Valdair Rodrigues v Teys Australia Central Queensland Pty Ltd

[2017] FWC 3093

[2017] FWC 3093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Valdair Rodrigues
v
Teys Australia Central Queensland Pty Ltd
(U2017/1478)

DEPUTY PRESIDENT DEAN SYDNEY, 7 JULY 2017

Application for an unfair dismissal remedy – effective date of dismissal.

[1] On 13 February 2017 Mr Rodrigues made an application to the Fair Work Commission pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his alleged unfair dismissal by Teys Australia Central Queensland Pty Ltd (Teys).

[2] In its response filed on 22 February 2017, Teys raised a jurisdictional objection on the ground that the application was made out of time. Teys contends that Mr Rodrigues’ dismissal took effect on 21 December 2016 when it posted him a letter of termination (the Termination Letter). As a result, it argued, his application was lodged some 33 days outside the statutory timeframe. Mr Rodrigues contended that he did not receive the Letter until it was handed to him on 24 January 2017 and accordingly his application was made within time.

[3] The matter came before me for hearing by telephone on 13 and 23 June 2017 to determine the effective date of the dismissal. In determining the effective date of dismissal, I am not required to make any findings as to the merits of the application.

[4] Teys made an application on 29 March 2017 for an order for security for payment of costs but agreed not to pursue it until the Commission had determined the date of dismissal.

[5] At the hearing, both parties were granted permission to be represented under s.596 of the Act. Mr K Bressington appeared for Mr Rodrigues and Mr L Beaton appeared for Teys.

[6] For the reasons set out below, I find that Mr Rodrigues’ employment with Teys ended on 24 January 2017. It follows that Mr Rodrigues’ application was made within time and no extension is necessary.

[7] In reaching my finding, I have had regard to all materials, submissions and evidence which are relevant to the issue I am required to determine.

Background

[8] Mr Rodrigues was recruited by Teys from Brazil in May 2005 as a boner.

[9] In mid August 2016 he began to suffer pain in his right elbow and subsequently lodged a workers compensation claim with Teys’ Self-Insurance Unit in October 2016. His application was later accepted and he continued to work with Teys on modified duties.

[10] The Termination Letter sent to Mr Rodrigues on 21 December 2016 is the in the following terms:

“We write to you to advise your employment with Teys has been terminated with immediate effect.

We wrote to you on the 14^th of December 2016 to advise you to attend site for a meeting on Monday 19 December at 8.30 am to discuss your employment with Teys after you abandoned a meeting regarding your injury management plan.

When you did finally attend site on the 19^th December it was at 1 pm, four and a half hours late and while I was informing other senior staff of your presence, you left site.

Your employment is being terminated with immediate effect for failing to follow several lawful and reasonable instruction by your employer.

You will be paid your entitlements of annual leave if any remains owing to your but you will not be paid your notice period.”

[11] The Termination Letter was posted to the address that Teys HR department had recorded as Mr Rodrigues’ home address in Rockhampton, QLD (the Old Address).

[12] Teys had its annual shutdown from 23 December 2016 until 17 January 2017. On 20 January 2017 Mr Rodrigues attended the site and completed an annual induction program which had been scheduled for all employees to participate.

[13] On 23 January 2017 Mr Rodrigues was contacted by Mr Mark Bube (Human Resources Manager) and was asked if he had received the two letters from Teys, one being the Termination Letter and the other a show cause letter dated 14 December (the Show Cause Letter) directing Mr Rodrigues to attend a meeting on 19 December 2016 (together referred to as the Letters). Mr Rodrigues replied that he had not received either letter. He was then asked to meet with Mr Bube on 24 January 2017, the day he was expected to return work.

[14] At the meeting on 24 January 2017, Mr Bube handed the Letters to Mr Rodrigues. Mr Rodrigues was told that he had been terminated and was no longer required to attend the workplace.

[15] Mr Rodrigues lodged his unfair dismissal application on 13 February 2017.

Evidence and Submissions

[16] It is not disputed that the Letters were sent by post to Mr Rodrigues to the Old Address.

[17] Mr Rodrigues gave evidence that he had provided Teys with the New Address in or around September 2016, and believed that Teys had his new address since it was listed in his workers compensation application.

