Application by Elley Rudebeck

[2016] FWC 8870

[2016] FWC 8870

FAIR WORK COMMISSION

INTERIM DECISION

Fair Work Act 2009

s.225—Enterprise agreement

Application by Elley Rudebeck
(AG2016/5365)

COMMISSIONER GREGORY MELBOURNE, 9 DECEMBER 2016

Application for termination of the RK and NK Pty Ltd Employee Collective Agreement 2006.

Introduction

[1] This matter concerns an application made on 29 August 2016 by Ms Elley Rudebeck to terminate an agreement that has passed its nominal expiry date. The Agreement is the RK & NK Pty Ltd Employee Collective Agreement 2006 1 (“the Agreement”) and covers employees working at four Subway stores in the Geelong region. The stores are located in the Geelong CBD and at Torquay, Grovedale and Ocean Grove. The Agreement, which was entered into in 2006, has long since passed its nominal expiry date of 10 August 2011.

[2] The application was set down for hearing on 28 September 2016. However, on 14 September 2016 the Commission was contacted by Dr. Rama Karthikeyan, who indicated he was a “Management Representative of the Company.” He advised that Ms Rudebeck was terminated by the Respondent on 26 August 2016, 3 days prior to this application being lodged. He continued to indicate, “It is our position that at the time the applicant made the application she was not an employee and therefore not party to the agreement. It is our understanding that she cannot make an application for termination of the agreement for this reason.” 2 He now sought advice from the Commission about how it intended to deal with the application.

[3] The Commission subsequently contacted Ms Rudebeck and she took issue with the claim she was no longer employed by the Respondent at the time she made the application. The Commission then confirmed with both parties that the hearing on 28 September 2016 would proceed. The parties were also advised that the proceedings would primarily concern the threshold issue raised about whether Ms Rudebeck was employed by the Respondent at the time she made the application.

[4] Ms Rudebeck appeared on her own behalf. Dr Karthikeyan appeared on behalf of the Respondent.

The Issues to be Determined

[5] The relevant provisions of the Fair Work Act 2009 (Cth) (“the Act”) are as follows:

“225 Application for termination of an enterprise agreement after its nominal expiry date

If an enterprise agreement has passed its nominal expiry date, any of the following may apply to the FWC for the termination of the agreement:

(a) one or more of the employers covered by the agreement;

(b) an employee covered by the agreement;

(c) an employee organisation covered by the agreement.”

226 When the FWC must terminate an enterprise agreement

If an application for the termination of an enterprise agreement is made under section 225, the FWC must terminate the agreement if:

(a) the FWC is satisfied that it is not contrary to the public interest to do so; and

(b) the FWC considers that it is appropriate to terminate the agreement taking into account all the circumstances including:

(i) the views of the employees, each employer, and each employee organisation (if any), covered by the agreement; and

(ii) the circumstances of those employees, employers and organisations including the likely effect that the termination will have on each of them.”

227 When termination comes into operation

If an enterprise agreement is terminated under section 226, the termination operates from the day specified in the decision to terminate the agreement.”

[6] Therefore, given the threshold issue that has been raised by the Respondent the Commission is first required to be satisfied, before proceeding further to deal with the application, that the Applicant, Ms Rudebeck, was “an employee covered by the agreement” at the time she made the application on 29 August 2016.

The Evidence and Submissions

[7] Ms Rudebeck provided a Statutory Declaration, dated 29 August 2016, with her application. It refers to the public interest considerations that the Commission must have regard to and states that termination of the existing agreement, “… would allow for a new agreement to be formed between the employer and employees. Existing employees would be covered by the Fast Food Industry Award 2010 in the period between termination and any new agreement being made. It would increase the chances that a new agreement would be formed productively by both parties.” 3

[8] The declaration also refers to the requirement to consider the circumstances of the parties covered by the Agreement, including the likely effect of termination, and states:

“We would be able to negotiate a new agreement that would give a fair compensation working weekends and public holidays, for which we currently receive no penalty rates. It would also allow us to negotiate an agreement that more comprehensively covers the practices present in the current workplace, rather both than those that were present 10 years ago when the agreement was made.” 4

[9] Ms Rudebeck also indicated in her oral submissions that she has reviewed the existing Agreement and compared it with the terms of the Fast Food Industry Award 2010, 5 and there are several significant differences. For example, the Agreement does not distinguish between full and part-time employment, and does not provide for penalty rates for work on public holidays, at weekends, or in the evenings. In addition, no travel reimbursement is provided when employees are asked to work at a store other than the one in which they are normally located.

[10] Ms Rudebeck was also asked by the Commission about how it could satisfy itself about the requirement in s.226 to take account of the views and circumstances of employees covered by the Agreement, and the likely effect that termination of the Agreement would have on them. Ms Rudebeck indicated, in response, that she was unsure about how this requirement could be satisfied, and had spoken with other employees but they were reluctant to come forward. She understands that there are approximately 40 to 50 employees working across the four different Subway outlets in Geelong, Torquay, Ocean Grove and Grovedale.

[11] Dr Karthikeyan indicated, in response, that his submissions were primarily directed at whether Ms Rudebeck was employed by the Respondent at the time the application was made. He said that on 24 August 2016 the Respondent decided to end Ms Rudebeck’s employment because she was often unavailable to work her nominated shifts, and it prepared a letter of termination on the following day. On Friday, 26 August 2016, the Store Manager, Mr Venky Natarajan, met with Ms Rudebeck and gave her the termination letter. On the following day a copy of the letter was sent to the person who deals with payroll matters, requesting that Ms Rudebeck’s termination payments be finalised.

[12] Ms Rudebeck then came to the store on 3 September 2016, apparently to return the keys. She had previously indicated she was not available to work on that day and therefore had no other reason to be at the store. She was told not to enter the store and to leave the keys at the front.

[13] Dr Karthikeyan also indicated in response to a question from the Commission that Ms Rudebeck had worked for the Respondent for approximately 3 years, and worked primarily on weekends. He also provided copies of various documents to the Commission. The first was the letter of termination dated 26 August 2016. The next was a copy of a note dated 27 August 2016 which states, “ATTN Book Keeping, Ellie Rudebeck has been terminated. Please process her final pay.” The third document was an email from Ms Rudebeck, which had been previously provided to the Commission, and a response to that email sent by the Respondent to Ms Rudebeck. The content of those emails are set out below. The first was sent by Ms Rudebeck to the Subway outlet in Geelong on 5 September 2016.

“To whom it may concern,

I was informed on Saturday the 3rd of September by my manager, Venky, that my employment was to be terminated. To date I have received no formal written notification of this fact, only a very confusing conversation on the date mentioned. Can you confirm the status of my employment, and if you intended to terminate it, please provide me with the written notice required to the appropriate routes.” 6

[14] The following email was sent to Ms Rudebeck on the following day by Ms Nalini Karthikeyan on behalf of the respondent.

“Dear Elley,

I don’t understand why you are confused about the termination of your employment and what additional paperwork you are expecting and what you mean by appropriate routes.

In the meeting held with you on the 26th of August 2016, your Manager, Venky, clearly notified you that your employment was terminated as of that day. The details of your termination is contained in the termination letter that was given to you by Venky in that meeting. I am not sure what other paperwork you are expecting. There is no other paperwork until your final pay is processed, which will provide payslips detailing your termination pay. Also, this is the appropriate route as Venky has the authority to terminate your employment and due process was followed.

When you came into the store on Saturday the 3rd, Venky was under the impression that you were there to return the keys. Please be advised that while you are always welcome as a customer, you must not enter inside the store for any reason and must return the key from outside the front counter only.

We expect your final pay to be processed this Wednesday. So that your full entitlements can be paid to you, can you please return your keys to Venky at the latest by Wednesday afternoon.” 7

[15] Dr Karthikeyan indicated, in conclusion, that he was satisfied Ms Rudebeck was terminated by the Respondent on 26 August 2016.

