Leanne Trask v Wilson Pateras Accounting Pty Ltd
[2024] FWC 1581
•18 JUNE 2024
| [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
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