Transport Workers' Union of Australia on behalf of Paul Horvath v Startrack Express Pty Ltd
[2011] FWA 2154
•7 APRIL 2011
Note: An appeal pursuant to s.604 (C2011/4163) was lodged against this decision.
[2011] FWA 2154 |
|
DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Transport Workers' Union of Australia on behalf of Paul Horvath
v
Startrack Express Pty Ltd
(C2010/5979)
COMMISSIONER CAMBRIDGE | SYDNEY, 7 APRIL 2011 |
General protections contraventions involving dismissal – s. 366 - jurisdictional objection taken by respondent employer alleging that application was made out of time - determination of the date the dismissal took effect - effect of delay in communication of dismissal - effective date of dismissal for purposes of time limit - communication of dismissal fundamental to establish date the dismissal took effect - claim made within time - objection dismissed.
[1] This matter involves an application for Fair Work Australia (FWA) to deal with a general protections dispute involving dismissal and was made pursuant to section 365 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 20 December 2010. The application was made by the Transport Workers’ Union of Australia (TWU) on behalf of Paul Horvath, (the applicant) and named the respondent employer as Startrack Express Pty Ltd, (the employer).
[2] The application did not specify the date of the applicant’s dismissal. However an annexure to the application included that; “On 8 November 2010, the respondent wrote to the applicant (‘the termination letter’) and advised that the Applicants [sic] ‘employment with Star Track Express was terminated effective October 19 2009 due to your inability to perform duties consistent with those duties performed prior to you (sic) injury.’”
[3] The matter was listed for Conference on 10 January 2011 at which time the following appearances were recorded;
Mr S Bull from the TWU, appeared for the applicant;
Mr M Moir a barrister appeared with Mr C Nursey for the employer.
[4] During the Conference held on 10 January Mr Moir raised a jurisdictional objection on behalf of the employer. Mr Moir stated that the application had been made beyond the time limit established by section 366 of the Act. The employer asserted that the dismissal of the applicant took effect on or about 19 October 2009 and therefore the application had been made considerably outside the 60 days time limit set by subsection 366 (1) (a) of the Act.
[5] Mr Bull submitted that the dismissal of the applicant occurred on or about 8 November 2010, over a year later than the date of dismissal as contended by the employer. Further, Mr Bull submitted that even if the earlier date of dismissal was correct, FWA should allow an extension of time as there were exceptional circumstances as contemplated by subsection 366(2) of the Act. The parties agreed that the issue of the date of the applicant’s dismissal and any extension of time that might be required, was a matter that impeded discussions about any resolution of the application. Consequently the issue of the date that the dismissal of the applicant took effect required determination as a preliminary issue.
[6] Subsequently a Hearing to deal with the preliminary issue involving the date that the dismissal of the applicant took effect was held on 16 March 2011. At the Hearing Mr Moir continued his appearance for the employer and he provided evidence from three witnesses together with a witness statement from a fourth individual. Mr Bull continued his appearance for the applicant whom he called as the only witness to provide evidence against the jurisdictional objection raised by the employer.
Factual Background
[7] The employer operates an express freight business and employs approximately 4000 people nationally and about 1500 in New South Wales.
[8] The applicant was engaged as a casual freight handler from about February 2005. In January 2008 the applicant suffered a back injury at work initially rendering him totally unfit for duty. In about April 2008 the applicant returned to work performing modified (or light) duties.
[9] On 19 October 2009 the employer withdrew the modified duties on the basis of medical advice that the applicant was unable to resume his pre-injury duties. At the time the applicant attended a meeting with, inter alia, the employer's Operations Manager Mr Doug Hannan. Mr Hannan advised the applicant of the employer's decision to withdraw the modified duties and he provided the applicant with a letter dated 19 October 2009 which confirmed the employer's decision to finalise the applicant's rehabilitation program and withdraw the provision of modified duties.
[10] The letter of 19 October 2009 (which can be found at Exhibit 1- Annexure “PN2”), relevantly included the following;
“Your employment has not been terminated, but a further review will take place on 2 November, 2009. We ask for you to provide us with any additional information you would like for us to consider at this time. Compensation payments will continue to be made under the law.”
