Lidia Cazier v Alex Medical Services Pty Ltd
[2019] FWC 8130
•29 NOVEMBER 2019
| [2019] FWC 8130 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Lidia Cazier
v
Alex Medical Services Pty Ltd
(U2019/10291)
DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 29 NOVEMBER 2019 |
Unfair dismissal application – date on which dismissal took effect – question of fact as to when the employment relationship came to an end – application filed within time.
Introduction and background
[1] On 13 September 2019, Ms Lidia Cazier filed in the Fair Work Commission (Commission) an unfair dismissal application (Application). Ms Cazier contends that she was unfairly dismissed by her employer, Alex Medical Services Pty Ltd (Respondent).
[2] Ms Cazier contends that her employment with the Respondent came to an end by way of a termination at the initiative of the Respondent on 23 August 2019. The Respondent contends that its employment relationship with Ms Cazier came to an end on 8 August 2019 by way of her resignation. If the Respondent is correct about the date on which the employment relationship came to an end, then the Application was filed out of time and I would need to consider whether or not to exercise my discretion to extend time for the filing of the Application. If, on the other hand, Ms Cazier is correct in her contention that her employment relationship with the Respondent came to an end on 23 August 2019, then the Application was filed within time.
[3] On 27 November 2019, I conducted a determinative conference in order to decide the following questions:
(a) First, when did Ms Cazier’s employment relationship with the Respondent come to an end?
(b) Secondly, if Ms Cazier’s employment relationship with the Respondent came to an end on 8 August 2019, as the Respondent contends, should I exercise my discretion to extend the time for the Application to be filed?
[4] I have not considered nor determined whether Ms Cazier was dismissed within the meaning of the Fair Work Act (Cth) (Act). That question, together with the balance of the issues in the proceedings, will, if necessary, be determined at a later time.
[5] In addition to Ms Cazier, the following witnesses gave evidence at the determinative conference:
(a) Dr Mariusz Gorniak, principal of the medical practice at which Ms Cazier worked, the Killarney Vale Medical Centre (KV Practice);
(b) Ms Susan Christian, Practice Manager of the KV Practice;
(c) Ms Brooke Terrell, Receptionist at the KV Practice;
(d) Ms Julie Hancock, an employee of Laverty who collects bloods at the KV Practice; and
(e) Ms Lois Wild, patient of the KV Practice.
Applicable legal principles
[6] Section 394(2) of the Act requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3).
[7] “Dismissed” is defined in s 386(1) of the Act as follows:
“A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[8] A dismissal takes effect when the employment relationship has ended. 1 The termination of the employment relationship is a different concept from the termination of an employment contract.2
[9] The employment relationship, in Australia, operates within a legal framework defined by statute and by common law principles, informing the construction and content of the contract of employment. 3
[10] The unfair dismissal regime in Part 3–2 of the Act applies to “national system employees” and “national system employers”. 4 National system employees are employees of national system employers, being employers which bear particular characteristics such as to make them amenable to particular heads of legislative power of the Commonwealth in s 51 of the Constitution.5 Beyond this, the Act does not seek to establish a statutory definition of what constitutes an employee. National system employees for the purposes of Part 3–2 of the Act are parties to an employment relationship at law.6
[11] Whether an employment relationship continues to exist is a question of fact. 7 The range of facts or factors which may need to be examined to answer the question of whether an employment relationship continues to exist will be determined by the circumstances of a particular case, and may include, without limitation, whether the employee is being paid a wage or other benefits or entitlements, whether the employee is attending or performing work for the employer, whether the employer is exercising, or has the ability to exercise, control over the execution of work by the employee,8 and the terms of the employment contract.
[12] The question of whether an employment relationship has ceased to exist does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. 9
Relevant Facts
[13] The Respondent owns and operates two medical centres: the KV Practice and the Kanwal Village Medical Centre (Kanwal Practice).
[14] On 8 May 2017, Ms Cazier commenced employment with the Respondent in a role described as a casual “part-time” 10 nurse. Ms Cazier initially worked at the Kanwal Practice and then worked predominantly at the KV Practice. Ms Cazier’s regular hours of work at the KV Practice were from 8:30am until 1:30pm on Monday to Friday.
