Peter Smilek v Aboriginal Hostels Limited

[2013] FWC 2255

[2013] FWC 2255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Smilek
v
Aboriginal Hostels Limited
(U2012/14641)

COMMISSIONER BISSETT MELBOURNE, 18 APRIL 2013

s.394 - Application for unfair dismissal remedy - alleged employment documents found not to exist - employment ended at expiration of fixed term contract - does not meet qualifying period of employment - application 1898 days late - extension of time not necessary to consider - jurisdictional objections upheld.

[1] Mr Peter Smilek (the Applicant) made an application on 30 October 2012 pursuant to s.394 of the Fair Work Act 2009 claiming that he had been unfairly dismissed from his employment with Aboriginal Hostels Limited (AHL, the Respondent). Mr Smilek alleges that he was dismissed on 18 October 2012.

[2] AHL object to Mr Smilek’s application on two jurisdictional grounds. Firstly it says that Mr Smilek was employed on a fixed term contract from 19 July 2007 until 25 July 2007. As such it says his employment came to an end by the expiration of the contract and there was no termination of employment at the initiative of the employer. Alternatively if the termination was at the initiative of the employer AHL says that his employment ended on 25 July 2007 and the application is 1898 days out of time (the application having been made 1919 days after the Applicant’s employment came to an end).

[3] Both jurisdictional matters were heard in conjunction with the merits of Mr Smilek’s application.

[4] In order to decide the jurisdictional objections it is necessary to determine when and how Mr Smilek’s employment came to an end.

[5] Mr Smilek gave evidence on his own behalf.

[6] Mr Matthew Broers, Ms Judith Barlow and Ms Bernadette Canning gave evidence for the Respondent.

Background

[7] Mr Smilek was employed as an APS Level 1 on 19 July 2007 at the William T Onus Hostel (the Hostel) in Northcote Victoria.

[8] The letter of engagement states that Mr Smilek was engaged as a full time non-ongoing employee with AHL. His period of employment was 19 July 2007 to 25 July 2007. Mr Smilek was employed as a Night Attendant. The offer of engagement was signed by Ms Rita Stewart, Regional Manager, on 17 July 2007 and the acceptance of the offer was signed by Mr Smilek on 19 July 2007. 1

[9] Mr Smilek also signed an Australian Workplace Agreement (AWA) on 19 July 2007. The AWA was signed on behalf of the Commonwealth of Australia on 31 August 2007 (although Mr Smilek appears to have written the date of 19 July 2007 in the signature space for the Commonwealth which was subsequently crossed out). The AWA had a nominal expiry date of 25 July 2007. The AWA specified the duties of Mr Smilek as a Night Attendant. 2

[10] An excerpt from the ‘night shift book’ indicates that Mr Smilek worked on 19, 20, 21, 22, 25, 26 and 27 July. 3 Mr Smilek confirmed that this was his writing in the night shift book on these dates. Mr Smilek could not explain why he had not worked on 23 and 24 July, but had worked on 26 and 27 July, in circumstances where his letter of engagement specified that he was employed from 19 - 25 July 2007.

[11] On 27 July Mr Smilek was apparently involved in an altercation with a resident of the hostel. The police were called and attended. On 12 August 2007 Mr Smilek signed a statement about the incident. 4

[12] There is no evidence that Mr Smilek worked for AHL after 27 July 2007 (noting that Mr Smilek worked night shift so that the shift concluded on 28 July 2007).

[13] In October 2012 Mr Smilek rang AHL requesting information about his employment. During these phone calls Mr Smilek said that he had been subject to an assault at the Hostel in 2007 and that, as a result of this, he was offered ongoing employment and that he was stood down without pay.

[14] The pay records of AHL indicate that Mr Smilek received 2 payments in 2007, one on 27 July and another on 9 August (his period of employment was apparently across two pay periods). As a result of the contact Mr Smilek had with AHL in 2012 further investigation indicated that he was not paid accrued annual leave at the end of his employment and that superannuation had not been paid for him. This was rectified by payment into Mr Smilek’s superannuation fund and by a payment to Mr Smilek on 20 December 2012. Mr Smilek received a pay slip with respect to the 20 December 2012 payment.