[11] The applicant did not provide any further information to the employer on or before 2 November 2009. On about 5 November 2009 the employer conducted the review as mentioned in the letter of 19 October 2009. The review involved the completion of internal documentation that confirmed the termination of employment of the applicant (Exhibit 3- Annexure DH2).
[12] The employer did not provide the applicant with any advice of the outcome of the review and the decision to terminate his employment. The applicant did not perform any further work for the employer after 19 October 2009. The applicant received weekly worker's compensation payments on and from 20 October 2009 made directly by the employer’s workers compensation insurer.
[13] In September 2010 the applicant obtained a medical certificate that cleared him to return to pre-injury duties. A dispute arose regarding the applicant’s fitness to return to pre-injury duties. On 20 October 2010 the TWU made an application on behalf of the applicant for reinstatement of an injured worker pursuant to section 242 of the Workers Compensation Act 1987 (NSW).
[14] The reinstatement of an injured worker application was the subject of conciliation proceedings before Connor C of the New South Wales Industrial Relations Commission (NSWIRC). During these proceedings the applicant apparently complained that because he had been cleared to return to work his workers compensation payments had ceased and as he had not been provided with an employment separation certificate he was having great difficulty obtaining any unemployment benefits from Centrelink. Consequently the employer provided the applicant with a letter dated 8 November 2010 confirming his termination of employment effective October 19, 2009. In addition the employer completed an employment separation certificate dated 5 November 2010 which stated that the date that the applicant’s employment ceased was 19/10/2009.
[15] Subsequently the TWU filed the application in this matter and discontinued the reinstatement of injured worker application before the NSWIRC.
The Employer’s Case
[16] It was submitted on behalf of the employer that the date that the dismissal of the applicant took effect was 19 October 2009. Mr Moir submitted that the actions of all parties supported this proposition. Mr Moir stressed that the application made by the TWU for reinstatement of an injured worker demonstrated that the TWU had treated the applicant's employment to have ended. Further, according to Mr Moir all parties including the TWU had accepted that the applicant’s employment was terminated on 19 October 2009.
[17] Mr Moir submitted that it was relevant to note that the applicant had been engaged as a casual employee. Mr Moir acknowledged that the applicant performed duties on a regular and systematic basis. However according to the submissions of Mr Moir, the refusal of the employer to no longer offer the casual work should be properly construed to represent a dismissal. Mr Moir referred to various authorities such as the case of Ryde-Eastwood Leagues Club Ltd v Taylor (56IR 385) which he said established that a dismissal from casual employment occurs in circumstances where the employer simply no longer offers further casual engagements.
[18] Mr Moir said that in this instance the absence of any communication to the applicant from the employer advising of termination of employment did not disturb the dismissal that occurred by virtue of the actions of the employer in not providing any further casual engagements. In this regard Mr Moir submitted that although the letter of 19 October 2009 which was the last communication from the employer to the applicant, advised that the applicant’s employment had not been terminated the actions of the employer in no longer providing casual engagements overrode the contents of the letter. Mr Moir said the actions of the employer should speak louder than the particular sentence in the letter dated 19 October 2009.
[19] Mr Moir made further submissions which rejected any basis for an extension of time to be provided to the applicant. Mr Moir said that the delay was significant and there was no basis upon which to establish that exceptional circumstances existed. Mr Moir submitted that the application had been made substantially out of time and there was no basis to warrant an extension of time. Mr Moir urged that the employer's jurisdictional objection be upheld and that the application be dismissed.
The Applicant’s Case
[20] Mr Bull commenced his submissions by stating that there was no dispute that there had been a dismissal of the applicant at some time between October 2009 and November 2010. Mr Bull said that that dismissal only took effect when the applicant received formal written notification of the termination of employment. That notification occurred on about 8 November 2010. Therefore according to Mr Bull the application was made within the 60 day time limit established by subsection 366 (1) of the Act.
[21] Mr Bull mentioned that between October 2009 and November 2010 the only written communication from the employer stated that the applicant’s employment had not been terminated. According to Mr Bull the applicant was entitled to rely upon the letter from the employer of 19 October 2009. In simple terms, the applicant had no advice that in any way contradicted the contents of the letter of 19 October 2009.