[15] On 30 July 2019, the Respondent posted a job advertisement on Seek for a “casual part time” nurse to “join the team” at a “GP owned medical centre in Killarney Vale”, working “up to 25 hours per week – 5 mornings a week from 8:30am to 1:30pm” (Advertisement). 11 There is no dispute that the “medical centre in Killarney Vale” referred to in the Advertisement is the KV Practice.
[16] Ms Cazier saw the Advertisement on Seek. Ms Cazier thought that the Respondent was advertising her job. Ms Cazier’s belief in that regard was reasonably held: the Advertisement was for her position (nurse) at the medical centre at which she worked (KV Practice), undertaking the hours she worked (8:30am to 1:30pm on Monday to Friday).
[17] On Thursday, 8 August 2019, Ms Cazier had discussions with Dr Gorniak in relation to her employment with the Respondent. Dr Gorniak contends that he told Ms Cazier she “would not be rostered for 2 weeks in order to make space to train the new nurse”. Ms Cazier says that Dr Gorniak told her she was required to take two weeks unpaid “holidays” from Monday, 12 August 2019. I prefer Ms Cazier’s evidence over that given by Dr Gorniak in relation to this part of the conversation. Ms Cazier was not an employee whose hours varied on a regular basis depending on a roster. She worked standard hours of 8:30am until 1:30pm on Monday to Friday, together with some additional hours from time to time, principally at the Kanwal Practice, to fill in for other nurses. Further, Ms Christian gave evidence that Dr Gorniak told her he had advised Ms Cazier to “take two weeks off work”, which is similar to taking two weeks holidays.
[18] Ms Cazier told Dr Gorniak that she had seen the Advertisement for her position on Seek. Dr Gorniak denied that the Advertisement was for Ms Cazier’s job and said, according to Ms Cazier, that she was only being asked to take “holidays”.
[19] During his oral evidence, Dr Gorniak maintained that the Advertisement was not for Ms Cazier’s job. Dr Gorniak gave the following explanation in his statutory declaration 12 in relation to this issue:
“Due to unexpected events in our second small practice located at Kanwal, we needed to find and train a new nurse. I decided that the Killarney Vale practice (where Lidia was based) would be an ideal environment to train the new nurse.”
[20] Dr Gorniak also gave oral evidence that the full-time nurse in the Kanwal Practice needed to transition to part time employment in about late August 2019, and another nurse was employed to work one to two days a week in the Kanwal Practice. I accept Dr Gorniak’s evidence in that regard. However, I do not accept Dr Gorniak’s evidence that the Advertisement was not for Ms Cazier’s job. My reasons for not accepting that evidence are as follows:
(a) first, the role, location and hours of work specified in the Advertisement match precisely with the job that Ms Cazier had been doing for a considerable period of time;
(b) secondly, the Advertisement does not make any reference to working at the Kanwal Practice or working other than “up to 25 hours per week – 5 mornings a week from 8:30am to 1:30pm”;
(c) thirdly, the nurse who was employed pursuant to the Advertisement has, at all times since Monday, 12 August 2019, worked from 8:30am until 1:30pm on Monday to Friday at the KV Practice; and
(d) fourthly, Dr Gorniak gave evidence that he was not happy with Ms Cazier’s conduct and behaviour in the period leading up to 8 August 2019. In fact, at the meeting on 8 August 2019 Dr Gorniak contends that he told Ms Cazier she would “be required to change her behaviour for the better, or she would risk losing her job.” 13 This evidence supports Ms Cazier’s contention that Dr Gorniak was looking to replace her with a new nurse when the Advertisement was posted.
