Michael Varker v Victoria Police

[2021] FWC 2732

[2021] FWC 2732

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Varker
v
Victoria Police
(U2021/1816)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 18 MAY 2021

Application for an unfair dismissal remedy – effective date of dismissal – whether application filed out of time – finding in relation to effective date of dismissal – application filed within time – jurisdictional objection dismissed.

[1] Mr Michael Varker (Applicant) commenced employment with Victoria Police (Respondent) on or about 23 May 2016. He was employed as a Supervising Police Custody Officer (SPCO) at the time of his dismissal. At an earlier period between 8 December 1980 to 26 June 1996 Mr Varker was employed as a sworn police officer by the Respondent. On 4 March 2021 the Applicant applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy.

[2] The date on which the Applicant’s dismissal took effect is in dispute. The Applicant contends that the termination of employment took effect on 15 February 2021 when he received the letter of termination from his union representative, Ms Megan Wenlock of the Community and Public Sector Union (CPSU). 1 The Respondent contends the Applicant’s dismissal took effect on 8 February 2021 when the letter of termination was sent by email to Ms Wenlock, as she was acting as an agent for the Applicant.2 The resolution of this issue is relevant to assessing whether the application was lodged within the time prescribed in s.394(2) of the Act. If the Applicant is correct, the application was lodged in time. If the Respondent is correct, the application was lodged three days after the time for lodgement had passed. In that event the Applicant contends that a further period within which his application may be lodged should be allowed because there are exceptional circumstances.3

[3] For the reasons set out below I have concluded that the Applicant’s employment ended on 15 February 2021 when he received the letter of termination and so the application was made within the 21-day statutory timeframe.

[4] As noted above, the Applicant was employed by the Respondent as a SPCO. On 27 August 2020, the Applicant was sent a letter by the Respondent advising him that a complaint had been made against him by a civilian. 4 The substance of the complaint alleged that the Applicant had used excessive force towards the complainant whilst in custody in the Geelong Police Station on 25 August 2020. On 15 September 2020, the Applicant was sent a further letter by the Respondent outlining allegations of misconduct and advising the Applicant that he was suspended with pay pending an investigation into the allegations.5

[5] The allegations were that the Applicant breached certain standards applying to his employment by:

•  using an inappropriate and/or excessive and/or disproportionate level of force in carrying out his duties as a SPCO;

•  failing to take reasonable care for the health and safety, and the security and welfare of a person in custody; and

•  wearing an inappropriate face covering while carrying out his duties as an SPCO.

[6] On 9 October 2020, Ms Wenlock sent Ms Lyndel Ross (Ms Ross), Acting Workplace Relations Lead of the Respondent an email, attached to which was a letter outlining the Applicant’s response to the allegations. 6

[7] Ms Ross states that following receipt of the abovementioned letter, ‘it was clear to [her]’ that Ms Wenlock was acting on behalf of the Applicant. 7 From then onwards, Ms Ross copied Ms Wenlock into all correspondence sent from the Respondent to Mr Varker in relation to his misconduct investigation.

[8] Ms Ross states that Ms Wenlock continued to send correspondence to the Respondent relating to the Applicant’s misconduct investigation on the Applicant’s behalf, including:

•  on 9 November 2020, when Ms Ross was sent an email from Ms Wenlock querying whether the investigation will proceed if the Applicant was not fit to participate;

•  on 11 November 2020, when Ms Ross was sent an email from Ms Wenlock advising the Applicant was not able to participate in the misconduct process; and

•  on 12 November 2020, when Ms Ross was sent an email from Ms Wenlock querying whether the investigation would be placed on hold while the Applicant was unfit to participate in the misconduct process. 8

[9] On 24 November 2020, Ms Ross was sent a further email from Ms Wenlock advising, inter alia, that the Applicant “has requested” that “while he is on Workcover and recovering from this injury, he wants all emails pertaining to this misconduct to be sent directly to me, and not his personal email, and that I [Ms Wenlock] will then forward it onto” the Applicant. 9

[10] On 12 January 2021, Ms Ross sent an email to Mr Andreas Ansorge of the CPSU, copying in Ms Wenlock and attaching a letter addressed to the Applicant summarising the findings of the investigation and advising that the Allegations have been substantiated. 10 The letter proposed termination of the Applicant’s employment and requested the Applicant provide a response within ten days from the date of the letter. The Applicant responded on 27 January 2021 by way of a letter from Ms Jo Sarkies, Industrial Officer and Team Leader of CPSU to the Respondent.11

[11] On 8 February 2021, Ms Ross sent an email to Ms Wenlock and Ms Sarkies (the Termination Email) attached to which was the Applicant’s letter of termination (Termination Letter). 12

[12] The Applicant was not copied into the Termination Email. Ms Ross states that she believed Ms Wenlock would forward the correspondence onto the Applicant and that this belief was largely informed by Ms Wenlock’s email of 24 November 2020. 13 The Respondent submits that the Termination Letter was therefore only sent to Ms Wenlock.

