Elizabeth Church v Eastern Health T/A Eastern Health Great Health and Wellbeing

[2013] FWC 6386

[2013] FWC 6386

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elizabeth Church
v
Eastern Health T/A Eastern Health Great Health and Wellbeing
(U2013/9121)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 3 SEPTEMBER 2013

Application for relief from unfair dismissal - extension of time granted.

[1] On 2 May 2013, an application for remedy from unfair dismissal under s.394 of the Fair Work Act 2009 was lodged by Ms Elizabeth Church. Ms Church claims that her employment was terminated by Eastern Health trading as Eastern Health Great Health and Wellbeing (Eastern Health) on 5 April 2013.

[2] According to the dates noted on Ms Church’s application, it appears that the application was filed in the Fair Work Commission (the Commission) 6 days outside of the prescribed time frame. 1

[3] By letter dated 26 August 2013, Eastern Health advised that they did not oppose Ms Church’s extension of time application and as such, would not be filing any material in relation to this issue. In addition, Eastern Health requested that the issue be determined on the papers, without the need for a jurisdictional hearing. I have taken Eastern Health’s request into consideration and have decided under s.593 of the Act that as there are no contested facts, I will determine the matter on the material before me.

[4] On 5 April 2013 Ms Church’s redeployment period expired. Ms Jo Mapes, the Operations and Development Manager of Community Health sent Ms Church an email which advised her of this and advised her that unless she advised otherwise Eastern Health would assume she was on leave without pay.

[5] A letter was sent to Ms Church by registered post on 11 April 2013. That letter told Ms Church that her employment had been terminated effective 5 Friday 2013. On 12 April 2013, Ms Church was advised by Australia Post that a registered letter had been delivered however due to an error by Australia Post she was not able to collect the letter.

[6] On 12 April 2013, Ms Church rang Ms Mapes and asked for an electronic copy of the letter. Ms Mapes emailed the letter to her on 15 April 2013. It was on this date that Ms Church was told that her employment had been terminated.

[7] Termination of employment cannot take effect unless and until it is communicated to the employee who is being dismissed. 2

[8] In Transport Workers' Union of Australia v National Dairies Limited  3 Keely J, sitting in the Industrial Relations Court of Australia, was required to decide whether the employment in question terminated before or after the date on which legislation providing statutory remedies for unfair dismissal commenced to operate. In the course of his judgment His Honour said:

“It was accepted by the respondent's counsel, for the purpose of the present hearing, that the employer's letter of purported termination was not received by the applicant until 30 March 1994. In my opinion the mere posting of the letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee. I am unable to uphold the respondent's submission that the intention of the legislature was to make it a contravention of the Act for an employer to perform actions “pursuant to which the employer seeks to terminate an employee even if that wish is never communicated to the employee ie even if a letter of termination posted by an employer is never received by the employee”.

[9] A Full Bench of the Australian Industrial Relations Commission 4 said with respect to that decision:

“We agree with His Honour's conclusion. Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee. Those circumstances did not, however, exist in this matter and we therefore refrain from further discussion of the point.’

[10] On the evidence before me the decision to terminate Ms Church’s employment was communicated to Ms Church on 15 April 2013 and therefore Ms Church’s employment was terminated on that day. Ms Church’s application was therefore made within the 21 days provided in the Act and no extension of time is required. Ms Church’s application will now proceed

DEPUTY PRESIDENT

 1 Section 394(2) of the Act

 2   Burns v Aboriginal Legal Service of Western Australia (inc) AIRCFB Print T3496 at [24]

 3 (1994) 57 IR 183

 4   Commonwealth of Australia (Australian Taxation Office) v Wilson [PR901127],

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