Kimberly-Louise Jones v Government of Western Australia North Metropolitan Health Service

[2019] FWC 6033

[2019] FWC 6033

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Kimberly-Louise Jones
v
Government of Western Australia North Metropolitan Health Service
(C2019/3456)

COMMISSIONER WILLIAMS PERTH, 30 AUGUST 2019

Application to deal with an unlawful termination dispute.

[1] This matter concerns an Application made by Ms Kimberly-Louise Jones (the Applicant) under section 773 of the Fair Work Act 2009 (Cth) (the Act). The respondent is identified as the Government of Western Australia, North Metropolitan Health Service (the Respondent).

[2] Section 774 of the Act requires an application such as this to be made within 21 days after the employment was terminated. The Fair Work Commission (the Commission) however has the discretionary power under subsection 774(2) to allow a further period for such an application to be made if satisfied that there are exceptional circumstances. This provision is set out below.

“774 Time for application

(1) An application under section 773 must be made:

(a) within 21 days after the employment was terminated; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the employee to dispute the termination; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[3] The Applicant in answer to question 2.2 on the Application states that her termination of employment took effect on 1 May 2019. The Application was made on 3 June 2019.

[4] It appears then that the Application was not made within 21 days after the employment was terminated.

[5] The Respondent’s response to the Application filed with the Commission states the date the termination took effect was 1 May 2019 and the Respondent objects to the Application on the ground that the Application was lodged more than 21 days after the termination took effect.

[6] Consequently, the Commission wrote to the Applicant referring to the Respondent’s jurisdictional objection, including details of section 774, inviting her to provide any witness statements or submissions in response to the objection. The correspondence indicated that the Commission proposed to determine the objection on the papers however, the parties would be advised if it was necessary for the Commission to hold a hearing.

The Applicant’s submission

[7] In response to the Commission’s correspondence the Applicant has provided a full submission regarding the matter.

[8] The relevant sequence of events leading up to the termination of employment is not in dispute and is set out in the letters and other documents attached to the Application to which the Applicant has referred in her submission.

[9] Relevantly, the Respondent’s Chief Executive wrote a letter to the Applicant dated 21 March 2019, which advised her that based on their findings so far, they proposed to terminate her contract of employment with notice however, prior to imposing this action the Applicant had the opportunity to provide a written response to the proposed findings by close of business 29 March 2019.

[10] In response the Applicant sent a four paged letter to the Respondent’s Chief Executive dated 25 March 2019.

[11] In reply the Respondent’s Chief Executive wrote a letter to the Applicant dated 18 April 2019, referring to the Applicant’s emailed letter of 25 March 2019. The Chief Executive’s letter contained a copy of a Disciplinary Investigation Report which the Applicant had requested, in her 25 March 2019 letter, be provided. The Chief Executives letter at the fourth and fifth paragraph read as follows:

“Please provide a written response to my proposed findings and action by close of business 1 May 2019. Your response, including that sent on 25 March 2019, will be taken into consideration before making a final decision.

Failure to respond by this date or electing not to provide me with a written response, will result in me confirming my proposed findings and Disciplinary Action of dismissal being effective close of business 1 May 2019.”

[12] The Applicant in her submission to the Commission acknowledges she received the letter dated 18 April 2019, from the Chief Executive. The Applicant says that it also contained a redacted Breach of Discipline Investigation Report. The Applicant in her submission points out that paragraph four of the Chief Executive’s letter requested she provide a written response to the Chief Executive’s proposed findings and actions by close of business 1 May 2019. The Applicant in her submission states that:

“This letter dated 18 April 2019 needed no response.”

[13] This is consistent with the Respondent’s response to the Application which states the Applicant did not provide a response to the Chief Executive’s letter dated 18 April 2019.

[14] I find that the Applicant did not at any time before the close of business on 1 May 2019 provide a written response as she was invited to by the Chief Executive in her letter of 18 April 2019.