Submissions and evidence

Applicant

[15] Mr Smilek says that he was employed as a security guard at the Hostel. He says the “Guard Agents Act” requires that a security guard’s book be kept and that he was required to detail incidents at the Hostel in that book. He says it would be a criminal offence not to record incidents in the book. Mr Smilek says that AHL has lost that guard book.

[16] Mr Smilek says that on the morning of the 28 July 2007 (his shift commenced on 27 July and finished on 28 July) and following the incident with a resident of the Hostel Ms Stewart suspended him without pay and that he ‘received paperwork to the effect that I was permanently employed by Aboriginal Hostels’. 5 Mr Smilek says that he filed this documentation with the Commission Registry about a week after he lodged his application and that the Registry misplaced it.

[17] Mr Smilek says that on 25 July 2007 he was given explicit instructions by Richard (who Mr Smilek says was a Canberra based employee of AHL) and Garth to keep notes on who was dealing in drugs and selling alcohol at the Hostel and provide such written reports to Ms Rita Stewart. Mr Smilek rejected suggestion that the briefing was actually delivered by ‘Rita and Garth’ (being Ms Rita Stewart and Mr Garth Grant). The only record of this briefing is the notation by Mr Smilek in the night shift book on 25 July 2007. 6

[18] Mr Smilek submits evidence of his tax file declaration which shows that he was employed ‘full time’ 7 and a calculation of earnings he says are due to him.8 He also provides a copy of his superannuation statement which shows a deposit into his superannuation account in 2011/12 financial year.

[19] Mr Smilek also presents as evidence a small AHL logoed spiral notebook of seven pages which he says are notes he made at the time he was working at the Hostel. 9

[20] Mr Smilek agrees that he understood he was offered employment by AHL on a full time basis for a non-ongoing period from 19 July to 25 July 2007. 10 He says however that another missing document said that he was employed as a night security officer and night manager (as opposed to a Night Attendant).11 He does agree, however, that at the time he signed the letter of engagement on 19 July 2007 he was engaged as a Night Attendant.

[21] Mr Smilek says that he did not work on 23 and 24 July 2007 because he was told not to work. He rejects the suggestion that he swapped shifts with Johnny, another Night Attendant (who worked on 23 and 24 July), for 26 and 27 July.

[22] Mr Smilek says that he reported the incident on 27 July 2007 in the security guard’s book and that he also submitted a report through the internal mail to head office in Canberra, both of which he says have gone missing.

[23] Mr Smilek says that there was a level of illicit drug dealing which he also reported to Canberra by internal mail. Mr Smilek says that a lot of documentation has gone missing including the security guard’s book and there is ‘clear evidence’ of tampering with the AHL internal mail. He further submits that he was only suspended without pay from his position and that he attempted to call AHL on a number of occasions from 2007 at the Melbourne, Sydney and Canberra offices to determine his position but that AHL have refused to give him a straight answer. Mr Smilek says that AHL has misplaced documents relevant to his employment and that, although he has contacted AHL no-one from AHL has ever rung him back.

Respondent

[24] Mr Broers is an Assistant Manager for AHL in Canberra. His evidence is that at the time Mr Smilek was employed Ms Rita Stewart was the Victoria and Tasmania Regional Manager and Mr Garth Grant was the Hostel Manager at the William T Onus Hostel. He says that the Night Attendant duties were to patrol the grounds, put bins out, perform a receptionist role to ensure people who should not be there did not come in, let in residents who may have lost their key and the like.

[25] Mr Broers’ evidence is that it is not normal practice for AHL to suspend employees without pay, even where a police investigation is involved and in his seven years with AHL, mostly in human resources, he is only aware of one case where an employee was suspended without pay. Mr Broers evidence is that the Regional Manager only has authority to suspend an employee with pay for three days and that the authority to suspend an employee without pay rests with the General Manager or Assistant General Manager in Canberra. 12

[26] Mr Broers also says that he is not aware of a person named Richard working in the Canberra office at the time Mr Smilek worked for AHL. There are only about 50 people who work in the Canberra office and Mr Broers is confident he knows them all partly because of the size of the office but also because he was payroll manager.

