Michelle Brennan v Gartner Rose Pty Ltd

[2020] FWC 2698

[2020] FWC 2698

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Brennan
v
Gartner Rose Pty Ltd
(U2020/1814)

DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 22 MAY 2020

Application for an unfair dismissal remedy – minimum employment period not completed – jurisdictional objection upheld – application dismissed.

Introduction

[1] Ms Michelle Brennan was employed by Gartner Rose Pty Ltd (Gartner Rose) from 10 July 2019 until 31 January 2020, at which time Ms Brennan contends that she was unfairly dismissed within the meaning of the Fair Work Act 2009 (Act). Gartner Rose contends that Ms Brennan was not protected from unfair dismissal on 31 January 2020 because she had not completed a period of employment with Gartner Rose of at least the minimum employment period.

Jurisdictional hearing

[2] On 15 May 2020, a determinative conference was conducted by telephone in relation to the jurisdictional issue of whether Ms Brennan had completed the minimum employment period at the time of her dismissal. Ms Brennan gave evidence in support of her case. Ms Karlie Brown, Chief Financial Officer, gave evidence on behalf of Gartner Rose. In addition to her oral evidence, Ms Brennan filed three witness statements: the first dated 29 October 2019 (October Statement), another dated 16 April 2020 (April Statement) and an undated statement filed on 13 May 2020 (May Statement). Ms Brown filed a witness statement dated 6 May 2020.

Legal principles

[3] A person is not protected from unfair dismissal unless the requirements in s 382 are met. Section 382 of the Act provides:

“382  When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a)  the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period…”

[4] Section 383 of the Act provides:

“383  Meaning of minimum employment period

The minimum employment period is:

(a)  if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i)  the time when the person is given notice of the dismissal;

(ii)  immediately before the dismissal; or

(b)  if the employer is a small business employer—one year ending at that time.”

[5] Section 384 of the Act defines “period of employment” as follows:

“384  Period of employment

(1)  An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee…”

[6] Section 22 of the Act defines “continuous service” as follows:

“22  Meanings of service and continuous service

General meaning

(1)  A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).

(2)  The following periods do not count as service:

(a)  any period of unauthorised absence;

(b)  any period of unpaid leave or unpaid authorised absence, other than:

(i)  a period of absence under Division 8 of Part 2-2 (which deals with community service leave); or

(ii)  a period of stand down underPart 3-5, under an enterprise agreement that applies to the employee, or under the employee’s contract of employment; or

(iii)  a period of leave or absence of a kind prescribed by the regulations;

(c)  any other period of a kind prescribed by the regulations.

(3)  An excluded period does not break a national system employee’s continuous service with his or her national system employer, but does not count towards the length of the employee’s continuous service.

(3A)  Regulations made for the purposes of paragraph (2)(c) may prescribe different kinds of periods for the purposes of different provisions of this Act (other than provisions to which subsection (4) applies). If they do so, subsection (3) applies accordingly…”

[7] A month means a calendar month. 1 A calendar month begins on the employee’s first day at work and, where there are multiple months, finishes immediately before the corresponding day in the final month.2

Submissions

[8] Gartner Rose contends that the period from 25 September 2019 to 31 January 2020 does not constitute part of Ms Brennan’s continuous service because she was absent from work during that time on an unauthorised absence or a period of unpaid leave. 3 Ms Brennan’s submissions focused on whether she was employed for the entire period from 10 July 2019 to 31 January 2020 rather than the character of her absence from the workplace during a large part of that period.4

Relevant facts

[9] It was not disputed, and I am satisfied on the evidence before me that:

(1) Gartner Rose was not a small business at the relevant time and therefore the minimum employment period for Ms Brennan is 6 months. 5

(2) Ms Brennan commenced employment with Gartner Rose on 10 July 2019 and ceased that employment on 31 January 2020. 6 Hence, Ms Brennan’s period of employment with Gartner Rose spanned 6 months (from 10 July 2019 to 9 January 2020) and 22 days (from 10 January 2020 to 31 January 2020).

