Trevor Krupicka v Sizetrans Pty Ltd

[2016] FWC 7312

[2016] FWC 7312

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Trevor Krupicka
v
Sizetrans Pty Ltd
(U2015/16750)

DEPUTY PRESIDENT BARTEL ADELAIDE, 11 OCTOBER 2016

Termination of employment – jurisdictional objections – whether applicant dismissed.

[1] This decision concerns an application for an unfair dismissal remedy filed by Trevor Krupicka (the applicant). The Form F2 application was filed on 13 December 2015. No date of dismissal is recorded and the applicant states that he was not notified of the dismissal. According to the application, he was told by officers of the workers compensation authority that his employer had advised them that he had resigned his employment.

[2] The Form F3 Employer Response Form raises two jurisdictional objections, namely, that the applicant was not dismissed from his employment and in the alternative, if he was dismissed, the application is outside the 21 day time limit. Sizetrans Pty Ltd (Sizetrans or the employer) indicated that the applicant’s last day worked was 19 August 2015.

[3] Directions have been issued with a view to obtaining information from the applicant about his employment and the details of how and when it came to an end. On 26 February 2016 the applicant was directed to identify, among other things, when it was alleged that his employment came to an end and if the unfair dismissal application was filed more than 21 days after this date, the reasons for the delay.

[4] In a document filed on 20 March 2016, the applicant stated that:

• In August 2015 he was suffering pain at work. He provided the employer with a medical certificate dated 21/08/2015 certifying him unfit for work to 24 September 2015; 1



• The following week, in response to queries about payment of wages whilst absent from work, he was advised by Ann Viney, the Director of Sizetrans, that he was not entitled to any payments. When the applicant asked about workers compensation he was told to look it up on the computer. This was the last conversation that he had with Ms Viney;



• The applicant completed a workers compensation claim form on 8 September 2015. It was “sometime after that date” that Ms Viney advised the compensating authority that he had resigned his employment;



• He did not resign his employment;



• The 21 day rule does not apply because the applicant considers that he is still employed.

[5] During the course of one of the Directions conferences the employer agreed that the applicant could return to work once he was cleared as fit to do so. For reasons that are not clear this did not resolve the application. The matter was initially listed for a hearing in April 2016, but this date was cancelled because discussions were taking place concerning the applicant’s workers compensation claim and it was contemplated that there may be a resolution of all claims. Ultimately, these discussions resolved the workers compensation matter only.

[6] Further directions were issued on 20 July 2016, which required the applicant to file, by 8 August 2016:

• The details of how the employment came to an end, including the date it occurred, the persons involved and any other circumstances which support his contention that he was dismissed;



• If the unfair dismissal application was filed more than 21 days after the date of the alleged dismissal, the reasons why it was filed late.

[7] The matter was relisted for a hearing on 1 September 2016, but was subsequently cancelled because the applicant had not complied with the directions.

[8] I issued a further direction on 22 August 2016. The employer was required to file its submissions and material and a further period was allowed for the applicant to provide any reply. I advised the parties that on receipt of the material the Fair Work Commission (the Commission) would consider whether a hearing was required or whether the employer’s objections could be determined on the material filed by the parties. Having reviewed the material I am satisfied that the jurisdictional objections can be determined on the papers.

[9] On the applicant’s own case, he was not advised by the employer that he was dismissed. On receiving the information from officers at the compensating authority that the employer advised them that he had resigned, the applicant took no steps to speak with Ms Viney to clarify his employment status.

[10] Section 386(1) of the Fair Work Act 2009 (the Act) sets out the meaning of “dismissed” as follows:

“(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[11] The filing of the unfair dismissal application indicates that the applicant considered that he was no longer employed, despite his statement to the contrary. He regarded the alleged statement by the employer to the officers of the compensating authority as evidence of this fact. There is no suggestion by the applicant that there was any direct communication with the employer regarding his on-going employment or otherwise. In this regard I accept that the applicant did not tender his resignation to the employer.

[12] However, even if the employer did make the alleged statement to the officers of the compensating authority, which is not conceded, such conduct alone is not sufficient to bring the employment to an end, any more than if the applicant had falsely told a third party that he had been dismissed. At its highest, the conduct of the employer was ambiguous and the applicant’s decision to treat his employment as being at an end was a subjective response made unilaterally.

[13] Accordingly, the application for an unfair dismissal remedy does not meet the jurisdictional requirements of the Act. That is, I determine that the employment was not terminated at the initiative of the employer and that the applicant was not forced to resign his employment as a result of the conduct of the employer.

[14] The application is dismissed. An order to this effect is issued with this decision.

DEPUTY PRESIDENT

 1   I understand that this was linked to an injury he suffered at work in May 2015.

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