| [2019] FWC 844[Note: This decision has been quashed - refer to Full Bench decision dated 26 November 2019 [2019] FWCFB 7658] |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Cameron Milford
v
Coles Supply Chain Pty Ltd T/A Coles Heathwood Distribution Centre
(C2018/4297)
DEPUTY PRESIDENT BOOTH |
SYDNEY, 19 FEBRUARY 2019 |
Application to deal with contraventions involving dismissal – date dismissal took effect – application out of time.
[1] This decision concerns the date that the dismissal of Mr Cameron Milford by his employer, Coles Group Supply Chain Pty Ltd (Coles) took effect for the purposes of s.366 of the Fair Work Act 2009 (the Act).
[2] Mr Milford contends that he was dismissed on 20 July 2018. Coles contends that he was not dismissed, but rather, as he was a casual employee, Mr Milford’s employment with them ended after he worked his last shift on 1 October 2014. Coles submits in the alternative that if he was dismissed then the date that the dismissal took effect was one of two possible dates. It was either 2 October 2014, being the day after he worked his last shift or 13 June 2016, the first date upon which Mr Cameron was told by a workers’ compensation case manager that his employment with Coles had been terminated.
[3] The date that Mr Milford was dismissed by Coles is important because Mr Milford made an application for the Fair Work Commission (the Commission) to deal with a dismissal dispute pursuant to s.365 of the Act on 5 August 2018. Mr Milford alleges that Coles engaged in adverse action, including dismissal, because he proposed to exercise his workplace rights under the Workers’ Compensation Act 2003 (Qld), the Work Health and Safety Act 2011 (Qld) and the Industrial Relations Act 2016 (Qld).
[4] If Mr Milford was dismissed on 20 July 2018 his application would have been made16 days after his dismissal. As the time limit for making such an application is 21 days from the date the dismissal took effect, Mr Milford would be within time to make his application.
[5] Mr Milford has already taken part in a conference before the Commission concerning his dispute but this was not successful in resolving the dispute. In order to progress his application pursuant to s.369 or s.370 of the Act, Mr Milford requires a certificate from the Commission pursuant to s.368(3)(a) of the Act.
[6] If Mr Milford was dismissed on 2 October 2014 or 13 June 2016 his application would have been made out of time by between approximately 2 to 4 years. If this is the case Mr Milford cannot obtain a certificate and progress his application in the absence of an extension of time being granted by the Commission pursuant to s.366(1)(b) of the Act.
[7] The focus of this decision is the date on which the dismissal took effect. If I find that Mr Milford was dismissed on 20 July 2018 then that is the conclusion of the matter as far as I am concerned and Mr Milford will be able to seek a certificate from the Commission in relation to the unsuccessful conciliation.
[8] If I find that Mr Milford was dismissed on 2 October 2014 or 13 June 2016 that would mean his application was out of time and he may make an application for an extension of time which I will deal with subsequent to this decision.
[9] In the proceedings before me on 11 December 2018, Mr Milford represented himself. Mr Rauf of Counsel represented Coles. Pursuant to s.596 of the Act I gave Coles permission to be represented by a lawyer. I considered that s.596(2) of the Act was enlivened as I was satisfied that legal representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. I decided that it was appropriate to exercise my discretion in favour of Coles’ application to be represented.
[10] For the reasons outlined below, I conclude that Mr Milford’s employment ended after his last shift on 1 October 2014 and the relevant date for determining the date on which the 21 day application period commenced is 2 October 2014. Mr Milford is out of time by 1404 days.
[11] Mr Milford began his initial period of employment with Coles on 25 March 2010. On 15 October 2010 an offer was made in writing to Mr Milford for a temporary 3-month contract as a permanent part-time employee. The offer made clear that the position was to be effective from Monday 18 October 2010 to Sunday 16 January 2011 and that “After completion of the contract as specified, you will revert to casual status, unless an extension of the contract is granted”. 1 The offer was taken up for the following 3 months and the permanent part-time role ended as anticipated on 16 January 2011. After this period Mr Milford reverted to casual employment status.