[18] He gave evidence that he did not receive the Letters until they were handed to him on 24 January 2017. He said he had moved from the Old Address to Wandal, QLD (the New Address) in or around mid-2016. In cross-examination he denied that his wife continued to reside at the Old Address.

[19] On 22 June 2017 a statement of Ms D Brammer was produced on behalf of Mr Rodrigues. I accepted the new evidence, despite Teys’ objection, on the basis that the Commission is not bound by the rules of evidence and that it was in the interests of a fair and just determination of the matter that all relevant evidence be considered 1.

[20] Ms Brammer gave oral evidence at the hearing on 23 June 2017 and was cross-examined by Mr Beaton. Ms Brammer’s statement says that:

a. On 20 June 2017 Mr Rodrigues visited her residence (being the Old Address) and told her that he lived there before she moved in.

b. She did not know Mr Rodrigues before this date and the unit was vacant when she moved in on 24 November 2016.

c. She gave two letters to Mr Rodrigues which she had kept since December 2016. She said that “I had meant to return them and put on the envelope ‘Return to Sender, no longer lives here’, but I put the letters aside and did not return them”.

d. She forgot about the letters until Mr Rodrigues’ visit on 20 June 2017.

[21] In cross-examination, Ms Brammer confirmed that she had never met Mr Rodrigues until he approached her in June 2017.

[22] In support of its contention, Teys filed statements of Mr Bube, Ms K Johnson (Organisational Development Manager), Mr L Clapshaw (Statutory Claims Manager), Ms Y Steele (Packer), Mr S Butler (Plant Manager), Ms YT Ngo (HR Interpreter), Ms R Lollback (HR Officer), Ms A Lauron (HR Interpreter) and Ms L Nascimento (Health and Safety Officer). Apart from Ms Johnson, Mr Clapshaw and Mr Bube, the rest of the witnesses were not required to be cross-examined.

[23] I have taken into account all evidence and submissions made on behalf of Teys and Mr Rodrigues. A large part of Teys’ evidence and submissions dealt with merit related matters and events that occurred prior to the issuing of the Letters, which are not relevant to my determination as to the date of dismissal.

Consideration

[24] In determining the effective date of dismissal for the purposes of s.394(2)(a) of the Act, I am guided by the principles set out in detail by Deputy President Gostencnik in Ilves v Lawson Worldwide Forwarding Pty Ltd 2:

“[23] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee.

[24] Section 386(1)(a) of the Act defines the term dismissed as a situation where a person’s employment has been terminated at the initiative of the employer or where a person is forced to resign as a result of some act of the employer. A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. That which will constitute ‘communicated’ for the purpose of providing notice will vary on a case-by-case basis and must be considered and applied taking in account the particular circumstances of a case.

[25] In Transport Workers’ Union of Australia v National Limited Dairies, Keely J said:

In my opinion there mere posting of the letter of termination does not in itself amount to termination of the employment of the employee concerned until its contents are communicated to the employee.

[26] In Wilson v Commonwealth of Australia (Australian Taxation Office) a Full Bench of the then Australian Industrial Relations Commission agreed with the reasoning of Keely J stating that:

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.”

[27] In Mohammed Ayub v NSW Trains (Ayub), the Full Bench noted the following:

[41] We therefore do not consider that there is any proper exception to the general proposition established by the authorities under the WR Act and the FW Act that a dismissal cannot take effect for the purposes of those statutes before it is communicated to the employee. There is little support for the existence of any such exception which may be derived from the common law. While it is not inconceivable, as earlier stated, that a contract of employment might expressly provide that it may be terminated by the employer on notice to the employee effective from a time prior to receipt of the notice by the employee, we do not consider for the reasons we have stated that any such contract could be treated as determining the date of effect of a dismissal for the purposes of s.394(2)(a). Termination of employment in accordance with such a provision would be in contravention of s.117(1). Statutory industrial instruments such as modern awards and enterprise agreements could also conceivably allow a date of dismissal which is effectively retrospective (although we are not aware of any which actually do so), but again this could not be treated as determinative of the operation of s.394(2)(a) in a particular case such as to deprive a dismissed employee of the full time period allowed by the provision. In relation to statutory provisions governing public sector employment, we have already noted what was said by the Full Bench in ATO v Wilson about the Public Service Act 1999. We do not consider that such legislation could establish an effectively retrospective date of effect of a dismissal for the purpose of s.394(2)(a) of the FW Act unless that was made clear by express words or by necessary implication. There is no such provision in the Public Service Act as it currently stands.

