Wayne Dower v Beeston Investments Pty Ltd T/A Port Butchers
[2016] FWC 2870
•6 MAY 2016
| [2016] FWC 2870 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Wayne Dower
v
Beeston Investments Pty Ltd T/A Port Butchers
(U2016/4095)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 6 MAY 2016 |
Application for relief from unfair dismissal - extension of time not granted.
[1] Mr Wayne Dower alleged that the termination of his employment by Beeston Investments Pty Ltd T/A Port Butchers, in Portarlington, was unfair.
[2] Port Butchers says that it did not dismiss Mr Dower. It says Mr Dower abandoned his employment on or about 26 December 2015 and further, he attended the work premises in Portarlington on 28 December 2015, advised that he had had enough, was moving to Ballarat and demanded immediate payment of all his entitlements.
[3] Mr Dower completed his Form F2 – Unfair Dismissal Application form (Application form) on Thursday 21 January 2016. He says he sent it via express post 1 but it did not arrive in the Melbourne registry of the Fair Work Commission until Wednesday 27 January 2016.
[4] In the Application form, Mr Dower answered questions 1.2-1.4 as follows:
- “1.2 What date were you notified of your dismissal? There has been no written warnings or written termination notices.”
- “1.3 What date did your dismissal take effect? (unofficially, the 27th day of December 2015)”; and
- “1.4 Are you making this application within 21 calendar days of your dismissal taking effect? No.”
[5] Having answered those questions in this way, Mr Dower’s unfair dismissal application was considered not to have been lodged within the 21 day timeframe outlined in s.394(2)(a) of the Fair Work Act 2009 (Cth) (the FW Act) and he was advised by letter dated 4 February 2016 that the Commission was required to hold a conference/hearing to determine whether an extension of time for the lodgement of his application would be allowed.
[6] On 16 February 2016, the Commission issued Mr Dower and Port Butchers with requirements to file and serve material. The application was allocated to me and I dealt with it by conducting a determinative conference on 11 March 2016.
Preliminary procedural matter
[7] In the Application form, Mr Dower named ‘Port Butchers T/A Beeston Investments’ as the Respondent. At the conference, Mr James Beeston, the sole shareholder and director, confirmed that the Respondent is in fact ‘Beeston Investments Pty Ltd T/A Port Butchers.’ I amended the Application to this effect at the hearing and I note my doing so comes within the circumstances in which it has been held this can be done pursuant to s.586 of the FWAct. 2
Was Mr Dower dismissed?
[8] In the normal course of events, the Commission can extend time for the lodging of an unfair dismissal application if it is satisfied, having considered the evidence and submissions at an Extension of Time Conference/Hearing, that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters outlined in ss.394(3)(a)-(f) of the FW Act. Only if it is satisfied that there are exceptional circumstances can the Commission then exercise its discretion to decide whether to extend time.
[9] Although Mr Dower gave the answer “(unofficially, the 27th day of December 2015)” when answering question 1.3 in the Application form that asked for the date his dismissal took effect, in his subsequent Outline of Argument and evidence at the conference, he claimed that he was not notified of his dismissal by Port Butchers until 16 January 2016. He said the notification occurred when he opened his mail following a two week holiday in Tasmania and discovered he had received a one page document from Mr Beeston. 3
[10] In Burns v Aboriginal Legal Service of Western Australia (Inc.), 4 the Full Bench of the Australian Industrial Relations Commission held that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.
[11] The document Mr Dower received, which he included with the Application form, was entitled ‘Wayne Dower – Separation Payment’. It recorded 14 December 2014 as the ‘Date of Employment’ and 27 December 2015 as the ‘Date of Separation’ and contained further details:
- An annual leave entitlement of 4 weeks’ pay plus 17.5% loading;
- Weekly pay for the leave entitlement inclusive of 17.5% loading as being $1,851.80 gross and $1,360.80 net;
- Annual leave amount due for 4 weeks as being $5,443.20;
- An amount of $1,200.00 as having been ‘paid on 2 January 2016’;
- An amount of $4,243.20 as having been ‘paid on 7 January 2016’; and
- No further amount being owed.