[13] Ms Wenlock’s evidence was that upon receiving the Termination Email and Termination Letter, she did not scan the intended recipients of the Termination Email and genuinely believed the Respondent had sent a copy of the Termination Letter directly to the Applicant and as such, it was not her responsibility to communicate the notice of termination to the Applicant. 14 On the basis of this belief, Ms Wenlock did not contact the Applicant and instead waited for the Applicant to contact her to discuss the dismissal and the next steps.15

[14] On 15 February 2021, Ms Ross telephoned Ms Wenlock and left a voice message requesting she be contacted immediately. 16 Ms Wenlock subsequently telephoned Ms Ross and was informed by Ms Ross that neither the Termination Email nor Termination Letter was sent to the Applicant by the Respondent.17

[15] Following this telephone conversation, Ms Ross sent an email to Ms Wenlock and copied in Ms Sarkies seeking confirmation as to whether the Applicant had been advised of the termination of his employment. 18 The email also stated:

“As per CPSU’s request on 24 November 2021, Victoria Police were advised that ‘whilst [SPCO Varker] is on WorkCover and recovering from this injury, [SPCO Varker] wants emails pertaining to this misconduct process to be sent directly to me, and not his personal email, and I will then forward it onto him.’ Therefore this request was adhered to.”

[16] On the same day, Ms Wenlock replied to Ms Ross by email confirming that she had forwarded the Termination Email and the Termination Letter to the Applicant. 19

[17] In his evidence, the Applicant said that he was notified of the termination of his employment in the first instance by way of a telephone call from Ms Wenlock on 15 February 2021. 20 He said that he informed Ms Wenlock that he had not received any notice of termination by the Respondent and requested that Ms Wenlock forward such notice to him.21 At 3:53pm on the same day, the Applicant received the Termination Email and the attached Termination Letter from Ms Wenlock by email.22

[18] The Applicant maintains that the termination of his employment took effect on 15 February 2021, being the date on which he received the Termination Letter. 23

[19] In support of this contention, the Applicant relies on the language of the Termination Letter, specifically the sentence which reads:

“You are now advised that your termination will be effective from the date you receive this letter”. 24

[20] The Applicant contends that such language has the effect that the termination of his employment would not take effect until he himself received the Termination Letter. The Applicant further contends that in any event, the Respondent, upon becoming aware that the Applicant only received the Termination Letter on 15 February 2021, failed to advise him that the effective date of termination was 8 February 2021, being the date on which the Termination Letter was sent to Ms Wenlock. 25

[21] These propositions were challenged by the Respondent in its submissions. The Respondent submits that such a construction of the language of the Termination Letter would have the “absurd consequence of placing the timing of [the Applicant’s] termination in the hands of his agent rather than his employer”. 26

[22] The Respondent also contends that the Applicant did receive the Termination Letter on 8 February 2021 pursuant to a relationship of agency that existed between the Applicant and Ms Wenlock, 27 and in the result, the dismissal took effect on 8 February 2021 when Ms Wenlock was sent the Termination Email and Termination Letter.28

[23] The Respondent refers to and relies on the email of 24 November 2020 sent by Ms Wenlock to Ms Ross 29, the relevant text of which has earlier been extracted.

[24] The Respondent submits that it can be inferred that the Applicant expressly authorised Ms Wenlock to act as his agent and the scope of this authority extended to Ms Wenlock receiving all communications from the Respondent pertaining to the Applicant’s misconduct investigation because:

•  the Applicant was copied into the email of 24 November 2020 sent by Ms Wenlock to Ms Ross;

•  the Applicant did not object to the contents of the email of 24 November 2020; and

•  the Applicant acted in a manner consistent with the instructions of the email of 24 November 2020 email, in that he proceeded to send and receive correspondence with the Respondent exclusively through Ms Wenlock. 30

[25] The Respondent submits that the Termination Letter sent to Ms Wenlock on 8 February 2021 ‘clearly pertained to’ the Applicant’s misconduct investigation. 31 In the result, the Respondent contends that the dismissal took effect on 8 February 2021 and as the Applicant lodged his unfair dismissal application on 4 March 2021, it was lodged outside the 21-day timeframe.