[21] Dr Gorniak gave oral evidence, which I do not accept, that he told Ms Cazier on 8 August 2019 that she would still have a job after her two week period away from work but he was not sure what her hours and location of work would be on her return. This conversation was not included in Dr Gorniak’s statutory declaration. It was denied by Ms Cazier, who gave plausible evidence, which I accept, that Dr Gorniak did not give her any assurance that she would have a job after the two week period and instead told her that he would wait to “see how it goes”. Further, Dr Gorniak gave evidence that before his discussions with Ms Cazier on 8 August 2019, he told the Practice Manager, Ms Christian, about the potential change to Ms Cazier’s hours and location of work. Ms Christian gave evidence that she did not have such a discussion with Dr Gorniak.
[22] Dr Gorniak contends that he discussed with Ms Cazier on 8 August 2019 his concerns about her conduct and behaviour, including smoking during work hours. Ms Cazier denies that Dr Gorniak spoke to her about such matters on 8 August 2019. I prefer Dr Gorniak’s evidence over that given by Ms Cazier in relation to this issue. There is no dispute that Dr Gorniak had previously spoken to Ms Cazier about an issue raised by a patient concerning the smell of smoke on Ms Cazier shortly after a work break. Dr Gorniak’s evidence is supported by Ms Christian’s evidence that Dr Gorniak told her shortly after his discussion with Ms Cazier on 8 August 2019 that he had spoken to Ms Cazier earlier that day about such matters and he would think about whether he wanted her to continue working for the Respondent during her two week absence from the workplace. Further, Dr Gorniak’s evidence that he discussed these issues with Ms Cazier on 8 August 2019 is consistent with his strongly held views about Ms Cazier’s conduct and behaviour and the Advertisement for a replacement nurse in the KV Practice.
[23] Dr Gorniak stated in his statutory declaration that on 8 August 2019 Ms Cazier “verbally communicated that she would not be returning to work … I was certain that she would not return to work hence I did not request written confirmation with regards to her decision to quit”. 14 In his oral evidence, Dr Gorniak stated that Ms Cazier said to him on 8 August 2019 words to the effect, “I won’t be back. I am leaving. I am done with it”. Ms Cazier denies that she made any such statement to Dr Gorniak. My finding, together with the reasons for it, in relation to this contested evidence is set out in paragraph [45] below.
[24] Ms Cazier was worried, agitated and upset as a result of her discussions with Dr Gorniak on 8 August 2019. That is not surprising in circumstances where Ms Cazier had seen the Advertisement and believed, reasonably, that her job was being advertised, Dr Gorniak told her to take a two week unpaid “holiday”, during which time a new nurse would be trained at the KV Practice, and Dr Gorniak would “see how it goes” at the end of the two week period. In addition, Ms Cazier was aware that earlier in 2019 a Receptionist at the KV Practice had been sent on a two week period of leave and she did not return to work thereafter.
[25] Ms Cazier spoke to a number of the staff at the KV Practice following her discussions with Dr Gorniak on 8 August 2019. I accept her evidence that one such person to whom she spoke was Dr Ahmed, a medical practitioner working at the KV Practice, who spoke to Dr Gorniak and then said to Ms Cazier words to the effect, “I do not think you will be back”.
[26] At the end of her shift on 8 August 2019, Ms Cazier took some of her belongings home, including her blue tooth speaker, lollypops, jar of mentos, jar of jelly beans and a note book. I accept Ms Cazier’s explanation that she took these belongings home because she had a pre-arranged medical procedure on 9 August 2019, she would then be on unpaid “holidays” for two weeks, and when Ms Cazier had gone on leave in June she had returned to the workplace to find a number of her personal items “gone”. 15
[27] I also accept Ms Cazier’s evidence that she left a number of her belongings at work on 8 August 2019, including a text book, inhaler, manual blood pressure machine, hand cream, zinc cream, jar or bottle of jelly beans, oil and research papers. The Respondent accepts that Ms Cazier did not take her text book and inhaler, but denies anything else was left behind. Ms Terrell gave oral evidence that she recalled the manual blood pressure machine and a bottle of jelly beans being left behind after Ms Cazier’s departure on 8 August 2019. Further, in a letter sent to Ms Cazier on 23 August 2019, the Respondent informed Ms Cazier that it “would appreciate you picking up your personal belongings on or before Friday August 30th, 2019”.
