Ms Andrea King v Bupa Edithvale

[2013] FWC 854

[2013] FWC 854

FAIR WORK COMMISSION

DECISION

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

Ms Andrea King
v
Bupa Edithvale
(U2012/13445)

COMMISSIONER ROE MELBOURNE, 6 FEBRUARY 2013

Unfair dismissal - minimum period of employment.

[1] This is an application for an unfair dismissal remedy pursuant to Section 394 of the Fair Work Act 2009 (the Act). The Application for unfair dismissal remedy is made by Ms Andrea King (the Applicant) in respect of her dismissal by Bupa Care Services Pty Ltd (the Respondent). The Applicant referred to the employer as Bupa Edithvale but the parties agree and I accept that the correct name of the Respondent is Bupa Care Services Pty Ltd.

[2] The Respondent raised two jurisdictional objections to the Application. Firstly, they claimed that the Applicant was not employed on a regular and systematic basis. Secondly, they claimed that the period of employment was from 15 March 2012 to 12 September 2012 which is a period of less than six months.

[3] The Applicant represented herself and the Respondent was represented with leave by Mr C Cook.

[4] It is not in contention that the Applicant was engaged as a casual employee. Although the Applicant does say that she was credited with annual leave for much of her employment period this was clearly an error.

[5] I do not consider it necessary to consider the issue of whether or not the employment was regular and systematic. It is only necessary to consider the question of the period of employment.

[6] The Applicant in her submissions accepts that she read the termination letter dated 10 September 2012 on 12 September 2012. That letter purported to end her employment as from 10 September 2012. The Applicant did work a shift on 12 September 2012 but did not work after that date.

[7] The Applicant in her submissions accepts the statement at paragraph 2 of the Respondent’s submissions. That submission states that the Applicant commenced employment on 15 March 2012. This is supported by the evidence of her signed appointment form and also by the payroll records.

[8] I put these two matters to the Applicant at the start of the proceedings and she accepted that they were correct. When I pointed out that this meant that she did not appear to have six months employment and gave her the opportunity to respond the Applicant then said that she did not accept the validity of the appointment form and that she believed that she had worked three “buddy shifts” prior to 15 March 2012 and that these shifts commenced within three days of her interview on 8 March 2012. The Applicant also said that she did not have a payroll identification number during the period she worked the three buddy shifts which may explain why they are not on the system.

[9] The Applicant then gave sworn evidence to this effect and was cross examined. The Applicant accepted that she had received around 2 July 2012 a Statement of Service from the Respondent and that Statement included reference to her commencement date as 15 March 2012. The Applicant had attached document to her submission. 1 The Applicant accepted that she had not until now ever raised an objection to the material provided to her that her commencement date was 15 March 2012. That date appeared in the material she had received from the Respondent including the F3 Form of 16 October 2012. The Applicant claimed that she had received the copy of the appointment form separately from and after the Respondents’ submission and that was why she was only raising this now.

[10] Mr Fitzgerald, Human Resources Consultant, for the Respondent then gave evidence. 2 Mr Fitzgerald confirmed that the payroll system and the human resources system of the Respondent both showed that the start date for the Applicant’s employment was 15 March 2012. The payroll records confirm this date.3

[11] The Applicant in her statement says “I firmly believe that Bupa terminated my employment 3 days short of the new 6 month probationary period in order to avoid making any payments of termination to me.” 4

[12] The Applicant also says that “I am very concerned with the form marked attachment 2- initial staff appointment- from Bupa. I did not sign this form. The form I did sign was mainly blank. I do not have copy of any other record of this form and I would be very much interested in viewing the original copy.” 5 This part of her statement confirms that she had in fact seen the appointment form together with the Respondent’s submission and witness statement before she made her submission. In her submission she expresses her reservations about the authenticity of the form but she also confirms that the statement by the respondent that she commenced work on 15 March 2012 is accurate and that she was employed for 3 days less than six months. The Applicant did not suggest in her submission that the date on the form was incorrect. In fact her statement in two places referred to earlier is directly to the contrary.

[13] I am satisfied that the evidence supports a conclusion that the commencement date was 15 March 2012. I consider that the records in evidence are more likely to be reliable than the Applicant’s belated memory of working earlier shifts for the Respondent. I am therefore satisfied that the employment period was less than six months.

[14] At the conclusion of the hearing I advised the parties of my decision. On transcript I did not refer to all the matters raised in paragraph 12 above. The Application must be dismissed.

[15] An order to this effect is published separately.

COMMISSIONER

Appearances:

The Applicant represented herself.

Mr C Cook represented the Respondent.

Hearing details:

2013

Melbourne

February 1

 1   Exhibit A1.

 2   Exhibit B2.

 3   Exhibit B2, Attachment SF2.

 4   Exhibit A1.

 5   Exhibit A1.

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