Dr Lorraine Anderson v Pilbara Health Network Ltd

[2015] FWC 1437

[2015] FWC 1437

The attached document replaces the document previously issued with the above code on 3 March 2015.

Changes made: the name Dr Kaye has been amended to read Dr Anderson.

Lauren Thomas

Associate to Deputy President Gooley.

Dated 5 March 2015.

[2015] FWC 1437

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Lorraine Anderson
v
Pilbara Health Network Ltd
(U2014/14636)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 MARCH 2015

Application for relief from unfair dismissal.

[1] Dr Lorraine Anderson alleged that her dismissal by Pilbara Health Network Ltd was unfair. The Network denied the allegation and the application was referred to a telephone conciliation before a member of the Commission’s staff.

[2] At the conciliation held on 20 November 2014, Dr Anderson alleges that she was told by the conciliator that she was not protected from unfair dismissal because she earned more than the high income threshold. Dr Anderson was not represented at the conciliation.

[3] On 20 November 2014, the Commission sent the parties a letter confirming the outcome of the conciliation. In that letter it was said that at the conciliation Dr Anderson had advised that she would discontinue her application.

[4] The letter advised that Dr Anderson would need to file a Notice of Discontinuance and such a form was provided to her.

[5] Dr Anderson did not file a form discontinuing her application and on 16 December 2014 Dr Anderson’s representative advised that, as Dr Anderson’s employment was covered by the Medical Practitioners Award 2010, she was protected from unfair dismissal and sought a further conciliation. This was opposed by the Network.

[6] At the hearing Dr Anderson gave evidence. Dr Anderson said she probably told the conciliator that she intended withdrawing the application. Ms Jocelyne Halpin, the CEO of the Network, gave evidence that she was not on the phone at the same time as Dr Anderson.

[7] While submissions were made at the hearing on the effect of Rule 10 of the Fair Work Commission Rules 2013 it is not necessary for me to address those submissions as the evidence does not disclose that Dr Anderson discontinued her application.

[8] At its highest Dr Anderson indicated an intention to discontinue her application. However she did not unequivocally advise that she was discontinuing her claim. At the conciliation, Dr Anderson either because she misunderstood what was being said to her or she was misinformed, expressed an intention to discontinue. However expressing an intention to discontinue is not an act of discontinuance. Dr Anderson was entitled to consider what had been put to her at the conciliation, seek advice and decide whether she would act on her intention.

[9] I therefore find that Dr Anderson did not discontinue her application on 20 November 2014 and hence her application can proceed.

[10] I note the Network raised an objection that Dr Anderson was not protected from unfair dismissal because she resigned her employment and in any event she earned more than the high income threshold. The Network is asked to advise my chambers by noon on 5 March 2015 if it wishes to pursue its high income threshold objection.

[11] If both parties consent to a further conciliation, they should notify my chambers as soon as possible.

DEPUTY PRESIDENT

Appearances:

S. Bibby for the Applicant.

A. Casellas for the Respondent.

Hearing details:

2015.

Melbourne and Perth, by video link.

20 February.

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