[12] However, Port Butchers has alleged that Mr Dower abandoned his employment on or about 26 December 2015 and then, on 28 December 2015, advised that he had had enough and demanded to be paid out all of his entitlements ahead of a move to Ballarat.
[13] As a result, the question arises as to whether the termination of Mr Dower’s employment comes within the definition of “dismissed” for the purposes of Part 3–2 of the FW Act. Section 386 of the FW Act provides:
“386 Meaning of dismissed
(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.”
[14] If Mr Dower was not dismissed by Port Butchers, there is no jurisdictional basis for him to pursue his unfair dismissal application.
[15] The particular circumstances of this case, outlined in paragraphs [3]-[5] above, and the clear dispute between the parties about the nature of the termination of the employment relationship between Port Butchers and Mr Dower have resulted in me having to make a finding on a question that goes to the heart of the merits of the unfair dismissal application. This is not the usual course in an Extension of Time Conference/Hearing.
[16] In Kyvelos v Champion Socks Pty Ltd, 5 an application brought under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth), the Full Bench of the Australian Industrial Relations Commission enunciated why evidence on the merits of the application is rarely called at an extension of time hearing:
“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those
issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.” 6[my emphasis]
[17] In Kyvelos, the Full Bench found it was not open for the Commissioner at first instance to make a finding that the substantive application had no merit because the witness statements in that matter were unsworn and the declarants were not cross-examined. As such, in that case, it was held there remained the possibility that when all of the evidence was in, the appellant might have persuaded the Commissioner that her selection for redundancy, allegedly having been based on her performance, was unfair. The Full Bench held it was because of this possibility that the appellant's case on the merits could not be dismissed at that stage. 7
[18] This application is distinguishable from Kyvelos. Mr Dower and Port Butchers both led evidence and had the opportunity to cross-examine each other on the question of whether or not Mr Dower’s employment was terminated at the initiative of Port Butchers.
[19] While this is a question going to the heart of the merits of the unfair dismissal application, it was also central to the determination of this application for an extension of time. If Mr Dower’s employment was terminated at the initiative of Port Butchers, his unfair dismissal application was made within time. If it was not, there is no jurisdictional basis for him to pursue his unfair dismissal application.
[20] It was not in dispute that Mr Dower had pre-approved annual leave for the period from Monday 4 January 2016 – Friday 15 January 2016. 8 Mr Dower’s evidence was that on Monday 28 December 2015, he approached Mr Beeston about his holiday pay.9 Mr Dower stated that during this conversation, Mr Beeston told him he would not get holiday pay until he got back from holidays. Mr Dower responded by saying that he would contact the Fair Work Ombudsman.
[21] However, Mr Beeston gave evidence that while Mr Dower was expected to attend work on and from 26 December 2015, he did not attend the work premises until 28 December 2015. Mr Beeston stated that when he did so, Mr Dower was in a distressed and agitated state, explained that he had had enough and would not be working anymore and said he was going to move to Ballarat. 10 Mr Dower denied saying anything about leaving.11
[22] Mr Beeston said the discussion then turned to paying Mr Dower out and there was a debate about the entitlement to 17.5% loading that resulted in Mr Dower becoming angry and demanding immediate payment of his ‘entire’ four weeks plus 17.5% loading. 12 Mr Beeston said Mr Dower wanted to be paid out all his entitlements immediately but he paid him $1,200 cash and said he would work out the correct figures before depositing them into Mr Dower’s bank account.13
[23] Mr Dower said he took personal leave from 26 December 2015 until the commencement of his annual leave with the knowledge of Mr Beeston and that he was not required to attend for work. 14
[24] Mr Beeston’s evidence was that there was no discussion about personal leave and nor was there any agreement for Mr Dower to take it. 15
[25] Mr Beeston’s position was that on 28 December 2015, the discussion was about Mr Dower being paid out all of his entitlements and his intention to no longer work for Port Butchers. 16 As at that date, Mr Dower had been employed by Port Butchers for just over a year and had not yet taken annual leave.17