[12] Mr Milford gave written notice to terminate his employment on 11 July 2011 and advised that he would not be available for any casual work until mid-December 2011. Mr Milford was not engaged for any shifts with Coles between August 2011 and December 2011. 2
[13] On 5 January 2012 Mr Milford was again engaged with Coles as a casual employee as a store person. He completed and resubmitted all paperwork consistent with that which had been provided at the time of his initial engagement in 2010. This included a fresh tax file number declaration form on which, in answer to Question 6 which asks ‘On what basis are you paid?’ Mr Milford checked the ‘Casual employment’ box. 3
[14] From this period onwards Mr Milford was covered by the Coles Queensland Distribution Centres Enterprise Agreement (2011) (Agreement).
[15] The Agreement provides that casual workers are engaged as such, are paid at an hourly rate, and that endeavours will be made to notify casual workers of their next shift by the end of their previous shift. 4
[16] The Agreement defines a ‘Casual employee’ as follows:
“24.5.3 Every endeavour will be made to notify casuals of their next shift by the end of their previous shift, or for the afternoon shift, every effort will be made to contact them between 10am and 11am on the day they are required to work.” 5
[17] Mr Milford continued to work in his role as a store person until 24 May 2014 when he sustained an injury to his left shoulder. 6 Mr Milford was not rostered for any shifts during the period 24 May 2014 to 24 September 2014.7
[18] During the period 24 September 2014 to 1 October 2014 Mr Milford returned to work at Coles and carried out full duties in the role of store person. However by 1 October 2014 his condition had deteriorated, resulting in “the gradual escalation of pain and partial loss of function in the left arm”. 8
[19] Mr Milford was not engaged for any further shifts at Coles following the shift worked on 1 October 2014. 9
[20] Under the Coles Group Policy, Coles had a policy of issuing letters of termination to casual employees via Australia Post. 10 In the witness statement of Nicole Dodimead, the People and Culture Manager for the Coles Heathwood and Forest Lake Distribution Centres, this process is described as follows:
“16. Coles Group Supply Chain has in place a payroll system which contains various prompts and alerts. The payroll system triggers an internal system action when an employee has not worked a shift in a 90 day period. The purpose of this is to alert payroll staff to remove an employee’s details from the pay records given that they have not undertaken work for a period of 90 days. In that circumstance, the system shows that the employee’s employment has ceased (effective the last shift worked) and the employee is no longer in the pool of casual employees available to perform work at distribution centres.
17. Once the system triggers the action, the Operations Team at the relevant distribution centre is notified by way of an automatic alert and it is the responsibility of the relevant employee’s supervisor or line manager to send a letter to the relevant casual employee advising them that their employment with the company has ceased and that their details will be removed from the system.
18. On 31 December 2014, 90 days after Mr Milford’s last shift worked, Coles Group Supply Chain’s payroll system triggered an action recording on the system that his employment had ceased. The information on the database recorded that Mr Milford’s employment was terminated as at 31 December 2014 because he had not worked for more than 90 days.
19. Based on my understanding of the payroll system and Coles Group Supply Chain’s usual processes, a letter should have been sent to Mr Milford in December 2014 advising him of the fact that his employment had ceased effective 2 October 2014…” 11
[21] Mr Milford says that he did not receive such a letter and Coles was not able to produce any evidence of such a letter ever being sent. 12
[22] On 20 July 2018 Mr Milford received an email from Ms Dodimead indicating that Mr Milford was not an employee of Coles and that he had not been one since 31 December 2014. Ms Dodimead’s email outlines that the reason for termination on that date was:
“Due to you not working for a period of three (3) months prior to the termination date as per the Coles Group Policy.” 13
[23] Subsequently in her Statement, Ms Dodimead said that the payroll records mean that Mr Milford’s employment with Coles had ended on 2 October 2014, being the day after the last shift he worked at Coles, and not 31 December 2014 when his employee record automatically expired. 14
[24] Attached to Ms Dodimead’s email of 20 July 2018 was a PDF document entitled “Letter of Termination” signed by a Coles shift manager on the same date. 15
[25] Mr Milford sustained an injury to his shoulder at work on 24 May 2014.