[27] Mr Broers is not aware of a security guard book of the kind suggested by Mr Smilek ever being present in any of the hostels managed by AHL.

[28] Mr Broers was not aware of any calls made by the Applicant to AHL prior to October 2012.

[29] Ms Barlow’s evidence is that Mr Smilek contacted the AHL Canberra office in October 2012 and, as a result of this, she gathered information in relation to his employment and rang him back. She is not aware of any calls made by Mr Smilek to AHL prior to October 2012 except as he advised her of calls he says he made. 13

[30] Ms Dowsett for AHL submits that there is no evidence that Mr Smilek was suspended without pay and in any event, the evidence is that Ms Stewart only had the authority to suspend an employee with pay for up to three days.

[31] Whilst Mr Smilek was employed for the period 19-25 July for inexplicable reasons he worked on 26 and 27 July 2007.

[32] Ms Dowsett submits that even if Mr Smilek’s employment did not end at the expiration of the contract on 27 July 2007, he was only employed for 9 days and would not be eligible to make an unfair dismissal claim as he had not worked the requisite qualifying period.

[33] Even if it is accepted that Mr Smilek was dismissed by AHL that dismissal occurred in 2007. Whilst Mr Smilek says there was no delay because his employment was not terminated until October 2012; Ms Dowsett says that there is no evidence that he did anything in regard to his employment situation between 2007 and when he contacted AHL in Canberra in October 2012. If the dismissal did occur in 2007 Mr Smilek’s application is outside the time period specified for such an application.

Alleged lost documents

[34] Prior to dealing with the substance of the end of Mr Smilek’s employment it is necessary to say something of his allegations as to documents he says he filed with the Commission Registry and that he says were lost by the Registry staff and those documents he says he sent to AHL in Canberra and he says were lost or tampered with by AHL staff.

Commission Registry

[35] On 24 January 2013 Mr Smilek attended the counter of the Melbourne Registry and asked that a file note be made and placed on his file. The file note was completed by Ms Mangos, a staff member in the Registry. That file note says:

About one week after lodgement of the above matter on 30 October 2012, Mr Peter Smilek, came to the Level 4 Counter in Melbourne Registry to submit documents pertaining to this matter. The documentation contained important information:

Original Payslips and documents relating to criminal actions of staff members on-site which who were taking & selling drugs on-site. Also witness names and observations made out to Aboriginal Hostels, and statements to the effect regarding terminations of those staff and members.

A letter from the Aboriginal Hostels dated 31 Aug 2012, stating that the workplace agreement was only an initial bridging contract for a period of 10 days. Full time employment was to commence on 19 July 2007.

Conciliation by phone was conducted on 23 November 2012.

At conciliation it became evident that the documents submitted by Mr Peter Smilek were not in the file.

After the Conciliation Mr Peter Smilek, said he made dozens of calls to asking for the whereabouts of the documents.

On 6 December 2012, all staff were emailed to check for documents relating to the above matters lodged by Mr Peter Smilek.

Unfortunately these documents were not located and on 6 December Barbara Mangos Team Leader in the Registry phoned Mr Peter Smilek to confirm that the documents were not found. During that conversation Mr Peter Smilek said he would relodge these documents, the next day, however this did not occur.

On 24 January 2013, Mr Peter Smilek attended the Level 4 Counter in Melbourne Registry, to find out the whereabouts of the documents,

Barbara Mangos explained that unfortunately the documents had not been located and agreed that this was not acceptable.

