[2016] FWC 2509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Stuart William Harding
v
WorkPac Pty Ltd
(C2015/5874)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 20 APRIL 2016

Application to deal with contraventions involving dismissal – extension of time – application made within time.

[1] Mr Stuart Harding (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 31 August 2015 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by WorkPac Pty Ltd (WorkPac – the Respondent) on 7 August 2015 in contravention of the general protections provisions of the Act.

[2] As the application had been lodged three days outside the statutory timeframe for lodgement, the Commission issued Directions on 11 September 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue. Amended Directions were issued on 8 October 2015.

[3] The extension of time issue was the subject of a telephone hearing on 2 November 2015. At the telephone hearing, Mr Harding appeared on his own behalf, while Mr Howard Powell appeared for WorkPac.

[4] For the reasons set out below, I have concluded that Mr Harding was dismissed with effect from 11 August 2015 and that his application was therefore made within the 21 day statutory timeframe. Accordingly, it is not necessary to consider the extension of time issue. Mr Harding’s application will now be listed for a conference aimed at resolving the dispute.

Background

[5] Mr Harding commenced employment with WorkPac on 11 May 2015.

[6] After commencing his employment with WorkPac, Mr Harding was asked to provide documentation, e.g. a birth certificate or passport, confirming his right to work in Australia. Mr Harding stated in his application that while he is an Australian citizen he nevertheless applied online on 21 May 2015 to Births Deaths Marriages Victoria (BDMV) for a copy of his birth certificate. Mr Harding further stated that he had difficulty making an online payment using his credit card and that he subsequently tried to contact BDMV on a number of occasions to discuss the issue. However, as the call waiting times were in the order of 40 minutes or more Mr Harding did not hang on and therefore was unable to resolve the issue. Mr Harding further stated that he kept WorkPac abreast of his attempts to obtain a copy of his birth certificate.

[7] On 28 July 2015, WorkPac wrote to Mr Harding in the following terms:

“Dear Stuart William

YOUR RIGHTS TO WORK IN AUSTRALIA

The purpose of this letter is to notify you of a serious matter that needs to be resolved in order for you to continue working.

We have tried to contact you on numerous occasions to obtain information from you which evidences that you have a right to work in Australia. To date, we have been unsuccessful in gaining that information from you.

To explain:–

1. It is prohibited under the Migration Act 1958 to allow or refer an illegal worker to work;
2. We must ensure that each worker we employe is allowed to work in Australia;

…

6. The Department of Immigration and Border Protection has published a set of practical examples of ways in which you can check if a non-citizen is allowed to work in Australia at:

In the light of the above, and due to our numerous unsuccessful attempts to confirm your right to work in Australia, we give you formal notice that we require you to demonstrate your right to work in Australia within seven (7) days of the date of this letter.

…

If you fail to provide the necessary documentation to us within seven (7) days, we will be forced to immediately terminate your employment. Further, we will not be able to re-employ you or appoint you for any future roles unless and until you provide the necessary documentation.

It is therefore critical that you respond to this letter immediately.” 1

[8] In his application, Mr Harding annotated the above letter with the words “Did not know I had received this email as I hardly ever check my email They sent a letter copy to my old address which I had updated by SMS” 2.

[9] Mr Harding also stated in his application that in the weeks leading up to his dismissal he missed a number of phone calls from WorkPac, adding that he contacted WorkPac on 6 August 2015 when he was invited to a meeting the following day to discuss things. Mr Harding further stated that it was at that meeting on 7 August 2015 that he was dismissed.

[10] On 11 August 2015, WorkPac wrote to Mr Harding in the following terms:

“Dear Stuart

RE: Finalisation of Casual Assignment

WorkPac writes to you in relation to your current casual assignment with Glencore – Mt Isa Mines. Glencore has advised WorkPac that they no longer require you to continue this casual assignment. Therefore your casual assignment has come to an end effective today.

You are welcome to continue to liaise with our local offices to ascertain whether there are any other placements within your skill set.” 3 (Underlining added)

[11] As previously noted, Mr Harding’s general protections application was received by the Commission on 31 August 2015, which is three days outside the 21-day statutory timeframe for lodgement specified in s.366(1)(a) of the Act. In his application, Mr Harding contended that his dismissal contravened of ss.340 and 351 of the Act which deal respectively with protection concerning the exercise or non-exercise of a workplace right and discrimination.

When did Harding’s employment cease?

[12] As noted above, Mr Harding stated in his application that he had been dismissed on 7 August 2015. However, the abovementioned termination letter of 11 August 2015 states that Mr Harding’s casual assignment ended as of that date.

[13] At the telephone hearing, Mr Harding contended that when he contacted WorkPac after his meeting with it on 7 August 2015 he had been led to believe that if he could provide the necessary documentation that he might be able to get back to work the following day. Mr Harding also submitted that if 11 August 2015 was relied on as the date of his dismissal, then his application had been lodged within the 21 day timeframe.

[14] Mr Harding’s contention that he was led to believe that he may be able to return to work as a result of his discussion with WorkPac later on 7 August 2015 is indirectly supported by WorkPac’s submissions regarding the extension of time issue. Specifically, WorkPac submitted that when Mr Harding contacted it on 7 August 2015 regarding his dismissal he was advised as follows:

“… in order for the respondent to place him that he would have to provide us with documentation which shows that he has the right to work in Australia.” 4

[15] WorkPac further submitted that when Mr Harding contacted it on 10 August 2015 to dispute his dismissal he was advised that:

“… he would need to provide documentary evidence of his right to work in Australia before the respondent could consider placing the applicant again.” 5

[16] If Mr Harding had been dismissed at the meeting of 7 August 2015, it is not clear why WorkPac would have provided the above advice to him when he contacted it on 7 and 10 August 2015. More significant however, in my view, is the termination letter of 11 August 2015 which states in unambiguous terms that Mr Harding’s “casual assignment has come to an end effective today”. At the telephone hearing, Mr Powell described the termination letter as administrative and that it was sent because Mr Harding walked out of the meeting on 7 August 2015 before it had concluded. No explanation was provided as to why the letter stated that Mr Harding’s casual engagement ended effective that day (11 August 2015).

[17] The above analysis supports a finding that Mr Harding was dismissed with effect from 11 August 2015.

Conclusion

[18] Relying on 11 August 2015 as the date of dismissal, means that the 21 day timeframe for lodging a general protections application expired on 1 September 2015. As noted above, Mr Harding’s application was received by the Commission on 31 August 2015. In other words, Mr Harding’s application was made within the 21 day timeframe. As such, it is not necessary to deal with the extension of time issue.

[19] Mr Harding’s application will now be listed for a conference aimed at resolving the dispute.

1 Attachment to Form F8 – General Protections Application Involving Dismissal

2 Ibid

3 Ibid

4 Respondent’s Outline of Submissions at paragraph 17

5 Ibid at paragraph 19

Printed by authority of the Commonwealth Government Printer

Stuart William Harding v WorkPac Pty Ltd

[2016] FWC 2509

20 APRIL 2016

DECISION