Miss Toni Boyes v Beaumont Care Pty Ltd

[2013] FWC 2264

[2013] FWC 2264

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Miss Toni Boyes
v
Beaumont Care Pty Ltd
(U2013/6803)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 4 JUNE 2013

Summary: jurisdictional objection - whether minimum period of employment served - Acts Interpretation Act 1901 - reckoning of a calendar month - whether legal relationship formed.

[1] This is an application by Miss Toni Boyes (“the Applicant”) seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”). The Applicant’s employment was terminated on 1 February 2013 by Beaumont Care Pty Ltd (“the Respondent”).

[2] At the outset, the Respondent objected to the Fair Work Commission (“the Commission”) dealing with the application for reasons that it is alleged that the Applicant had not served the minimum period of employment as defined under the Act and her application was not competent for that reason.

[3] Section 396 of the Act states that the Commission must determine such matters as whether the person had completed the minimum period of employment as required by s.382(a) of the Act before such time as it considers the merits of the application.

[4] Section 382(a) of the Act provides as follows:

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; and

[5] The definition of the minimum employment period as referred to in s.382(a) of the Act is set out in s.383 of the Act and provides as follows:

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.

[6] The Acts Interpretation Act 1901 sets out the manner in which the meaning of a month in Commonwealth legislation is to be reckoned. Section 2G of the Acts Interpretation Act provides as follows:

ACTS INTERPRETATION ACT 1901 - SECT 2G

Months

(1)  In any Act, month means a period:

(a)  starting at the start of any day of one of the calendar months; and

(b)  ending:

(i)  immediately before the start of the corresponding day of the next calendar month; or

(ii)  if there is no such day--at the end of the next calendar month.

Example 1: A month starting on 15 December in a year ends immediately before 15 January in the next year.

Example 2: A month starting on 31 August in a year ends at the end of September in that year (because September is the calendar month coming after August and does not have 31 days).

(2)  In any Act, a reference to a period of 2 or more months is a reference to a period:

(a)  starting at the start of a day of one of the calendar months (the starting month ); and

(b)  ending:

(i)  immediately before the start of the corresponding day of the calendar month that is that number of calendar months after the starting month; or

(ii)  if there is no such day--at the end of the calendar month that is that number of calendar months after the starting month.

Example 1: A reference to 6 months starting on 15 December in a year is a reference to a period starting on that day and ending immediately before 15 June in the next year.

Example 2: A reference to 6 months starting on 31 October in a year is a reference to a period starting on that day and ending at the end of April in the next year (because April is the calendar month coming sixth after October and does not have 31 days).

[7] At a conference convened in relation to this matter held on 9 April 2013, the Applicant concurred that her application was not a valid application because of her commencement date, being 3 August 2012. The Applicant undertook to indicate by formal communication in writing that she would withdraw her application. However, some days later, the Applicant indicated that she was in dispute with the Respondent as to her commencement date and wished to bring certain evidence in this regard (such as a witness). The application was therefore brought on for hearing.

[8] The Respondent led as part of its evidence an employment agreement signed on 3 August 2012 between it and the Applicant. The employment agreement is signed and dated (3 August 2012) by a person purporting to be the Applicant. The same employment agreement is also signed (and dated 3 August 2012) by Ms Beverly McShea, a nursing education officer for the Respondent.

[9] An orientation document signed by the Applicant and dated 3 August 2012 also came into evidence in these proceedings. This document was an affirmation that the Applicant had read and understood a variety of documents and policies relating to the conditions of employment and agreed to abide by those documents and policies.

[10] Attached to Ms McShea’s statutory declaration, as tendered in these proceedings, was a time and wages sheet for the period 3 August 2012 to 12 August 2012. The time and wages sheet indicates that the Applicant was not paid at a time prior to 3 August 2012 and that her first payment was for work performed on 3 August 2012 and thereafter.