[16] Ms Rudebeck indicated, in response, that the only meeting she attended on 26 August 2016 was the regular unpaid staff meeting held at the Store on the last Friday of each month. Other employees also attended this meeting and various topics were discussed. However, she said, “I did not leave with a termination letter because none was handed to me.” 8 She also produced text messages to her parents, which indicated she could not meet with them on August 27 2016 because she was working, and she would not have sent these messages if she was no longer employed. She then worked her usual shift from 11.00am to 5.15pm on that day, being Saturday 27 August 2016.

[17] She said there had never been any discussion about her lack of availability to work her rostered shifts, and she had only ever made changes to those shifts in accordance with the policy that applied in the Store. She also had a photo of the roster for the following weekend, taken on the morning of 31 August 2016, indicating she was rostered to work on the following Saturday, 3 September 2016. However, she was later told by other employees that this had been changed and her name blanked out on the roster sheet.

[18] When she happened to meet the Store Manager, Mr Natarajan, on 3 September 2016 he asked to meet in the food court outside the Store. He then “attempted to convince me that they had terminated my employment on 26 August which I knew hadn’t happened. And I immediately realised why they would attempting to do this, so I asked him to prove provide me with written proof of this.” 9 He said he would do so and went back into the Store, but she had not heard from him again despite being told the termination letter would be faxed to her.

[19] She then sent the email to the Respondent on 5 September 2016 that is set out above, and received the reply on 6 September 2016 from Ms Karthikeyan in the email which is also set out above.

[20] Ms Rudebeck then returned to keys to the Store on the following day, and on 8 September received an Employee Pay Slip dated 7 September 2016, which contained a payout of her unused annual leave and payment in lieu of notice.

[21] Ms Rudebeck concluded by indicating she had first seen the letter of termination, handed up in the hearing by Mr Karthikeyan, when it was provided to her by the Respondent as part of the Employer Response to a general protections application she has since lodged with the Commission on 8 September 2016. She also provided copies of an exchange of text messages between herself and the Manager of the Store at the address “Venky Subway.” The message indicates, “Hi all. Its the last friday of the month and we have staff meeting today.” 10 The message makes no reference to a meeting with Ms Rudebeck or to her employment being terminated.

[22] Ms Rudebeck submits, in conclusion, that she believes that after serving the application on the Respondent on 30 August 2016 it was now trying to backdate the date of her dismissal to 26 August 2016 in an attempt to prevent her from pursuing the application.

[23] Ms Rudebeck also provided a copy of the RK & NK Pty Ltd Employee Collective Agreement 2006. 11 It indicates it was made under the Workplace Relations Act 1996 (Cth) and has a nominal term of 5 years. It provides for what is described as permanent or casual employment, with a casual loading of 20%. It also allows for working hours to be averaged over 52 weeks, and contains no entitlement to overtime and penalty rates when “reasonable Additional Hours” are worked. It also contains no additional penalty rates for work on public holidays, or for work performed in the evenings or on weekends.

Consideration

[24] Ms Rudebeck has worked in the Respondent’s Subway outlets in a part-time role for more than 3 years, having commenced employment in May 2013. She submits she was not given any indication her employment had been terminated until she had a chance discussion with the Store Manager on 3 September 2016. She then sought to clarify her position in an email sent to the business owners on 5 September 2016. The present application had previously been lodged with the Commission on 29 August 2016.

[25] By contrast the Respondent submits Ms Rudebeck was told on 26 August 2016 by the Manager of the Store where she worked, Mr Venky Natarajan, that her employment had been terminated. She was also given a letter of termination by Mr Natarajan at the same time. However, Mr Natarajan was not able to attend the hearing, apparently due to “family reasons,” and no evidence has been provided by him in support of these submissions. Copies of text messages exchanged between Ms Rudebeck and Mr Natarajan on the day also make no reference to a meeting with her about termination of her employment, and refer instead to the regular last Friday of the month staff meeting, which staff were apparently required to attend without being paid.