(3) The date of Ms Brennan’s last attendance at work for Gartner Rose was 18 September 2019. Ms Brennan did not attend work but was paid her usual wage from 19 September 2019 to 24 September 2019. 7

(4) Ms Brennan did not attend work and was not paid for any work from 25 September 2019 to 31 January 2020. 8

(5) Between 25 September 2019 to 31 January 2020, Ms Brennan received payment for four public holidays which occurred during that period (on which Ms Brennan did not work) and a car allowance for the month of December 2019. 9

(6) Ms Brennan did not make any request and Gartner Rose did not authorise Ms Brennan to be absent from 25 September 2019 to 31 January 2020 or for that absence to be treated as paid or unpaid leave. 10

(7) Ms Brennan’s absence from work was preceded by an incident which occurred on 18 September 2019 between Ms Brennan and another Gartner Rose employee (Incident) about which Ms Brennan made a complaint to Gartner Rose’s Human Resources Manager. 11 Ms Brennan had several conversations with Gartner Rose’s Human Resources Manager and Ms Brown regarding the Incident.12

(8) On 20 September 2019 and 23 September 2019, Ms Brennan and Ms Brown spoke on the telephone regarding the Incident. 13 On 24 September 2019, Ms Brennan and Gartner Rose’s Human Resources Manager spoke about the Incident.14

[10] Ms Brennan was employed by Gartner Rose for 6 months and 22 days. However, that period does not necessarily coincide with Ms Brennan’s “period of employment” within the meaning of s 384(1) of the Act, because any “excluded period” within the meaning of s 22(2) of the Act does not count towards the length of Ms Brennan’s “continuous service” (s 22(3)), which is how a “period of employment” is defined in s 384(1). The question is therefore whether, during Ms Brennan’s employment with Gartner Rose, there were more than 22 days of unauthorised absence or any other “excluded period” which do not count towards the minimum employment period. That question turns on the characterisation of Ms Brennan’s absence from work for the period from 25 September 2019 to 31 January 2020.

[11] I have not made any findings with respect to the substance of the Incident because it has no bearing on the jurisdictional issue before me. However, the communication and conduct of the parties following the Incident are relevant to the determination of the jurisdictional issue. With respect to that period, Ms Brown gave evidence, in summary, that:

(1) During the 20 September 2019 telephone call, Ms Brown offered Ms Brennan three options to progress the complaint: (1) provide a detailed account of the Incident, (2) participate in a facilitated process between Ms Brennan and the other employee, or (3) have training provided to all employees on appropriate workplace behaviour. In response, during the 23 September 2019 telephone call, Ms Brennan said words to the effect that she would not take up any of the options and “It would be better if I don’t return to site”. The impetus for those discussions was a request from Gartner Rose’s Human Resources Manager that Ms Brown discuss with Ms Brennan options to progress the complaint. 15

(2) Following the 23 September 2019 telephone call Ms Brown took steps to “offboard” Ms Brennan based upon her conclusion that Ms Brennan had resigned during the phone call. On 24 September 2019, Gartner Rose’s Human Resources Manager reported to Ms Brown that during a telephone discussion as part of the offboarding procedure Ms Brennan informed her that she did not intend to resign. 16

(3) On 25 September 2019, Ms Brown authorised an investigation into the Incident. 17

(4) Ms Brown sent a letter dated 27 September 2019, by email, to Ms Brennan recounting her version of the content of the phone calls on 20 and 23 September 2019, reiterating the three options regarding how to progress the complaint, and stating, among other things “Notwithstanding these options that you have been provided with, you have indicated that you are not returning to site and have not undertaken any work since this time.” 18

(5) Ms Brown sent a letter dated 1 October 2019, by email, to Ms Brennan in the following terms:

“…Your absence from work

You have been absent from work since 19 September 2019. You have not sought our agreement to be absent from work nor have you submitted any medical certification to explain the period of absence.

We need you to identify the reason for your absence from work so that we can determine whether to treat your absence as paid or unpaid.

Please do not hesitate to contact me if you would like to discuss this further…” 19

(6) At 4:21pm, 3 October 2019 Ms Brown received an email from Ms Brennan in the following terms:

“… I’ve just received your two (2) emails, in junk.

I explained to you & Sam on three (3) separate occasions what had happened between [the employee] & myself.