Mr Peter Smilek, has lodged further documents for his Jurisdiction Conference/Hearing Listed to start at 15-03-2013 11:00. 14 (sic)

[36] Mr Smilek sent a copy of the file note to the solicitors for the Respondent. The Respondent’s solicitors sought to clarify with the Registry staff whether the documents described in the file note reflected the Commission’s record of the documents filed or Mr Smilek’s claim of what was filed. Registry advised the solicitor that the file note contained a summary of events as dictated by Mr Smilek. The file note sets out details of what Mr Smilek said he provided. 15 The file note, to this extent, is not evidence as to what occurred but is evidence of what Mr Smilek says occurred with the documents.16

[37] An Order was issued to the Respondent to produce, inter alia, ‘all employment records’, ‘confirmation about permanent employment at AHL’ in relation to Mr Smilek and ‘security logs’ and ‘security reports...regarding... the use and taking of drugs on the premises’. The order was issued at the request of the Applicant. The documents sought are not dissimilar to those Mr Smilek says he filed with the Commission with respect to this application. The documents returned in accordance with the Order, save for pay details from 2007 and one pay slip from 2012, do not show any documents of the type Mr Smilek says he filed with the Commission that were detailed in the file note. To this extend it should be noted that all other documents in relation to Mr Smilek’s employment, including his employment contract, Australian Workplace Agreement, file notes etc were produced as attachments to statements tendered by the Respondent.

[38] One of the documents Mr Smilek alleges the registry has lost is ‘a letter from Aboriginal Hostels dated 31 Aug 2012’ which he says indicates that the AWA was only a bridging contract and that full time employment was to commence on 19 July 2007. The existence of such a document and the making of this application does not make sense. If Mr Smilek received a letter dated 31 August 2012 suggesting his employment was ongoing why did he not produce that to AHL when he rang in October 2012? If he was sent correspondence with respect to his employment in August 2012 why was his personal file in the archives when Ms Barlow sought to access it in October 2012, only some six or so weeks later?

[39] Mr Smilek’s file note indicates that he intended to re-lodge the missing documents on 7 December 2012. He failed to do so. He did lodge further documents on 24 January 2013 (and again on 8 March) consisting of:

• His superannuation fund membership card;



• A statement made by Mr Smilek and witnessed by a police officer with respect to the incident at the Hostel on 27 July 2007; and



• A pay slip dated 20 December 2012.



• A copy of the Order to produce as sought by him and as issued by the Commission (in the March documents only)

[40] There is nothing Mr Smilek has put in evidence or adduced in cross examination of witnesses that suggests the documents he says he lodged with the Commission Registry exist. The extensive nature of documentation produced by AHL tends to weigh against the existence of the documents. I find, in all likelihood, that they do not exist.

[41] Whilst there may be questions about the form of the file note I am satisfied that, to the extent that the file not records documents Mr Smilek says he filed with the Registry, there is no evidence that any such documents exist or were, in fact, filed.

[42] I am satisfied that the documents Mr Smilek alleges he filed with the Registry were, in fact, not filed at all.

AHL

[43] Mr Smilek alleges at various times in his evidence and submissions that documents had gone missing from AHL or that the internal mail system of AHL had been tampered with. 17

[44] When Mr Smilek puts these allegations to witnesses for AHL they specifically deny being aware that documents had gone missing or that the mail was tampered with.

[45] Whilst of course it may be difficult to show that documents alleged to have gone missing actually exist both, Mr Broers’ and Ms Barlow’s evidence is given in a clear, open and candid manner. Neither sought to obfuscate on any matters put to them relating to the operation of AHL nor with respect to attempts to discover details relating to Mr Smilek’s employment. I found each of them to be credible and their evidence reliable. I accept the evidence of each of these witnesses when they say that it is not usual for documents to go astray as an honest assessment of the internal systems of AHL.

[46] I can find no grounds on which to conclude that the material Mr Smilek says has been mislaid by AHL was ever sent to AHL or mislaid by AHL.

[47] I do not find it credible to suggest that because Mr Smilek was subject to an assault by a resident he would be stood down without pay for over five years with no record of that stand down in existence. It is also not credible that, given the detailed paperwork relating to Mr Smilek’s seven days of employment (a letter of engagement and an AWA), no paperwork of any description exists as to his alleged on-going employment.

[48] I therefore find that there are no documents relating to Mr Smilek being offered on-going employment or that relate to him being stood down without pay. As such I find such documents have not been misplaced.

