Sacked truck driver denied unfair dismissal claim against Seymour's Transport because he failed to lodge application in time
By Brad Gardner | April 22, 2010
A truck driver sacked by Seymour’s Transport has had his unfair dismissal claim thrown out because he failed to lodge it in the required timeframe.
Ernest Sydney Eastell sought a time extension to have his case heard after being told to “clean out your truck” by Seymour’s on November 25.
He lodged his claim on December 12 last year despite the Fair Work Act stipulating that claims must be made within 14 days of the termination.
Eastell argued his claim should have been assessed from December 3 because that was when he received written notice from Seymour’s that he had been fired. But Commissioner Ingrid Asbury rejected his case.
“It is apparent from Mr Eastell’s affidavit and the statements made in his application for an unfair dismissal remedy, that he was told on 25 November 2009 that his employment was terminated,” Asbury wrote in her judgement.
“Thereafter, Mr Eastell cleaned out his truck as requested, left the employer’s premises and did not attend work again. In short, all of the evidence and Mr Eastell’s conduct points to the employment relationship ending on 25 November 2009.”
Pointing to national employment standards under the Act, RSM Law, which represented Eastell, argued the termination date should have been December 3 because a company cannot fire someone until it has communicated it in writing.
Asbury dismissed the claim because the standards did not take effect until January this year, more than a month after Eastell’s sacking.
“What was required to terminate Mr Eastell’s employment was that the termination was communicated to him,” Asbury says.
Fair Work Australia can grant time extensions if it can be proved exceptional circumstances caused an unfair dismissal application to be delayed, but Eastell’s lawyers declined to pursue the matter.
This was despite the law firm’s computer system crashing on November 27 and not resuming until December 4.
“In circumstances where a legally represented applicant elects not to pursue an argument about exceptional circumstances, it would not be appropriate for the tribunal to consider whether there were such circumstances,” Asbury says.
According to court documents, Eastell believed he was fired because he delivered a bundle of timber to the wrong address the day before.
“There’s been trouble at the mill, clean out your truck and I’ll drive you home,” Seymour’s Manager Don Seymour told Eastell.
“I continued working thinking I had misheard Don Seymour. I thought he was kidding. Mr Seymour repeated the remark and I then cleaned out my truck,” Eastell says.
The Toogoolawah-based operator carries dangerous goods, general freight, containers and timber throughout Queensland and interstate.