Employee Applies for Unfair Dismissal Remedy

Robert Crofft v BT Transport & Logistics Pty Ltd [2022] FWC 1839 (19 July 2022)

BT Transport & Logistics Pty Ltd, the Respondent, terminated the plaintiff's employment. The plaintiff filed an application for an unfair dismissal remedy. The Court, in determining its orders, assessed if the plaintiff met the minimum employment period and whether an extension of time is warranted.

Facts:

Mr. Crofft was first employed by BT Transport on 20 August 2019. Mr. Crofft was advised of termination by BT Transport on 6 April 2022 and his employment with BT Transport ceased on 11 April 2022. In or around late August or September 2021 Mr. Crofft ceased work for the entity BT Transport and began working for another company, Mack Trans Australia Pty Ltd (Mack Trans). It is further agreed that in January 2022 Mr. Crofft ceased work for Mack Trans and recommenced work for BT Transport.

Following his dismissal from BT Transport, Mr. Crofft posted a Form F2 – Unfair dismissal application from a Western Australia (WA) post office on 23 April 2022, twelve days after the dismissal took effect. The application was then received in the Melbourne offices of the Fair Work Commission (Commission) on 9 May 2022, 28 days after the dismissal took effect, meaning the application was made outside of the time period permitted by the FW Act.

The Applicant provided a response on 23 May 2022, stating that his application had been posted on 23 April 2022, 12 days after the dismissal took effect, supporting this contention with a scanned postal receipt. This was also evidenced to the Commission by the envelope in which the application arrived, a scanned copy of which was provided to the parties on 16 June 2022, and which was marked by the postal service as having been sent from Queens Park, WA on 23 April 2022. The mailing receipt has the words “Queens Park” visible and the envelope shows 6107 as the mailing postcode, which is the postcode for several areas, including Queens Park, WA.

The Respondent submits that Mr. Crofft’s initial period of employment with BT Transport began on 20 August 2019 and ceased on 26 August 2021. They submit that neither this period nor Mr. Crofft’s period of employment at Mack Trans from September 2021 to January 2022, should be counted for the purposes of determining whether he has met the requisite minimum employment period with BT Transport. 

Issue:

Whether an extension of time should be granted in order to assist the Fair Work Commission in determining whether there were exceptional circumstances in this case.

Applicable law:

Fair Work Act 2009 s 394 - provides that a person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy. 

Fair Work Act 2009 s 382 - provides that a person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

Payroll Tax Act 2009 (SA) - provides that “Corporations constitute a group if they are related bodies corporate within the meaning of the Corporations Act 2001 of the Commonwealth”. 

Corporations Act 2001 s.50AAA(1) - provides that one entity is an associated entity of another if any of the subsequent subsections are satisfied, with subsection (2) providing that “This subsection is satisfied if the associate and the principal are related bodies corporate.”

Analysis:

On 23 April 2022, the Applicant posted his application to the Commission office in Perth. A redirection stamp masks most of the handwritten address, however, the words “Fair Work Commission” and “Perth ... 6000” are readable. The envelope containing the application was delivered on 9 May 2022 to GPO Box 1994 Melbourne, Victoria, 3001.  What occurred in between, unbeknownst to the Applicant, was the automatic redirection of the Applicant’s mailed application from the Commission’s Perth GPO Box to the Commission’s Melbourne GPO Box.   

Had the Applicant’s mailed application not been redirected it would, on the balance of probability, have been received in the Commission’s Perth office within 21 days of his dismissal taking effect. The delay, in this case, was the redirection of the Applicant’s mail from Perth to Melbourne for which he was not responsible. Mr. Crofft’s former employer, BT Transport & Logistics Pty Ltd, is owned by Tympat Holdings Pty Ltd, and its Secretary and Director are Malcolm Beattie.

Tympat Holdings Pty Ltd is owned jointly by Josh Beattie and Dion Moroney and its Secretary and Director is Josh Beattie. The Director of Mack Trans Australia Pty Ltd is Josh Beattie and its shares are owned by Josh Beattie Holdings Pty Ltd with Letcher Moroney stating Josh Beattie is the shareholder. 

The letter from Letcher Moroney states, after making reference to Mack Trans Australia Pty Ltd, BT Transport & Logistics Pty Ltd, and Tympat Holdings Pty Ltd that “The companies are grouped for payroll tax purposes from 1 July 2021”. BT Transport and Mack Trans are associated entities and when Mr. Crofft’s employment moved in August 2021 from BT Transport to Mack Trans that move was a transfer of employment for the purposes of s.22(7) of the FW Act.

Conclusion:

The Applicant is found to have served the Minimum Employment Period and an Extension of Time is granted for the filing of his s.394 application. Mr. Crofft’s application for an unfair dismissal remedy will now be the subject of programming for a hearing on its merits.