[26] Mr Milford lodged two claims for workers’ compensation directly with Coles on 18 June 2014. One of these claims was in respect of the shoulder injury and another claim was for stress and psychological injury. Mr Milford signed a document entitled “Injury and Return to Work Information” summarising the rehabilitation policies and procedures of Coles, which included the following statements:
a. Coles will provide you with suitable duties and hours while you recover from your injury. These duties will be documented in a return to work plan.
b. You will be consulted in the identification of suitable duties and in the development of a return to work plan…
c. As your recovery progresses and your work capacity increases your RTW plan will be reviewed and upgraded towards a return to your pre-injury duties and hours.
d. Whilst your claim is being determined or if you have an accepted workers’ compensation claim, Coles must provide suitable duties as per medical guidelines
[27] The claims lodged with Coles by Mr Milford were processed by the insurer, Wesfarmers Limited (Wesfarmers), on 23 June 2014. Coles is in effect a self-insurer with Wesfarmers being an entity owned by the same company that owns Coles, Wesfarmers Limited.
[28] Mr Milford’s treating practitioner had deemed him unfit for any duties between 24 May 2014 and 4 July 2014. On 4 July 2014 the treating health practitioner issued a WorkCover Medical Certificate (WCMC) indicating that Mr Milford was fit to return to work on suitable duties. 16 Mr Milford provided the WCMC to Coles on 8 July 2014 and sought to initiate the return to work process.17
[29] Between 24 May 2014 and 24 September 2014 Mr Milford was not engaged for any shifts at Coles but liaised frequently with Wesfarmers and Coles to provide medical certificates and various statements regarding his rehabilitation progress. 18
[30] During the period 24 September 2014 to 1 October 2014 Mr Milford returned to work at Coles and carried out full duties in the role of store person. However by 1 October 2014 his condition had deteriorated, resulting in “the gradual escalation of pain and partial loss of function in the left arm”. 19
[31] On 2 October 2014 Mr Milford informed his line manager that he was not coping with pre-injury duties. He was told in response by his shift manager that he was required to obtain a medical clearance for full duties before returning to work. 20
[32] On 12 October 2014 Mr Milford was issued a medical certificate stating that he was fit for light duties. 21 Mr Milford supplied this certificate to Coles and received a reply on 20 October 2014 which reiterated that a clearance for full duties was required before Mr Milford would be able to return to the workplace.22
[33] On 3 November 2014 Mr Milford lodged a request to be returned to suitable duties with Coles in person. 23
[34] On 11 November 2014 the National Union of Workers contacted a human resources manager for Coles, Ms Rachele Moylan, to arrange a meeting to resolve the return to work dispute. 24 Ms Moylan responded to indicate that Mr Milford was required to provide a full medical clearance before resuming duties.25
[35] Between 12 November 2014 and 10 June 2016 Mr Milford continued frequently to lodge medical certificates indicating his fitness for light or suitable duties with Coles and Wesfarmers. 26 Mr Milford also frequently wrote to Coles requesting to be returned to work on suitable duties.27 This correspondence was either not responded to by Coles or a response was given indicating that Mr Milford was required to provide a full medical clearance before resuming duties.
[36] In an email dated 13 June 2016 Wesfarmers informed Mr Milford that it had been informed by Coles that Mr Milford’s employment had been terminated. 28
[37] On 21 June 2016 Mr Milford responded to this in an email to Wesfarmers and Coles as follows:
“I am seeking clarification on your correspondence dated 13 June 2016. This correspondence seems to imply that my employment with the Coles Heathwood DC has been terminated.
…
I have not received any correspondence from the employer with regards to my employment status. It is my understanding that I have not been terminated from my employment, especially since I continue to receive payments from the Coles Logistics Payroll.
I dispute the assertion that my employment has been terminated within the provisions of the Fair Work Act and the associated workplace laws. I have not received a letter of termination. I have not been afforded procedural fairness in relation to this item.
I am seeking to return to work on restricted duties. This is ultimately the aim of the Workers Compensation and Rehabilitation Act 2003. I have attached my most recent WCMC [Workcover Medical Certificate] for your records and the records of the employer.” 29
[38] Mr Milford did not receive any response to this email from Coles. 30
[39] On 1 July 2016 Wesfarmers responded to Mr Milford’s email of 21 June 2016 advising that Mr Milford was to contact Coles directly if he wished to discuss his employment status and clarifying that Mr Milford was being paid by Coles because the insurer was unable to pay him directly (as the payment must be facilitated by Coles and “this remains the case even in the event a person is no longer employed but continues to be entitled to weekly compensation). 31
[40] Mr Milford continued to provide medical certificates to Coles and to reiterate his request to return to work on appropriate duties. 32
[41] On 1 June 2018 Mr Milford wrote to the insurer to request a return to work for the purposes of participating in rehabilitation.