[28] Ms Christian gave evidence that she was at the Kanwal Practice on 8 August 2019, so did not hear any discussion between Ms Cazier and Dr Gorniak or any employee of the Respondent on 8 August 2019. Ms Christian gave evidence, which I accept, that she had a telephone discussion with Dr Gorniak on 8 August 2019 in which he told her that he had discussed a range of issues with Ms Cazier, including the issue of Ms Cazier smoking on the premises, and had advised her to take two weeks off work while he thought about whether he wanted her to continue working in the business. Ms Christian also gave evidence, which I accept, that Dr Gorniak told her during this discussion that Ms Cazier was angry, she had packed up her stuff, and he did not think she would be back.
[29] Ms Wild was in attendance at the KV Practice on 8 August 2019. I found her to be a reliable and credible witness, who had a good recollection of relevant events and did not have any motive to lie. Ms Wild gave the following evidence, which I accept: 16
“On the 8th of August 2019 whilst in the Killarney Vale medical Centre reception area, nurse Lidia was at the desk. I said hello and that I would be in to see her in the next couple of weeks for my annual review. She told me that I would not be seeing her as she wouldn’t be there. I assumed she meant she was going on holidays and I asked her if she was going away. She replied that she was taking 2 weeks leave and she wouldn’t be back. I asked her if she was retiring and she answered I wish. I heard her saying she was going to pack things. I had no further contact with her.”
[30] Ms Cazier denied saying to Ms Wild that “she wouldn’t be back” but did not otherwise seriously challenge Ms Wild’s statutory declaration.
[31] The fact that Ms Cazier told Ms Wild that she would not be there to see Ms Wild for her annual review “in the next couple of weeks” is neutral in my consideration of whether the employment relationship came to an end on 8 August 2019. That is because Dr Gorniak told Ms Cazier that she would be on a period of two weeks “holidays” from Monday, 12 August 2019, which would cover the time at which Ms Wild was due for her annual review.
[32] At the time she spoke to Ms Wild on 8 August 2019, Ms Cazier was upset and clearly believed that Dr Gorniak was likely to terminate her employment during her two week period away from the KV Practice. In that context, I do not consider Ms Cazier’s statement to Ms Wild that “she would not be back” as an unequivocal statement of her intention or decision to resign; rather, it would be interpreted by a reasonable person as a statement of Ms Cazier’s belief as to what was likely to happen.
[33] I also found Ms Terrell to be a reliable and credible witness. She had a good recollection of relevant events and did not attempt to give evidence in relation to matters of which she had no direct involvement or knowledge. There is no basis on the evidence to find that there were any difficulties in the working relationship between Mr Terrell and Ms Cazier, or that she otherwise had a motive to be dishonest. I accept Ms Terrell’s evidence that on 8 August 2019 Ms Cazier made comments to her such as “I’m not going to be back”, “I won’t be here anymore”, “you won’t see me here again”, and farewell statements such as “it has been nice to work with you”. However, as is the case with Ms Cazier’s statements to Ms Wild, at the time Ms Cazier made those statements to Ms Terrell she was upset and clearly believed that Dr Gorniak was likely to terminate her employment during her two week period away from the KV Practice. I consider that Ms Cazier’s statements to Ms Terrell would be interpreted by a reasonable person as statements of her belief as to what was likely to happen, not an unequivocal statement of her intention or decision to resign. Indeed, given the terms of the Advertisement, the fact that the nurse employed as a result of the Advertisement was due to commence her trial in the KV Practice on Monday, 12 August 2019, and Dr Gorniak’s firmly held views about Ms Cazier’s poor behaviour and conduct, the strong likelihood is that the Respondent was going to dismiss Ms Cazier and replace her with a new nurse in the KV Practice, assuming the new nurse worked well during her two week trial period. Ms Cazier could see that as clearly as any reasonable person would in her position.