[22] Mr Bull rejected the assertion that the reinstatement of injured worker application provided an implied acceptance that the applicant had been dismissed on or about 19 October 2009. Mr Bull said that the reinstatement of injured worker application had been made on the basis of a misunderstanding of the true position of the applicant at the time.
[23] The submissions made by Mr Bull asserted that the dismissal of the applicant took effect only when he was clearly told of the dismissal and that advice occurred in November 2010. Therefore according to Mr Bull the application was made within time and it should be permitted to proceed over the jurisdictional objection raised by the employer.
Consideration
[24] The issue for determination in this instance has involved the question of the date that the dismissal of the applicant took effect. That issue has attracted significant contest because of some unusual aspects connected with the dismissal of the applicant. The most notable aspect of this case involved the continuation of payments to the applicant by way of workers compensation during the extended period after which the employer claimed to have dismissed the applicant and before communication of that dismissal was made. That particular circumstance has provided for an important distinction when examining other Determinations that have made findings as to the date on which a dismissal has been held to have taken effect.
[25] It is clear that in many circumstances involving employment of casuals engaged on a regular and systematic basis a dismissal may occur when an employer ceases to provide further engagement even without any formal communication to the employee about the change to the employment. However, invariably the impact of the employer’s action in no longer providing “casual” engagements is to deprive the employee of anticipated income. It is well established that particularly for the purposes of claims for relief from unfair dismissal, action of an employer to no longer provide casual engagements to employees engaged on a regular and systematic basis will usually constitute a dismissal.
[26] Importantly in this instance payments to the applicant via workers compensation continued and there was no communication to the applicant of the decision to dismiss. This is a fundamentally different circumstance as might be faced by a casual employee engaged on a regular and systematic basis who, without communication, is no longer provided with engagements as would have been anticipated.
[27] The concepts that have been established as basis for finding that a dismissal may occur when an employer, without communication, no longer provides anticipated engagements to a casual employee do not have application in circumstances such as this case, where there was little financial impact of the employer’s action.
[28] Further, it would seem that a determination of the date that a dismissal took effect for the purposes of a statutory time limit involves different considerations from those relevant to a determination as to whether the actions of an employer did or did not constitute a dismissal. For instance, a determination that a dismissal did occur may be made without precisely identifying the date that the dismissal took effect.
[29] In addition, the most obvious anticipated effect of any dismissal would involve the loss of income occasioned by the cessation of wage or salary payments. Therefore there would be strong basis to argue that in most circumstances where there was no appreciable loss of income suffered by an employee, the most obvious anticipated effect of a dismissal was absent and therefore dismissal had not taken effect. Of course there are some circumstances where the alteration of some fundamental element of the employment relationship other than wage or salary payments can constitute a dismissal. In cases where there is an absence or paucity of clear communication of dismissal, the particular circumstances of each case will usually require careful examination before any determinations can be made as to whether a dismissal had occurred and precisely when a dismissal took effect.
[30] The question of the impact that a communication delay may have on establishing the date that the dismissal took effect for the purposes of a statutory time limit has been considered by various Courts and Tribunals and relevantly the following extract from Commonwealth of Australia (Australian Taxation Office) v Wilson,[PR901127] is noteworthy:
“[11] Counsel for the Commonwealth referred us to a number of authorities but conceded that there are few on point. One decision which appears to us to bear directly on the issue is Transport Workers' Union of Australia v National Dairies Limited (1994) 57 IR 183. In National Dairies Keely J, sitting in the Industrial Relations Court of Australia, was required to decide whether the employment in question terminated before or after the date on which legislation providing statutory remedies for unfair dismissal commenced to operate. In the course of his judgment His Honour said:
"It was accepted by the respondent's counsel, for the purpose of the present hearing, that the employer's letter of purported termination was not received by the applicant until 30 March 1994. In my opinion the mere posting of the letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee. I am unable to uphold the respondent's submission that the intention of the legislature was to make it a contravention of the Act for an employer to perform actions "pursuant to which the employer seeks to terminate an employee even if that wish is never communicated to the employee ie even if a letter of termination posted by an employer is never received by the employee.""
