Dr Debbie Obatoki v Mallee Track Health & Community Services
[2014] FWC 5967
•1 SEPTEMBER 2014
[2014] FWC 5967
The attached document replaces the document previously issued with the above code on 1 September 2014.
The previous Decision contained a typographical error at paragraph [31]. The final dot point now reads “three days” not “two days”.
Patti Ladd
Associate to Commissioner Blair
Dated 1 September 2014
| [2014] FWC 5967 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dr Debbie Obatoki
v
Mallee Track Health & Community Services
(U2014/6367)
COMMISSIONER BLAIR | MELBOURNE, 1 SEPTEMBER 2014 |
Application for relief from unfair dismissal.
[1] An application was lodged with the Fair Work Commission (the Commission) by Dr Debbie Obatoki (the Applicant) under s394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. The Applicant was represented by Dr Olusegun (Victor) Obatoki (Dr Victor). The respondent to the application is Mallee Track Health & Community Services (the Respondent). The Respondent was represented by Mr Ben Tallboys of Russell Kennedy Pty Ltd.
[2] It should be noted from the outset that there is no issue that the Applicant was in fact an employee of the Respondent.
[3] The matter was set down for conciliation on Friday 23 May 2014. The Commission had been advised that the parties had reached a settlement; however, due to the Applicant representing herself at the conciliation with the support of Dr Victor the Applicant applied the cooling off period and declined to accept what the parties thought was an agreed outcome.
[4] As an objection to the Commission having jurisdiction to deal with the application was raised by the Respondent on the grounds that the application was lodged more than 21 days after the dismissal took effect and also that the Applicant was not dismissed, the matter was set down for jurisdiction hearing. The application was lodged on 8 April 2014 and the Respondent alleges that the employment relationship ceased on 12 December 2013 by way of an email from the Applicant setting out her resignation.
[5] The Respondent contends that the application is well beyond the 21 day time frame allowable under s.394(2) of the Act.
[6] The Respondent provided the following arguments to support their contentions:
1. The Respondent operates a medical clinic and hospital in Ouyen, Victoria;
2. The Respondent admits that it employed the Applicant from 2009 to 12 December 2013 to provide medical services at its clinic.
3. However, that employment was not typical. Instead it was pursuant to an arrangement negotiated by Dr Olusegun Victor Obatoki (Dr Victor), the Applicant’s husband and representative in these proceedings, on behalf of the Applicant and Dove Investments (Australia) Pty Ltd (Dove Investments). Relevantly, the Applicant and Dr Victor are and were the two equal shareholders in Dove Investments, and Dr Victor is and was the sole director and secretary of the Dove Investments.
4. The effect of that arrangement was that the Applicant’s employment by the Respondent was secured on a promise that Dove Investments would reimburse the Respondent for any wages paid to the Applicant for work performed.
5. The arrangement operated effectively from 2009 until early April 2013. Dr Victor determined the Applicant’s working hours. Dr Victor prepared, signed off on and submitted the Applicant’s time sheets. The Respondent paid wages to the Applicant, and in turn was reimbursed for those wages by Dove Investments.
6. However, in April 2013 Dove Investments ceased reimbursing the Respondent for the Applicant’s wages. Despite this broken promise, the Respondent maintained the existing arrangements for the Applicant’s employment until December 2013.
7. On 11 December 2013, the Respondent’s Chief Executive Officer, John Senior (Mr Senior) met with the Applicant and indicated that the Respondent would not continue paying the Applicant as an employee while Dove investments was not reimbursing the Respondent for the Applicant’s wages as agreed.
8. On 12 December 2013, the Applicant advised the Respondent by email that she was resigning, and she confirmed that resignation by further email on 16 December.
9. On 18 December 2013, Dr Victor advised Mr Senior that the Applicant was now being engaged by Dove Investments to work at the Respondent’s premises.
10. On 19 March 2014, the Applicant emailed Mr Senior and purported to withdraw her resignation. On 1 April 2014, Mr Senior confirmed the Respondent would not consent to the resignation being withdrawn.
[7] The Respondent contends that the Applicant concedes, in her unfair dismissal application, that she resigned by email dated 12 December 2013 but then complained that she was not allowed to withdraw that resignation by email dated 19 March 2014.
[8] The Respondent further states that the Applicant now contends in her undated submissions that she was constructively dismissed on 12 December 2013 and that the dismissal did not take effect until 12 April 2014.