[34] Ms Hancock did not hear any relevant discussions between Ms Cazier and any other person on 8 August 2019. Ms Hancock’s knowledge of what happened on 8 August 2019 is derived solely from what she was told, on 9 August 2019, by Ms Terrell and Ms Wild about what happened on the previous day. In light of the fact that Ms Terrell and Ms Wild gave evidence in the proceedings and I have found them to be reliable and credible witnesses, I prefer their evidence of what happened on 8 August 2019 over Ms Hancock’s hearsay account of those discussions.
[35] I accept Ms Cazier’s evidence that she was worried about what was occurring with her employment with the Respondent. On 14 August 2019, she called the Commission and spoke with an advisor who informed her that she could not take any action until she was actually dismissed by her employer. As a result, Ms Cazier did not take any action until after she believed she was dismissed on 23 August 2019. Ms Cazier was careful to ensure she filed her Application within 21 days of 23 August 2019.
[36] On 22 August 2019, Ms Cazier called the KV Practice and spoke to Ms Terrell, to see if she had heard anything about herself returning to work the next Monday, after the conclusion of the two week “holiday” period. Ms Terrell was not aware of any arrangements for Ms Cazier’s return to work. I accept Ms Terrell’s evidence that Ms Cazier then told her she would be coming back to work on the following Monday.
[37] Immediately following her telephone call with Ms Cazier, Ms Terrell told Ms Christian about her discussion with Ms Cazier. It is clear from the evidence given in these proceedings that there was a significant amount of animosity between Ms Christian and Ms Cazier in the workplace.
[38] Ms Christian called Ms Cazier on 22 August 2019. There is a dispute as to what was said in that discussion. Ms Cazier contends that the conversation was in the following terms:
Ms Christian said: “What do you mean about coming back on Monday?”
Ms Cazier said: “Dr Gorniak had told me that I was to take two weeks holidays.”
Ms Christian said: “That’s not what he meant to say. He was supposed to tell you that you were finished. You know what he is like he always gets things wrong.”
Ms Cazier said: “Well, if that’s the case I need to have it in writing.”
[39] Ms Christian gave the following evidence in relation to this conversation: 17
“… I called Lidia straight away from my car.
Lidia was saying to me that she hadn’t officially been “let go” and that she needed confirmation in writing that she no longer worked for the company. I assumed this was for Centrelink reasons. I felt pressured to send her confirmation in writing…
I sent Lidia a letter of confirmation that she no longer worked for Alex Medical Services with the date of our phone call on it. We did not feel that we had to give her a letter of termination earlier than this date as she had “quit” already…”
[40] The key difference in the evidence given by Ms Cazier and Ms Christian concerning their telephone discussion on 22 August 2019 is whether Ms Christian said, “That’s not what he meant to say. He was supposed to tell you that you were finished. You know what he is like he always gets things wrong.” I prefer Ms Christian’s evidence that she did not make such a statement to Ms Cazier over Ms Cazier’s evidence in relation to this issue. The contested statement is inconsistent with Ms Christian’s account of what Dr Gorniak told her on 8 August 2019 about his conversation with Ms Cazier earlier that day. 18 It also seems unlikely that a Practice Manager would tell an employee who had left the workplace after an argument with Dr Gorniak that “he was supposed to tell you that you were finished”, particularly in circumstances where the Practice Manager had not sent a letter or other communication to the employee to confirm that their employment had come to an end.
[41] The letter sent to Ms Cazier by the Respondent on 23 August 2019 was in the following terms:
“Dear Lidia,
I’m sorry to inform you that as of 23/08/2019, you’ll be no longer employed with Alex Medical Services Pty Ltd.
In the interests of going forward with our business we think this is the best decision for us.
As a casual employee we are not obligated to give you a notice period nor any termination payments…
Please return any company property you may have and we would appreciate you picking up your personal belongings on or before Friday, August 30, 2019…” [emphasis added]
[42] The Form F3 – Employer Response filed by the Respondent in the Commission on about 17 September 2019 included the following relevant information:
“1.3 What date did the employer notify the Applicant of their dismissal?
08/08/2019 a discussion was had with Lidia and Dr Gorniak whereby after she removed her belongings from the premises giving the perception of quitting.
