Leanne Trask v Wilson Pateras Accounting Pty Ltd

[2024] FWC 1581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Leanne Trask
v

Wilson Pateras Accounting Pty Ltd

(C2024/2585)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 18 JUNE 2024

Section 365 – resignation – employee then not paid and hence dismissed – objection dismissed

The following is an edited version of a decision delivered ex tempore earlier today. Leanne Trask has made an application under s 365 of the Fair Work Act 2009 (Act). The respondent, Wilson Pateras Accounting Pty Ltd (Wilson), objects on the ground that Ms Trask was not dismissed. In brief summary, the following occurred. On 29 January 2024, Ms Trask resigned on six months’ notice. A disagreement arose about the duties she would then perform. On 8 March 2024, Ms Trask gave Wilson a medical certificate citing unfitness for work from 8 March to 8 April 2024. On 15 March 2024, which was payday, Ms Trask did not receive any pay, even though she had accrued sick leave entitlements. She asked Wilson why she had not been paid but received no answer. On 3 April 2024, Ms Trask’s lawyers told Wilson that if she was not paid within 24 hours, she would regard Wilson to have repudiated her contract. Still she was not paid. On 5 April 2024 her lawyers confirmed to Wilson that she accepted repudiation of her contract of employment.

I find that Wilson terminated Ms Trask’s employment by refusing to pay her. Ms Trask had given notice of termination to take effect on 29 July 2024. But by failing to pay Ms Trask, Wilson ended her employment before this date. The refusal to pay wages (or sick leave payments) was action by the employer that was the principal contributing factor which resulted in the termination of the employment (see Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [75]). Ms Trask’s employment was terminated on the employer’s initiative (see s 386(1)(a)). She was dismissed. The fact that Wilson had concerns about Ms Trask’s performance or conduct (which she rejects) is beside the point. For these reasons the jurisdictional objection was dismissed. I then proceeded to conduct a conference to deal with the matter as required by s 368. The Commission’s function in this matter is now concluded.

DEPUTY PRESIDENT

Appearances:

K. Lajoie for the applicant
C. Spain for the respondent

Hearing details:

2024
Melbourne
18 June

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Leanne Trask has applied to the Fair Work Commission for a remedy under section 365 of the Fair Work Act 2009, claiming that she was dismissed by her employer, Wilson Pateras Accounting Pty Ltd. Wilson objects on the basis that Ms Trask was not dismissed, arguing instead that she was merely not paid. Ms Trask had resigned from her employment on 29 January 2024 with six months’ notice, effective from 29 July 2024. However, when she did not receive her pay on 15 March 2024, despite providing a medical certificate citing unfitness for work, she considered herself dismissed. The Commission had to decide whether Wilson’s failure to pay Ms Trask amounted to a dismissal under the Act.

The legal issues were whether Wilson’s actions constituted a dismissal and, if so, whether the Commission had jurisdiction to hear Ms Trask’s application. The Commission noted that if an employer fails to pay an employee on a payday, it could be considered a dismissal if it is the principal contributing factor to the termination of employment. The Commission found that Wilson’s failure to pay Ms Trask on 15 March 2024, despite her entitlement to sick leave payments, constituted a dismissal because it was the principal factor that resulted in the termination of her employment before her notice period was due to expire. The Commission rejected Wilson’s jurisdictional objection and found that it had the authority to hear Ms Trask’s application.

The Deputy President concluded that Ms Trask was indeed dismissed by Wilson’s actions. The Commission found that Wilson’s failure to pay Ms Trask on payday was the primary factor leading to the termination of her employment before the end of her notice period. The concerns about her performance or conduct were irrelevant to the dismissal finding. Consequently, the jurisdictional objection was dismissed, and the Commission proceeded to conduct a conference to address the matter as required by section 368 of the Fair Work Act. The Commission’s role in this matter was now concluded.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established