[9] The Respondent admits the Applicant’s first proposition and submits, consistent with the first part of the second proposition, that the effective date of the termination of the Applicant’s employment is 12 December 2013, and not 12 April 2014 as it now appears is being alleged.
[10] The Respondent admits that the factual issues relating to that timing are complicated by the Applicant’s continued presence at the Respondent’s premises after the date of her resignation, and confused references by the parties in communications in 2014 about the precise contractual arrangements in place for the Applicant’s employment.
[11] The Applicant asserts that she was constructively dismissed on 12 December 2013. This was after the suspension of her salary by the Respondent. This is documented in an email dated 12 December 2013, sent at 8.44am and addressed to Mr Senior. The email states:
“After due consideration following our discussion yesterday over the sudden suspension of my salary I have decided to resign from MTH&CS.
I feel that I have been discriminated and demeaned.
I would like to thank the management for the opportunity to serve the community these 4 and a half years.”
[12] This email is in response to the Respondent suspending the salary of the Applicant due to the ongoing financial dispute between Dr Victor and the Respondent. The Applicant then states that her dismissal was not with immediate effect. This is in response to an email from the Respondent dated 24 January 2014, sent at 7.27am and addressed to Dr Victor. The email states:
“Dr Debbie has a contract that requires 4 months notice on termination in writing, this is still in effect, and this enables her to continue to provide services to the community should she choose during the period of notice.
Pam Vallance will provide the necessary documentation to begin the credentials process for Dr Debbie when she next visits should Dr Debbie require it.”
[13] The Applicant then asserts that the employment relationship did not end until 12 April 2014, as advised by the Respondent. That follows an email dated 27 March 2014, sent at 11.33am from Mr Senior and addressed to the Applicant. The email states:
“Your notice terminating the contract with Mallee Track was effective when I received it. Accordingly, it can now only be withdrawn with Mallee Track’s express, written consent. I am open to providing that consent provided it is in Mallee Track’s best interests, hence my questions. Until that time, however, your contract with Mallee Track will expire on 12 April (four months after you first gave notice).
With respect to point 1, you contract with Mallee Tracks requires you to hold your own professional indemnity insurance (as opposed to relying on Mallee Track’s insurance arrangements). Mallee Track does not have a copy of any relevant policy. Please provide me with a copy of your professional indemnity insurance policy(ies) for services you have provided, and which you may provide in the future, at Mallee Track.
...”
[14] The Applicant further asserts that the effective date of her dismissal is the date that her employment relationship ended, which is 12 April 2014. The Applicant states:
“As the notice period of 4 months (unusually long) is still an employment period during which time I am still accruing my employment entitlements and salary. And my employer still exercising their employment rights.”
[15] The Applicant further states:
“That since my dismissal was neither summarily nor was I paid in lieu of the notice period of 4 months the effective date of my dismissal is 12/4/2014”.
[16] Oral evidence was provided by Dr Victor, the Applicant on behalf of the Applicant and by Mr Senior on behalf of the Respondent.
[17] In regards to the employment contract that the Respondent refers to, where the Applicant was required to provide four months’ notice, it was only identified after 12 April 2014, and now acknowledged by the Respondent, that the contract referred to had not been signed and, in fact, was a contract for service not a contract of employment. A contract of employment was signed by the Applicant and also on behalf of the Respondent on 3 August 2009. The contract of employment does not make any mention of any period of notice that may be required by either party if the contract of employment were to be terminated.
[18] An email was sent on 1 April 2014 at 11.34am from Mr Senior to the Applicant. The email states:
“I was disappointed by your decision to avoid answering my reasonable questions.
In the circumstances, I confirm that Mallee Track will not be consenting to the withdrawal of your notice terminating your services contract. This means that the contract will automatically terminate on 12 April 2014, four months after you first gave notice.
I trust that you will continue to perform your duties in the meantime. In that regard, I am informed by Dr Victor that you will be performing after-hour services while he is unavailable in the period from today and until 12 April 2014. Please confirm that this is correct by 3pm today.”
[19] In response, an email sent on 1 April 2014 at 2.58pm from the Applicant to Mr Senior. The email states:
“That’s very correct. I am on call.
Kindly advise when my last forthright salary will be paid. As at today, I am the only one in the whole of mallee track staff who hasn’t been paid.”