With respect we agree with His Honour's conclusion. Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee. Those circumstances did not, however, exist in this matter and we therefore refrain from further discussion of the point.”[Emphasis added]
[31] The impact of communication delay of dismissal is further summarised in the case of Makenja v Baptist Community Services,[2007] AIRCFB 38 wherein at paragraph [18] it was stated:
“Normally a termination of employment would not “take effect” before it was communicated to the employee concerned, although that may not always be the case.”
[32] It would seem therefore that the correct approach to the determination of the date that a dismissal took effect would involve a factual finding based upon general application of a number of guiding concepts. Firstly, any failure to communicate a decision to dismiss an employee will usually mean that the dismissal would not have taken effect. Secondly, it does not necessarily follow that in the absence of communication of dismissal there has not been a dismissal; rather, the dismissal has just not taken effect unless and until it has been communicated to the employee. Thirdly, in some circumstances particularly involving casual employment, it is conceivable that a dismissal might occur and never be communicated to the employee. The date that such a dismissal might take effect would likely be the time at which the employee could reasonably treat the actions of the employer as dismissal. Fourthly, these concepts should not be regarded as rules that have some universal application but instead represent guides to any consideration having regard to the particular circumstances of each case.
Conclusions
[33] By way of application these guiding concepts to the circumstances of this case I have reached the following conclusions.
[34] There was no dismissal of the applicant on 19 October 2009. This finding is well supported by the contents of the letter given to the applicant at that time and the evidence provided by Mr Hannan; see in particular PN 301 of transcript.
[35] The employer decided to dismiss the applicant on or about 5 November 2009 when Mr Hannan completed the internal termination advice document (Exhibit 3 - Annexure DH2). The dismissal of the applicant could be held to have occurred on 5 November 2009 but in the absence of any communication of that decision to the applicant it did not take effect at that time.
[36] The TWU application for reinstatement of an injured worker made to the NSWIRC on 20 October 2010 could represent the date on which the applicant has, in the absence of communication, treated the actions of the employer to represent dismissal from employment. If this be the case, then 20 October 2010 could be held as the date that the dismissal took effect by virtue of the applicant treating the employer’s action as representing dismissal. If this scenario was correct then the application in this matter would have been filed one day after the 60 day time limit.
[37] However the evidence disclosed that the TWU made the application to the NSWIRC on the assumption that the applicant had been dismissed at some earlier time. It was only during the proceedings before the NSWIRC that the TWU was alerted to the absence of communication regarding the dismissal, said to have occurred on or about 19 October 2009. The applicant gave evidence that at that time, circa October 2010, he relied upon the contents of the letter of 19 October 2009 from the employer as support for his belief that he had not been dismissed from employment and that he understood that the TWU application to the NSWIRC was directed at a return to duties as opposed to any re-establishment of the employment.
[38] Consequently I do not think that the application for reinstatement of an injured worker, made on behalf of the applicant, was an action of the applicant, as opposed to the TWU, which consciously treated the actions of the employer as representing dismissal and thus created the date of effect of the dismissal. In any event, if this was the case the application would be only one day late and the exceptional circumstances of this matter would easily permit such a short extension of time.
[39] The employer’s manifest failure to communicate the decision to dismiss made on about 5 November 2009 to the applicant until about one year later represents the crucial element of support for the factual finding required in this instance. The dismissal of the applicant took effect on or about 8 November 2010 when the applicant was provided with an employment separation certificate and written advice of dismissal.
[40] Consequently the application has been made within 60 days after the date that the dismissal took effect. If however, these conclusions are wrong and the dismissal of the applicant did take effect on or about either 19 October or 5 November 2009 or 20 October 2010, then I believe that the absence of perhaps the most usually expected effect of dismissal, loss of income, would establish the exceptional circumstances necessary to provide an extension of time.
[41] Therefore the application was either made within time or an extension of time should be allowed. The employer’s jurisdictional objection must be rejected. The matter will be listed for further Conference upon written request of the applicant. Such request is to be made within 14 days from the date of this Decision.
COMMISSIONER
Appearances:
Mr S Bull from the Transport Workers’ Union of Australia for the applicant.
Mr M Moir of counsel, appeared with Mr C Nursey for Startrack Express Pty Ltd.
Hearing Details:
16 March 2011, Sydney.
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