Ms Abbie Ryan v Stafford City Pharmacy Pty Ltd

[2019] FWC 3615

[2019] FWC 3615

FAIR WORK COMMISSION

DECISION

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

Ms Abbie Ryan
v
Stafford City Pharmacy Pty Ltd
(U2019/2993)

COMMISSIONER HUNT BRISBANE, 5 JULY 2019

Application for an unfair dismissal remedy - jurisdictional objection – minimum employment period – termination payment not made on date of dismissal.

[1] On 18 March 2019, Ms Abbie Ryan made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that her dismissal from Stafford City Pharmacy Pty Ltd (the Pharmacy) was harsh, unjust or unreasonable.

[2] The Pharmacy objected to the application on the basis that at the time of her dismissal, Ms Ryan had not met the minimum employment period.

[3] The matter was listed for conciliation before a Fair Work Commission (Commission) conciliator on 18 April 2019, but was unable to proceed as Ms Ryan could not participate due to illness.

[4] The matter was subsequently allocated to me to deal with the Pharmacy’s jurisdictional objection and was listed for hearing on 27 May 2019.

[5] At the time of listing, I indicated to Ms Ryan that I would grant leave for her to attend the hearing by phone if she requested as her ordinary residence was some distance from the Commission’s premises in Brisbane. Ms Ryan did not request to appear at the hearing by telephone prior to 27 May 2019. I granted leave for the Pharmacy’s representative, Mr Scott Harris of the Pharmacy Guild of Australia to appear at the hearing by telephone upon Mr Harris’ request.

[6] The hearing of this matter proceeded on 27 May 2019. Mr Harris appeared for the Pharmacy, instructed by Mr Eric Wong, Director of the Pharmacy. Ms Ryan had not presented by the scheduled time for the commencement of the hearing, and my Associate attempted to contact both Ms Ryan and Mr Mark Ryan, her father, to confirm Ms Ryan’s appearance.

[7] My Associate was unable to contact Ms Ryan but was able to contact Mr Ryan by telephone on the morning of 27 May 2019. My Associate described to Mr Ryan that Ms Ryan had been expected to appear at the listed hearing of this matter in person, as she had not requested to appear by telephone. My Associate informed Mr Ryan that in the circumstances, both he and Ms Ryan would be granted leave to appear by telephone and they should make themselves available immediately to appear at the listed hearing. Mr Ryan agreed that he would speak to Ms Ryan and my Associate ended the phone call.

[8] A short time later, my Associate attempted to call Ms Ryan and Mr Ryan for their appearance at the hearing of this matter, but was unable to reach either Ms Ryan or Mr Ryan despite several attempts.

[9] I determined to proceed with the listed hearing in the absence of Ms Ryan and Mr Ryan. However, I stated the following at the commencement of the hearing: 1

“…what I propose to do is order a transcript and provide that to the applicant and her father for any further comment, because it has been listed and certainly my associate let Mr Ryan know that the matter was on this morning. I will note that I provided the opportunity for - well, on your request, Mr Harris, leave was granted for you to appear by telephone and the same would have been afforded to Ms Ryan if she had asked. That was relayed to Mr Ryan this morning so Ms Ryan's attendance here by telephone this morning would not have been an issue.”

[10] At the conclusion of the hearing, I proposed the following course of action to obtain Ms Ryan’s submissions in response to the Respondent’s submissions given during the hearing.

“…what I propose to do then is to adjourn today, provide the transcript to Ms Ryan, the applicant, and allow her to make submissions if she wishes. If she requests a further hearing we may do that, and then at some point in time I will make a decision as to the effect or the date of the dismissal.”

[11] On 3 June 2019 a copy of the transcript of the hearing of 27 May 2019 was provided to all parties in this matter. I directed Ms Ryan to make further submissions addressing the Pharmacy’s jurisdictional objection and its evidence and submissions during the hearing of 27 May 2019. I also invited Ms Ryan to indicate whether she wished for a further hearing of this matter to be held.

[12] On 5 June 2019 Mr Ryan filed on behalf of Ms Ryan further submissions regarding the Pharmacy’s jurisdictional objection and upon the provided transcript of the hearing of 27 May 2019. Ms Ryan did not request a further hearing of this matter.

[13] I invited the Pharmacy to file submissions in reply to Ms Ryan’s submissions, which it did on 10 June 2019. Following receipt of the Pharmacy’s submissions in reply, and noting that Ms Ryan had not requested a further hearing of this matter, I reserved my decision regarding the Pharmacy’s jurisdictional objection.