[49] I do not accept the evidence of Mr Smilek that he was asked to undertake an investigation into and report on illicit drug use at the Hostel. Again it is difficult to comprehend that a person appointed for a fixed term of seven days would be asked to undertake such a task. This is not to suggest Mr Smilek and other employees may not have been asked to ensure they did advise management of any such activities they observed at the Hostel in the course of their employment. I therefore find that it is highly unlikely any report by Mr Smilek into dealing in illicit drugs at the Hostel exists. As such I find that such documents have not been misplaced.

[50] As to the ‘security guard’s book’, the documents attached to the affidavit of Mr Broers show conclusively that Mr Smilek was employed as a Night Attendant, not a security guard. There would be no need to comply with any legislation relating to the details to be kept by a security guard. For this reason I find that there was no security guard’s book as alleged by Mr Smilek.

[51] As to the small spiral notebook produced by Mr Smilek, this notebook has been in his personal possession since 2007. There is no way in which the authenticity of the notebook and the dates of entries can be verified. I have accorded it no weight in reaching my decision.

[52] I therefore reject Mr Smilek’s submission that documents have been lost by AHL or that the internal mail system was tampered with.

The date Mr Smilek’s employment concluded

[53] On the basis of my findings with respect to the alleged lost paperwork I find that the material submitted in the affidavit of Mr Broers constitutes the relevant paperwork in relation to the employment of Mr Smilek.

[54] I therefore find that Mr Smilek was employed on a fixed term contract as a full time, non-ongoing employee for the period 19 July - 25 July 2007 at the William T Onus Hostel. Mr Smilek was employed as a Night Attendant.

[55] No explanation is given as to why Mr Smilek did not work on 23 and 24 July but worked on 26 and 27 July 2007. I accept that Mr Smilek’s last shift concluded on morning of 28 July 2007.

[56] There is no evidence that Mr Smilek was employed in any capacity by AHL after the conclusion of his shift on 28 July 2007. I have found above that there is no evidence of the existence of any other documents relating to Mr Smilek’s engagement beyond those attached to Mr Broers’ affidavit and there is no evidence of documents lost by AHL or the Commission Registry that would support Mr Smilek’s assertion that he was employed beyond the conclusion of his shift on 28 July 2007.

[57] I therefore find that Mr Smilek’s employment ended 28 July 2007 at the conclusion of his shift which commenced on 27 July.

[58] It therefore follows that I do not accept that Mr Smilek’s employment ended on 18 October 2012.

The manner in which Smilek’s employment concluded

[59] Mr Smilek was employed pursuant to a fixed term contract. For some reason he worked two days beyond the end of that contract. Mr Smilek could not say why he had not worked two days he was contracted to work but then worked two additional days. Whilst Mr Smilek rejects the proposition I expect his employment extended for two days because he participated in a ‘shift swap’ with another Night Attendant.

[60] Mr Smilek’s employment either ended due to the expiration of his fixed term contract or it ended when his employment ceased on 28 July 2007.

[61] AHL submits that Mr Smilek’s employment was not terminated by the employer but rather that his employment came to an end at the expiration of his contract.

[62] In either event Mr Smilek is excluded from access to unfair dismissal proceedings.

[63] If Mr Smilek’s employment came to an end in July 2007 as stated by AHL then the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the Transitional Act) and the Workplace Relations Act 1996 (the WR Act) are applicable to the determination of this matter.

[64] Item 11(1) of Schedule 2 of the Transitional Act provides:

11 Conduct before repeal—WR Act continues to apply

Conduct before repeal

(1) The WR Act continues to apply, on and after the WR Act repeal day, in relation to conduct that occurred before the WR Act repeal day.

[65] An application that could have been made before the WR Act repeal day can, by virtue of Item 12 of Schedule 2 of the Transitional Act be made to Fair Work Australia(now the Commission).

[66] If Mr Smilek’s employment came to an end in July 2007 the applicable legislation under which to consider his application is the WR Act.

[67] Section 643 of the WR Act relevantly provides

643 Application to Commission to deal with termination under this Subdivision

(1) Subject to subsections (5), (6), (8) and (10), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:

(a) on the ground that the termination was harsh, unjust or unreasonable; or

...

