Barbara Renda v Eastbrooke Medical Centres

[2016] FWC 3555

[2016] FWC 3555

The attached document replaces the document previously issued with the above code on 6 June 2016.

It is amended by replacing each occurrence of the name ‘De Ticot’ with the name ‘De Picot’.

Associate to Commissioner Ryan

Dated 7 June 2016

[2016] FWC 3555

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Barbara Renda
v
Eastbrooke Medical Centres
(U2016/6324)

COMMISSIONER RYAN MELBOURNE, 6 JUNE 2016

Application for relief from unfair dismissal - jurisdictional objection - out of time.

[1] Eastbrooke Medical Centres P/L took over the business of providing practice management services to an existing medical centre at Noble Park on 1 February 2016. Ms Renda who had been employed by the previous practice management service provider at the medical centre was offered employment with Eastbrooke Medical Centres P/L at the Eastbrooke Family Clinic Noble Park. Ms Renda signed an offer of employment with Eastbrooke Medical Centres P/L on 15 January 2016 and commenced work for Eastbrooke Medical Centres P/L at the Eastbrooke Family Clinic Noble Park on 1 February 2016. Ms Renda was employed by Eastbrooke Medical Centres P/L at the Eastbrooke Family Clinic Noble Park as a casual employee.

[2] Ms Renda’s last day of work for Eastbrooke Medical Centres P/L at the Eastbrooke Family Clinic Noble Park was Friday 18 March 2016. Ms Renda was told by the practice manager on or about that date that she was not required for work in the roster period immediately following 18 March 2016. Despite requests from Ms Renda no information was given to her as to when she would next be required to work for Eastbrooke Medical Centres P/L at the Eastbrooke Family Clinic Noble Park.

[3] At no time did Eastbrooke Medical Centres P/L or any of its managers tell Ms Renda that she had been dismissed. However, after the roster period immediately following 18 March 2016 in which no hours had been allocated to Ms Renda the practice manager contacted Ms Renda, and asked her to return the keys for Eastbrooke Family Clinic Noble Park and her uniform. Ms Renda had a set of keys for the Eastbrooke Family Clinic Noble Park because her last rostered shift on Friday 18 March 2016 required her to close the business at the end of the opening hours.

[4] Ms Renda filed a Form F2 - Unfair Dismissal Application on 20 April 2016 and in her application Ms Renda identified the date on which she was notified of her dismissal as Friday 20 March 2016 and identified that the dismissal took effect when “I finished at 6pm on the same date”. In her oral evidence Ms Renda clarified that the correct date was Friday 18 March 2016.

[5] On the basis of the information in the Form F2 it appeared that the application was filed outside the 21 day time limit specified by s.394(2)(a) of the Act. The matter was then subject to Directions and a Hearing to determine whether an extension of time should be given to Ms Renda to make her unfair dismissal application.

[6] In both the Form F3 and in its written submissions in relation to the out of time matter Eastbrooke Medical Centres P/L contended that Ms Renda had not served the necessary six months minimum employment period. This matter was the subject of discussion at the hearing.

[7] At the hearing Ms Renda gave sworn evidence and was subject to cross examination from Eastbrooke Medical Centres P/L.

[8] During the hearing Eastbrooke Medical Centres P/L conceded that they were unaware
of s.384(2)(b) of the Act. S.384 provides as follows:

“384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:

(i) the employment as a casual employee was on a regular and systematic basis; and

(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and

(b) if:

(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and

(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and

(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;

the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”

[9] Eastbrooke Medical Centres P/L conceded that it had not given Ms Renda a notice in writing of the type referred to in s.384(2)(b). 1

[10] The evidence of Ms Renda was that she had been employed on a regular and systematic basis with the previous employer 2 and on commencement of work with Eastbrooke Medical Centres P/L she continued with the same rostered hours and days.3

The question as to whether Ms Renda’s unfair dismissal application was filed out of time is dependent upon the answer to other questions: Was Ms Renda dismissed? And If so, when did the dismissal take effect?