Background and jurisdictional objection

[14] Ms Ryan submitted that she commenced employment with the Pharmacy on 23 August 2018. The Pharmacy submitted that Ms Ryan undertook a paid trial commencing on 23 August 2018 but the start date of her employment was 28 August 2018, in line with her employment contract.

[15] The date of Ms Ryan’s dismissal is in dispute.

[16] The Pharmacy contends that the date of Ms Ryan’s dismissal was 20 February 2019, when she was informed of the termination of her employment verbally and in writing. The letter of termination provided to Ms Ryan relevantly provides as follows:

“20/02/2019

Private and confidential

Dear Abbie,

Termination of employment

Your probation period with us at TerryWhite Chemmart Stafford is due to end on 23/02/2019.

As you are aware, your employment with us was subject to a 6-month probationary period.

We are writing this letter as a follow up to us verbally letting you know on 11/02/2019, that due to your current skills and competences, you may not be suitable in the role of stock controller and that we will be taking appropriate action, which may include termination. After careful consideration, for conduct, performance and suitability reasons, as well as changes in our staffing requirements due to lower than expected business performance, we have unfortunately decided not to continue your employment beyond your probationary period.

…

Based on your length of service which commenced on 23/08/2018, your notice period is 1 week; therefore, your employment will end on 26/02/2019. However, under the circumstances I will advise you will be provided with the equivalent of one (1) week’s pay in lieu of notice. This amount, in addition to pro rata annual leave, will be deposited into your nominated bank account.

You will be paid your accrued entitlements and any outstanding pay, up to and including your last day of employment. This includes the balance of any time off instead of overtime accrued but not yet taken (paid at the overtime rate applicable when the overtime was worked), and superannuation.

…

Yours sincerely,

Eric Wong

Director/Managing Pharmacist”.

[17] Ms Ryan concedes she was notified on 20 February 2019 that she was being dismissed, but contends that the termination could not have taken effect on 20 February 2019 as she was covered by a medical certificate certifying her absence from work due to illness from 19 February 2019 up to and including 22 February 2019. Ms Ryan submits the termination of her employment could not have taken effect until at least 25 February 2019, her next rostered day on, and therefore she had completed more than six months’ employment at the time of her dismissal, being the period 23 August 2018 to 25 February 2019.

[18] The purpose of this decision is to consider whether Ms Ryan was dismissed on 20 February 2019 and therefore whether Ms Ryan has met the minimum employment period in order to be a person protected from unfair dismissal pursuant to s.382 of the Act.

[19] Whilst not all of the submissions and evidence before me may be referred to in this decision, all of such have been considered.

Legislation

[20] Section 382 of the Act provides for when a person is protected from unfair dismissal, and states:

“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

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[21] Section 383 of the Act defines the meaning of ‘minimum employment period’ and states:

“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.

[22] Neither party contends that the Pharmacy is a small business employer as defined at s.23 of the Act. The applicable minimum employment period is six months. The period of employment is calculated from the commencement of employment to the time when the notice of dismissal is given or immediately before the dismissal, whichever is the earlier period in time.

[23] In determining whether Ms Ryan has served the minimum employment period, no assessment has been made about the merits of the case. The Commission has no discretion to waive the period of time requirement in s.382(a) of the Act.

Summary of Ms Ryan’s evidence in chief and initial submissions

[24] Ms Ryan concedes that on 20 February 2019, Mr Wong telephoned her and asked that she attend the Pharmacy premises. She states she was extremely unwell at the time and asked her mother to drive her to the Pharmacy, where she was informed that her employment was being terminated.

[25] Ms Ryan submitted that despite this notification, she was covered by a medical certificate until 22 February 2019, and consequently she would have returned to work on Monday, 25 February 2019 provided that she was fit to work on that date.

[26] Ms Ryan submitted a copy of the medical certificate dated 19 February 2019, which states as follows:

“Medical Certificate

This is to certify that

Miss Abbie R Ryan

is receiving medical treatment, and for the period of

19th February 2019 to 22nd February 2019

inclusive

She will be unfit to continue her usual occupation.

19/2/2019

Dr. Graham D'Arcy”.

[27] Ms Ryan submitted that in accordance with the Act, an employee cannot be terminated while on sick leave, therefore her employment could not validly be terminated until she had returned to work, which at the earliest would have been 25 February 2019 and which Ms Ryan submits would have been in excess of the six month minimum employment period.