[26] In the circumstances set out above I am not persuaded that a relationship of agency was established between the Applicant and Ms Wenlock, the scope of which extended to Ms Wenlock receiving all communications from the Respondent pertaining to the Applicant’s misconduct process. I accept that the Termination Email and Letter pertain to the misconduct process and that they were sent to Ms Wenlock responsive to the request made in Ms Wenlock’s email correspondence of 24 November 2020.

[27] However, the Respondent’s submission that the email sent by Ms Wenlock to Ms Ross on 24 November 2020 ‘clearly inferred’ that the Applicant had expressly authorised Ms Wenlock to act as his agent is rejected. The email simply stated that the Applicant had ‘requested’ that any emails pertaining to his misconduct process from the Respondent be sent directly to Ms Wenlock. The email did not explicitly state that the Applicant had authorised Ms Wenlock to act as the Applicant on his behalf in the sense that sending an email to Ms Wenlock intended for the Applicant was to be taken as receipt by the Applicant. The nature of the email was in terms communicating the Applicant’s request about how particular communication should be received by him. The Respondent was under no obligation to comply with the request. The 24 November 2020 email itself conveyed that any email correspondence received by Ms Wenlock about the misconduct process, once received by her would be forwarded onto the Applicant. Properly construed, the request was for Ms Wenlock to act as a clearing house for the collection, and then distribution to the Applicant, of email correspondence pertaining to the misconduct process. It did not purport to communicate agency or the acceptance of effective service of or communication to the Applicant, of relevant email correspondence.

[28] But even if I am wrong in this conclusion, then if any such relationship of agency is to be inferred, it is of limited scope. As the Respondent correctly points out, the ordinary principles of agency require that the agent has the authority of the principal and that the agent was conducting him or herself within the scope of that authority. It is thus important to identify the scope of the authority conferred. 32 On the face of the email sent by Ms Wenlock to Ms Ross on 24 November 2020, all that the Applicant authorised was Ms Wenlock to communicate his request to the Respondent, and if acceded to, for Ms Wenlock to act as a platform or clearing house through which the Applicant would receive email correspondence pertaining to the misconduct process. Effective service on or receipt by the Applicant of any email correspondence pertaining to the misconduct, would occur only when it was forwarded to the Applicant pursuant to the authority. On any reasonable reading of the 24 November 2020 there is no authority conferred on Ms Wenlock to receive relevant email communication on the Applicant’s behalf as his agent.

[29] Further, having regard to the language of the Termination Letter, it seems to me that the Respondent anticipated there would be some delay between the Termination Letter being sent to Ms Wenlock and the Applicant receiving the Termination Letter from Ms Wenlock, as evidenced by the sentence:

“You are now advised that your termination will be effective from the date you receive this letter”.

[30] In any event the effect of the abovementioned sentence is that the Applicant’s employment would take effect from the date he received the Termination Letter. Once it is accepted there was no agency relationship, or if there was, the authority was of a limited scope as described earlier, it follows that the date of effect of the termination of the Applicant’s employment was the day he received the Termination Letter, namely 15 February 2021. Any assumption held by the Respondent as to theperiod of any delay between Ms Wenlock’s receipt of the Termination Email and Letter and its forwarding to the Applicant is irrelevant. The Respondent was not entitled to assume that merely sending the Termination Email and Letter to Ms Wenlock was effective to terminate the employment. The Applicant’s receipt of the Termination Email and Letter had this effect. This occurred on 15 February 2021.

[31] As the Applicant’s dismissal took effect on 15 February 2021 when he received the Termination Letter, it follows that his application for an unfair dismissal remedy lodged on 4 March 2021 was lodged within the time prescribed.

Conclusion

[32] I am satisfied that the Applicant’s dismissal took effect on 15 February 2021. It follows that the Applicant’s unfair dismissal application was lodged within the 21-day statutory timeframe. The Respondent’s jurisdictional objection is dismissed.

[33] An order giving effect to this decision is separately issued in PR729947. Directions to facilitate the hearing and determination of the substantive application are also attached.