[11] The Applicant’s signature appears after each daily shift. The signatures after each of the daily shifts is taken to be reasonably the same as the signature on the employment agreement signed on 3 August 2012, though the Applicant expressed some doubt as to the validity of her signature against the shift for 3 August 2012. This doubt was expressed despite the Applicant conceding that the signature on the time and wages sheet for 3 August 2012 was indeed similar to her signature on the employment agreement signed the same day. Ms Jeanette Evans, the Respondent’s General Manager, provide a statutory declaration deposing that the Applicant’s time and wages records had not been altered in any way.

[12] A copy of a certificate of service was also tendered which indicated, amongst other things, that the Applicant was employed with the Respondent on 3 August 2012 and the date of the cessation of her employment was 1 February 2013.

[13] The Applicant’s superannuation member application form indicates that the Applicant asserted to the relevant fund that her employment commenced with her current employer (the Respondent) on 3 August 2012. The Applicant signed this form.

[14] That aside, the Applicant argued that her employment commenced on 31 July 2012. To this end she tendered a statutory declaration signed by Ms Beatrice Large, an AIN. Ms Beatrice Large declared that the Applicant along with herself commenced employment with the Respondent on 31 July 2012.

[15] The Respondent, through Ms Evans’ statutory declaration, deposed that Ms Large did indeed attend an activity at the Respondent’s premises together with the Applicant, but that activity was the orientation course on 3 August 2012.

[16] The training record retained for 1 August 2012 shows that Ms Large had attended training on that day, along with a number of other RNs and AINs. But the Applicant’s name does not appear on that list of attendees.

[17] Ms Large completed her employment documentation the day prior, on 31 July 2012 (as declared by Ms Evans).

[18] The Applicant argued that she had attended a training/educational program of some manner or form possibly prior to the 3 August 2012 orientation program. Her evidence under questioning was equivocal on whether the training or the orientation program in which she says she was involved occurred before or after the orientation day, but in the end, and only after some delay, the Applicant held that it must have been before the orientation day.

[19] The Respondent was surprised by this claim which arose through the Applicant’s evidence as it had not been asserted previously. It undertook to investigate its training records and the Applicant’s employment file in order to ascertain whether any such training had occurred or whether any such program had been conducted (though at first blush the Respondent, through Ms Evans, had no knowledge of any such program and held that the orientation program, apart from rare exceptions, was the only process through which paid induction took place) before employment commenced.

[20] Upon reviewing training records, Ms McShea provided a statutory declaration in which she stated as follows:

• The Applicant first attended an orientation session on 3 August 2012 (with two other employees who were in attendance that day), the record of which was signed off by the Applicant herself at the time;



• The records indicate that the Applicant asked numerous questions at the orientation meeting; and



• The Applicant thereafter attended a subsequent education course on 17 August 2012 (along with fourteen other employees).

[21] Ms McShea deposed, as mentioned above, that there were rare instances in which following interview an employee might be sent on an education course prior to orientation, and if they were they were paid for that attendance. However, the Applicant’s circumstances were not one of those rare exceptions.

[22] The Applicant introduced a further, new line of argument on the second day of the hearing. On this occasion the Applicant contended that she had been offered employment at the Rothwell facility owned and operated by the Respondent sometime in July 2012 and had filled out various forms in this regard. The Applicant could not tender any such documents, or any employment contract in this regard, and the Respondent was unaware of any such document amongst its records.

[23] The Applicant did however provide two further documents. One was the Applicant’s completed pre-employment medical form. The assessing medical practitioner signed that document on 2 July 2012.

[24] A further document, a one page extract only from a the Work Placement Booklet, which appears to review the Applicant’s skills and competencies for employment in nursing following her placement as a student nurse, was signed by the Applicant on 3 July 2012. That extract appears to suggest that the Applicant may have been offered employment at the Rothwell aged care facility at the end of her placement at that facility.

[25] The Applicant’s further evidence was that she had not accepted the position at Rothwell and had instead accepted the position at the Respondent’s Peninsula facility.

[26] The Applicant also said she had not been paid for any work performed at the Rothwell facility.

[27] The following exchange sets these facts out with sufficient clarity:

MS BOYES: Okay. I just know that I did my placement at Rothwell. I know when I did my placement. I know I filled in all the employment applications. I was offered a job at Rothwell and Bev came in to Rothwell, Beverley McShea and asked me to join Peninsula Aged Care and that was way before my own patients.