[28] Ms Ryan submitted that Mr Wong’s letter of termination of 20 February 2019 stated that, had she worked out her notice period of one week (which Ms Ryan also disputes and submits should have been two weeks), her employment would have ended on 26 February 2019. Ms Ryan submits that the payment of one week notice in lieu does not reduce her employment period.

[29] Ms Ryan submitted that her employment did not effectively come to an end on 20 February 2019.

Summary of Stafford City Pharmacy’s evidence and submissions

[30] During the hearing Mr Wong gave evidence. He confirmed that Ms Ryan was on a paid trial from 23 August 2018 and commenced in her substantive role on 28 August 2018. 2

[31] On 11 February 2019, Ms Ryan was informed that her employment was going to end, but she was not provided with a termination letter. Mr Wong said that he did not set a date for the dismissal. 3 Ms Ryan was absent on 12 February 2019, and worked again on 13 and 14 February 2019.

[32] The Pharmacy submitted that the decision to provide Ms Ryan with a formal termination letter was not made until 15 February 2019, which was going to be provided to her on 19 February 2019.

[33] On 19 and 20 February 2019, Ms Ryan was absent from work due to illness. On 20 February 2019, a request was made for Ms Ryan to attend the workplace. Ms Ryan attended the workplace, and was informed in a meeting that her employment was being terminated for ongoing poor performance. She was provided with a termination letter providing the reasons for termination in detail at [16].

[34] Mr Wong’s evidence is that Ms Ryan was informed that she did not need to come to work any longer because the termination was effective immediately, and she would be paid out her entitlements. 4

[35] During the hearing I questioned Mr Wong as to why the termination letter referred to the meeting on 11 February 2019 as an opportunity where her employment may be terminated. Mr Wong stated that he didn’t express himself well, and he didn’t consider Ms Ryan to have been dismissed on 11 February 2019, although he told her on that day that her employment was going to end. 5

[36] The Pharmacy referred to the decision in Ayub v NSW Trains, 6 in which it was noted that a termination of employment must be communicated to the employee by plain or unambiguous words. The Pharmacy submitted that Ms Ryan was clearly informed on 20 February 2019 that her employment was being terminated “immediately”.

[37] I reproduce relevant paragraphs of the Ayub v NSW Trains decision:

“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd as follows:

“[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at [99]).”

[18] A notice of termination may validly operate notwithstanding that it is stated to take effect subject to a condition, provided that the notice is expressed with sufficient certainty so that conditional date of termination is ascertainable, the condition upon which the termination becomes operative has been fulfilled and the employee is in a position to know that the condition has been satisfied.

[19] When the termination occurs without notice on the basis that a sum of money is paid in lieu of the notice that would otherwise be required, then the termination would take effect when communicated to the employee subject perhaps to the additional requirement that the amount in lieu of notice has actually been paid to the employee. [footnotes omitted]”

[38] The Pharmacy submits that the date of the dismissal is 20 February 2019 and accordingly, Ms Ryan does not meet the requirements under s.383(a) of the Act and is not a person protected from unfair dismissal.

[39] Further, the Pharmacy disputes Ms Ryan’s submission that she was owed 2 weeks’ notice. The Pharmacy referred to Table 1 of clause 14.1 of the Pharmacy Industry Award 2010, which provides that the notice for continuous service not more than 1 year, being 1 week.

[40] The Pharmacy also disputes Ms Ryan’s submission that she was terminated unlawfully while covered by a medical certificate. It was submitted that Ms Ryan was not terminated due to accessing her workplace right to take personal leave, rather she was terminated for ongoing poor performance. It submitted that it is unfortunate that the termination of her employment occurred while she was temporarily absent from the workplace.

[41] The Pharmacy submits that even if Ms Ryan’s submission were accepted, the next available date would have been 23 February 2019, regardless of it not being a rostered working day for Ms Ryan. Stafford City Pharmacy submits that accordingly, Ms Ryan still would not have met the minimum employment period required under the Act.

[42] Relevant to the termination payment being made to Ms Ryan on 25 February 2019 during the normal pay run, and not on 20 February 2019 on the day the Pharmacy stated the dismissal took effect, the following was discussed from the bar table during the hearing, shortly after Mr Wong gave evidence. I accept his statements as evidence: 7

THE COMMISSIONER:  Mr Wong, who does your payroll?

MR WONG:  Payroll is done by the - my other business partner's wife, a Mai Yin.