[11] Eastbrooke Medical Centres P/L in its written submissions and in the witness statement of Mr James Hacquoil, Business Manager for Eastbrooke Medical Centres P/L contended that Ms Renda was never dismissed and therefore no dismissal could take effect. Eastbrooke Medical Centres P/L contended that because Ms Renda was a casual employee then Eastbrooke Medical Centres P/L had the capacity to change the hours worked by Ms Renda. The logic of this contention is that the reduction of hours worked by Ms Renda to zero hours after 18 March 2016 is nothing more than a permitted change to the hours worked by Ms Renda.

[12] Ms Renda’s evidence was that she considered that she had been dismissed when the practice manager told her on 18 March 2016 that she did not have any rostered hours in the next fortnightly roster period.

[13] Mr De Picot for Eastbrooke Medical Centres P/L put the following proposition to
Ms Renda:

PN274. Mr De Picot:  Just so I can understand, if we had said to you, "You are dismissed", ordinarily we would say to an employee, "Please immediately return the keys to us."  That is how we would normally - a protocol would be, for security, if you have a staff member that is no longer required, we would ask them to hand back the keys immediately.  In this particular case, you had the keys with you for a period, I understand, that was after the date that you had purportedly said you were terminated, so our position would be, and it is supported by these facts, that you were still an employee; otherwise, we would have asked you to hand back the keys immediately.  Do you agree that's a fair assessment?---Ms Renda: I do, but there was nobody to hand them back to at that time.  On the Friday, when I locked up, I was the only one there.  The doctors had gone home.

[14] The concession made by Ms Renda was properly made and it is clear that Ms Renda was not dismissed on Friday 18 March 2016.

[15] The proposition put by Mr De Picot was correct, if Eastbrooke Medical Centres P/L intended to dismiss Ms Renda then they would have asked her to return the keys and her uniform.

[16] In the fortnight roster period immediately following Friday 18 March 2016 Ms Renda was employed by Eastbrooke Medical Centres P/L but without being rostered to work any hours. However, after this fortnight of no rostered hours of work, the practice manager contacted Ms Renda to ask her to return the keys and her uniform to Eastbrooke Medical Centres P/L. As Mr DeTicot made very clear:

“Ordinarily we would say to a staff member whose employment is terminated, "Please return the keys to us immediately." 4

[17] Given that this is what the practice manager demanded of Ms Renda sometime after the fortnight of no rostered hours then it is proper to conclude that in making the demand for Ms Renda to return the keys and her uniform Eastbrooke Medical Centres P/L was both dismissing Ms Renda and telling her that she had been dismissed. 5

[18] It is not necessary for the Commission to determine the exact date that the practice manager first contacted Ms Renda to require her to return the keys and her uniform. The evidence of Ms Renda is sufficiently clear that the practice manager first contacted her after the first fortnight of no rostered hours. On any reckoning this first contact could not have occurred any earlier than 1 April 2016. This first contact from the practice manager requiring Ms Renda to return the keys and her uniform constitutes the date of effect of the dismissal for the purpose of s.394(2)(a).

[19] Ms Renda filed her unfair dismissal application with the Commission on 20 April 2016 which is within 21 days after the dismissal took effect.

[20] The unfair dismissal application of Ms Renda was filed within the time specified by s.394(2)(a).

[21] The file in this matter will be subject to further proceedings as directed by the Commission.

COMMISSIONER

Appearances:

Ms B. Renda on her own behalf.

Mr J. Hacquoil and Mr A. De Picot for the Respondent.

Hearing details:

2016.

Melbourne:

27 May.

 1   Transcript at PN55 and PN56 and PN69 – PN72.

 2   Ibid at PN210.

 3   Ibid at PN218.

 4   Ibid at PN275.

 5   Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 [24] and Plaksa v Rail Corporation NSW[2007] AIRC 333 [8]; citing Barolo v Centra Hotel Melbourne Print Q9605.

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