[15] The Applicant in her submission acknowledges that she later received a letter dated 13 May 2019 from the Chief Executive. She says in her submission that she received this letter on 20 May 2019.

[16] The Chief Executive’s letter dated 13 May 2019, notes the Applicant did not respond to the Chief Executive’s letter to her dated 18 April 2019. The third paragraph of the letter says:

“Consequently I confirm Disciplinary Action to be the termination of your contract of employment with payment in lieu of one month’s notice in accordance with subclause 8(2)(b) of the Government Officers Salaries, Allowances and Conditions Award 1989, effective 1 May 2019.”

[17] Attached to the Application is an Employment Separation Certificate that states the date the Applicant’s employment ceased was 1 May 2019.

[18] In previous decisions the Commission has held that a notice of termination to an employee may validly operate notwithstanding it is stated to take effect subject to a condition. This however is provided that the notice of termination is expressed with sufficient certainty so that the conditional date of termination is ascertainable and the condition upon which the termination becomes operative has been fulfilled and finally that the employee is in a position to know that the condition has been satisfied 1.

[19] In this case the Chief Executive’s letter dated 18 April 2019, invited a written response from the Applicant and expressly stated that a failure to respond to this by 1 May 2019, or electing not to provide a written response by that date, would result in the Chief Executive confirming her “...proposed findings and Disciplinary Action of dismissal being effective close of business 1 May 2019.”

[20] The letter gave the Applicant notice that her employment would be terminated at the close of business 1 May 2019, if she did not provide a written response to the Chief Executive by that date.

[21] The conditional date of termination, of close of business 1 May 2019, was clearly ascertainable. The letter made it plain that this would be operative if the Applicant had not provided a written response before this date. The Applicant chose not to respond. Consequently, as she had been notified, her termination of employment took effect at the close of business 1 May 2019.

[22] I find that the Applicant’s employment was terminated at the close of business 1 May 2019. This application was made on 3 June 2019. The application has been made more than 21 days after the employment was terminated.

Are there are exceptional circumstances?

The reason for the delay

[23] From the moment the Applicant decided not to respond to the Chief Executive’s letter of 18 April 2019, she knew her employment would be terminated at the close of business 1 May 2019. The letter from the Chief Executive dated 13 May 2019, merely confirmed, for the record, what the Applicant already knew.

[24] There has been no acceptable reason put forward as to why the Applicant did not file this application within 21 days of her employment being terminated.

Any action taken by the person to dispute the termination

[25] Whilst it is apparent that prior to her employment being terminated the Applicant contested the Respondent’s disciplinary investigations, the Applicant after her employment was terminated on 1 May 2019, other than making this Application, did not take any action to dispute her termination. The Applicant did however write to the Respondent after she was terminated contesting various leave and other entitlement calculations.

Prejudice to the employer (including prejudice caused by the delay)

[26] There is no suggestion that there is any particular prejudice to the Respondent if a further period to apply was allowed.

The merits of the application

[27] There is limited information before the Commission about the reasons for the applicant's dismissal. It is not possible in the circumstances for the Commission to form a view about the merits or otherwise of the Application. The merits of the application are consequently a neutral factor in this decision.

Fairness as between the person and other persons in a similar position.

[28] There is no information regarding fairness between the Applicant and other persons in a similar position.

Conclusion

[29] The onus is on the Applicant to persuade the Commission that a further period should be allowed for her to make this application beyond the statutory time limit of 21 days. I have considered the information provided by the Applicant and considering all of the matters above, I am not satisfied that there are exceptional circumstances in this case.

[30] I am not persuaded that I should exercise the discretion available to allow a further period for this Application to be made. The Application was made out of time and so is not properly before the Commission and must be dismissed. An order [PR711833] to this effect will now be issued.

Printed by authority of the Commonwealth Government Printer

<PR711832>

 1   [2016] FWCFB 5500 at [18].