[42] In its response to this request on 15 June 2018 Wesfarmers again stated that Mr Milford’s employment had been terminated and a return to work with Coles was not possible. 33 Mr Milford was again advised to contact Coles directly if he wished to discuss his employment status.34
[43] On 20 June 2018 Mr Milford emailed Coles directly to renew his attempts to return to Coles for a rehabilitation program. 35 In that correspondence Mr Milford proactively provided documentation “in support of his claim that he was still an employee of the Respondent. The Applicant also raised the prospect of accessing long service leave at the appropriate time…”.36
[44] On 20 July 2018 Mr Milford received the email from Ms Dodimead referred to at paragraph [20] above.
[45] Mr Milford continued to be in receipt of weekly payments until at least 20 July 2018 and subsequent to 20 July 2018. 37
[46] In his outline of submissions on 30 November 2018 Mr Milford notes that he does not concede that he was a casual employee for the purposes of the Act or the National Employment Standards. 38 Despite this, Mr Milford conceded under cross-examination that he was a casual employee.39
[47] I find that Mr Milford was a casual employee. His engagement pursuant to the Agreement was as a casual, his employment documentation was consistent with him being a casual, his remuneration was as a casual and his pattern of employment from 2010 to 2014 was consistent with him being a casual.
[48] Coles submit that the Commission needs to be satisfied that an applicant making an application pursuant to s.365 of the Act has been dismissed and that Mr Milford was not dismissed. 40
[49] Mr Milford responds that this is not correct on the authority of the Full Bench in the decision Ms Delwyn Hewitt v Topero Nominees Pty Ltd T/A Michaels Camera Video Digital (Topero). 41
[50] Coles submit that care needs to be taken in applying the reasoning in Topero. This is because it was decided prior to an amendment to s.369 the Act that now allows a general protections application to be determined by the Commission by arbitration if the parties consent.
[51] Coles refers to the decision Hazledine v Wakerley (Hazledine) 42 in support of this argument where the Full Bench made the observation that “it is relevant to note that Topero was decided prior to the 1 January 2014 amendments to the Act, which provided for consent arbitration by the Commission of s.365 applications.”43
[52] The Full Bench in Hazeldine went on to express agreement with the analysis by Deputy President Gostencnik in Alex v Costco Wholesale Australia regarding the distinction between a jurisdictional challenge of the type considered in Topero and the contention that an application is statute barred by effect of s.725: 44
“… Here we are not concerned with whether any of the constituent elements of a cause of action under Part 3-1 of the Act are established. Rather we are concerned with whether an application under s. 365 of the Act may be made to the Commission given the prohibition in s. 725. That question goes to the jurisdiction of the Commission to deal with this application under s. 365. It does not go to any question that will determine any legal rights that the Applicant might have under Part 3-1 of the Act…” 45
[53] In light of this I consider that the reasoning in Topero remains relevant notwithstanding the amendment to the Act. The Full Bench in Topero said:
“For the reasons given we do not accept that the Commission needs to be satisfied that the applicant has been ‘dismissed’ from their employment before holding a s.368 conference. It is sufficient that the Commission has before it an application that on its face alleges a dismissal in contravention of Part 3-1.” 46
[54] I have come to this conclusion because the reasoning is confined to the conduct of a conference. I note that Mr Milford has already participated in a conference. I consider the issue of a certificate to be a corollary to the conduct of a conference and not a determinative function.
[55] The Full Bench in Topero contemplates the relevance of the applicant being dismissed in relation to a determinative proceeding. At that time the Full Bench was referring to a court proceeding but the reasoning could equally apply to a proceeding conducted by the Commission.