[42] We likewise consider that the mere delivery of a document to an employee’s usual address notifying the employee of his or her dismissal would not of itself constitute communication of that dismissal, and concomitantly the time at which the dismissal took effect, if the circumstances were that this did not constitute a reasonable opportunity for the employee to actually read the document. That is, we do not consider that s.394(2)(a) requires the strict application of a “postal delivery rule” where the employee has a legitimate explanation for not being able to read the document immediately upon delivery. The circumstances in which this may be the case are undoubtedly manifold, but for example if an employee is on an approved period of annual leave and is holidaying away from home when a dismissal letter is delivered, there is no reason to conclude that the date of dismissal is the date of delivery and not when the employee returns home and first has a reasonable opportunity to read the letter.” (citations omitted)

[25] Teys’ reliance on the provisions of the Acts Interpretation Act 1901 to effect a notice to dismiss an employee is not the correct test in effecting a dismissal for the purposes of s.394(2)(a) of the Act. As has been set out above, it is a well-accepted principle that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 3 In Ayub v NSW Trains4, the Full Bench said: “… in respect of a dismissal without notice, s.394(2)(a) is to be interpreted on the basis that the dismissal cannot not take effect for the purposes of Pt.3-2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.”5

[26] On the evidence before me, I find that the dismissal of Mr Rodrigues’ employment was ‘communicated’ to him when he was given the Termination Letter by Mr Bube on 24 January 2017.

[27] The most compelling evidence in support this finding was that of Ms Brammer. I accept her evidence that she had received the Letters, did not return them to Teys, and gave them to Mr Rodrigues in June 2017. The only conclusion that can be drawn from this evidence is that Mr Rodrigues did not receive the Letters and was therefore unaware of Teys’ intention to dismiss him.

[28] I further accept her evidence that she was residing at the Old Address from November 2016. I therefore reject the evidence of Ms Nascimento on behalf of Teys that a staff member had informed her that Mr Rodrigues’ wife was residing at the Old Address at the relevant time.

[29] I do not accept the submission of Teys that the Termination Letter was “sent to the correct and only address that the Respondent had on file (namely the Applicant’s original address) and subsequently, the Applicant was terminated on 21 December 2016 in accordance with s117(1) of the Fair Work Act…” 6. It is clear from the cases set out above that this is not sufficient to effect a dismissal.

[30] Given my finding above, I do not consider that the evidence presented by Teys in supporting its contention that it had not been given Mr Rodrigues’ new address would make any difference to the conclusion I have reached. In this regard, I do not consider it unreasonable for Mr Rodrigues to believe that if he included his New Address in his workers compensation claim, and subsequent correspondence was sent to this address, then his employer was aware of his new address. Further, I do not consider it reasonable for an employee such as Mr Rodrigues to be expected to understand the internal interactions between Teys’ HR department and its Self Insurance unit, as was suggested by Teys.

[31] There was no evidence to support a finding that Teys made any attempt to contact Mr Rodrigues on 21 December 2016 to advise him that he had been dismissed, apart from sending the Letter.

[32] Further, I find that Mr Rodrigues’ actions in January 2017 after the annual shutdown support the conclusion that he was not aware that he had been dismissed. Those actions include making contact with Teys and his attendance at the annual induction on 20 January 2017.

[33] There is no evidence to suggest that Mr Rodrigues has deliberately avoided receipt of the Letters, and I so find.

Conclusion

[34] Taking into account the totality of the circumstances in this matter, I am satisfied, and find, that Mr Rodrigues’ dismissal took effect on 24 January 2017.

[35] Mr Rodrigues’ application lodged on 13 February 2017 was made 20 days after the dismissal took effect. I find that the application was made within the time limit prescribed by the Act.

[36] The matter will be referred for hearing to determine Mr Rodrigues’ substantive application. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

K Bressington for Valdair Claus Rodrigues.

L Beaton for Teys Australia Central Queensland Pty Ltd.

Hearing details:

2017.

Brisbane and Sydney (by telephone):

June 16, 23.

 1   [2012] FWAFB 8453.

 2   [2017] FWC 2993.

 3   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) (Print T3496) at [24].

 4   [2016] FWCFB 5500.

 5 Ibid at [48].

 6   Written submissions of Teys at paragraph 10

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