Louise Weber v Melaleuca Refugee Centre
[2012] FWA 7930
•3 OCTOBER 2012
[2012] FWA 7930 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Louise Weber
v
Melaleuca Refugee Centre
(U2012/11634)
COMMISSIONER SIMPSON | BRISBANE, 3 OCTOBER 2012 |
[1] On 20 July 2012 Louise Weber (“the Applicant”) made an application under section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. Her employer was Melaleuca Refugee Centre (“the Respondent”).
[2] A Conciliation conference was listed for Tuesday 7 August 2012 however was cancelled as the Respondent filed on 2 August 2012 a Form 3 Employer’s Response to Application for Unfair Dismissal Remedy making two jurisdictional objections.
[3] The first objection was on the basis that the Applicant had failed to make the Application within 14 days as the dismissal took effect on 5 July 2012 and the application was filed on 20 July 2012. Therefore the application was 1 day out of time.
[4] The second jurisdictional objection was on the basis that the Applicant’s employment was terminated on the grounds of genuine redundancy.
[5] At the Directions hearing set down Friday 31 August 2012 it was agreed to by both the Applicant’s representative and the Respondent’s representative that the extension of time jurisdictional objection would be heard on the papers.
CONSIDERATION
[6] The Respondent says the Applicant was made redundant on Thursday 5th July 2012 and points to the application filed by the Applicant which states the dismissal took effect on 5 July 2012. 1 The Respondent relies upon the Applicant knowing as early as 30 April (when a letter was sent to her that the Respondent wished to have discussions regarding her employment) that her ongoing employment was under review.
[7] The Respondent referred to a meeting held on 3rd May 2012 attended by the Applicant, her ASU representative and other staff where an explanation was given about a review of the Respondent’s structure, and a letter dated 2 May 2012 to the Applicant. The letter explained that it was intended the Applicant’s position of Community Development Team Leader was to be made redundant and an offer was made to the Applicant of an alternative position of FICT Co-ordinator at 0.8 of a full time equivalent position, or alternatively, a voluntary redundancy.
[8] Further consultation occurred with staff regarding the restructure. 2 The Applicant was asked by the Respondent’s director on 6 June 2012 for her response in regard to the offer and the Applicant responded that discussions should occur through her ASU representative Ms Ruth De Paz Nelson.3 On 8 June the Respondent’s representative emailed the ASU representative for a response.4 On 13 June (as no response was received from Ms De Paz Nelson) the Respondent’s representative emailed the ASU local organiser Jason Newell advising that as no response had been received the Respondent would proceed with a redundancy. This decision was subsequently ‘paused’ until 18 June when a consultative committee meeting would occur.
[9] Following the consultative committee meeting a subsequent email was sent to Ms De Paz Nelson seeking a response from the Applicant regarding the available alternatives by 25 June 2012. 5 The ASU responded on 19 June raising issues discussed at the consultative committee meeting and the Respondent’s representative responded on 21 June and affirmed its preference not to terminate the Applicant as a 0.8 equivalent role was available to be filled. An email was sent by ASU representative Jason Newell to the Respondent’s representative and other members of the consultative committee on 25 June stating (among other things) that details of the Applicant’s position would not be discussed at the meeting of 25 June. A further email was sent by Ms De Paz-Nelson of the ASU to the Respondent’s representative on 25 June disputing that the restructure was ‘genuine’ with regard to the Applicant’s role.6
[10] The Applicant disputes the Respondent’s contention that the Applicant had never indicated an intention to continue in her position. The Applicant relies on handwritten notes and a claim this was confirmed by an ASU representative to Mr Michael Corrigan on 25 June. 7 It is not necessary for me to make a determination regarding this issue at this stage except to note that it is in dispute.
[11] A reply was sent by the Respondent’s representative on 2 July to the ASU responding to concerns raised by the Union, and making a new offer of a full time FICT Coordinator role at level 5 as an alternative to redundancy. The letter said a response was required by 12 noon local time Thursday 5th July 2012. The letter went on to state that should a response not be received by that time it will be presumed the Applicant wishes to take a redundancy.
