Perry v Palmwoods Auto Electrics Pty Ltd

[2014] FWC 6860

[2014] FWC 6860

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Perry
v
Palmwoods Auto Electrics Pty Ltd
(U2014/10851)

VICE PRESIDENT CATANZARITI SYDNEY, 30 SEPTEMBER 2014

Application for unfair dismissal remedy - extension of time - date dismissal took effect.

[1] I have considered the written submissions from both parties in relation to the issue of whether this matter has been lodged beyond the 21 day time limit imposed by s.394(2)(a) of the Fair Work Act 2009 (the Act).

[2] Mr James Perry (the Applicant) contends that he was notified of his dismissal and that the dismissal took effect on 4 July 2014. Palmwoods Auto Electrics Pty Ltd (the Respondent) contends that it was agreed between the parties on 7 May 2014 that the Applicant’s employment would end on 30 June 2014 and that the Applicant would thereafter perform work for the Respondent as a contractor, not an employee.

[3] Section 394 of the Act provides as follows:

“394 Application for unfair dismissal remedy

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

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

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

(3) ...”

[4] The Respondent submitted that a dismissal becomes effective on the day it is made and not the final date of work. This submission misapprehends the authorities on the issue of when a dismissal takes effect. In Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070 a Full Bench of the Fair Work Commission (the Commission) found as follows:

“The above passage makes it clear that, under the Industrial Relations Act 1988 a termination of employment, being a termination at the initiative of the employer, occurred at the time that the employment relationship came to an end and, in the case of an employee who had been dismissed on notice, the termination of the employment relationship and therefore the termination at the initiative of the employer occurred when the notice period expired.

Having regard to the obvious provenance in the language used in s.386(1)(a) of the Act in the termination of employment provisions of the Industrial Relations Act 1988 and their interpretation in decisions such as Mohazab and Siagian, we consider that the same approach should be adopted as in those two cases, namely that a person’s “employment with his or her employer has been terminated on the employer’s initiative” when the person’s employment relationship with the employer has ended, and that where the employee has been terminated on notice, the employment relationship ends when the notice period expires. Because s.386(1) defines when a person has been dismissed for the purpose of s.394(1), the same propositions apply to the meaning of the expression “A person who has been dismissed” in s.394(1)...” 1

[5] The Respondent submits that on 7 May 2014 both parties agreed that the Applicant’s employment would end on 30 June 2014. In these circumstances, the effective date of termination would be 30 June 2014.

[6] The Applicant made his unfair dismissal application on 14 July 2014. Regardless of whether I were to accept the date that the Applicant has submitted as the date his dismissal took effect (4 July 2014) or the date submitted by the Respondent (30 June 2014), the application was made within 21 days after the alleged dismissal took effect.

[7] I find that there is no need for the Applicant to apply for an extension of time in relation to his application. I note that there remains a live issue in relation to whether the Applicant was an employee or a contractor at the time of dismissal. The matter will be listed for arbitration in Brisbane to determine all remaining issues, including the merits of the application. Directions will be issued to that effect.

VICE PRESIDENT

Final written submissions:

A Whole New Approach Pty Ltd for the Applicant, 25 August 2014.

Alan Taylor for the Respondent, 25 September 2014.

<Price code A, PR556051>

 1   Mihajlovic v Lifeline Macarthur[2014] FWCFB 1070, [16]-[17].

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