[56] The Full Bench said:
“A s.365 general protections court application founded upon an alleged dismissal of an employee which did not in fact involve a dismissal (within the meaning of s.365) (as the respondent contends in this case) would have no reasonable prospect of success, but despite this s.370 provides that the Commission’s role is limited to the provision of advice – no determinative role is envisaged. The s.365 application cannot be dismissed for the reason that it has no reasonable prospect of success, because this is prohibited by s.587(2)(b)…….
Once the Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful, then under s.369 the Commission is required to issue a certificate to that effect. That requirement applies even if the Commission has formed the view that there is no reasonable prospect of success and has provided advice to the parties to that effect under s.369.” 47
[57] Accordingly I consider that it is not necessary to make a finding concerning whether Mr Milford was dismissed. However it is necessary to determine the date that the 21-day time period commenced (the relevant date) for the purpose of s.366(1) of the Act which provides:
An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).
[58] I consider that the relevant date for the purpose of s.366 of the Act is the date that the employment relationship between Mr Milford and Coles ended.
[59] Coles submit:
“….given the casual nature of his engagement (which he clearly recognised and accepted in his evidence), his employment came to an end on the Applicant completing his final casual shift on 1 October 2014 (and not being engaged to undertake any work thereafter).” 48
[60] I have found that Mr Milford was engaged by Coles as a casual employee and I am satisfied that he worked his last shift at the Coles Heathwood Distribution Centre on 1 October 2014.
[61] Coles relies on the decision of Wayne Shortland v The Smiths Snackfood Co Ltd (Shortland) 49 to support the proposition that each occasion that a casual employee is engaged is a separate contract of employment. Coles says that no casual has a continuous period of engagement beyond any single engagement and a failure by an employer to re-engage a casual worker for a shift will not amount to a dismissal.50
[62] Coles submit, based on the same reasoning, that Mr Milford’s employment came to an end after his last shift on 1 October 2014.
[63] The recent Full Bench decision Construction, Forestry, Maritime, Mining and Energy Union v Noorton Pty Ltd T/A Manly Fast Ferry (Noorton) 51 supports this conclusion. The Full Bench was considering which of a number of casual employees were “employed at the time” for the purpose of a vote of employees to approve, or otherwise, an enterprise agreement. In so doing the Full bench discussed the characteristics of casual employment and the nature of the contract of employment as follows:
“[20] It is uncontroversial that all of the employees who were asked by Noorton to vote to approve the Agreement were casual employees. A casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Nor does a casual employee provide a reciprocal commitment to the employer. Irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability are the usual manifestations of an absence of a firm advance commitment.
[21] Ordinarily, the general contractual characteristics of casual employment is that a person who works over an extended period of time as a casual employee will be engaged under a series of separate contracts of employment on each occasion a person undertakes work, however, they will not be engaged under a single continuous contract of employment. There are some, albeit rare, cases where a casual employee has been found to have been engaged under a single continuing contract of employment, but the accepted orthodoxy of casual employment is the notion that each engagement is under a separate contract rather than a continuing contract of employment.
[22] Thus, a person who is a casual employee but who is not working on a particular day or during a particular period, is unlikely to be employed on that day or during that period.”
[64] And further on in the decision:
“[31] That the employer “considers” the employees are regular and systematic casual employees takes the matter no further. First, because the subjective opinion of the employer is not relevant to ascertaining objectively the nature of the employment. Secondly, that a person is engaged on a regular and systematic basis is not inconsistent with the person being a casual employee whose employment is ended at the conclusion of each engagement and relevantly was not “employed” at the time he or she was asked to vote or during the access period. There is no evidence, for example, of a firm advance commitment from Noorton to continuing and indefinite work according to an agreed pattern of work which was given to any particular casual employee. This is because there is a complete absence of any material which goes to the nature of the engagement of the casual employees at issue.”
[65] Mr Milford points to circumstances and occurrences that appear incongruous with the conclusion that his employment ended after his last shift on 1 October 2014.
