Jacqueline Jenkins v Finkelde Group Holdings

[2016] FWC 4101

[2016] FWC 4101

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jacqueline Jenkins
v
Finkelde Group Holdings
(U2016/5123)

COMMISSIONER LEE MELBOURNE, 7 JULY 2016

Application for relief from unfair dismissal.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 2 May 2016. This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Jenkins (the Applicant) claims that she was unfairly dismissed from her employment with Finkelde Group Holdings (the Respondent). The application was lodged by the Applicant on 4 March 2016.

[2] This matter was listed for Extension of Time and Jurisdiction (Effective Date of Dismissal) Conference/Hearing before me in order to determine the effective date of dismissal and, if necessary, whether an extension of time should be granted to allow a further period of time for the lodging of the application in the event that the application is out of time.  I proceeded to deal with the matter on the basis, and there was no concern from the parties about this, that I would deal first with the effective date of dismissal as until there was some certainty on that, it made it difficult to determine what the extension of time would be required, if any at all.

[3] It is in contest whether or not there is a termination at the initiative of the employer.  The Respondent submitted the Applicant willingly resigned and the Applicant's position is that there was a constructive dismissal.  To be clear, this decision does not deal with whether or not there was a constructive dismissal.  That will be a matter that will need to be dealt with further should the need arise.

[4] At the hearing Mr Jenkins appeared on her own behalf and Mr Finkelde appeared on behalf of the Respondent and they both gave sworn evidence.  The evidence, so far as it is relevant to the determination of the matter before me, is as follows.

[5] The Applicant sent an email to Mr Finkelde on 21 January 2016 in the following terms:

“Hi David, I just wanted to let you know that I am unable to work reduced hours as we discussed and as I've just been offered a position that's suitable and they want me to start as soon as possible, I am formally putting in my notice of resignation.  I realise I have to give four weeks notice which would mean a finish date of February 17th, but I wish to take the 15, 16 and 17th as leave so my last day would be February 10th, which only gives me the one week at the reduced hours after school holidays finish. 

I hope this is ok.  I didn't want to wait until Monday to tell you as you may have time today or Friday to advertise for new staff and then they have a week to apply before you get back from leave. 

I can work Monday’s for you after the end date if that helps in the interim but I won't be available Tuesday to Friday, sorry. 

Thanks for everything.  It's been fantastic working for you over the past five years. 

Kindest regards,

Jackie.” 1

[6] Mr Finkelde responded to that email the next day by email in the following terms:

“No worries, Jackie, see you next week.  David.” 2

[7] Further in evidence is a record of leave taken 3 which supports the finding that the Applicant, consistent with that exchange between the Applicant and Mr Finkelde, was paid annual leave on 15, 16 and 17 February 2016 and that fact is not in contest.

[8] If there were no other material relevant to the proceeding, it is clear on the evidence that the effective date of dismissal, if there was a dismissal, was 17 February 2016.  The Applicant had given notice of a particular period and had evinced an intention to no longer be employed on 17 February 2016.  The fact that there was a period of leave at the conclusion of that notice period does not mean that the employment contract was brought to an end at an earlier time absent anything else. Indeed, it is abundantly clear on the evidence that absent anything else, that is the case. 

[9] However, there is this further issue of the Applicant commencing employment with her new employer prior to 17 February 2016 and it is the material that emerged by virtue of an Order Requiring the Production of Documents from Mr Finkelde which led to that being a factor in the proceedings.  The Applicant was clear in her evidence that she worked for her new employer as a casual on 4 and 5 February 2016, also on 11 and 12 February 2016 and then the Applicant commenced as a permanent part time employee on 16 February 2016 and relevantly worked on 16 and 17 February 2016. What the Applicant worked after that date is of no consequence given that on any measure, the employment relationship and contract had clearly come to an end at that time.  The question to be determined is did it come to an end at an earlier time than 17 February 2016.  It is not in dispute that the Applicant ordinarily would have worked for the Respondent on 11 and 12 February 2016, being the Thursday and Friday. The Applicant did not work on the Thursday and Friday during school holidays but she did work on Thursdays and Fridays when school holidays were over. I do not think it was contested that ordinarily the Applicant would have worked on those dates nor on 16 and 17 February 2016 but she did not work on those dates for the Respondent because she was on annual leave at that time.

