William Millar v Buslink Sunshine Coast Pty Ltd T/A Buslink

[2017] FWC 3091

[2017] FWC 3091

FAIR WORK COMMISSION

DECISION

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

William Millar
v
Buslink Sunshine Coast Pty Ltd T/A Buslink
(U2017/1036)

DEPUTY PRESIDENT DEAN SYDNEY, 7 JULY 2017

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

[1] On 2 February 2017 the Transport Workers’ Union of Australia filed an application on behalf of Mr Millar pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy in respect of the alleged unfair dismissal of Mr Miller by Buslink Sunshine Coast Pty Ltd T/A Buslink (Buslink).

[2] In its Form F3 (Employer Response) filed on 10 March 2017, Buslink raised jurisdictional objections to the application on the grounds that:

a. Mr Miller was a casual employee;
b. he was not dismissed; and
c. the application was filed outside the 21 day period prescribed by s.394(2) of the Act.

[3] As to the third objection, Buslink argued that Mr Miller’s employment ended on 17 September 2016 at his own initiative, with the result that the unfair dismissal application was made some 117 days out of time.

[4] Mr Millar maintained that he was dismissed and his dismissal took effect on 24 January 2017 when he was advised that he would not be offered work for the school term which commenced on 23 January 2017.

[5] The matter was listed for hearing on 15 June 2017 to determine the date the employment relationship between the parties ended, and consequently whether an extension of time was necessary for Mr Millar to pursue his claim. At the hearing, Mr Millar appeared on his own behalf. Permission was granted for Mr Alex Saundry of IR Squared to appear for Buslink.

Uncontested matters

[6] Mr Millar commenced employment with Buslink as a casual driver in January 2009. He was required to work only during school terms.

[7] During his employment, Mr Millar did not perform work on several occasions including a full school term as well as shorter periods. Mr Millar referred to these periods as ‘leave’, and Buslink referred to these periods as periods that Mr Millar was not available to accept an offer of casual employment. It was agreed that Mr Millar was engaged as a casual employee, however for ease of reference in this decision I will refer to these periods ‘leave’.

[8] Prior to taking leave, Mr Millar had always submitted a form to the Operations Coordinator to provide the details of his planned leave.

[9] Approximately two weeks prior to the end of term 3, 2016, Mr Millar advised Mr B Fischer that he would be unavailable for the whole period of term 4. Mr Fischer was at the relevant time the Operations Coordinator and the person to whom Mr Millar reported.

[10] Mr Millar did not perform any work during term 4 of 2016.

[11] On 11 January 2017, Mr Millar sent an email to a general email address ([email protected]) with his renewed Interim Industry Authority which is required to drive a school bus. His email addressed to Mr Ian Philip (Operations Manager) and Mr Alan Grant (Operations Coordinator) states:

“Alan/Ian

Happy New Year to you, I trust you had a good break.

Please find attached renewed drivers authority for your records.

Having completed my leave I look forward to reporting for duty on the 23 January 2017 at 06.45.

Regards, Bill Millar”

[12] Mr Millar received no communication from Buslink regarding his return to work for term 1, 2017. On 24 January 2017 he contacted the TWU and was assisted by Mr B Berka. Mr Berka telephoned Buslink and spoke with Mr Philip. No work was offered to Mr Millar following these events.

[13] On 31 January 2017 a meeting was held between Mr Millar, Mr C Williams (TWU representative) and Mr Bertram Birk (General Manager) to discuss Mr Millar’s employment status.

[14] On 2 February 2017 the TWU filed the unfair dismissal application on Mr Millar’s behalf.

[15] On 3 February 2017 Mr Birk sent an email to Mr Millar and Mr Williams with a subject heading ‘Response to your queries’. The email began by saying: “Thank you for taking the time to come and see me on Tuesday. Following our discussions I undertook to check some information we had and provide this back to you. So, without prejudice, please see the attached advice for your consideration.” The email goes on to refer matters including Mr Millar’s leave history and the company’s position in re-engaging casual drivers after extended periods of leave. The email concluded by saying:

“I note from your leave advice last year that you stated you would not be available for ‘Term 4’, there is no comment around a return date or your intentions for 2017.

Upon speaking to Operations, I am advised that upon handing in your leave intention, you were advised that your existing run, or any other run, may not be available if you did decide to return. You acknowledged this advice.

I am still committed to offer you a driver role when this becomes available, however at this point of time, this is not possible.

I am happy for you to continue discussions with our Operations group who will be able to advise when a run becomes available.”

[16] On 2 March 2017 Mr Philip sent an email to Mr Millar offering him work for term 2, 2017. That offer was declined by Mr Millar on the basis that it was based at Caloundra Depot and was too far from his residence.

