Kylie Whelan v YFNdental Pty Ltd ATF Young Family Trust T/A Sunbury Dental House
[2020] FWC 3709
•15 JULY 2020
| [2020] FWC 3709 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Kylie Whelan
v
YFNdental Pty Ltd ATF Young Family Trust T/A Sunbury Dental House
(U2020/8861)
COMMISSIONER PLATT | ADELAIDE, 15 JULY 2020 |
Application for an unfair dismissal remedy – date of dismissal in dispute – date determined – application lodged within time permitted.
[1] The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect. 1
[2] This decision concerns a dispute concerning the date that Ms Whelan was dismissed, and if that date was more than 21 days prior to the date of lodgement, whether I should exercise my discretion to allow a further period for the application to be made in exceptional circumstances. 2
Background
[3] On 27 June 2020, Ms Kylie Whelan lodged an application pursuant to s.394 of the Act in relation to the termination of her employment with FYN Dental Trading as Sunbury Dental (YFNdental) which her form F2 Unfair Dismissal Application advised took effect on 19 May 2020.
[4] On 1 July 2020, my Associate corresponded with Ms Whelan and YFNdental and advised that the extension of time issue would be considered at a telephone conference on 14 July 2020. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Whelan was directed to provide a statement concerning the extension of time and any documents to be relied upon by 9 July 2020. YFNdental was invited to file any material in reply prior to the Hearing.
[5] On 7 July 2020, the Respondent lodged a form F3 Employer Response which indicated that the dismissal took effect on 26 May 2020, raised a jurisdictional objection on the basis that the application was lodged out of time and that it was a genuine redundancy. The Respondent also advised that its correct name was YFNdental Pty Ltd ATF Young Family Trust T/A Sunbury Dental House.
Hearing
[6] A Hearing was conducted by way of telephone conference on 14 July 2020. A sound file record of the telephone conference was kept. Ms Whelan represented herself and Mr Jamie Robinson (of counsel) represented YFNdental. Permission was granted pursuant to s.596(2)(a) of the Act with the hearing conducted by way of a determinative conference to mitigate the representational imbalance.
[7] The parties agreed that I should exercise my powers under s.586 of the Act to correct the legal name of the Respondent.
[8] Ms Whelan provided a range of material which is relevantly summarised as follows:
• The date of dismissal contained on the Form F2 was incorrect.
• On 28 March 2020 she was stood down from her position as a result of the COVID-19 Pandemic.
• On 7 May 2020 she was invited to attend a meeting to discuss staff impacts and was offered a voluntary redundancy which was subsequently not accepted.
• On 19 May 2020 Ms Belinda Wilson advised Ms Whelan that her position had been made redundant.
• Ms Whelan received a letter from Ms Wilson dated 25 May 2020 titled ‘Termination of employment by reason of redundancy’. The letter included the following statement ‘….Based on your length of service, your minimum notice period is two weeks. Therefore, we have made the decision your employment will end of 14th June 2020’.
• Ms Whelan contended that the application had been made within the required timeframe.
[9] YFNdental provided material (including a Statement from Ms Wilson) which is relevantly summarised as follows:
• YFNdental operates two dental practices – the Sunbury Practice and the Bacchus Marsh Practice.
• As a result of the COVID-19 Pandemic the practices suffered significant reductions in turnover, Ms Whelan was stood down in late March 2020.
• YFNdental restructured its operations.
• A meeting with employees was held on 12 May 2020 and expressions of interest in relation to voluntary redundancies was sought. No one volunteered.
• On 19 May 2020 YFNdental advised Ms Whelan that her role would be made redundant.
• On 21 May 2020 Ms Whelan contacted Ms Wilson and stated “I accept the redundancy, I don’t want to drag this out any longer than necessary. Can you pls (sic) organise my final pay and I will return the uniform and key to help you.”
• On 25 May 2020 Ms Wilson sent Ms Whelan an email and her termination letter. Whilst the letter (extracted above) stated that the employment will end on 14 June 2020, Ms Wilson contends the employment was intended to cease on 26 May 2020. The email refers to the redundancy notice being effective from Friday 22 May 2020 and advises that 2 weeks’ notice of termination would apply.
• On 26 May 2020 Ms Whelan’s wages for the period 18 May to 31 May 2020 were paid in addition to her leave entitlements, notice and a redundancy payment. YFNdental contend this is consistent with the cessation of employment occurring on 26 May 2020.
• YFNdental submitted that based on the dismissal date of 26 May 2020 the application was made out of time.
Consideration
[10] The key issue in this matter was the date upon which the employment ceased. This is a question of fact. That Ms Whelan entered the date 19 May 2020 on her application is not determinative.
[11] There is no express reference in any of the correspondence that Ms Whelan’s notice was being paid in lieu on 26 May 2020 and that this was the last day of employment. I am not satisfied that Ms Wilson intended that the employment cease on 26 May 2020. In so far as any such inference could be drawn, it was removed by the information contained in Ms Wilson’s letter to the Applicant dated 25 May 2020, which expressly stated Ms Whelan’s employment would cease on 14 June 2020.
[12] I find that Ms Whelan’s dismissal took effect on 14 June 2020.
[13] This application was lodged on 27 June 2020 within the time frame required by s.394 of the Act and thus no extension of time is required.
[14] The matter will be referred to a Melbourne based member for hearing. In light of the information about the merits and post dismissal employment, I recommend that the parties should participate in a conciliation.
COMMISSIONER
Appearances (by telephone):
Ms K Whelan on her own behalf.
Mr J Robinson (of counsel) for the Respondent.
Hearing (Conference) details:
2020.
Adelaide:
July 14.
Printed by authority of the Commonwealth Government Printer
<PR721002>
1 Section 394(2)(a) of the Act. Note that the 21 days for lodgement does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).
2 Section 394(3) of the Act.
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