[26] Mr Beeston said that the two weeks leading up to Christmas and the week after were very busy times, particularly because Port Butchers was located in a coastal town. Mr Dower’s advice that he was leaving for Ballarat was a concern to Mr Beeston because he did not know what he was going to do in terms of staffing the business. 18
[27] There was contact between Mr Dower and Mr Beeston via text messages on 5 January 2016. Mr Dower said he tried to get his holiday pay while he was on holidays and gave evidence he sent Mr Beeston a text message on 5 January 2016, 19 the content of which was recorded in a handwritten note.20 The text message included the assertion that he had not been paid his four weeks annual leave, informed Mr Beeston that he had been in contact with the Fair Work Ombudsman and contained the demand that it be paid, together with loading, by close of business on 6 January 2016. Mr Dower said he received payment within 48 hours of contacting the Ombudsman.21
[28] Mr Beeston gave evidence that he sent a text message in response 22 stating that he would pay Mr Dower his separation entitlement including 17.5% loading and that Mr Dower was required return the shop keys immediately and vacate the rented premises.23
[29] Mr Dower confirmed he received this text message from Mr Beeston. 24 When it was put to him that he replied shortly after, he firstly claimed he did not get the text until a few days later and then he claimed he could not remember sending a reply.25 Mr Beeston produced a screenshot of the reply Mr Dower sent shortly after receiving his text message.26
[30] Mr Dower’s position was that he intended to return to work on Monday 18 January 2016 and submitted the allegation that it was his decision to leave or ‘abandon’ Port Butchers was not sustainable given he had left his tools of trade worth thousands of dollars at the Port Butcher’s premises. 27 Mr Beeston stated that an arrangement was made for Mr Dower to collect his tools but Mr Dower had not done so.28 This situation had persisted as at the date of the conference.
[31] It was also apparent that Mr Dower had rented a residence adjoining the business premises that was owned by Port Butchers. There was conflicting evidence about whether or not Mr Dower had paid the required rent to Port Butchers. Mr Dower said that he had paid four weeks rent in cash prior to going on holidays while Mr Beeston claimed that Mr Dower had not paid rent on or after 14 December 2015. 29 This was communicated in Mr Beeston’s text message to Mr Dower on 5 January 2016.30 Mr Dower did not say that he had paid the $1,000 prior to going on holidays when he replied to that text message but instead asserted that Mr Beeston could not evict him without twenty-eight days’ notice and other formalities.31
[32] Port Butchers also alleges that as of 5 January 2016, Mr Dower’s facebook page listed his occupation as ‘former manager/operator at Port Butchers’. 32 Ms Johnson gave evidence that she was instructed by Mr Beeston to and did take the screenshot of Mr Dower’s facebook page on 5 January 2016 which revealed this. Mr Dower declined to ask Ms Johnson any questions33 but responded by stating that he had not updated his facebook page and this description could have been there for twelve months.34 He submitted that a simple omission when entering one’s occupation on a facebook profile could result in it being listed as ‘former’.35 The evidence given regarding Mr Dower’s facebook profile does not form part of the reasoning for my finding below.
[33] Mr Beeston said the final separation payment to Mr Dower was made on 7 January 2016. 36 Mr Dower acknowledged receiving the sum of $4,243.20 into his bank account within 48 hours of the text messages of 5 January 2016.37 This was the sum outlined in the ‘Wayne Dower – Separation Payment’ document that he claims notified him of his dismissal on 16 January 2016. It was said to equate to four weeks of annual leave plus loading, less the $1,200 payment already made. As referred to above, Mr Dower had demanded payment for four weeks’ annual leave in his text message of 5 January 2016.
Finding on whether or not Mr Dower was dismissed
[34] I am not satisfied that Mr Dower’s employment was terminated at the initiative of Port Butchers. Having considered the evidence, I am satisfied that Mr Beeston paid out Mr Dower’s accrued four weeks’ of annual leave via an initial payment of $1,200 and subsequent bank deposit on 7 January 2016, in response to Mr Dower’s advice on 28 December 2015 that he had had enough, that he would not be working anymore and that he was going to move to Ballarat.