I have sought further advice & I’m not in a position to reply or comment on your email requests until next week…” 20

(7) Ms Brown sent a letter dated 17 October 2019, by email, to Ms Brennan which provided a detailed description of the investigation process to be undertaken in relation to the Incident and instructions on how to participate in that process. Under the heading “Work arrangement” the letter provided “In the usual course, you are to continue to perform your duties at work as normal. We have communicated to you separately on our expectations of you with respect to your current absence from work.” 21

(8) The Gartner Rose Personal Grievance Policy, on page 4 under the heading “Work to Continue” provides: “Work will continue as normal while a personal grievance is being dealt with under this Policy.” 22

[12] Ms Brennan gave evidence, in summary, that:

(1) On 19 September 2019, she advised Gartner Rose’s Human Resources Manager that she would prefer not to have any further dealings with the other employee and nominated another employee with whom she would prefer to liaise. 23

(2) Ms Brennan denies saying words to the effect “It would be better if I don’t return to site” to Ms Brown on 23 September 2019; instead she said that her position was untenable if she had reporting lines to the other employee. Further, during that call she again nominated an employee to whom she would prefer to report, and said she “was more than happy to return to work” if she did not have dealings with the other employee because she “had been bullied, harassed and intimidated” by her. 24 In Ms Brennan’s October Statement, she states that during the call “I advised Karlie my position was now untenable” to which Ms Brown replied “I’m sorry to hear that.”25 Ms Brennan also denies that Ms Brown put three options to her and claims that only one option was provided for her to consider: “how we could progress and what I would like to see happen in the matter”.26

(3) Ms Brennan denies receiving the letter from Ms Brown dated 17 October 2019 until she was served with it during the course of these proceedings. Further, she says that if she had received that letter, she would have contacted Ms Brown immediately to discuss her concerns about returning to work and reporting to the other employee. 27 She gave evidence that during that time and continuing up until the determinative conference she had constant issues with her internet connection and her email account.

(4) Ms Brennan claims that she first became aware of the investigation in to the Incident on 25 October 2019 when she received a text from a lawyer acting for Gartner Rose; although she had assumed an investigation was being undertaken after her telephone calls with Ms Brown in September as she was aware that an investigation would be required into her complaint in accordance with Gartner Rose’s Personal Grievance Policy, in relation to which she had been inducted/instructed. 28

(5) Regarding the conversation with Gartner Rose’s lawyer, Ms Brennan says that she said words to the effect that “having any dealings with [the other employee] whatsoever posed a serious issue for me as she could not be trusted by myself and I could not guarantee if her behaviour continued I would not retaliate.” 29

(6) Regarding the character of her absence from 25 September 2019 to 31 January 2020, in her October Statement Ms Brennan says “Although I have not formally resigned my position with Gartner Rose, I do not plan to return to work. As I am not attending the workplace, I am no longer being paid” 30 and in the April Statement “I did not apply formally or informally for any unpaid leave entitlements.”31

(7) Ms Brennan states that her last conversation with anyone from Gartner Rose was with Ms Sam Lewis on 24 September 2019 and that she had no follow up telephone calls or emails from Gartner Rose until the 25 October 2019 contact with Gartner Rose’s lawyer. 32

(8) In January 2020, Ms Brennan received a letter dated 17 January 2020 setting out the findings of the investigation into her complaint, a letter dated 23 January 2020 concerning the possible redundancy of her position, a letter dated 31 January 2020 which terminated her employment with Gartner Rose.

[13] With respect to the contested content of the telephone call between Ms Brennan and Ms Brown on 23 September 2019, I prefer Ms Brown’s evidence, for the following reasons:

(1) Ms Brown gave oral evidence that her recollection of the telephone call was supported by her contemporaneous note. Although Ms Brown’s contemporaneous note was not tendered into evidence, I accept Ms Brown’s oral evidence that she made the note on the day of her telephone call with Ms Brennan;

(2) the letter sent by Gartner Rose to Ms Brennan on 27 September 2019 refers to the recent discussions between Ms Brown and Ms Brennan and makes specific reference to Ms Brennan having indicated that she would not be returning to site; and

(3) it aligns with the actions taken by Ms Brown to “offboard” Ms Brennan.

[14] I do not accept Ms Brennan’s assertion that she had no verbal or email communication from Gartner Rose after 24 September 2019. I find that Ms Brennan received and considered the content of the letters from Gartner Rose dated 27 September 2019 and 1 October 2019. So much is clear from Ms Brennan’s email to Ms Brown on 3 October 2019 in which Ms Brennan stated that she had “just received your two (2) emails, in junk …I’m not in a position to reply or comment on your email requests until next week”.