[17] A conciliation by telephone was conducted by a Fair Work Conciliator on 16 March 2017. The TWU represented Mr Miller during the conciliation process but ceased acting for him from 31 March 2017.

Issue to be determined

[18] The preliminary issue to be determined is the date that the employment relationship ended. If I find that the employment relationship ended on 24 January 2017, then Mr Millar’s application was made within the statutory time limit. If on the other hand I concur with Buslink’s contention that his employment ceased on 17 September 2016, then Mr Millar is required to apply for an extension of time.

Submissions and evidence

Mr Miller

[19] Mr Millar filed a witness statement and gave sworn evidence.

[20] In his statement Mr Millar states that since he commenced employment in 2009 he had worked on a regular and systematic basis and had expectation that his employment would be ongoing.

[21] He says that when he handed his leave form to Mr Fischer for school term 4, 2016, he told him that he might not need to take the whole term off ‘but did so for keeping it simple’ and that he would certainly be back ‘on deck’ for the start of term in January 2017.

[22] On 24 November 2016 he called Mr Grant to ‘touch base’ and confirmed his availability for 2017. Mr Grant’s response was that he would let Mr Philip know that he was looking for work.

[23] On 9 December 2017 he attended the end of term 4 employee barbeque and had a short conversation with Mr Birk. He told Mr Birk that he was looking forward to returning to work in January and Mr Birk ‘offered no response’.

[24] Mr Miller submits that at no stage since he advised Mr Fischer of his intended leave was he led to believe that his employment was jeopardized by taking leave. He was of the understanding that he would return to work in January 2017.

[25] Mr Millar submits that he was unaware that his employment was terminated until 24 January 2017 when he contacted the TWU who spoke to the respondent on his behalf and subsequently advised him that he would not be offered further employment. He submits that the application, filed on 2 February 2017, was made within 21 days of this date.

[26] Mr Millar’s oral evidence was consistent with his written statement.

[27] In cross-examination, Mr Millar agreed that he had previously taken up different bus runs after returning from leave, including temporarily filling in for other drivers, but contended that he was offered work nonetheless.

Buslink

[28] Buslink contends that there is no termination of employment at its initiative. It submits that in or around mid-September 2016 Mr Millar notified his unavailability for work for the fourth school term and this constituted a period of absence of four months and five days, being from the end of term 3 on 17 September 2016 to the commencement of term 1 on 23 January 2017. It argues that the only date on which a termination of employment could be said to have occurred is the last day Mr Millar worked for Buslink, being 17 September 2017.

[29] Buslink submits that it is not open to Mr Millar to claim that a process by which a casual employee notifies periods of ‘time off’ or ‘absence’ from being available to accept offers of work constitutes an approval for leave without evidence to show that such an approval has occurred and in particular involves agreement to return to work on a specific date.

[30] Buslink submits that a casual employee’s right to hold a reasonable expectation of continuing employment is forfeited when the employee excludes themself from regular and systematic offers of employment, which Mr Millar did from 17 September 2016 to 23 January 2017. Buslink further contends that there was no agreement that Mr Millar would return to the same regular route following this absence and that Mr Millar has failed to provide any evidence of such an agreement.

[31] Buslink submits that Mr Millar’s application was not made within time and there are no exceptional circumstances to warrant an extension of time and the application should be dismissed.

Consideration

[32] Whilst Buslink maintains that Mr Millar was not dismissed, it agreed that its employment relationship with Mr Millar had ended.

[33] Apart from Mr Millar giving evidence on his own behalf, no witness evidence was adduced by Buslink at the hearing to support its contentions.

[34] I accept Mr Millar’s evidence that following his discussion with Mr Fischer in November 2016, he believed that he would be returning work after his leave.

[35] I accept Mr Millar’s evidence that he was advised by the TWU on 24 January 2017 that he would not be offered any work for term 1, 2017, and accordingly held a belief that he was not going to be offered any further work. While I am not required to determine this issue now, I am not convinced that this is actually what was said by Buslink to Mr Berka.

[36] In the circumstances of this matter, I am satisfied and find, on the limited evidence and material before me, that Mr Millar’s employment with Buslink ended on 24 January 2017. It follows that Mr Millar’s application was made within the statutory timeframe.

[37] While I have found that Mr Millar’s application has been made within the statutory timeframe and no extension of time is necessary, I note that there remains a further significant jurisdictional hurdle for Mr Millar, that being whether he was dismissed within the meaning of s.386 of the Act. I strongly recommend that Mr Millar engage in further discussions with Buslink with the aim of resolving the outstanding differences between the parties.

[38] Given my finding above, the matter will now be referred to further hearing with respect to the remaining jurisdictional issue raised by Buslink as well as the merits of the application.

[39] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

W. Millar on his own behalf.

A. Saundry for Buslink.

Hearing details:

2017.

Brisbane.

June 15.

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