Mr Andreas Reiners v Townsville Aboriginal and Islander Health Service (Taihs)

[2016] FWC 8924

[2016] FWC 8924

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Andreas Reiners
v
Townsville Aboriginal & Islander Health Service (TAIHS)
(C2016/6645)

COMMISSIONER SAUNDERS NEWCASTLE, 16 DECEMBER 2016

Application to deal with contraventions involving dismissal – application not out of time.

Introduction

[1] On 12 December 2016, I heard an application for an extension of time in relation to a general protections application (the Application) made pursuant to section 365 of the Fair Work Act 2009 (Cth) (the Act) filed by Mr Andreas Reiners in the Fair Work Commission (the Commission) on 9 November 2016.

[2] The Act provides that a person who has been dismissed and who applies to the Commission for it to deal with a general protections application must make an application within 21 days after the dismissal took effect. 1 From the information contained in the Application the date on which Mr Reiner’s employment with the respondent, Townsville Aboriginal & Islander Health Service (TAIHS), came to an end was not clear. On its face, the Application appeared to have been made out of time. The matter was therefore listed for an out of time hearing.

[3] Mr Reiners contends that he has been constructively dismissed by TAIHS over a period from 3 August 2016 until either 18 October 2016, 21 October 2016 or 2 December 2016. TAIHS denies Mr Reiners’ contention and submits that Mr Reiners resigned on 18 October 2016.

[4] In the context of a s.365 application, the Commission does not have jurisdiction to determine whether the applicant was dismissed from his employment. 2 However, I do need to make a finding as to when the alleged dismissal took place for the purpose of determining whether the Application was filed within the 21 day period prescribed by s.366(1)(a) of the Act.

Date of alleged dismissal

[5] Mr Reiners was employed by TAIHS on 1 December 2015 as a registered nurse on a “maximum term” contract for 10 hours per week. The contract states that it “will end at 5:00pm on 2 December 2016”. During his employment, Mr Reiners was offered additional hours at various locations and clinics around the greater Townsville area, at which time Mr Reiners contends he was working around 35 hours per week.

[6] In early August 2016, Mr Reiners’ hours were reduced which triggered a dispute between the parties about whether Mr Reiners was entitled to full time hours with TAIHS. The parties are also in dispute about the reasons for the reduction of hours. The dispute continued until 18 October 2016, at which time Mr Reiners sent an email in the following terms to TAIHS:

“Hello Kath,

Unfortunately after waiting more than a couple of months for my employment situation to be rectified with TAIHS, I have to leave. I will not therefore be available for my 7.5 hours in the Home Hill Clinic.

I cannot afford to support my family under the present circumstances. However I do intend to hold TAIHS accountable for my contract with you; In my view you are clearly in breach of it.

Yes it is a privilege to have worked for TAIHS and I will have many fond memories working with my colleagues; I was verbally informed by You Kath Hughes (in front of Vanessa Priday) that a variation contract would be amended to allow me to work more hours, this was in January 2016. Actually Vanessa advised me I could work as many hours as I liked in the clinic. Vanessa Priday has always been courteous, professional and truth telling.

Kind Regards Always

Andreas H Reiners”

[7] On 19 October 2016 at 11:49am, Ms Hughes, Executive Manager of Human Resources, responded to Mr Reiners’ email in the following terms:

“Dear Andreas

I refer to your email below.

I am sorry to hear that you have decided to leave TAIHS but completely understand that you are unable to support your family on one day a week. Unfortunately, TAIHS would not be able to provide you with more work in the foreseeable future.

In reference to your employment contract – you have a maximum term contract with the one day guaranteed. In January 2016, I advised you that, because of business needs at the time, there was additional hours available and that you would be able to work additional hours for TAIHS. At the time, we had a conversation in which I told you that we would advise payroll that those additional hours would be paid for at the same rate as your contracted hours. However, these additional hours were not guaranteed and there was no representation that TAIHS would prepare a variation of your employment agreement. Had TAIHS decided to guarantee more hours, we would have issued you with a new employment agreement. TAIHS has not breached its obligations to you under your employment agreement.