THE COMMISSIONER:  So you could have directed her to make the payment on 20 February?

MR WONG:  I - normally yes.  She was on leave, on personal leave at the time.  It was a very difficult situation, a personal reason between the business partner and her.

THE COMMISSIONER:  And how then was the payment made on 25 February?

MR WONG:  Well, my business partner's wife processed it.  We let her know.  I let him know verbally.  He was supposed to advise her that that was to be the case, that her employment was being terminated, she needed to be paid her - what - the amount - the work that she's done and also her - any outstanding entitlements or anything like that.

THE COMMISSIONER:  So she was able to make the payment on 25 February but not 20 February?

MR WONG:  She - I guess - I mean that's - I mean I advised my business partner.  So I left that to him because that's - it's his wife.  That's how we normally - I mean I wasn't able to directly contact her.  I - she wasn't responding to my texts and calls at the time during that period.  So I just advised him - - -

THE COMMISSIONER:  Sorry, just now you said that she was on personal leave.

MR WONG:  Yes.

THE COMMISSIONER:  And she couldn't make the payment on 20 February, and you said in the witness box that it was outside of your control.

MR WONG:  Yes, it is outside my control in terms of - I mean I don't - I can't control the payroll. I can't really - I don't do the payroll. I can't control - I don't - I can't access the payroll program.  I - and all I can do is let my business partner know and him - he lets his wife know to do that.  Is that - - -

THE COMMISSIONER:  So when did you direct for the payment to be made or what do you understand he directed for the payment to be made?

MR WONG:  As I believe it, just as per our normal pay cycle once her employment - well, I mean I guess once that final normal pay for her current week of work is to be done.  You know, that's as far as I know, because that's just our normal pay cycle.

THE COMMISSIONER:  So why did you tell me that she was on personal leave on or around 20 February?

MR WONG:  She was on personal - she wasn't at the pharmacy.  She wasn't - it was - she wasn't working.  She - we didn't know if she was working at all really in a lot of ways because she wasn't communicating with us since the 16th of Feb - December right until late February.  So, well past that date.  I think - I believe it was early March.

THE COMMISSIONER:  So who was making the payments?

MR WONG:  She was still doing them.  She - so - but she wasn't - she just wasn't - I don't know how to put it because it's - it was a difficult time in terms of for them, in terms of what she was not doing or doing sometimes, because they had personal problems.

THE COMMISSIONER:  So she was properly paying wages on a weekly basis?

MR WONG:  Yes.  Yes.

THE COMMISSIONER:  As requested or required, but there was no other general communication.  Is that what you're saying?

MR WONG:  Yes, there was - well, there was no communication between - I wasn't able to - I mean she wasn't responding to my calls and my texts whenever I texted her for other matters, and any other matter.  So, yes, in that sense I wasn't able to get into contact with her.  But she - - -

THE COMMISSIONER:  So you don't know if there was a special request made?

MR WONG:  No, I don't know if there was a special request.  I asked my business partner to - that - I informed him Abhi's - well, 'Ms Ryan's employment has ceased.  Please' - 'and please take care of payroll as normal'.  That's what I advised - I mean that's what I advised him and then from there I left it.  I - that's - I leave as always these things to payroll or HR.

Ms Ryan’s submissions in reply

[43] In response to the Pharmacy’s submissions, Ms Ryan states as follows:

“All parties need to adhere to the facts not unsubstantiated stories which are designed to support a claim for unfair dismissal. The facts are as previously stated:-

1. The termination letter clearly states Abbie Ryans employment ceased on 26/02/2019 which is over the 6 month period of employment.

2. Abbie has been given medical certificates to extend past the 26/02/2019 which takes her employment period past the 6 month employment period.

3. At no time was Abbie ever spoken to regarding poor work performance.

4. Abbie was never given any notice her employment would be ceasing prior to being called into the pharmacy while on sick leave on 20/02/2019.

5. The attached employment contract is not signed and we are to believe that Katy Johnson went to the trouble of writing out interview records without supplying Abbie with copies or having her sign them. We can all write up whatever we want to try to support our claim but we have to stick to the facts. A fact is we have texts from Katy Johnson detailing bullying toward Abbie.

6. Due to Abbie being given notice her employment was terminated on 26/02/2019 and her claim for unfair dismissal has been lodged within the required time period. [sic]”    

[44] Ms Ryan’s final submissions were filed following the hearing of this matter and after being provided with a copy of the transcript of proceedings.

