Holly Dunn v IVvy Pty Ltd

[2015] FWC 7552

[2015] FWC 7552

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Holly Dunn
v
IVvy Pty Ltd
(U2015/9619)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 NOVEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Holly Dunn alleged the termination of her employment by IVvy Pty Ltd was unfair. In her application she advised that she commenced employment on 8 December 2014 and her employment ended 13 July 2015.

[2] Ms Dunn lodged numerous unfair dismissal applications naming various individuals and associated entities. There was no dispute that IVvy was Ms Dunn’s employer.

[3] In the employer response, IVvy objected to Ms Dunn’s application on the basis that Ms Dunn had not met the minimum employment period.

[4] The matter was listed for a telephone hearing on 26 October 2015 and Ms Dunn represented herself and Mr James Greig represented IVvy.

[5] An employee is required to have served six months (one year if employed by a small business) employment to be protected from unfair dismissal. Section 383 of the Fair Work Act 2009 provides as follows:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[6] In determining whether Ms Dunn has served the minimum employment period, no assessment has been made about the merits of her case. The Fair Work Commission has no discretion to waive the requirements of the Act.

[7] Ms Dunn gave evidence that she received an offer of employment on 14 November 2015¹ and she accepted the offer on the same day. That letter provided that her start date would be 12 January 2015. She signed a confidentiality agreement on 8 December 2014² which was an agreement made between the employer and the employee. A contract of employment 3 was signed by Ms Dunn and IVvy and that contract provided that the employment commenced on 12 January 2015. There is no dispute that Ms Dunn did not commence paid employment until 12 January 2015.

[8] Ms Dunn submitted that her employment commenced when she accepted the offer of employment. If that is not correct, she submitted that she commenced employment when she signed the confidentiality agreement. She submitted that once she accepted the offer of employment she was bound to them and could not look for other work. Further this was when she was welcomed to the team. She said that she did some preliminary work for IVvy before that date but she agreed that she was not required to perform any work before that date.

[9] IVvy submitted that Ms Dunn’s employment commenced in accordance with the letter of offer and the contract of employment on 12 January 2015. The PAYG statements exhibited by Ms Dunn show that payment of wages commenced from that date.

[10] I find that Ms Dunn’s employment commenced on 12 January 2015. That a person choses to do some preparatory work before the commencement of work does not make the person an employee. There was nothing that prevented Ms Dunn from taking paid employment prior to commencing work on 12 January 2015. That she did not apply for other work because she had accepted the position with IVvy did not change the fact that she was not employed by IVvy until 12 January 2015.

[11] I do not accept the submission that the confidentiality agreement created an employment relationship between Ms Dunn and IVvy. That it was signed before employment commenced is not relevant to a determination of when Ms Dunn commenced employment. While it referred to Ms Dunn as the employee and IVvy as the employer, it does not purport to be a contract of employment.

[12] Ms Dunn accepts that she was told on 7 July 2015 that her employment was terminated and she was escorted from the premises. On the same day, she sent an email to the CEO of IVvy and said:

“Regarding our meeting in your office today, Tuesday 7th July 2015 2:30 pm to 2:40 pm; between ourselves and Ingrid, advising termination of my position, Head of Distribution and Partnerships IVvy Pty Ltd. It did come as a shock and was very unexpected that my position was no longer available.
……..
As notice of termination was given verbally, could you please provide today, confirmation of termination of employment, in writing as it is required by Friday 10th July urgently for an application of interim financial assistance from Centrelink.”

[13] On 10 July 2015, Ms Dunn sent Ms Lauren Hall an email as follows:

“Just hoping you can send the termination letter and reference today as I have an appointment with Centrelink at 9 AM on Monday and require this to receive financial assistance.”

[14] On 13 July 2015, Ms Hall sent Ms Dunn the following email:

“As per our discussion on Friday 10 July 2015, we confirm that we have decided not to continue your employment and as a result, your employment will cease effective immediately.

We will provide you with one week’s notice in lieu and any unpaid leave you are entitled to as per your contact.”

[15] On 19 July 2015, Ms Dunn was paid one week’s pay in lieu of notice.

[16] Despite the confusion in this material I am satisfied that Ms Dunn’s employment was terminated on 7 July 2015. That the termination was not in writing does not mean that the termination did not take effect. There is nothing in the material before the Commission that would support a finding that the notice of termination given on 7 July 2015 was set aside by agreement between the parties and that Ms Dunn’s employment was subsequently terminated on either 10 or 13 July 2015.

[17] I accept that the failure to give written notice of termination meant that IVvy may not have complied with clause 21.2 of Ms Dunn’s contract and may not have complied with section 117(1) of the Fair Work Act 2009 which requires written notice of termination. However that IVvy may have breached its contract with Ms Dunn or breached the Act is not a relevant consideration.

[18] As noted in J Searle v Moly Mines Limited 4:

“[22] Before turning to the facts of this case there is another issue which arose in the course of the submissions with which we should deal. That matter concerns the relevance of the principles governing the termination of a contract of employment. It is clear that the statutory test relates to termination of the employment relationship, not termination of the contract of employment. The difference is well illustrated by the following passage from the joint judgment of Brennan CJ and Dawson and Toohey JJ in Byrne and Frew v Australian Airlines Ltd:

‘It does not appear to have been doubted in this country that a wrongful dismissal terminates the employment relationship notwithstanding that the contract of employment may continue until the employee accepts the repudiation constituted by the wrongful dismissal and puts an end to the contract. That was accepted by both the majority and minority in Automatic Fire Sprinklers Pty Ltd v Watson ...”

Did Ms Dunn complete the minimum period of employment?

[19] Section 22 of the Acts Interpretation Act 1901 as it existed at 25 June 2009⁵ provides as follows:

“In any Act, unless the contrary intention appears:
...
(b) ‘Month’ shall mean calendar month;
...
(g) ‘Calendar month’ means a period commencing at the beginning of a day of one of the 12 months of the year and ending immediately before the beginning of the corresponding day of the next month or, if there is no such corresponding day, ending at the expiration of the next month.”

[20] I have found Ms Dunn’s employment commenced on 12 January 2015 and consequently the six month period ended at midnight on 11 July 2015. As Ms Dunn was not employed at that time, I am satisfied that she had not served the minimum employment period and therefore she is not protected from unfair dismissal and her application must be dismissed.

DEPUTY PRESIDENT

Appearances:

H. Dunn on her own behalf.

J. Greig for the Respondent.

Hearing details:

2015.

Melbourne and Brisbane, by telephone link:

October 26.

1 Exhibit R4.

2 Exhibit R5.

 3   Exhibit R3.

 4   [2008] AIRCFB 1088.

5 See section 40A of the Fair Work Act 2009.

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