(6) An application under subsection (1) must not be made on the ground referred to in paragraph (1)(a), or on grounds that include that ground, unless the employee concerned had completed the qualifying period of employment with the employer at the earlier of the following times:

(a) the time when the employer gave the employee the notice of termination;

(b) the time when the employer terminated the employee’s employment.

(7) For the purposes of subsection (6), the qualifying period of employment is:

(a) 6 months; or

(b) a shorter period, or no period, determined by written agreement between the employee and employer before the commencement of the employment; or

(c) a longer period determined by written agreement between the employee and employer before the commencement of the employment, being a reasonable period having regard to the nature and circumstances of the employment.

[68] I am satisfied that Mr Smilek’s employment ended due to the expiration of his contract. Even if he was employed until the morning of 28 July 2007 (which I accept), his employment still ended due to the expiration of his contract and not by any action taken by AHL. Further, even if his employment came to an end by the actions of AHL, Mr Smilek would not have met the qualifying period to be eligible to make an application for unfair dismissal because of the restriction in s.643(6) of the Act.

[69] There is no evidence that Mr Smilek was employed beyond his shift which commenced on 27 July 2007. He did receive a payslip from AHL in 2012 that related to payment made to him in 2012 to rectify an error made in 2007. The payment of a superannuation contribution to Mr Smilek sometime after his employment ended is not evidence that he was employed after 2007. I accept the evidence of Mr Broers that the payment was made as a result of the resolution of the question of whether Mr Smilek was entitled to superannuation for the period worked.

[70] I therefore reject Mr Smilek’s submission that his employment ended on 18 October 2012.

[71] I find that Mr Smilek’s application is beyond jurisdiction in that his employment was not terminated by the employer or, if it was, he has not completed the required qualifying period to make him eligible to make an application for unfair dismissal.

Consideration of an extension of time is unnecessary

[72] AHL have made further submissions that the application made by Mr Smilek was made 1898 days late and that an extension of time to make such an application should not be granted. This is based on a dismissal date of 25 July 2007 with the application being made on 30 October 2012.

[73] Mr Smilek did not indicate he wished to make an application for an extension of time. This is understandable as he says his employment was terminated by AHL on 18 October 2012. Nothing was put to me by Mr Smilek that would allow me to determine that special circumstances exist 18 such that an extension of time should be granted.

[74] An application for an extension of time only needs to be considered if I find that the Applicant is otherwise eligible to make an application under s.643 of the WR Act.

[75] Even if Mr Smilek’s employment was terminated by the employer I have found above that he has not served the necessary qualifying period to enable him to make an application to the Commission. It is therefore not necessary to consider if an extension of time should be granted.

[76] I therefore find that I do not need to consider if an extension of time should be granted.

Conclusion

[77] Taking into account all of the matters I have considered and the full extent of the material filed by the parties I find that the Commission does not have the necessary jurisdiction to consider the application made by Mr Smilek.

[78] Mr Smilek’s application is therefore dismissed. An order to this effect shall be issued in conjunction with this decision.

COMMISSIONER

Appearances:

P. Smilek on his own behalf.

C. Dowsett of Counsel with B Canning.

Hearing details:

2013.

Melbourne;

15 March.

 1   Exhibit AHL1, attachment MB1.

 2   Exhibit AHL1, attachment MB2 is the complete AWA.

 3   Exhibit S4.

 4   Exhibit S3.

 5   Transcript PN210.

 6   Exhibit S4.

 7   Exhibit S7.

 8   Exhibit S8.

 9   Exhibit S9.

 10   Transcript PN466.

 11   Transcript PN470-1.

 12   Transcript PN789.

 13   Exhibit AHL4, paragraph 14.

 14   Exhibit AHL5, attachment CC1.

 15   Exhibit AHL5, attachment CC3.

 16   Exhibit AHL5.

 17   See in particular transcript PN1160. See also transcript PN873, 894, 951, 977, 1052, 1068, 1076, 1114.

 18   See Brodie-Hans v MTV Publishing Ltd (1995) 67 IR 298.

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