THE SENIOR DEPUTY PRESIDENT: Can I ask you, did you agree to do that did you? That instead of accepting employment at - - -

MS BOYES: At Rothwell. I agreed to take the employment at Peninsula.

THE SENIOR DEPUTY PRESIDENT: And you completed your placement as a student at Rothwell.

MS BOYES: I did.

THE SENIOR DEPUTY PRESIDENT: Did you ever have any paid employment at Rothwell?

MS BOYES: No.

[28] A little later the situation was clarified further:

THE SENIOR DEPUTY PRESIDENT: Yes and Ms Miet [of Rothwell] has signed off saying you had a good placement et cetera.

MS BOYES: Yes and she had offered me employment and that was my very last day that she signed off on that. I had already been offered.

THE SENIOR DEPUTY PRESIDENT: Yes but the difficulty is which I mentioned to you before which I keep coming back to is that you never performed any - - -

MS BOYES: Paid duties.

THE SENIOR DEPUTY PRESIDENT:  - - -paid duties and you didn’t accept employment at Rothwell in the end; you chose to be employed at Peninsula.

MS BOYES: That’s correct.

Conclusion

[29] There is no contest between the parties that the Applicant’s employment ceased on 1 February 2013. The issue in contest concerns whether or not the Applicant provided six months service to her employer in accordance with the Acts Interpretation Act, as cited.

[30] The preponderance of material in this matter, including the signed employment agreement, demonstrates that the Applicant commenced employment on 3 August 2012 at the Peninsula facility. It follows that Ms Large was mistaken in her recollection that she commenced employment along with the Applicant on 31 July 2012.

[31] The materials before me demonstrate that Ms Large attended, along with a large group of other nurses, a training course on 1 August 2012. The Applicant did not attend that training course. Thereafter Ms Large attended an induction course along with the Applicant on 3 August 2012. The Applicant’s circumstances were different to those of Ms Large. Ms Large, at best, has confused the orientation session of 3 August 2012 with the training course she attended on 1 August 2012 (with some 14 others).

[32] I reach this view not solely on the assistance of the documentation as provided, but because Ms Large’s evidence generally had little probative value at all. This was because Ms Large had next to no recall of any chronology and her recollections generally were unreliable.

[33] As mentioned above, the Applicant did propose a line of argument late in the proceedings that she had been offered employment at the Rothwell facility. The implied argument was that this had bearing on the commencement date for the purposes of this jurisdictional question.

[34] I do not doubt the Applicant may have been offered employment at the Rothwell facility; as it was here that the Applicant had completed her student-based placement. It appears from the Applicant’s materials she was offered a position at the Rothwell facility upon her student placement having been completed.

[35] But the Applicant’s further argument, so far as it was developed in any sense, cannot travel as far as to suggest that her employment with the Respondent commenced earlier than 3 August 2012.

[36] This is because on the Applicant’s own evidence she did not accept the position at the Rothwell facility, and had instead accepted a position at the Peninsula facility that she was subsequently offered (and which the materials before me show commenced on 3 August 2012). There is no evidence that the offer of employment with the Rothwell aged care facility was accepted (and none was asserted), and there was no consideration in exchange for services performed.

[37] In short, no legal relationship was formed between the Applicant and the Rothwell aged care facility that could in some manner or another be said to be contiguous with the period of employment that was actually commenced at the Peninsula facility on 3 August 2012.

[38] For the Applicant’s application to be a valid application the Applicant must have been employed for six months from 3 August 2012 with the Respondent. She was not. This was because the Applicant’s employment ceased on 1 February 2013.

[39] Because of this finding, the Applicant was not employed for the minimum employment period as defined at s.383 of the Act.

[40] It follows that because the Applicant did not serve the minimum employment period, the Applicant is not a person who is protected from unfair dismissal for purposes of s.382 of the Act.

[41] The application before me is therefore dismissed, as it must be.

SENIOR DEPUTY PRESIDENT

Appearances:

Ms T. Boyes, Applicant

Ms P. Brenton, for the Respondent

Hearing details:

2013

2 & 30 May

Brisbane

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