[26] The termination letter dated 26 August 2016 also indicates that “your employment is terminated effective immediately.” 12 However, Ms Rudebeck then worked her normal shift on the following day, being Saturday 27 August 2016. This was not contested by the Respondent and seems entirely inconsistent with its contention that Ms Rudebeck was dismissed, with effect immediately, in accordance with a letter of termination dated 26 August 2016 that was given to her on that day.

[27] The payslip dated 7 September 2016, which contained Ms Rudebeck’s final payout of accrued annual leave and pay in lieu of notice, was not received by her until 8 September 2016. In addition, she states she only ever received the termination letter, dated 26 August 2016, when it was attached as part of the materials filed by the Respondent in response to a general protections application she has since lodged with the Commission.

Conclusion

[28] It is self-evident that ordinarily a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. However, if anything further is required to support this view then I refer to the Full Bench decision in Burns v Aboriginal Legal Service of Western Australia (Inc) 13as authority for this proposition. That decision has been followed in a number of subsequent decisions, including the recent decision of Commissioner Lee in Pope v Water Dynamics Pty Ltd.14 Similarly, where the termination of employment is communicated by letter it will generally only take effect when the letter is received by the employee.

[29] I have no reason to doubt the evidence provided by Ms Rudebeck that she was not given a letter of termination by Mr Natarajan on 26 August 2016. The fact she worked on the following day when her employment was supposed to have been terminated on the previous day, with effect immediately, provides support for this conclusion. I also have no reason to doubt she only ever saw the termination letter for the first time when it was included as part of the Respondent’s materials given to her in response to a general protections application she has since made. I also have no reason to doubt that she first discovered the Respondent intended to terminate her employment when the issue was raised by her Store Manager, Mr Venky Natarajan, during a chance meeting with him on 3 September 2016. She then took action to try and clarify the situation with the Respondent by sending the email dated 5 September 2016.

[30] In conclusion, and after having considered the submissions and evidence provided in the proceedings, I am satisfied Ms Rudebeck was “an employee covered by the agreement,” being the RK & NK Pty Ltd Employee Collective Agreement 2006, 15 at the time she made this application on 29 August 2016.

[31] Having come to this conclusion I now intend to relist the matter to give the Respondent an opportunity to provide any further submissions and evidence it wishes to provide in response to the application. This course is proposed because it is acknowledged that to date its submissions have been confined to the issue of whether Ms Rudeback was employed at the time she made the application. Ms Rudeback will also be given the opportunity to provide any further submissions in response to those provided by the Respondent.

[32] After dealing with the Respondent’s submissions and evidence I will then give further consideration to how I intend to obtain the views of the employees covered by the Agreement, including their views about their circumstances and the likely effect that termination of the Agreement would have on each of them.

[33] A Notice of Listing confirming the further hearing dates will be issued shortly.

COMMISSIONER

Appearances:

E Rudebeck on her own behalf.

Dr R Karthikeyan on behalf of the Respondent.

 1 AC301309.

 2   Email correspondence from Dr Rama Karthikeyan to Fair Work Commission, dated 14 September 2016.

 3   Form F24C Statutory Declaration of Elley Rudebeck, dated 29 August 2016 at [2.1].

 4   Ibid at [2.3].

 5   MA000003.

 6   Email correspondence from Elley Rudebeck to Subway Geelong, dated 5 September 2016.

 7   Email correspondence from Nalini Karthikeyan to Elley Rudebeck, dated 6 September 2016.

 8   Transcript at PN112.

 9   Transcript at PN126.

 10   Text message correspondence from Venky Natarajan to Elley Rudebeck, dated 26 August 2016.

 11 AC301309.

 12   Letter from Venky Natarajan to Elley Rudebeck, dated 26 August 2016.

 13 (AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24].

 14   [2016] FWC 6451.

 15 AC301309.

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