[66] On 2 October 2014 Mr Milford informed his line manager that he was not coping with pre-injury duties. He was told in response by his shift manager that he was required to obtain a medical clearance for full duties before returning to work. During this exchange the shift manager offered to facilitate a medical appointment with a work-appointed doctor. 52
[67] On 12 October 2014 Mr Milford was issued a medical certificate stating that he was fit for light duties. 53 Mr Milford supplied this certificate to Coles and received a reply on 20 October 2014 which reiterated that a clearance for full duties was required before Mr Milford would be able to return to the workplace.54
[68] On 11 November 2014 a human resources manager for Coles informed Mr Milford that he was required to provide a full medical clearance before resuming duties. 55
[69] In the face of these occurrences an ordinary employee could be forgiven for being under the impression that they were still employed. However Mr Milford’s subjective belief that he was still employed by Coles is, to repeat the Full Bench in Noorton, not relevant to ascertaining objectively the nature of the employment.
[70] I conclude that Mr Milford’s employment ended after his last shift on 1 October 2014 and the relevant date for determining the date on which the 21-day application period commenced is 2 October 2014. Mr Milford is out of time by 1404 days. The troubling aspect of this conclusion is that on the evidence Coles did not make Mr Milford aware of the end of the employment relationship at this time.
[71] This is troubling to me for three reasons.
[72] Firstly, an employer ought to afford an employee, casual or otherwise, the human decency of bringing their decision to end the employment relationship to the employee’s attention; secondly, how is an employee to meet the 21-day time limit if they do not become aware of the end of the employment relationship within the 21 days; and thirdly, there is a strong line of cases in the Commission to the effect that the employment relationship is ended when the employee becomes aware of the employer’s decision to end it. 56
[73] This concept was recently considered by a Full Bench of the Commission in Mohammed Ayub v NSW Trains (Ayub) 57 The Full Bench said:
“[17] 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.
…
[36] Having regard to the language, purpose and context of s.294(2)(a) we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this. The combination of the very restricted time period to lodge an application under s.394(2)(a), together with the very high bar of “exceptional circumstances” required to be surmounted in order to obtain an extension of time to lodge an application, clearly demonstrates that it was intended that the timeframe to agitate such an application was to be strictly limited … it would require express language to justify an interpretation of the provision under which the 21-day time period allowed is further shortened because a dismissal is taken to have had effect before the employee has become aware that it has occurred. Were it otherwise, it would be possible for a dismissal with retrospective effect to be construed which significantly diminished or even entirely eliminated the time allowed for an employee to lodge an unfair dismissal remedy application.”
[74] Mr Ayub was an ongoing, not a casual, employee so the principle of this decision may not apply to a casual employee making an application pursuant to s.365 in Part 3-1 of the Act.
[75] However this principle has been applied by the Commission to ascertain the date the dismissal took effect for the purposes of s.394 in Part 3-2 of the Act in relation to certain casual employees. These are casual employees who fulfil the requirements of s.384(2)(a) of the Act – that is, the employment was on a regular and systematic basis and during the period of service the casual employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis.
[76] In the decision Matthew Reid v Broadspectrum, 58 the Commission dealt with a casual employee and found that in general terms the dismissal takes place when the employer or casual employee make it clear to the other party by words or actions that there will be no further engagements. After reviewing Shortland the Commission said:
“[60] I note that this decision was in the context of the provisions of the Act dealing with the period of employment necessary to be protected from unfair dismissal. It does however provide some insight into how more regular casual service and employment should be treated in relation to circumstances which might be said to represent a dismissal. That is, in general terms, the dismissal takes place when the employer or casual employee make it clear to the other party, by words or actions, that there will be no further engagements.
…
[65] Given the length of time that Mr Reid occupied the NPI position, and the practical basis upon which it operated, the role within the NPI department at BHPB became the focus of the employment relationship. During the course of the meeting on 24 March 2014, Mr Briel informed Mr Reid that there no work available [sic]. This had the effect of confirming that Broadspectrum would not be assigning Mr Reid to that role and would continue to assign the replacement employee to the NPI role. In the particular context in which that occurred, this was, in effect, confirmation of the termination of Mr Reid’s employment. The nominal retention of Mr Reid on a list of casual employees does not change that result given the nature and focus of the employment evident here.
[66] I am satisfied that Mr Reid was dismissed within the meaning of the Act.”
[77] Coles submit that Mr Milford’s casual employment was not regular and systematic. A wealth of material was provided to me that supports this assertion and which would allow an analysis of the kind usually carried out in a jurisdictional objection to an unfair dismissal application by a casual employee. 59 However the question was not really debated before me. Given I am considering an application under Part 3-1 of the Act rather than Part 3-2 I do not consider that this analysis would have any utility.