[10] Mr Finkelde submits essentially the basis of that is the Applicant abandoned her employment on 10 February 2016 as she had no intention of returning to work with him, based on the facts that became known to him after the event. I note that Mr Finkelde was clear in his evidence that he did not know that the Applicant was actually working for her new employer within the notice period that had been provided nor did he know of any particular details until those detail emerged as a result of the Order Requiring the Production of Documents and so it was clear that Mr Finkelde's knowledge of the Applicant commencing employment with her new employer post-dates 17 February 2016. 

[11] However, I do note that Mr Finkelde was clearly on notice, as was pointed out by the Applicant in her evidence, that she had obtained alternative employment because she had made that quite clear in her letter of resignation on 21 January 2016.  I have considered all of the evidence and the submission of Mr Finkelde that there was an abandonment of employment on behalf of the Applicant which took effect on 10 February 2016 and my conclusion is that there is simply no evidence to support that particular submission.

[12] The evidence is that the Applicant resigned her employment on 21 January 2016 and she advised the Respondent in absolutely clear terms that she sought to provide a four week notice period and that she would take leave at the end of that period.  Mr Finkelde, by virtue of Exhibit 2, clearly agreed to that course of action and did not take any issue with it.  Even having been put on notice that the Applicant was commencing new employment, in my view, in no way could that be construed as abandonment of employment within earlier considerations of what that means.

[13] The Applicant had clearly notified the Respondent of her absence and the Respondent had clearly consented.  One would have thought that for an abandonment of employment to be successful, at least one or the other of those would have to be in existence being either no notification to the employer as to what the employee was doing and/or the employer not consenting to that particular course of action.  In this case, we have both.

[14] I have considered further though, and while it was not put, whether the conduct of the Applicant amounted to a repudiation of the contract.  However, even if it was held, and I will be clear I am saying that this is the case and this was not an argument put forward, but given the evidence that's been adduced, it is something that I turn my mind to. Even if in commencing employment for the new employer prior to the end of the notice period, the Applicant was engaging in conduct that amounted to a repudiation, then to be clear, a repudiation of the contract, even if that happened, does not bring the contract to an automatic end but gives the affected party the right to terminate the contract if the affected party accepts the repudiation, then the contract will end. 4

[15] In this case, we do not know that this was a repudiation of contract and it has not been submitted that it was.  I simply make the point that even if it was, there was no action on the part of the Respondent, being Mr Finkelde, to act on that.  Of course, the position of Mr Finkelde would be that he could not act on that because he didn't know about it, however, that is neither here nor there.  The fact is it was not acted upon.

[16] It follows from this that it is abundantly clear on the evidence that the effective date at which the employment ceased, either by way of resignation or by termination at the initiative of the employer, depending on what the further argument is about that, was 17 February 2016. That means that the Applicant had until 9 March 2016 to lodge her application.

[17] The application was lodged by the Applicant on 4 March 2016.  The application was therefore lodged within the statutory time frame. On that basis, there is no need to consider whether or not an extension of time is required.  I am satisfied no extension of time is required.

COMMISSIONER

Appearances:

J Jenkins on her on behalf for the Applicant

D Finkelde for a Respondent

Hearing details:

2016.

Hobart.

2 May 2016.

Final written submissions:

11 April 2016

 1   Exhibit 1, email from Ms Jenkins to Mr Finkelde dated 21 January 2016.

 2   Exhibit 2, email from Mr Finkelde to Ms Jenkins dated 22 January 2016.

 3   Exhibit 5, Record of Leave Taken

 4   Visscher v Giudice (2009) 239 CLR 361.

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