Ms Charlotte Peng v Northern Melbourne Institute of TAFE trading as NMIT

[2012] FWA 7777

[2012] FWA 7777

FAIR WORK AUSTRALIA

EX TEMPORE DECISION

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

Ms Charlotte Peng
v
Northern Melbourne Institute of TAFE trading as NMIT
(U2012/11358)

DEPUTY PRESIDENT SMITH BRISBANE, 13 SEPTEMBER 2012

Extension of time sought; application dismissed.

[1] The following decision, now edited, was issued during proceedings conducted on 7 September 2012.

[2] Ms Peng alleges that she was unfairly dismissed in her employment by the Northern Melbourne Institute of TAFE (NMIT). NMIT argues that Ms Peng resigned her employment. These proceedings deal in the first place with an extension of time. Ms Peng’s employment, it is argued by the NMIT, came to an end on 11 May 2012. The application was lodged on 13 July 2012. Section 394(2) of the Fair Work Act 2009 (the Act) provides that an application must be lodged within 14 days after the dismissal took effect. Ms Peng lodged her application some 49 days after the period required by s.394(2) of the Act. Ms Peng argues that she was not aware that she was dismissed until on or after 10 July 2012.

[3] To appreciate this view it is necessary to recite some of the history. Ms Peng was employed as an AO4. This position was made redundant on or about 28 February 2012. Ms Peng was then offered an AO6 position as an alternative to a redundancy payment of $2,251.35. The offer of the AO6 position was reduced to writing and Ms Peng signed the offer. The contract had no start date and Ms Peng was told it would start in July 2012. Following the execution of that contract Ms Peng was offered an AO7 position that required her to move from Collingwood to Heidelberg. Her substantive position would have been however, on the evidence, an AO6. Ms Peng examined this revised offer and then, after discussion, sent the following email:

I have thought about the new offer carefully. I want to thank you so very much for your trust and all the opportunities you have given me during the whole application process. However, at this stage I don’t see myself working in any other faculty and I don’t see myself working in a place that doesn’t value loyalty. It’s against what I believe. Could I please make a request to you? If Collingwood is not an option to me, I am ready to leave tomorrow. I would be much appreciated if you could go through all the formalities with me and release me sometime tomorrow. I will start packing now.

[4] This email was a result of an earlier conversation in which a resignation was discussed. Almost within the hour Ms J. Drever for the NMIT replied by stating:

Charlotte, we will allow your resignation to take effect 11 May 2012. A letter with calculations of your entitlement will be provided to you under separate cover. Please complete the staff leaving and institute clearance form and provide it to me by close of business 11 May.

[5] At that time Ms Peng filled out an exit form in which she noted that her departure was a resignation and all the necessary documents were also filled in and she was paid a relevant amount based upon AO4. In around July Ms Peng contacted the NMIT on the basis that she thought she would start work in the AO6 position. She argues that at this time she realised that she had been dismissed.

[6] However, her position is somewhat ambiguous. In any event, it is clear in my view that Ms Peng resigned her employment. She was a competent and valued employee who, at a time of great financial stress for the NMIT, was being offered employment at a higher level than she had been employed. Notwithstanding this, Ms Peng sent an email which, against the background of the evidence, constituted a resignation of employment. As I mentioned, she conducted an exit interview, stated the reason for termination was resignation and she received payments accordingly. I note, however, that she is also presently employed as a casual with the NMIT.

[7] Turning to the legislative considerations and the reason for delay; Ms Peng believes that she had a contract which could be started in July 2012, and it was only when it was not did she realise that she was not employed at all, particularly at the AO4 level. This does not persuade me. If Ms Peng relies upon this fact, it ignores that she had not worked in the AO4 position since she resigned and received payment at the AO4 level. As to action that was taken, Ms Peng immediately lodged an application following what she says was a realisation that she was dismissed. In relation to prejudice to the employer, the employer states that it would be prejudiced, having filled the positions and having to deal with the matter when there was a valid resignation.

[8] In considering the merits, given the factual matrix of this matter, I cannot see that Ms Peng would succeed in an unfair dismissal case. Finally as to fairness between the parties, I am not aware of a similar set of circumstances for this. I have, for all the reasons that I have outlined, decided not to extend time as I believe such an extension would not result finally in any positive finding for Ms Peng. The application is dismissed.

COMMISSIONER

Appearances:

C. Peng the Applicant.

A. Forsyth of Counsel on behalf of the Northern Melbourne Institute of TAFE.

Hearing details:

2012.

Melbourne:

September, 7.

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