DEPUTY PRESIDENT

Appearances:

M Wenlock of the Community and Public Sector Union for the Applicant

M Minucci of Counsel for the Respondent

Hearing details:

2021

Melbourne

13 May

Final written submissions:

Applicant, 14 April 2021 and 5 May 2021

Respondent, 28 April 2021

Printed by authority of the Commonwealth Government Printer

<PR729810>

Attachment A

DIRECTIONS

Fair Work Act 2009
s.394—Unfair dismissal

Michael Varker
v
Victoria Police
(U2021/1816)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 18 MAY 2021

I direct that:

1. Michael Varker (Applicant) shall file in the Commission and serve on Victoria Police (Respondent) an outline of submissions, any statement(s) of evidence and any documentary material(s) on which he intends to rely in support of his application for an unfair dismissal remedy by no later than 5:00pm on Thursday, 10 June 2021.

2. The Respondent shall file in the Commission and serve on the Applicant an outline of submissions, any statement(s) of evidence and any documentary material(s) on which it intends to rely by no later than 5:00pm on Thursday, 1 July 2021.

3. The Applicant shall file in the Commission and serve on the Respondent any material in reply by no later than 5:00pm on Thursday, 8 July 2021.

4. The matter will be listed for hearing at 10:00am on Thursday, 15 July 2021.

5. Any party that wishes to apply for permission to be represented at the hearing by a lawyer or paid agent shall file in the Commission and serve on the other party a document, not exceeding one A4 page in length, which identifies the lawyer or paid agent the subject of the application and the reasons why such permission should be granted having regard to the grounds in s.596(2) of the Fair Work Act 2009, by no later than 5:00pm on Thursday, 1 July 2021.

6. Any party which is served with a document pursuant to direction [5] above shall file in the Commission and serve on the other party a document, not exceeding one A4 page in length, which indicates whether the other party’s application for permission to be represented at the hearing by a lawyer or paid agent is opposed and, if so, the reasons for that opposition, by no later than 5:00pm on Thursday, 8 July 2021.

7.All material should be sent to [email protected].

8. The parties are granted liberty to apply to vary these directions.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

 1   Applicant’s Outline of Submissions dated 14 April 2021 at [1]

 2   Respondent’s Outline of Submissions dated 28 April 2021 at [14]

 3   Applicant’s Outline of Submissions at [10]-[17]

 4   Ibid at [7]

 5   Exhibit 3, Witness Statement of Ms Lyndel Ross dated 28 April 2021 at [10] and LR-1

 6   Respondent’s Outline of Submissions at [8]; Exhibit 3 at [11] and Attachment LR-2

 7   Exhibit 3 at [14]

 8   Exhibit 3 at [15] and Attachment LR-3

 9   Respondent’s Outline of Submissions at [16]; Exhibit 3 at [17] and Attachment LR-3

 10   Respondent’s Outline of Submissions at [9]; Exhibit 3 at [18] and Attachment LR-1

 11   Respondent’s Outline of Submissions at [9]; Exhibit 3 at [18] and Attachment LR-4

 12   Applicant’s Outline of Submissions at [2] and Attachment B; Exhibit 1, Witness Statement of Ms Megan Wenlock dated 13 April 2021 at unnumbered para 2; Respondent’s Outline of Submissions at [10]; Exhibit 3 at [18] and Attachment LR-6

 13   Exhibit 3 at [21]

 14   Exhibit 1 at unnumbered para 3

 15   Ibid at unnumbered para 4

 16   Ibid at unnumbered para 5

 17   Ibid; Exhibit 3 at [25]

 18   Exhibit 3 at [26] and Attachment LR-8

 19   Ibid

 20   Exhibit 2, Witness Statement of Mr Michael Varker dated 14 April 2021 at unnumbered para 1; Exhibit 1 at unnumbered para 6

 21   Exhibit 2 at unnumbered para 2

 22   Ibid; Applicant’s Outline of Submissions at [3] and Attachment C

 23   Applicant’s Outline of Submissions at [1] and Applicant’s Submissions in Reply dated 5 May 2021 at [1]

 24   Applicant’s Outline of Submissions at [7] and Applicant’s Submissions in Reply dated 5 May 2021 at [2]

 25   Applicant’s Outline of Submissions at [8]

 26   Respondent’s Outline of Submissions at [21]

 27   Ibid at [22]

 28   Ibid at [14]

 29   Ibid at [16]-[17]

 30   Ibid at [18]-[19]

 31   Ibid at [20]

 32   Ibid at [15]