Rowan Draper v Delta Facilities Management Pty Ltd T/A DeltaFM

[2017] FWC 4071

[2017] FWC 4071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rowan Draper
v
Delta Facilities Management Pty Ltd T/A DeltaFM
(U2017/5925)

DEPUTY PRESIDENT CLANCY MELBOURNE, 15 AUGUST 2017

Application for relief from unfair dismissal - application not made in accordance with the Fair Work Act 2009 - irregularity in the application waived.

[1] In his Form F2 – Unfair Dismissal Application lodged on 5 June 2017, Mr Rowan Draper alleged that the termination of his employment by The Compass Group T/A Compass Group ESSL (Compass Group) was unfair. Compass Group filed a Form F3 – Employer Response to Unfair Dismissal Application on 19 June 2017, objecting to the application on a number of jurisdictional grounds, including that it was made during Mr Draper’s notice period and prior to the effective date of his dismissal.

[2] Mr Draper stated in his Form F2 that he was notified of his dismissal on 18 May 2017 and that it took effect on 20 May 2017, while it was maintained by Compass Group as outlined in its Form F3 that it notified Mr Draper of his dismissal on 20 May 2017 and that it took effect on 18 June 2017.

[3] The matter was referred to conciliation on 3 July 2017 but it did not resolve. Following this, correspondence was sent by the Fair Work Commission (Commission) to parties on 12 July 2017 regarding the objection of Compass Group that Mr Draper’s application is invalid because it was made prior to the effective date of dismissal.

[4] This correspondence referred parties to the decision of the Full Bench of the Commission in Mihajlovic v Lifeline Macarthur 1(Mihajlovic) as authority for the proposition that the Commission has discretion to amend the application, pursuant to s.586(b) of the Fair Work Act 2009 (the Act), in “circumstances where an application has been filed before a dismissal has taken effect.” As such, parties were directed to file and serve statements, submissions and any other relevant material in support of the date upon which they say the termination of Mr Draper’s employment took effect.

Submissions of Mr Draper

[5] Mr Draper filed submissions contending that due to the manner of his termination by Compass Group, the employment relationship had “irrevocably ended” on 18 May 2017 following notification via telephone while he was on the “rest and recreation” (R&R) period of his work cycle roster. Specifically, Mr Draper submitted he was advised by members of Compass Group’s management at the Howard Springs Accommodation Village (HSAV) in Darwin that due to his services being no longer required, he did not need to return to work following the completion of that work cycle and would receive a formal notice of termination.

[6] Mr Draper submitted that following this Compass Group contacted him again by phone on 20 May 2017 to advise that contrary to previous advice, his termination had been “brought forward” and was effective immediately. After receiving a formal letter of termination the same day, Mr Draper said that David Ingram, HSAV Assistant Project Manager contacted him two days later on 22 May 2017 and reiterated that he was not required to return to work and would receive payment in lieu of serving out his four week notice period. Mr Draper asserted that while the advice from Mr Ingram was that two bags of his personal items stored in Darwin would be forwarded to him, he was directed to remove his motorcycle and bicycle from HSAV within his notice period. Mr Draper submitted that due to a subsequent cancellation of his access, he had to“request authorisation/permission to enter HSAV when I returned to Darwin from Brisbane (at my own expense) to retrieve my possessions” in order to comply with this direction from Compass Group.

[7] It was further contended by Mr Draper that despite his final work cycle “swing” being due to end on 24 May 2017, his last actual working day at HSAV was 17 May 2017, prior to commencing the R&R period. He said his understanding was that he “had 21 days to lodge an Unfair Dismissal application from this date”.

[8] Consequently, Mr Draper submitted that in the circumstances the Commission should exercise the discretion under s.586 of the Act to waive the irregularity in the form or manner in which his application was made.

Submissions of Compass Group

[9] In its response to the Commission’s direction, Compass Group submitted the following in relation to its termination of Mr Draper’s employment:

“…the effective date of dismissal was 18 June 2017 in accordance with the termination letter…the Applicant was not required to work during his notice period and was on “approved paid leave” from the date he was first advised of his termination on 18 May 2017 (confirmed in writing on 20 May 2017) until the date of termination on 18 June 2017. The fact that the Applicant was not required to attend his workplace after 18 May 2017 does not make 18 May 2017 the effective date of termination. The Respondent submits that the Applicant’s final payment of wages and entitlements was made on 20 June 2017 consistent with the date of termination on 18 June 2017.”

[10] With regard to whether the Commission should exercise its discretion pursuant to s.586(b) of the Act, Compass Group made no submissions aside from stating it is the “responsibility of the Applicant to convince” the Commission that the discretion under s.586(b) of the Act should be exercised to waive an irregularity in the form or manner in which an application is made.