[78] This is because if I assume that Mr Milford’s employment met the test of s.384(2)(a) of the Act by being regular and systematic and continued until he became aware of the end of the employment relationship, he is still out of time by a significant period. This is because the evidence is clear that he became aware of the end of the employment relationship on 13 June 2016 or, at the latest, 1 July 2016. At its highest I consider that Mr Milford’s case results in the conclusion that the employment relationship ended on either of these dates.
[79] As stated in paragraphs 35 and 38 above, on 13 June 2016 Wesfarmers told Mr Milford that it had been informed by Coles that his employment had been terminated. 60
[80] On 1 July 2016 Wesfarmers told Mr Milford that he was being paid by Coles because the Wesfarmers was unable to pay him directly. 61
[81] The authorities cited concerning an employee becoming aware of the employer’s decision to end the employment relationship do not rely on the receipt of a letter from the employer. This is a narrow and unnecessarily restrictive interpretation of the authorities.
[82] To repeat what was said by the Full Bench in Ayub:
“…we do not consider in relation to either question that the provision should be interpreted or applied so that the 21-day period to lodge an application for an unfair dismissal remedy could begin to run before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this.”
(my emphasis)
[83] Mr Milford was made aware on 13 June 2016 and again on 1 July 2016 that his employer had ended the employment relationship. Mr Milford had a responsibility to make enquiries about his situation once he was on notice that an associated entity to his employer regarded it as at an end.
[84] Coles could have, and arguably should have, been more proactive in communicating the situation to Mr Milford before 20 July 2018.
[85] Coles’ lack of response to Mr Milford’s many communications has made this case more difficult than it needed to be. More importantly it has made Mr Milford’s life more difficult than it should have been. But Mr Milford cannot escape the responsibility he had to engage with the information he was provided. His failure to do so does not result in 20 July 2018 being the date his employment relationship ended.
[86] I find that Mr Milford’s application pursuant to s.365 of the Act is out of time.
[87] Section 366(2) of the Act reads as follows:
The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
[88] Mr Milford may make an application for an extension of time pursuant to s.366(2) of the Act.
[89] Directions in relation to submissions concerning an application will be issued if Mr Milford advises that he wishes to pursue this application.
DEPUTY PRESIDENT
Appearances:
Mr C Milford on his on behalf.
Mr B Rauf of Counsel and Ms N Dodimead for the Respondent.
Hearing details:
2018.
Brisbane:
11 October.
Final written submissions:
For the Applicant, 17 January 2019.
For the Respondent, 1 February 2019.
<PR704792>
1 Statement of Nicole Dodimead dated 19 October 2018 – Attachment ND-3.
2 Statement of Cameron Milford dated 30 November 2018 at [56].
3 Statement of Nicole Dodimead dated 19 October 2018 – Attachment ND-3.
4 Coles Queensland Distribution Centres Enterprise Agreement (2011) – Clause 6.3 and 24.5.3.
5 Coles Queensland Distribution Centres Enterprise Agreement (2011) – Clause 24.5.3.
6 Form F8 filed by Cameron Milford dated 5 August 2018.
7 Statement of Cameron Milford dated 30 November 2018 at [89].
8 Form F8 filed by Cameron Milford dated 5 August 2018.
9 Statement of Cameron Milford dated 30 November 2018 – Attachment CM-2014B-06.
10 Statement of Cameron Milford dated 30 November 2018 – Attachment CM-2018-18.
11 Statement of Nicole Dodimead dated 19 October 2018.
12 Transcript of 11 October 2018 PN73, PN392.
13 Statement of Nicole Dodimead dated 19 October 2018 – Attachment ND-3; Statement of Cameron Milford dated 30 November 2018 – Attachment CM-2018-03.
14 Statement of Nicole Dodimead dated 19 October 2018 – Attachment ND-3.
15 Statement of Nicole Dodimead dated 19 October 2018 – Attachment ND-12; Statement of Cameron Milford dated 30 November 2018 – Attachment CM-2018-08.