[45] Ms Ryan submits that her final pay including payment one week’s notice in lieu was paid to her on 25 February 2019. Relying on Ayub, 8 Ms Ryan submits that her termination date therefore should be 25 February 2019.

[46] Ms Ryan denies that on 11 February 2019 Mr Wong discussed with her the pending termination of her employment.

[47] Ms Ryan submits that Mr Wong’s evidence regarding his discussions with his business partner and the payment of Ms Ryan’s final pay should not be accepted.

[48] Ms Ryan submits that it had been Mr Wong himself and Ms Johnson that had been responsible for processing employee payments as of 20 February 2019, and Mr Wong’s business partner’s wife had not been responsible for processing employee payments “…for several weeks prior to Abbie’s dismissal…”. 9

[49] Ms Ryan submits that there is ‘no excuse’ for her not to have been paid her final pay on 20 February 2019 in the circumstances that Mr Wong’s business partner had allegedly requested his wife to process Ms Ryan’s final pay after the meeting of 20 February 2019.

[50] Ms Ryan maintains her submissions that she was never spoken to about her performance. Ms Ryan submits that “…under the pharmacy guild guidelines…” she should have been given written notice of her poor performance or should have been asked to sign complaint forms detailing her poor performance.

[51] Ms Ryan maintains that Ms Johnson produced interview records of discussions she had had with Ms Ryan without providing those records to Ms Ryan for her signature, and states that at the meeting of 20 February 2019 she asked Mr Wong why she had not received any warnings about her poor performance or complaints made against her.

[52] Ms Ryan repeats her primary submission that due to her medical certificate her employment could not have come to an end until at least 25 February 2019 “…as it is unlawful to terminate an employee while on sick leave” and that therefore her she was employed for a period greater than six months.                                

Consideration

What date did the employment commence?

[53] Despite the Pharmacy’s submissions, it is clear that Ms Ryan commenced a paid trial on 23 August 2018. The Pharmacy considered her suitable and offered her a permanent role commencing 28 August 2018. I determine that the date of commencement was 23 August 2018.

When did Ms Ryan’s dismissal take effect?

[54] Ordinarily a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed. 10  A dismissal can be communicated orally.11 Where payment in lieu of notice is made the dismissal usually takes effect immediately.12

[55] Further, for the purposes of s.383 of the Act, the minimum period of employment starts on the date the employment commences, and finishes on either the date the employee is notified of the dismissal or immediately before the dismissal, whichever is earlier.

[56] On the evidence of both parties, the Pharmacy met with Ms Ryan in person on 20 February 2019. At that meeting, it was communicated to Ms Ryan that her employment was being terminated with immediate effect. A letter was issued to Ms Ryan the same day, dated 20 February 2019, confirming the termination of employment. Ms Ryan was paid her notice period in lieu.

[57] I do not accept that there was any doubt in either of the parties’ minds after the meeting on 20 February 2019 that Ms Ryan’s employment remained on foot past that point. In my view, the poorly constructed sentences below provide an overall impression that if Ms Ryan had worked out the notice period, her employment would conclude on 26 February 2019, but because she is being paid out the notice period, the employment has concluded as at 20 February 2019:

“Based on your length of service which commenced on 23/08/2018, your notice period is 1 week; therefore, your employment will end on 26/02/2019. However, under the circumstances I will advise you will be provided with the equivalent of one (1) week’s pay in lieu of notice. This amount, in addition to pro rata annual leave, will be deposited into your nominated bank account.”

[58] Ms Ryan’s termination payment was not paid to her until 25 February 2019, as it was paid in the normal pay run of the Pharmacy. Wilcox J stated the following in Siagian v Sanel Pty Ltd (1994) 122 ALR 333 at p 355:

“It seems to me that, in the absence of evidence of a contrary intention, it should usually be inferred that the employer intended the termination to take effect immediately. This conclusion not only reflects the more accurate meaning of the phrase “payment in lieu of notice”; it accords with common sense. An employer who wishes to terminate an employee’s services, and is prepared to pay out a period of notice without requiring the employee to work, will surely wish to end the relationship immediately. If the employee is not to work, there is no advantage to the employer in keeping the relationship alive during the period for which payment is made; and there is the disadvantage that the employer will be burdened with employment related costs, such as workers’ compensation insurance, payroll tax, liability for leave payments etc. The employer also incurs the risk that some new burden will be imposed in respect of the employment during the period.”

