Mr Daniel Laidlaw v The Trustee for TF and CA Pickering Family Trading Trust T/A Biloela Dry Cleaners and Laundry Service (U2014/7188)  FWC 3069. Asbery, DP, 26 June 2015.
This matter whilst dealing with a jurisdictional matter relating to whether the applicant’s employment was in fact terminated, had a couple of interesting aspects that are worthy of mention.
Firstly, the employer sought and was granted permission to appear, and for witnesses to give evidence, by telephone. The DP found that to do otherwise would have been required to close down its business to attend the hearing. The ex-employee was offered the opportunity to appear by telephone but elected to appear in person. [Ed: Whilst I agree with the pragmatism of this new system of telephone justice, I do wonder about the transparency. Eg: swearing in witnesses? Who is actually in the room – a “paid agent” maybe? Body language cannot be determined.]
Secondly, according to the DP there was no dispute that the ex-employee was dismissed by one person then the decision was reversed by another.
“I do not accept this submission for two reasons. Firstly, once Mr Stephens dismissed Mr Laidlaw, the contract of employment was terminated. Once terminated, the contract of employment could not unilaterally be revived; that is, Mr Pickering could not reinstate that contract of employment without the agreement of Mr Laidlaw. Mr Laidlaw did not agree.
The decision of Birrell v Australian National Airlines Commission supports this proposition. In that matter, a decision of his Honour Justice Gray, after reviewing the limited authorities, his Honour stated:
“These authorities all support the view that unilateral withdrawal of a notice of termination of a contract of employment is not possible. In principle, this conclusion must be correct.”
The ex-employee was found to be (a) dismissed and (b) unfairly dismissed and awarded $5,625 less tax.
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