigned when he spoke to Mr Rogers. Mr Leman told her that was untrue. I accept during this conversation Mr Leman acknowledge he had received his final payslip which showed he had been paid out his accrued leave entitlements being annual leave and RDO’s.

[19] I find that at this point Mr Leman did understand that his employment with the respondent had ended. The applicant says this conversation occurred on 21 May 2012 however Ms Drew was confident that the conversation occurred on 31 May 2012.

[20] In subsequent conversations with Ms Drew, Mr Leman expressed his belief that he was entitled to be paid until he was terminated by the respondent. However it was made clear by Ms Drew that he would receive no further payments.

[21] On 10 July 2012 Mr Leman made this application for an unfair dismissal remedy.

Consideration

Was the applicant dismissed?

[22] Considering the evidence and the above findings I do not accept that Mr Leman resigned from his employment. There is no doubt that he had indicated to others that he was going to Bali but this of itself was not sufficient in the circumstances, particularly when there was confusion as to the meaning of the one weeks notice he had been given, to amount to a resignation of his employment. Obviously the resulting confusion would not have arisen if the supervisors and human resource staff of the respondent had promptly and properly clarified with the applicant his intentions.

[23] At the hearing of this matter Mr Swan for the respondent conceded rightly in my view that it was more likely than not that the applicant had been dismissed by the respondent.

[24] My conclusion is that the applicant was dismissed by the respondent with one weeks notice of termination and so the employment ended on 6 May 2012.

Should Fair Work Australia allow a further period for the application to be made?

[25] Given my finding that the applicant was dismissed he is entitled to make an application for an unfair dismissal remedy, however the application must be made within 14 days after the dismissal took effect (section 394(2) of the Act). Clearly this application has been made out of time and the question now to be determined is whether under section 394(3) of the Act the Tribunal should allow a further period for the application to be made having been satisfied that there are exceptional circumstances.

[26] I will now consider those matters I am obliged to take into account that are prescribed in section 394(3) of the Act.

[27] The reason the applicant says there was a lengthy delay in making this application is because it was never clear to him that he had been dismissed and so from his perspective there was no starting point for the 14 day time limit.

[28] I do not accept that this is correct. As I have found above (at [19]) at the latest on 31 May 2012 it was known to Mr Leman that his employment with the respondent had ended. He was always adamant that he had not resigned and so the only rational conclusion he could have reached given he understood that his employment had ended was that he had been dismissed by his employer. Consequently I find that 31 May 2012 was when Mr Leman first became aware of his dismissal (section 394(3)(b) of the Act).

[29] Normally a termination of employment would not “take effect” before it was communicated to the employee concerned 1.

[30] In this instance then I find that the termination of the applicant’s employment took effect on 31 May 2012. Consequently the applicant would be required to make this application within 14 days of being first aware of his dismissal which was by 14 June 2012. The applicant however made this application on 10 July 2012 some 40 days after the dismissal took effect.

[31] There is no acceptable explanation given by the applicant for the delay between 14 June 2012 and 10 July 2012, noting that being unaware of the time limits is not an acceptable explanation for delay.

[32] The evidence is that the applicant did make a number of phone calls to other persons employed by the respondent regarding his employment following 31 May 2012 querying his situation. Other than that there was no other action taken by the applicant to dispute his dismissal.

[33] There is in my view no obvious prejudice to the employer caused by the delay in making this application.

[34] With respect to the merits of the application, as the respondent has submitted, if the Tribunal is satisfied that a person’s dismissal was a case of genuine redundancy then by virtue of section 385 of the Act that person has not been unfairly dismissed.

[35] In this instance the evidence is clear, and is not challenged by Mr Leman, that the Halys Project he was working on was winding down and was coming to an end. Fellow employees working on the Halys Project were being made redundant and this is indeed what happened to the applicant. The evidence is also clear that in offering the work at Kareeya the respondent had sought to redeploy Mr Leman. Whilst no submissions or evidence was made as to whether or not the respondent had fully complied with its obligations in its enterprise agreement it is highly likely then given this background that in a full hearing of this matter the Tribunal would conclude that Mr Leman’s dismissal by the respondent was a case of genuine redundancy and so he is unable to pursue an unfair dismissal remedy.

[36] That being the case it is almost certain that even if the Tribunal allowed an extension of time to Mr Leman to make this application a full hearing of the matter would result in his application being dismissed. The substantive application then has no merit.

[37] There is no evidence of any relevant concerns regarding fairness between the applicant and other persons in a similar position.

[38] Taking into account each of the above factors I do not accept that any of them individually nor these factors taken together amount to exceptional circumstances that would warrant the Tribunal allowing a further period for the application to be made.

[39] The application by Mr Leman for an unfair dismissal remedy has been made well outside the 14 day statutory time limit and so must be dismissed.

[40] An order to that effect will issue in conjunction with this decision.

COMMISSIONER

Appearances:

P Leman on his own behalf.

S Swan of The Australian Industry Group for the respondent

Hearing details:

2012.

Perth and Brisbane (video and telephone hearing)

October 19.

 1   [2007] AIRCFB 38

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