As it is unclear from your email, could you please confirm in writing that you are resigning and the effective date of your resignation. Once I have this information I will organise that your entitlements are paid out and provide you with a Centrelink Separation Certificate and Statement of Service.

I wish you all the best in the future, regards, Kath Hughes”

[8] Mr Reiners responded to Ms Hughes at 1:05pm on 19 October 2016 as follows:

“Hello Kath,

Thank you for your rapid response to my email.

I will seek advise and get back to you ASAP.

Kind Regards Always

Andreas H Reiners”

[9] On 20 October 2016 Mr Reiners sent a further email to Ms Hughes:

“Hello Kath,

Unfortunately at this time I will not be submitting the letter you requested.

The reason for my seeking alternate employment was quite clearly put forth in my previous email.

Please discuss my matter further with my NPAQ representative Graeme Haycroft.

Kind Regards Always

Andreas H Reiners”

[10] This correspondence was followed by a letter from TAIHS to Mr Reiners dated 21 October 2016. The letter read as follows:

“Dear Andreas

NOTICE OF CONCLUSION OF EMPLOYMENT AGREEMENT

I note that you have provided notice to Lynette Anderson, Executive Manager – Outreach Services (EMOS) that you are no longer available to work on Fridays at the Homehill Clinic.

Your maximum term employment agreement with TAIHS ends, at the latest, on 2 December 2016. This letter acts as official notification to you that this agreement will not be renewed and that your employment with TAIHS will terminate on 2 December 2016, in accordance with your employment agreement.

As you have advised Lynette Anderson (EMOS) that you are not going to be performing any rostered shifts between now and 2 December, you are directed to return the Company phone in your possession by Thursday 27 October 2016.

You are reminded that the phone is for use by TAIHS employees for business purposes only. You will be obliged to reimburse TAIHS for any excessive personal use of the phone.

Please return any/all other TAIHS property in your possession at the same time.

You will be paid all your employee entitlements on 2 December 2016 in the usual manner. You will also be provided with a Centrelink Separation Certificate and a Certificate of Service.

If you have any questions, please contact me on …

Thank you for your contribution to TAIHS in 2016 and we wish you well in the future.

Yours sincerely

Kath Hughes”

[11] I agree with Ms Hughes’ contention in her email dated 19 October 2016 that it was unclear from Mr Reiner’s email dated 18 October 2016 whether he had resigned or was intending to resign.

[12] It may have been open to TAIHS to take the view that Mr Reiners had repudiated his employment contract by reason of his statement in his 18 October 2016 email that he would not be available for his 7.5 hours in the Home Hill Clinic, together with the fact that he did not make himself available for, or undertake, any work for TAIHS at any time after 18 October 2016. However, TAIHS did not assert any such repudiation, nor did it purport to accept such a repudiation and thereby bring the contract to an end. Instead, TAIHS elected to keep the contract on foot by informing Mr Reiners in writing on 21 October 2016 that his “employment with TAIHS will terminate on 2 December 2016 … You will be paid all your employee entitlements on 2 December 2016 in the usual manner”. In those circumstances, I am satisfied that Mr Reiners’ alleged dismissal did not take place until 2 December 2016.

Conclusion

[13] For the reasons set out above, I have concluded that Mr Reiners’ alleged dismissal took place on 2 December 2016. It therefore follows that Mr Reiners’ Application was not filed out of time.

[14] There remain issues between the parties as to whether Mr Reiners was dismissed by TAIHS and whether the respondent contravened sections 340, 343 and/or 344 of the Act. The matter will now be referred for conciliation to see whether those outstanding issues can be resolved by the parties.

COMMISSIONER

Appearances:

Mr G Haycroft, from the Nurses Professional Association Queensland Inc, on behalf of the applicant;

Ms M Doyle, solicitor from Nexus Lawyers, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

December, 12.

 1   Section 366(1)(a) of the Act. Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’).

 2   Hewitt v Topero Nominees Pty Ltd [2013] FWCFB 6321

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