16 Statement of Cameron Milford dated 30 November 2018 – Attachment CM-2014A-14.
17 Statement of Cameron Milford dated 30 November 2018 – Attachment CM-2014A-16.
18 Statement of Cameron Milford dated 30 November 2018 – Attachment CM-2014A-08, CM-2014A-27; Transcript of 11 October 2018, PN734 – PN741.
19 Form F8 filed by Cameron Milford dated 5 August 2018.
20 Statement of Cameron Milford dated 30 November 2018 – Attachment CM-2014B-06; Transcript of 11 October 2018 PN550, 782.
21 Statement of Cameron Milford dated 30 November 2018 at [105], Attachment CM-2014B-10.
22 Form F8 filed by Cameron Milford dated 5 August 2018; Statement of Nicole Dodimead dated 19 October 2018 at [30].
23 Transcript of 11 October 2018, PN811.
24 Statement of Cameron Milford dated 30 November 2018 – Attachment CM-2014B-17.
25 Statement of Cameron Milford dated 30 November 2018 – Attachment CM-2014B-17.
26 Statement of Cameron Milford dated 30 November 2018 at [172], [174] and Attachments CM-2014B-17, CM2014B-20, CM2015-15, CM2015-14, CM2015-28, CM2015-34; CM-2016-01, CM-2016-03, CM-2016-05, CM-2016-07, CM-2016-08.
27 Statement of Cameron Milford dated 30 November 2018 – Attachments CM-2015-14, CM-2015-19, CM-2015-28; CM-2015-36, CM-2015-37, CM-2015-39, CM-2015-40, CM-2015-42, CM-2016-01, CM-2016-08
28 Form F8 filed by Cameron Milford and attachments dated 5 August 2018; Exhibit M1 at [203]; Statement of Cameron Milford, dated 30 November 2018 – Attachment CM-2016-12.
29 Statement of Nicole Dodimead dated 19 October 2018 – Attachment ND-14.
30 Transcript of 11 October 2018, PN557, 661.
31 Exhibit M1 at [206]; Statement of Cameron Milford dated 30 November 2018 – Attachment CM-2016-14.
32 Form F8 filed by Cameron Milford dated 5 August 2018; Transcript of 11 October 2018 PN996 – 1010.
33 Form F8 and attachments filed by Cameron Milford dated 5 August 2018.
34 Statement of Cameron Milford, dated 30 November 2018 – Attachment CM-2018-02.
35 Form F8 filed by Cameron Milford dated 5 August 2018.
36 Form F8 filed by Cameron Milford dated 5 August 2018.
37 Transcript of 11 October 2018, PN561-562.
38 Statement of Cameron Milford dated 30 November 2018 at [9](e), [57](d); Transcript of 11 October 2018, PN583.
39 Transcript of 11 October 2018, PN664-688.
40 Respondent’s submissions regarding jurisdictional objection dated 19 October 2018 at [4].
43 [2017] FWCFB 500 at [6].
44 [2017] FWCFB 500 at [14].
45 [2014] FWC 1904 at [11].
46 [2013] FWCFB 6321 at [50].
47 [2013] FWCFB 6321 at [34].
48 Respondent’s closing submissions dated 4 January 2019 at [4].
50 Respondent’s submissions dated 19 October 2018 at [7] – [8].
52 Applicant’s submissions, dated 30 November 2018 – Attachment CM-2014B-06.
53 Form F8 filed by Mr Milford dated 5 August 2018.
54 Form F8 filed by Mr Milford dated 5 August 2018; Statement of Nicole Dodimead dated 19 October 2018 at [30].
55 Statement of Cameron Milford dated 30 November 2018 – Attachment CM-2014B-17.
56 See for example Mr Peter Mihajlovic v Lifeline Macarthur [2013] FWC 9804.
59 See for example a copy of Mr Milford’s earnings history provided in the Statement of Nicole Dodimead dated 19 October 2018 – Attachment ND-9.
60 Form F8 and attachments filed by Mr Milford dated 5 August 2018; Exhibit M1 at [203]; Statement of Cameron Milford dated 30 November 2018 – Attachment CM-2016-12.
61 Exhibit M1 at [206]; Statement of Cameron Milford, dated 30 November 2018 – Attachment CM-2016-14.
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