[59] The Full Bench in Ayub at [19] stated that termination would take effect when communicated to the employee subject perhaps to the additional requirement that the amount in lieu of notice has actually been paid to the employee. [my emphasis]. I do not consider the Full Bench to mean that in every circumstance it would be a condition on the payment having been made to the employee on the same date as notified to render that date the termination date. I consider that there is appropriate discretion to consider when the payment was made, but that it need not always be made on that specific date.

[60] In these circumstances, the termination payment was made on the next payment date for the Pharmacy. In the circumstances, I do not consider that remarkable, and do not agree with Ms Ryan that it leads to a conclusion that her employment ended on 25 February 2019.

[61] In a Full Bench decision in 4 yearly review of modern awards – Payment of wages [2018] FWCFB 3566 at [119], a provisional view was held that the Pharmacy Industry Award 2010, together with 85 other modern awards would be amended to include the following model term:

“X. Payment on termination of employment

(a) The employer must pay an employee no later than 7 days after the day on which the employee’s employment terminates:

(i) the employee’s wages under this award for any complete or incomplete pay period up to the end of the day of termination; and

(ii) all other amounts that are due to the employee under this award and the NES.

(b) The requirement to pay wages and other amounts under paragraph (a) is subject to further order of the Commission and the employer making deductions authorised by this award or the Act.

Note 1: Section 117(2) of the Act provides that an employer must not terminate an employee’s employment unless the employer has given the employee the required minimum period of notice or “has paid” to the employee payment instead of giving notice.

Note 2: Paragraph (b) allows the Commission to make an order delaying the requirement to make a payment under clause X. For example, the Commission could make an order delaying the requirement to pay redundancy pay if an employer makes an application under section 120 of the Act for the Commission to reduce the amount of redundancy pay an employee is entitled to under the NES.

Note 3: State and Territory long service leave laws or long service leave entitlements under s.113 of the Act, may require an employer to pay an employee for accrued long service leave on the day on which the employee’s employment terminates or shortly after.”

[62] Later, in a Full Bench decision in 4 yearly review of modern awards – Payment of wages [2018] FWCFB 4735 at [6], the following was stated:

“[6] We do not propose to vary the Alpine Resorts Award 2010, the Pharmacy Industry Award 2010 or the Rail Industry Award 2010, at this time. A statement will be issued shortly regarding the next steps in respect of these awards. In respect of the remaining 83 modern awards that do not presently specify a time period within which termination payments are to be made we confirm our provisional view and will accordingly vary these modern awards to insert the model term.”

[63] Accordingly, the Pharmacy Industry Award 2010 remains silent on the issue of when a termination payment is required to be made.

[64] The surrounding circumstances of Ms Ryan being on personal leave on the day that she was notified of her dismissal could be said to be unfortunate, however it is not a relevant consideration in terms of whether Ms Ryan met the minimum employment period. I do not accept Ms Ryan’s submission that she could not have been dismissed while on personal leave. There is certainly a provision in the Act to render unlawful the termination of an employee due to a short term illness or injury; however that is not the consideration before the Commission at this time.

Conclusion

[65] Having concluded that Ms Ryan’s employment commenced on 23 August 2018 and the dismissal took effect on 20 February 2019, I determine that Ms Ryan has not served the minimum employment period required by s. 383 of the Act at the time she was notified of her dismissal. The application is therefore dismissed.

COMMISSIONER

Appearances:

Harris S, Pharmacy Guild of Australia, on behalf of the Respondent.

Wong E, Stafford City Pharmacy Pty Ltd.

Hearing details:

Brisbane

2019

27 May.

Final written submissions:

Submissions of the Applicant, 5 June 2019.

Submissions of the Respondent, 10 June 2019.

Printed by authority of the Commonwealth Government Printer

<PR708682>

 1   Transcript of proceedings, 27 May 2019, PN 6.

 2   PN66.

 3   PN69.

 4   PN56.

 5   PN78.

 6   [2016] FWCFB 5500.

 7   PN96 – PN119.

 8   [2016] FWCFB 5500, [17] – [19].

 9   Applicant’s submissions, 5 June 2019.

 10   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24]; Ayub v NSW Trains [2016] FWCFB 5500.

 11   Plaksa v Rail Corporation NSW[2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at [8]; citing Barolo v Centra Hotel Melbourne (unreported, AIRC, Whelan C, 10 December 1998) Print Q9605.

 12   Siagian v Sanel Pty Limited [1994] IRCA 2 (27 May 1994), [(1994) 122 ALR 333 at p. 355].