Startrack Express loses bid to get case dismissed

TWU to push for reinstatement of former Startrack Express worker after company loses bid to have the case thrown out

By Brad Gardner | April 12, 2011

The Transport Workers Union will push for the reinstatement of a former Startrack employee after the company lost its bid to have the case thrown out.

Fair Work Australia has given the TWU approval to pursue its application for Paul Horvath to resume his position as a casual freight handler after he was sacked for being unable to do his job due to a workplace injury he suffered.

Startrack Express wanted Commissioner Ian Cambridge to dismiss the application, claiming the TWU’s decision to lodge it on October 20 last year was outside the required timeframe.

Applications must be made within 60 days of a dismissal, and the freight operator claimed it terminated Horvath’s employment on October 19, 2009.

However, Cambridge found the company did not give Horvath formal written notification of his termination until early November 2010.

"The dismissal of the applicant took effect on or about 8 November 2010 when the applicant was provided with an employment separation certificate and written advice of the dismissal," Cambridge says.

"The employer’s manifest failure to communicate the decision…to the applicant until about one year later represents the crucial element of support for the factual finding required in this instance."

Furthermore, Cambridge found Horvath continued to receive workers compensation payments during the period Startrack Express claimed to have sacked him.

"Importantly in this instance payments to the applicant via workers compensation continued and there was no communication to the applicant of the decision to dismiss," he says.

In a letter dated October 19, Startrack told Horvath it was ending his rehabilitation program and stated: "Your employment has not been terminated, but a further review will take place on 2 November, 2009."

The TWU told Fair Work Australia that was the only communication Horvath received between October 2009 and November 2010. Horvath was given a medical certificate in September 2010 clearing him to return to pre-injury duties.

During proceedings, Startrack Express told Cambridge all parties knew and accepted that Horvath had been dismissed on October 19.

"There was no dismissal of the applicant on 19 October 2009," Cambridge says.

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