Simon Nibbs v Pilbara Logistics T/A PLWA Group

[2014] FWC 2400

[2014] FWC 2400

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simon Nibbs
v
Pilbara Logistics T/A PLWA Group
(U2013/17199)

DEPUTY PRESIDENT MCCARTHY PERTH, 10 APRIL 2014

Application for relief from unfair dismissal.

[1] Mr Simon Nibbs (the Applicant) lodged an application for unfair dismissal remedy (the Application) on 9 December 2013. He claims that he was unfairly dismissed from his employment with Pilbara Logistics Pty Ltd T/A PLWA Group (the Respondent). Neither party was represented.

[2] In the Application it states that the Applicant was notified of his dismissal on 21 October 2013 and that it took effect on 17 November 2013. Attached to the Application is a copy of the letter of termination. That letter states that the Applicant was given four weeks’ notice of termination which he was expected to work out and his last day of employment being 17 November 2013.

[3] The Respondent lodged a Response to the Application (the Employer’s Response) on 7 January 2014. The Employer’s Response states that the Applicant’s date of dismissal was 22 October 2013 and that his salary was above the high income threshold. The Respondent objected to the Application on grounds that it was lodged outside the allowable time and also on the grounds that the Applicant was not a person covered by the unfair dismissal provisions of the Fair Work Act 2009 (the FW Act) as he earned above the high income threshold and he was not covered by an award.

[4] I listed the matter for hearing as it appeared that there were factual issues in dispute, in particular it was disputed what the effective date of dismissal was and as a consequence whether the Application was lodged within the allowable time, and if it was not, whether it should be allowed.

The Evidence and Submissions

[5] The Applicant gave evidence and also provided written material. He stated that he was given his termination paperwork on 21 October 2013 which indicated his termination date was 17 November 2013. The Applicant was not cross-examined and the Respondent relied on the documentation lodged.

[6] The Respondent asserts that whilst the letter of termination states that the dismissal would take effect on 17 November 2013 it actually took effect on 22 October 2013. The Respondent submitted that it was agreed that the Applicant would not be required to work out his notice and that he was paid out notice in lieu. A copy of the Respondent’s standard termination form for the application was submitted which showed the termination was made on 22 October 2013 and final termination payments, including payments in lieu, were made in October 2013.

[7] A statutory Declaration made by the Newman Area Manager, Mr Jeremy Piwari, was submitted. Mr Piwari stated that he provided the Applicant with a letter of termination on 21 October 2013. The following day there were some interchanges between the Applicant and a supervisor which resulted in Mr Piwari having a discussion with the Applicant. The Applicant is alleged to have repeatedly stated something to the effect that “I cannot stay on site to work out my notice, I am so angry that I could smash some C...”.

[8] Mr Piwari states that he then arranged for the Applicant to go off-site immediately and agreed with him that he was not required to work out his notice. A series of email interchanges between Mr Piwari and the Applicant on 24 and 25 October 2013 were lodged which clearly support the Respondent’s contention that the Applicant was dismissed on 22 October 2013, but that payments were made to him to the period up to 17 November 2013.

[9] The Applicant approached the Fair Work Ombudsman (the FWO) after the dismissal. It appears he lodged a complaint with the FWO on 14 November 2013. The complaint made was in respect of a non-payment of redundancy. This seems to support the Respondent’s contention regarding the date of dismissal and the termination payments made and when they were made.

[10] I find that the dismissal took effect on 22 October 2013. As a consequence the Application was lodged outside of the time allowed.

[11] The FWO wrote to the Applicant on 28 November 2013 and stated that the Applicant had previously advised the FWO that he agreed to withdraw his complaint and would pursue his claim in another jurisdiction such as the Industrial Magistrates Court of Western Australia. The FWO informed the Applicant that they would be taking no further action. Importantly, the action taken by the Applicant did not involve him taking action to dispute the dismissal, rather he lodged a complaint about his asserted entitlement to redundancy payments. The reason for the delay appears to me to be a consequence of the Applicant belatedly deciding he would pursue a claim for unfair dismissal after he was unsuccessful in pursuing a claim for redundancy payments.

[12] It also seems clear enough that the Applicant first became aware of the dismissal and the date of its effect on 22 October 2013. The only action the Applicant took was to contact the FWO, but as I have found above that was not in relation to any assertion that his dismissal was unfair.

[13] I also consider that the Employer will suffer a prejudice if the Application is allowed but not in any abnormal way for matters of this nature.

[14] The merit of the Application do not weigh in favour of the Application being allowed. For example it is highly doubtful that the Applicant is protected from unfair dismissal as it appears that he was earning remuneration well above the high income threshold. The Applicant in this regard submitted that a substantial “project allowance” should be excluded from his earnings for the purpose of determining his remuneration; however in my view the allowance must be included. There was insufficient evidence to make a finding as to whether the Applicant was covered by a modern award or not, although it is likely that he was not covered.

[15] Furthermore, Mr Piwari’s account of the events of 22 October 2013 also weigh against the Applicant on the merits of his Application.

[16] I am also of the view that the fairness between the Applicant and other persons in like position weigh against the Application being allowed.

[17] I therefore find that the Application was lodged outside the time allowed and that exceptional circumstances do not exist. The Application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

S Nibbs on his own behalf.

G Selfe from the Respondent.

Hearing details:

2013.

Perth and Darwin (by telephone):

March 27.

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