1.4 What date did the dismissal take effect?
23/08/2019
2.2 If you answered yes to question 2.1 – On what basis does the employer object? If the employer objects on multiple grounds you can select more than one from the list below:
…
3. On the day of the final discussion Lidia removed her personal belongings from the clinic giving the perception that she had quit and was not returning…
3.1 What were the reasons for the dismissal?
…
7. Employee was given the opportunity to have a 2 week break to consider if she would become compliant to the reasonable boundaries asked of her – however as the employee promptly gathered all personal belongings, except for a book and an inhaler, we assumed she had quit. She had said to a staff member “well, I won’t be back then”, further adding to the perception that she had quit and was not returning…”
[43] The Respondent contends that it made mistakes in completing its Response and in stating in the letter dated 23 August 2019 that “as of 23/08/2019, you’ll be no longer employed” and “this is the best decision for us”.
[44] On about 15 October 2019, the Respondent filed a Form F4 – Objection to unfair dismissal application. One of the objections raised by the Respondent in that form was that the Application was out of time, for the following reason:
“1.2 Explain why you object on the ground(s) selected above
We strongly believe, after seeking council [sic], that the application was not made within the time required by the Fair Work Act 2009. The applicant abandoned her employment on August 8th, 2019, by packing her belongings and advising Dr Gorniak, staff and a patient that she would not be returning. Her application for unfair dismissal was lodged September 17th, 2019 – being 40 days after leaving.
We also believe all warning given were consistent with the Small Business Fair Dismissal Code of which we are prepared to put forth many statutory declarations form Drs, staff, patients and allied health services to support.”
[45] Dr Gorniak’s contention that Ms Cazier said to him on 8 August 2019 she would “not be returning to work … I won’t be back. I am leaving. I am done with it” is an important aspect of this case. Ms Cazier denies that she made any such comment to Dr Gorniak. I prefer Ms Cazier’s evidence over Dr Gorniak’s in relation to this issue for the following reasons:
(a) first, Dr Gorniak’s contention that Ms Cazier said to him on 8 August 2019 “I won’t be back. I am leaving. I am done with it” was first raised in his oral evidence in the Commission. Dr Gorniak’s statutory declaration only stated that Ms Cazier “verbally communicate[d] that she would not be returning to work”;
(b) secondly, I have found that Dr Gorniak told Ms Christian on 8 August 2019 that he did not think Ms Cazier would be back. This is not consistent with the statement in Dr Gorniak’s statutory declaration that “by this point in time, I was certain that she would not return to work”;
(c) thirdly, there is no evidence to suggest that Dr Gorniak told Ms Christian on 8 August 2019 that Ms Cazier said she would “not be returning to work … I won’t be back. I am leaving. I am done with it”. It would be most unlikely for such comments, if they were made, not to be reported to the Practice Manager. Further, such comments do not sit well with Ms Christian’s evidence, which I have accepted, that Dr Gorniak told her he had informed Ms Cazier to “take two weeks off work while he thought about whether he wanted her to continue working with us”;
(d) fourthly, the alleged comments are not consistent with the letter sent to Ms Christian on 23 August 2019, insofar as it says:
“I’m sorry to inform you that as of 23/08/2019, you’ll be no longer employed with Alex Medical Services Pty Ltd.
In the interests of going forward with our business we think this is the best decision for us.
As a casual employee we are not obligated to give you a notice period nor any termination payments…”, and
(e) fifthly, there is no suggestion in the Response filed by the Respondent on about 17 September 2019 that Ms Cazier had made such comments to Dr Gorniak on 8 August 2019. To the contrary, it is contended in the Response that (i) the dismissal took effect on 23 August 2019, (ii) Ms Cazier’s removal of her belongings from the premises on 8 August 2019 gave “the perception of quitting”, and (iii) Ms Cazier had said to a staff member “well, I won’t be back then, further adding to the perception that she had quit and was not returning”. It was not until after the Respondent had obtained advice and filed its Form F4 – Objection on about 15 October 2019 that the Respondent contended, for the first time, that Ms Cazier had advised “Dr Gorniak, staff and a patient that she would not be returning”.