[20] It’s important, when understanding whether there had been a resignation effective on 12 December 2013 or whether there was ongoing employment between 12 December 2013 and 12 April 2014, the Commission needs to take into account the following paper trail:
[21] The Respondent sets out at PN2508-2511 of transcript what occurred on or after 12 December 2013:
“In December the applicant resigns on the 12th. On the 18th Dr Victor says she is working for him. In that month according to the doctor at the document we were referring to earlier there have apparently been 11 visits to the hospital which Dr Victor said occurred during clinical hours. There's no indication of the dates that they've occurred other than they apparently occurred after 12 December. They all occurred during clinical hours and we would submit that there's no evidence that there was a need for specific credentialing in a situation where a GP in a clinic was going next door to a residential care facility to check on a patient.
Relevantly there was no on-call work in the month of December which is consistent with the fact that on 20 December Dr Victor asked about VMO credentialing for Dr Debbie. Then if we look at January there were no apparent hospital-based jobs. Dr Victor again sends an email about VMO credentialing on the 22nd. Mr Senior sends his email on 24 January saying she can still rely on the credentialing under the service contract which obviously in hindsight doesn't exist. Then in February on the 15th Dr Debbie says she is prepared to come back and relevantly she only does two jobs related to the hospital, only one of which is on-call and again we've got no idea about the dates these services occur.
March, Dr Debbie does 14 jobs, again no dates but relevantly she attempts to withdraw her resignation on 19 March and by all appearances her view was that once she withdrew that resignation she was formally an employee of Mallee Track going forward. And then in April there were 10 jobs related to the hospital and on 12 April the nominal accreditation that Mr Senior had offered to her under what turns out to be a non-existent contract comes to an end. There's no question that Dove Investments had accreditation to operate in the clinic and in the hospital. On 18 December Dr Victor says that she is working for him. Nothing that happens afterwards, we would say, points to the fact that clearly she must have still been a Mallee Track employee. And worst, the confusion around her precise arrangements meant that perhaps one person, whether it's Mallee Track or Dove Investments, was in breach of an obligation whether under law or to each other. We can't make any submissions about that.
Putting all of that together we submit that you should be satisfied on the balance of probabilities that the applicant did cease her employment on 12 December. We say it's the conclusion that is most consistent with the contemporaneous records and the legal and factual arrangements in place at the time. We say that the applicant's evidence to the contrary should not persuade you to take a different approach and if you take our position, Commissioner, we say that you should find that the applicant's employment immediately concluded on 12 December and that in the absence of exceptional circumstances being ventilated by Dr Victor the application must be dismissed.”
[22] Further, the Respondent states at PN2512-2513 of transcript:
“The only other thing I might add and I was going to save it but I realised that I'm technically the one - well, I am the one in reply here so I'll say it now. No matter what we submit that you should be satisfied that there's been a break in the employment during that period if and I don't suggest that you should come to this view but if you were of the view that no doubt she left her employment but at one point she came back, whether it's 24 January, 15 February or 19 March when she withdraws her resignation, if you're inclined to hold that view we would say that doesn't alter the outcome today because no matter what she did resign at one point.
That creates a break in the employment relationship. If you went that way you would make the finding that yes, she did have - she was an employee on 12 December and she was an employee on 12 April but that there was actually a break in the employment relationship resulting in two periods of employment. The effect of that would be that the first period - she still couldn't claim in respect of the first period of employment because she would be out of time. And she couldn't make a claim in respect of the second period of employment because that period was less than six months when her employment came to an end.”
[23] The Applicant, in response to the Respondent’s timeline of events, through Dr Victor, sets out the following at PN2604-2607 of transcript:
“The respondent has pointed something in his submission that no evidence of Dove Investments engaging Dr Debbie after 12 April. Now, I'm not sure how relevant that is but the fact is her work ended with them on that day. On 14 April I wrote to the hospital advising them that Debbie was now engaged with Mallee Track, was now engaged with Dove Investments and that she will be working the next day in the clinic. So when you say there was no evidence suggesting her engagement or Dove Investments engaging Dr Debbie as I initially wanted to do in December and up into January that is not correct because the evidence is that I immediately again when the employment eventually ended I immediately again wrote to them advising them that I'm taking over Debbie's employment. At this time there was no employment relationship. So there was definitely evidence that I engaged her Dr Debbie.
And in line with the basic fact that Dr Debbie was engaged with Dove Investments. If Debbie was working with Dove Investments from 12 April, 12 December - if Debbie had been an employee of Dove - or an agent of Dove Investments from 12 December why did they walk her out on 15 April? On what basis? Your legal consultant wrote us and I think I showed you that letter - that (indistinct) 13 May - that she was walked out because her service, her employment ended on 12 April and therefore for her to come back to work in the clinic, in the clinic was a breach of the same contract that's denied today. So they use the contract when it suits them and they deny it when it doesn't. You walk this woman out on the single basis that her employment finish with you on 12 April therefore according to the contract she is supposed to leave the clinic and leave the facility. That same contract which they forced on the 12th, on 15 April.