[12] The Applicant claims she took stress leave from 4 July 2012 and it is said in submissions the Applicant advised the ASU that her medical practitioner advised her she was not in a position to make any decision and to instead to make a worker’s compensation claim. The Applicant has provided notes to support the claim a conversation to this effect occurred between the Applicant and an ASU representative. The Applicant has also provided correspondence dated 4 July 2012 from a Doctor Kate Bolan of Wisemind Psychology, PsychHealth Centre regarding the Applicant. 8
[13] The Applicant disputes the Respondent’s claim that proof of leave was never provided and relies on written notes to support its claim that the Respondent was advised by the ASU on the morning of 5 July that the Applicant had been advised by her Doctor the Applicant was not fit to respond and was advised to commence a workcover claim. The Applicant’s submission claims no information from the telephone conversation of 5 July between the ASU representative and Michael Corrigan suggested termination was imminent.
[14] The Respondent says in its submission that the ASU called Mr Michael Corrigan, the Respondent’s representative on Thursday 5 July to advise that they could not get instructions from the Applicant, and Mr Corrigan advised as per earlier correspondence of 2 July that the Applicant would be made redundant. Correspondence was drawn up and couriered to the Applicant’s home on 5 July. The Applicant was not at home and correspondence was therefore couriered the next day 6 July 2012. This version appears consistent with the Applicant’s claim that she did not receive the letter of termination until Friday 6 July 2012, and also appears consistent with the notes attached to the Applicant’s submissions kept by an ASU representative of 6 July 2012 that support the conclusion that the Applicant only became aware of that she had in fact been terminated on 6 July 2012. The unfair dismissal application was lodged by the Applicant on 20 July 2012.
[15] The law is clear that a dismissal does not take effect until it is communicated to the employee, unless there is some particular factual circumstance providing a basis to depart from that general principal. 9 I see no basis for doing so in this case. I have considered the evidence and I am satisfied on balance that the nature of the discussions between the Applicant and her ASU representative on 5 July did not include advising her that the Respondent had taken the decision to dismiss her. Instead the discussions appeared to focus on her claimed incapacity to respond to the Respondent’s offer.
[16] The Respondent material indicated a decision was made to terminate on 5 July, and on that date a letter was drafted and couriered to the Applicant’s address. However the Respondent’s submissions state that the letter had to be sent again on 6 July because the Applicant was not home on 5 July. On that basis I am inclined to the view that the ultimate decision to terminate the Applicant was not communicated to her until 6 July 2012. This is also supported by a statutory declaration provided by Elizabeth Jane Faulkner. 10 As it is accepted that the application was filed on 20 July, on the basis of my observations above I prefer the view that the Applicant is in fact within time and on that basis there is no need to consider the matters set out in section 394(3).
[17] However for completeness, if I am wrong about when the decision to terminate had been communicated, I am also satisfied exceptional circumstances exist to justify an extension of one day in this case taking into account the material concerning the medical treatment sought by the Applicant at the relevant time, the difficulties experienced and efforts made by the Applicant between 6 July and 20 July to dispute the termination, no particular evidence of prejudice to the employer, and an inability to conclude on the material available to date the application has no merit.
COMMISSIONER
1 Submissions of the Respondent, dated 12 September at paragraph 2.
2 Submissions of the Respondent, dated 12 September at paragraph 7-9.
3 Submissions of the Respondent, dated 12 September at paragraph 11.
4 Submissions of the Respondent, dated 12 September at paragraph 12.
5 Submissions of the Respondent, dated 12 September at paragraph 15.
6 Submissions of the Respondent, dated 12 September at paragraph 21.
7 Submissions of the Applicant, dated 14 September at paragraph 17.
8 Submissions of the Applicant, dated 14 September at paragraph 22.
9 Burns v Aboriginal Legal Service of Western Australia (Inc.), Print T3496, 21 November 2000, Williams SDP, Acton SDP, Gregor C; Commonwealth of Australia (Australian Taxation Office) v Wilson, PR901127, 26 February 2001, Giudice J, Williams SDP, Bacon C; Makenja v Baptist Community Services, PR975837, 19 January 2007, Giudice J, Lawler VP, Deegan C.
10 Applicant submissions in response, at paragraph 16(b).
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