Consideration

[11] The validity of unfair dismissal applications filed on a date before the dismissal has taken effect was considered by the Full Bench in Mihajlovic, where it said:

“Section 394(1) is, we consider, a procedural provision which identifies who may make an application, similar to the statutory provision considered in Emanuele v Australian Securities Commission. It does not go to the jurisdiction of the Commission to grant an unfair dismissal remedy under Part 3-2 of the Act. An application which was filed prematurely is properly to be characterised as one which was not made in accordance with s.394(1) of the Act. We do not consider that the Act evinces a purpose to render any such application automatically invalid and of no effect. Rather, the Commission is conferred with a discretionary power to dismiss such an application under s.587(1)(a), either on its own initiative or upon application. The Commission also has a discretion under s.586(b) to waive any irregularity in the form or manner in which an application is made. We consider that Mr Mihajlovic’s premature filing of his application constituted an irregularity in the manner in which he made his application capable of waiver under s.586(b).” 2

[12] In Mihajlovic, the Full Bench remitted the matter back to Vice President Hatcher to determine whether the discretion in s.586(b) of the Act should be exercised. 3 In subsequently exercising his discretion to waive the irregularity, the Vice President stated:

“[6] The practical position in the matter before me is that there is no doubt that Mr Mihajlovic is, and has been since 5 September 2013, a person who has been dismissed within the meaning of that expression in s.386 of the Act. The Commission therefore has, subject to any separate jurisdictional objection, jurisdiction to entertain his claim for an unfair dismissal remedy. There is no suggestion that the fact the application was filed prematurely has caused any prejudice to the respondent. It has necessarily been on notice at all times since his dismissal took effect that Mr Mihajlovic contested his dismissal and sought an unfair dismissal remedy. This is not a situation whereby “exceptional circumstances” have to be demonstrated in order for a waiver to be granted, by contrast to an extension of time application under s.394(3). Prima facie, there is a strong case for the waiver to be granted.

…

[8]I am not prepared to conclude that his application is without merit. Its grounds are not confined to the issue of the payment of statutory entitlements; he contends for example that there was no valid reason for his dismissal and that he was (in substance) denied procedural fairness.” 4

[13] I intend to have regard to similar considerations in determining whether to exercise my discretion to waive the irregularity in the manner in which Mr Draper’s application was made.

[14] In the circumstances of this case, there is no dispute between the parties that Mr Draper was notified of his dismissal on 18 May 2017. The termination letter dated 20 May 2017 clearly stipulated Mr Draper’s employment would terminate with effect on 18 June 2017 and that he would be on paid leave and not required to work up until that date. However, it would seem that further advice and arrangements put in place after the termination was notified led to Mr Draper’s belief that it had been with immediate effect. In this regard, Mr Draper said that after being told he was not required to return to work, Compass Group advised that two bags of his personal items at HSAV would be forwarded to him and he was then directed to remove his motorcycle and bicycle from HSAV within his notice period, despite his access being cancelled by Compass Group. Mr Draper asserted that he had to request Compass Group’s permission to enter the workplace in order to comply with this direction.

[15] As to the merits of the application, Mr Draper has filed material which addresses the reasons given by Compass Group for his termination. I am not prepared to conclude, based on the material currently at hand, that Mr Draper’s application is without merit.

[16] Finally, I note there is no suggestion by Compass Group that Mr Draper’s filing of his unfair dismissal application 13 days early has caused it any prejudice. It made no submissions in relation to the question as to whether the discretion under s.586(b) of the Act ought be exercised in Mr Draper’s favour. I have had regard to the fact that Compass Group has been on notice since the application was filed and am not persuaded that it would suffer an injustice if the application was to proceed. In considering Mr Draper’s position, I have been guided by the consideration outlined by Vice President Hatcher in Mihajlovic:

“If I were to dismiss Mr Mihajlovic’s current application, he would be compelled to make an application under s.394(3) of the Act for a further period in which to file the same application a second time. Such an application would undoubtedly be opposed by the respondent, and might well not succeed given the necessity to demonstrate exceptional circumstances. Further proceedings involving effort, inconvenience and cost to both parties would be necessary, and might result in a significant injustice being done to Mr Mihajlovic, for no discernible public policy reason. I consider this would be a perverse outcome, and that the discretion in s.586(b) should be exercised in Mr Mihajlovic’s favour.” 5

[17] In all of the circumstances of this application, I consider the discretion in s.586(b) of the Act should be exercised in Mr Draper’s favour.

Additional procedural matter

[18] In an attachment to his Form F2, Mr Draper stated that he was employed by Delta Facilities Management (DeltaFM), “a subsidiary company of Compass Group”. In the Form F3, the legal name of the Respondent was recorded as Delta Facilities Management Pty Ltd and the trading name of the business was recorded as DeltaFM. In submissions subsequently filed, Compass Group stated that Mr Draper was at all times employed by Delta Facilities Management Pty Ltd, which it referred to as being “part of the Compass Group of companies but a separate and distinct employing entity”. I have determined that it is appropriate to amend the application to record Delta Facilities Management Pty Ltd T/A DeltaFM as the Respondent and I consider my doing so comes within the circumstances in which it has been held this is possible pursuant to s.586 of theAct. 6

Conclusion

[19] Pursuant to s.586(b) of the Act, I waive the irregularity in the manner in which Mr Draper made his application for an unfair dismissal remedy. I will also allow the amendment of the application so as to record Delta Facilities Management Pty Ltd T/A DeltaFM as the Respondent, pursuant to s.586 of the Act. The matter will now be referred for further programming for its further disposition.

DEPUTY PRESIDENT

 1   [2014] FWCFB 1070.

 2   [2014] FWCFB 1070 at [42].

 3 Ibid at [44].

 4   [2014] FWC 1871.

 5 Ibid at [9].

 6   Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].

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