When did Ms Cazier’s employment relationship with the Respondent come to an end?
[46] I have rejected the contention that Ms Cazier made any statement to Dr Gorniak on 8 August 2019 to the effect that she was leaving.
[47] I have accepted that on 8 August 2019 Ms Cazier told other staff members such as Ms Terrell and a patient, Ms Wild, that she would not be back and other similar comments. Considered in isolation, these comments support the Respondent’s contention that the employment relationship came to an end on 8 August 2019. However, once these comments are considered in context, as they must be, it would have been apparent to a reasonable person in the position of the Respondent that Ms Cazier was making statements as to her belief, reasonably held, that her employment with the Respondent would in all likelihood not continue after the two week forced “holiday”, rather than a statement of her intention to end the employment relationship or a belief that the relationship would end on 8 August 2019.
[48] The removal of personal items from a workplace by an employee is, of itself, usually indicative of the cessation of an employment relationship. In this case, however, Ms Cazier left some of her personal items at the KV Practice and gave an explanation, which I accept, that she took some items home because her recent experience had been that her personal belongings had been taken from the workplace during her absence from work. Having regard to this context, the removal by Ms Cazier of personal items from the workplace on 8 August 2019 does not weigh to any significant extent in support of a conclusion that the employment relationship came to an end on 8 August 2019.
[49] It is clear that Ms Cazier did not undertake any work for the Respondent after 8 August 2019, nor was she paid in respect of that period. However, that is explicable on the basis that Ms Cazier was on a period of unpaid leave for two weeks from 12 August 2019. An employment relationship does not cease when an employee is on a period of unpaid leave.
[50] The letter sent by the Respondent to Ms Cazier on 23 August 2019 would have informed a reasonable person in the position of Ms Cazier that her employment relationship with the Respondent came to an end “as of 23/08/2019”, on the basis of a “decision” by the Respondent.
[51] In all the circumstances, on balance I find that Ms Cazier’s employment relationship with the Respondent came to an end on 23 August 2019.
Conclusion
[52] In light of my conclusion that Ms Cazier’s employment relationship with the Respondent ceased on 23 August 2019, Ms Cazier’s Application was filed within the 21 day time period provided for by the Act. The Respondent’s jurisdictional objection that the Application was filed out of time is rejected.
[53] I have not made any determination as to whether Ms Cazier was dismissed within the meaning of the Act.
[54] The matter will be shortly listed for directions to deal with the balance of the issues in the Application.
DEPUTY PRESIDENT
Appearances:
Ms Cazier, on behalf of herself.
Mr Gorniak, on behalf of the Respondent.
Hearing details:
2019.
Newcastle:
27 November.
Printed by authority of the Commonwealth Government Printer
<PR714733>
1 Siagian v Sanel Pty Ltd [1994] IRCA 2 (Wilcox CJ); Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]
2 Visscher v Giudice and Others (2009) 258 ALR 651 at [53] to [55] per Heydon, Crennan, Keifel and Bell JJ; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [21]-[22]; Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [31]-[50]
3 Commonwealth Bank of Australia v Barker (2014) 312 ALR 356 at 357 [1]
4 s.380 of the Act
5 Ayub v NSW Trains[2016] FWCFB 5500 at [25]
6 Ibid
7 Byrne v Australian Airlines Limited (1995) 185 CLR 410 at 428; Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878 at [27]
8 Humberstone v Northern Timber Mills (1949) 79 CLR 389 at 404; Stevens v Brodribb Sawmilling Co. Pty Ltd (1986) 160 CLR 16 at 24 & 35; Forstaff v Chief Commissioner of State Revenue (2004) 144 IR 1 at [91]
9 Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [45], applyingKoutalis v Pollett [2015] FCA 1165; 235 FCR 370 at [43]
10 Ex A4
11 Ex A3
12 Ex R1
13 Ex R1 at page 1
14 Ex R1 at page 1-2
15 Ex A1 at [17]
16 Ex R4
17 Ex R2 at page 1
18 Ex R2 at page 1, paragraph 1
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