[35] I am not persuaded that there was an agreed or approved period of personal leave prior to the commencement of Mr Dower’s pre-approved two weeks of annual leave on 4 January 2016. Mr Beeston denied any such arrangement and the evidence was that Mr Dower demanded payment for four weeks annual leave in his text message of 5 January 2016. Having then been employed for just over twelve months and not having previously taken annual leave, I am satisfied that Mr Dower would have had an accrued entitlement to four weeks annual leave at that time.
[36] Mr Dower acknowledged receiving the sum of $4,243.20 into his bank account within 48 hours of the text messages of 5 January 2016. 38 This was the sum outlined in the ‘Wayne Dower – Separation Payment’ document that he claims notified him of his dismissal on 16 January 2016. It was said to equate to four weeks of annual leave plus loading, less the $1,200 he had already been paid.
[37] I am not persuaded that Mr Dower held the belief either at 5 or 7 January 2016 that his employment at Port Butchers was ongoing. In his first text message to Mr Beeston on 5 January 2016, he demanded payment for his four weeks annual leave. He raised no issue when Mr Beeston advised him by reply text message that he intended to pay Mr Dower his ‘separation entitlement including the 17.5% loading’.
[38] At the conference, Mr Dower was asked to explain what he understood the four weeks payment was for and he stated that two weeks of the four weeks’ payment was for annual leave and one week was for personal leave. When asked what the payment of the fourth week was for, his explanation was it was ‘a bit of extra money for me because I was on holidays.’ 39
[39] I find this explanation from Mr Dower unconvincing. The evidence was that there had been disagreement over the timing of annual leave payments, the entitlement to 17.5% loading and allegations and counter allegations regarding the payment of rent. Having regard to these circumstances, I am not persuaded that Mr Beeston would nevertheless have been minded to pay Mr Dower something akin to a bonus.
[40] I prefer Mr Beeston’s evidence that he paid the ‘separation entitlement including the 17.5% loading’ equating to the balance of four weeks’ annual leave in response to Mr Dower’s request, first made on 28 December 2015 when he had advised he was leaving Port Butchers and followed up by text message on 5 January 2016. 40 Mr Beeston proceeded to pay the balance of Mr Dower’s accrued annual leave on 7 January 2016 and once this occurred, Mr Dower did not contact Mr Beeston again.
Conclusion
[41] As I have found that Mr Dower was not dismissed by Port Butchers within the meaning of s.386 of the FW Act, there is no jurisdictional basis for him to pursue his unfair dismissal application. It is therefore not necessary for me to otherwise deal with his application for an extension of time for the lodgement of his application.
[42] Mr Dower’s unfair dismissal application, including his application for an extension of time, is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr W Dower on his own behalf.
Mr J Beeston on behalf of the Respondent.
Hearing details:
2016.
Melbourne:
March 11.
1 Transcript PN 126 and 208.
2 Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 (unreported, Catanzariti VP, Harrison SDP, Bull C, 12 May 2015) at [28].
3 Transcript PN 70-78 and PN 94-96.
4 (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24].
5 Print T2421.
6 Ibid at [14].
7 Ibid at [13].
8 Transcript PN 322-329.
9 Transcript PN 68 and 110-114.
10 Transcript PN 447.
11 Transcript PN 184.
12 Transcript PN 447.
13 Transcript PN 488-491.
14 Transcript PN 296-305, 387 and 310-311.
15 Transcript PN 451,457 and 484-485.
16 Transcript PN 451.
17 Transcript PN 507-508.
18 Transcript PN 447 and 546-548.
19 Transcript PN 367.
20 Exhibit A1.
21 Transcript PN 104-108.
22 Exhibit R2.
23 Transcript PN 552-560.
24 Transcript PN 566.
25 Transcript 581 and 583.
26 Exhibit R3.
27 Transcript PN 128-130 and 158.
28 Transcript PN 451.
29 Transcript PN 215-217, 225 and 235.
30 Exhibit R2.
31 Exhibit R3.
32 Exhibit R1.
33 Transcript PN 677.
34 Transcript PN 687.
35 Exhibit A3.
36 Transcript PN 599.
37 Transcript PN 367.
38 Transcript PN 367.
39 Transcript PN 399.
40 Transcript PN 495.
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