That is even after I had written to them advising them I've taken over Dr Debbie's employment on the 14th. They did not reply again and the only communication we got in response to that was when Dr Debbie was walked out and the lawyer sent a letter. The question is if this woman had been my employee, been with Dove Investments from December why did you walk her out? Why was she walked out? So there was clearly evidence that I engaged Dr Debbie after 12 April when her employment officially finished with Mallee Track even though they still did not recognise that and walked her out again based on her supposed contract then not accepting but they enforced in full when it suited them.
He also mentioned that no mention of employment or that we never in all our communication mentioned that Dr Debbie was still an employee of Mallee Track. I don't see the need for that because she was an employee and all I was trying to do was get her out of that employment and she was my employee and not Mallee Track's. In that instance would mean that I would just tell, "Dr Debbie is working here. Stay in the clinic. They're not giving you any credentials. Don't see hospital. You can't even see hospital." But the case is - but that's not the case because she continued seeing the patients. She continued working for Mallee Track. And again I state all this were effort on my part to get my wife out of there.”
[24] What it surprising about this matter is that if the Applicant’s resignation was accepted on 12 December 2013, Dr Victor states that she received no payments from him or Dove Investments, as the so-called employer, because of her resignation from the Respondent but equally the Applicant didn’t receive any payments from the Respondent in the period from 12 December 2013 to 12 April 2014.
[25] Part of the Respondent’s argument was that the Applicant did not query the non-payment. In response to this Dr Victor, on behalf of the Applicant, stated the following at PN2685 of transcript:
“He said when the CEO wrote and said that the applicant is required to provide four months' notice he said that we didn't complain. But I actually responded to that email and asked them under the state law, under which she is employee how long - what is the duration, what is the period required by law under the employment arrangement she has. He never responded. I questioned the four months because I'm aware of three months in rural area. Why four months? And then I questioned that this woman isn't even an employee of the state government and the state government is still, civil service rule has their own rules and I questioned him about that he never responded. So when he said we didn't question it that's not correct.”
[26] Having taken into account all the material that has been provided and the trail of emails between the Respondent and the Applicant, with the last being 8 April 2014, and the point made by the Applicant that after finishing work on 12 April 2014, which the Applicant asserts is the date which she was required to work to in order to provide the four months’ notice period, she attended the clinic on 15 April 2014 and was escorted off the premises, this enforces the Applicant’s view that the termination took effect on 12 April 2014. Otherwise, the Applicant would not have attended, nor been accepted, at the clinic prior to 12 April 2014 if her employment had ceased on 12 December 2013.
[27] Following the hearing the Respondent provided a copy of the Medical Indemnity Insurance Policy Schedule for the Applicant with the period of insurance being 6 January 2014 to 30 June 2014 with a retroactive date of 16 December 2013.
[28] There is a letter from the Applicant addressed to Russell Kennedy lawyers dated 30 April 2014 that states:
“I warrant that Dove Investments is appointing me to provide medical services as an employee or contractor of Dove Investments (Australia) Pty Ltd, and not as an employee or contractor of Mallee Track Health and Community Service.”
[29] The Commission isn’t sure what weight to give the Medical Indemnity Insurance Policy Schedule for the period of insurance from 6 January 2014 to 30 June 2014 given the submissions and the paper trail referred to as part of this decision.
[30] The Commission taking into consideration all the material and the relevant arguments provided believes that, on the balance of probabilities, the Applicant’s employment ceased on 12 April 2014 and her Application, having been made on 8 April 2014 indicates that the Applicant has lodged an application within the 21 day time limit and therefore does not require an extension to time, as the requirements of the Act have been complied with.
[31] The Commission when looking at all the material facts, which include the following:
● the Applicant not being able to withdraw her resignation,
● the Respondent advising, on more than one occasion, that the Applicant was required to work to 12 April 2014,
● the Respondent not allowing the Applicant to withdraw her resignation,
● the Applicant still providing her services in accordance with her employment contract,
● the Applicant continuing to be provided with a company vehicle and then told to hand the keys back on 12 April 2014, the day her notice expired
● and finally being escorted off the Respondent’s premises three days after her notice period expired
believes that there was an ongoing employment relationship between 12 December 2013 and 12 April 2014, hence its conclusion at paragraph [30] above.
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