Josephine Sesay v BCP Health & Aged Care Pty Ltd T/A Netherby Aged Care Facility

[2010] FWA 7103

[2010] FWA 7103

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Josephine Sesay
v
BCP Health & Aged Care Pty Ltd T/A Netherby Aged Care Facility
(U2010/9637)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 14 SEPTEMBER 2010

Termination of employment.

[1] BCP Health & Aged Care Pty Ltd T/A Netherby Aged Care Facility (BCP) raised a jurisdictional objection to Ms Sesay’s application proceeding to arbitration. BCP submitted that the application of Ms Sesay was lodged outside the statutory time limit of 14 days and that any application to extend the time for lodgement should be refused.

[2] Ms Sesay submitted that her application was lodged within time. In the alternative, she submitted that time for lodgement should be extended.

[3] Ms Moffitt from the New South Wales Nurses’ Association (NSWNA) appeared for Ms Sesay. Mr Miles of counsel, instructed by the Aged Care Association Australia, appeared for BCP.

[4] On 9 September 2010 I issued a Finding and Order. 1

[5] When deciding this application I first examined whether the application was lodged within time.

[6] There was no dispute that the letter of termination dated 24 May 2010 was placed in the Express Post Box on the same day by Ms Ballai, an employee of BCP, although Ms Ballai missed the express post deadline. Therefore, in the ordinary course, if Australia Post delivery standards had been adhered to, the letter of termination would have been delivered on 26 May 2010.

[7] Ms Sesay’s evidence was that she received the letter at approximately 6:30pm on 31 May 2010. She marked the date of receipt at the bottom of the express post envelope. 2  She initially could not find the envelope but she eventually located it and produced it at the hearing. It is the correct express post envelope.

[8] On 1 June 2010, Ms Sesay telephoned Ms Byrne of the NSWNA and on 2 June 2010 she provided a copy of the letter of termination to Ms Byrne. Ms Byrne lodged the application on Ms Sesay’s behalf on 11 June 2010.

[9] Ms Moffitt submitted that Ms Sesay was notified of her termination of employment on 31 May 2010. The application was then filed within 14 days. The application was therefore lodged within time.

[10] Mr Miles submitted that I should reject Ms Sesay’s evidence regarding the date of receipt of the letter of termination as inherently improbable and that I should find that Ms Sesay was not a credible witness. Mr Miles relied on a number of matters for his attack upon Ms Sesay’s credibility.

[11] Mr Miles relied on an inconsistency in the evidence between Dr Chandler and Ms Sesay regarding the date of a telephone call from Dr Chandler to Ms Sesay for the purpose of checking Ms Sesay’s address. Although I am satisfied that Dr Chandler’s evidence is correct as to the date of the conversation, I am not persuaded that I should draw an adverse inference regarding Ms Sesay’s credibility from that inconsistency.

[12] Mr Miles asked Ms Sesay about the date that she received her termination of employment payment. It was shown to have been credited to her bank account on 26 May 2010. 3 However, there is no evidence of when Ms Sesay accessed the account to ascertain that the payment had been made. Ms Sesay gave uncontradicted evidence that she was in hospital at the time of the payment and did not personally access her account until June. She gave evidence that her son sometimes accessed her account.

[13] Australia Post records do not indicate any reason why the letter would not have delivered on 26 May 2010 but, neither do they establish that it was delivered on 26 May 2010.

[14] Ms Sesay understood the importance of the time limit on lodgement of her application.

“THE SENIOR DEPUTY PRESIDENT: Ms Sesay, do you understand that if you didn't file your application within time that you wouldn't be able to proceed with it? Listen to my question?---Yes.

Yes. And that if you - and do you understand that if it was true that you received this application on 26 May and that you didn't lodge it in time that within 14 days of that day that you would be out of time and not able to proceed. Do you understand that?---Yes, yes.” 4

[15] I have concluded that it is inherently improbable that Ms Sesay would, advised as she was by Ms Byrne of the need for timely lodgement of her application, delay advising the NSWNA of the receipt of the notice of termination of employment. It is equally improbable that, if she had for some improbable reason delayed in informing the NSWNA, she would have misled the NSWNA concerning the date of receipt. Even if she had taken three days to inform Ms Byrne, the NSWNA still had ample time to file the application within the prescribed time limit.

[16] I accept Ms Sesay’s evidence as to the date of receipt of the notice of termination of employment. The notice of termination of employment took effect the date it was delivered. I accept that that date was 31 May 2010. I am not persuaded by Mr Miles’ submission relating to Ms Sesay’s credit. I find that the application was lodged within time.

[17] This application will proceed to arbitration on the merits of the substantive application.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms J Moffitt, for the applicant.

Mr B Miles, of counsel, with Mr G Sheargold, for the respondent.

Hearing details:

2010.

Sydney.

September, 3.

 1   PR501579, 9 September 2010.

 2   Exhibit BCP 3.

 3   Exhibit Sesay 5.

 4   PN 271 and 272.

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