[15] In light of the findings I have made concerning what happened during the relevant period, I accept that during the relevant period Gartner Rose communicated to Ms Brennan its expectation that she should return to work after the Incident and take up one of the three options to progress her complaint or apply for some form of paid or unpaid leave. The expectation to return to work was also communicated in the Personal Grievance Policy, which Ms Brennan accepts that she was aware of.

[16] I accept Ms Brennan’s unchallenged evidence that she communicated her position, namely, that she would only return to work if she had no reporting line to or dealings with the other employee, in the 19 September 2019 telephone call with Gartner Rose’s Human Resources Manager and in the 25 October 2019 discussion with the lawyer acting for Gartner Rose (which was reiterated in her October Statement). 33 Those conditions were not accepted by Gartner Rose.

[17] I also accept Ms Brennan’s evidence that she did not receive the letter from Gartner Rose dated 17 October 2019 because of issues she was having with her internet connection and email account. However, the outcome of Gartner Rose’s jurisdictional objection does not depend on Ms Brennan’s receipt of that letter. It primarily provided instructions as to how to participate in the investigation (which Ms Brennan subsequently participated in) and reiterated Gartner Rose’s already communicated expectation that Ms Brown was to return to work.

Consideration

[18] Having regard to all of the evidence before me, it is clear that Ms Brennan decided, and communicated to Gartner Rose, that she would be absent from work after the Incident unless her conditions were met. But at no time during her absence did she seek authorisation from Gartner Rose to be absent from work, nor did she apply for any form of paid or unpaid leave. Further, Gartner Rose did not authorise her absence and it did not approve any form of paid or unpaid leave. In fact, Gartner Rose expected, and communicated to Ms Brennan, that she should return to work after the Incident and take up one of the three options available to her. It follows that Ms Brennan’s absence from work from 25 September 2019 to 31 January 2020 was an unauthorised absence and not any form of paid or unpaid leave.

Conclusion

[19] Ms Brennan was employed by Gartner Rose for 6 months and 22 days. During part of that period (25 September 2019 to 31 January 2020) Ms Brennan was on a period of unauthorised absence from her work with Gartner Rose. That period of unauthorised absence is an “excluded period” and does not count towards the length of Ms Brennan’s continuous service with Gartner Rose (s 22(3)). It therefore does not count towards Ms Brennan’s “period of employment” for the purpose of determining whether she was employed for the minimum employment period.

[20] Once Ms Brennan’s period of unauthorised absence (25 September 2019 to 31 January 2020) is excluded from the total duration of her employment with Gartner Rose (6 months and 22 days), it is clear that Ms Brennan’s “period of employment” with Gartner Rose was less than 6 months and she was not a person protected from unfair dismissal on 31 January 2020. Gartner Rose’s jurisdictional objection is therefore upheld, and Ms Brennan’s application for relief from unfair dismissal is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms Brennan, on behalf of herself

Ms Cant, solicitor, Holding Redlich, on behalf of the respondent

Hearing details:

2020.

Newcastle:

15 May.

Printed by authority of the Commonwealth Government Printer

<PR719584>

 1   Acts Interpretation Act 1901 (Cth), s 2G

 2   Ibid

 3   Written submissions of Gartner Rose at [16] – [19]

 4   Ex A3

 5   Written submissions of Gartner Rose at [9]

 6   Ex R1 at [6] and annexure KB-3; Ex A3

 7   Ex R1 at [17]

 8   Ex R1 at [17] – [18]

 9   Ex R1 at [19]

 10   Ex R1 at [31]; Ex A3

 11   Ex R1 at [8]; Ex A1 at [1]

 12   Ex R1 at [9] – [15]; Ex A1 at [1] – [2] and Ex A3

 13   Ex R1 at [11] – [13]; Ex A2 at [7]

 14   Ex R1 at [15]; Ex A1 at [10]

 15   Ex R1 at [11] – [13]

 16   Ex R1 at [14] – [15]

 17   Ex R1 at [16]

 18   Ex R1 at [22]

 19   Ex R1 at [23]

 20   Ex R1 at [25]

 21   Ex R1 at [27]

 22   Ex R1 at [29]

 23   Ex A1 at [2]

 24   Ex A1 at [2] – [4]

 25   Ex A2 at [7]

 26   Ex A1 at [2]

 27   Ex A1 at [6]

 28   Ex A1 at [7]

 29   Ex A1 at [6]

 30   Ex A2 at [8]

 31   Ex A3

 32   Ex A3

 33   Ex A2 at [8]