John Peter Pini v Northern Territory Police, Fire and Emergency Services

[2023] FWC 2968

[2023] FWC 2968

FAIR WORK COMMISSION

RECOMMENDATION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

John Peter Pini
v

Northern Territory Police, Fire And Emergency Services

(U2023/9151)

COMMISSIONER RIORDAN SYDNEY, 14 NOVEMBER 2023

Application for an unfair dismissal remedy

1. This matter has been before me for two conferences. The Respondent has raised a jurisdictional objection to the Commission hearing the dispute. Rather than go through a lengthy legal process in relation to jurisdiction and the merits of the application, I have decided to issue this recommendation in an attempt to resolve the dispute due to the urgency of the Applicant’s situation. It should be noted, however, that no evidence has been tested by the Commission at this stage.

1. The Applicant was employed by the Respondent for almost 40 years.

1. The Applicant had a medical episode some 11 hours after his long term resignation took effect. The Applicant’s resignation was accepted by the Respondent on 27 October 2020. It is not in dispute that the Applicant had an agreement to exhaust ALL of his leave before his resignation took effect. It is not in dispute that the Applicant’s retirement date was moved on a number of occasions to ensure that he exhausted all of his leave.

1. Unfortunately, this did not occur.

1. The Statement of Service provided by the Respondent shows that the Applicant was paid 3.5 days of long service leave in lieu on the date of his resignation. No explanation has been provided by the Respondent as to why the agreed position of allowing the Applicant to exhaust all of his accrued leave before his retirement was not followed. Had the Applicant been able to take those final 3.5 days, then he would have been still at work when the medical episode occurred and consequently have had access to some 57 days of accrued sick leave. On the basis that the Applicant did not exhaust all of his leave, the question remains as to whether or not the Applicant was actually dismissed?

1. Further, it is not in dispute that the Applicant’s daughter contacted the Police Commissioner of the Northern Territory to rescind his resignation on the day of the Applicant’s medical episode. Whilst the Police Commissioner allegedly now claims that he was unaware that the Applicant’s retirement had already occurred, the Police Commissioner has not denied that he said words to the effect:-

“Dad’s got nothing to worry about and to pass on his thoughts”.

1. In my view, these words have a plain and ordinary meaning. The Police Commissioner has basically said that he will look after the situation.

1. Thirdly, the Respondent, appropriately, upon hearing that the Applicant was unwell from 13 July 2023 via a retrospective medical certificate, recredited the Applicant with his long service leave from 13 July 2023 – 27 July 2023 (his date of retirement). As such, the Applicant was actually on sick leave at the date of his retirement. I am unaware of any employee in my 36 years of employment in industrial relations, who has stopped taking sick leave, even though they had another 57 days of sick leave accrued, to simply retire. Such a notion is absurd.

1. Unfortunately, the prognosis for the Applicant is difficult, however, every day brings new hope of a medical discovery.

1. If it were not for the Respondent breaching the agreed understanding of the Applicant’s retirement then he would have still been employed at the time of his medical episode and would have accessed his sick leave. If the Police Commissioner had maintained his alleged commitment given to the Applicant, via his daughter, then the Applicant would now be able to access his sick leave. Finally, if someone in the Respondent’s payroll department had the commonsense to understand that employees never resign when they are on sick leave and have outstanding sick leave accruals, then the Applicant would have the capacity to utilize his sick leave.

1. This is not a situation where the Applicant is looking for a handout or some form of special leave from the taxpayers of the Northern Territory. This application is nothing more than a Police Officer with long service requesting that his resignation agreement be honoured and for him then to have access to his accrued leave. No ‘freebies’ or handouts required, simply access to his sick leave that was accrued and accounted for over a very lengthy career.

1. Overnight, I gave the Acting Commissioner for Public Employment an opportunity to view my draft Recommendation, in the hope that this situation could be resolved. The Acting Commissioner for Public Employment passed my correspondence over to the Commissioner of Police who responded at lunch time today. The Police Commissioner advised that the Police Service now have unlimited sick leave and that payment can only be made up to the date of retirement. With respect, the Police Commissioner has missed the point. The simple fact is that the Applicant had a right and an agreement to be employed for a further 3.5 days, which was unilaterally denied by the Respondent without reason or justification.

1. I strongly recommend that the Respondent reverse its decision and allow the Applicant to rescind his resignation and move it to a later date.

1. I so Recommend.

COMMISSIONER

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