Ms Danielle Blunt v Jackson McDonald Services Pty Ltd

[2015] FWC 1518

[2015] FWC 1518

FAIR WORK COMMISSION

DECISION

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

Ms Danielle Blunt
v
Jackson McDonald Services Pty Ltd
(U2014/11677)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 4 MARCH 2015

Application for relief from unfair dismissal.

[1] Ms Danielle Blunt alleged that the termination of her employment by Jackson McDonald Services Pty Ltd (Jackson McDonald) was unfair.

[2] Jackson McDonald objected to Ms Blunt’s application on the basis that she had not served the minimum period of employment, namely six months.

Background

[3] Ms Blunt commenced employment with Jackson McDonald on 28 January 2014. 1 Ms Blunt’s contract of employment provided for a six months probationary period.

[4] On 22 July 2014, Ms Kelly Pember, the Senior Human Resources Advisor, having reviewed Ms Blunt’s performance, sent her a letter setting out Jackson McDonald’s concerns about her performance. 2 In that letter Ms Blunt was advised that she would be required to respond to the issues raised and that while no decision had been made that this was “ a serious matter, which may result in disciplinary action up to and including termination of [her] employment within the probationary period.

[5] On 23 July 2014, Ms Belinda King, the Office Administration Manager and Ms Kelly Pember, held a meeting with Ms Blunt, to conduct her probationary review. Ms Blunt’s mother Ms Vesna Blunt attended as her support person.

[6] At that meeting Ms Vesna Blunt tabled two letters which she said addressed the performance issues and raised allegations about bullying of Ms Blunt by a work colleague. 3 At the conclusion of the meeting Ms Blunt said that it was agreed that they would meet again the following week.4

[7] Ms Blunt had approved annual leave on 25 and 28 July 2014. Ms Blunt did not attend work on 24 July 2014 as had been agreed at the meeting on 23 July 2014. 5

[8] On 24 July 2014, Ms King attempted to contact Ms Vesna Blunt by phone and email to arrange a further meeting. She proposed that afternoon or the morning of 25 July 2014. 6

[9] Ms King spoke to Ms Vesna Blunt at approximately 1.15pm on the same day and she said she would respond latter that day with a time. Ms Vesna Blunt disagrees and says she told Ms King that neither she nor Ms Blunt could attend a meeting at such short notice as they had family commitments. 7

[10] On 25 July 2014, Ms Vesna Blunt responded by email advising that due Ms Blunt being on annual leave and given that she was going away she would not be available until 29 July 2014. Ms Vesna Blunt sought a written response to the two letters provided to Ms King and Ms Pember by close of business that day. 8

[11] Ms Pember replied to that email that morning and advised that they sought Ms Blunt’s response to the matters raised before a decision about her employment was made. Ms Pember advised that a decision would be made on the basis of the information that was currently before her, in the absence of hearing from Ms Blunt. 9 She asked that Ms Blunt respond by 2pm that day. On the same morning Ms Pember called Ms Blunt and left a message on her mobile phone. Having not heard from Ms Blunt by 12.28pm Ms Pember again left another message on Ms Blunt’s mobile phone.10

[12] As a result, a decision was taken to terminate Ms Blunt’s employment effective immediately. 11 A letter of termination was couriered to Ms Blunt’s home and she received the letter and signed for it that afternoon.12 In addition, a copy of the termination letter was emailed to Ms Blunt and her parents at 4.58pm on the same day.

[13] Ms Blunt gave evidence that she did not open the letter when she received it because she was in a hurry to go out and she decided that she would look at it later. She thought that it was a response to the two letters that had been tabled at the meeting by her mother.

[14] Ms Blunt did not return home until Monday night and it was only then that she opened the letter and read it.

[15] Ms Blunt gave evidence at the hearing that she did not check her phone or her email and was not aware that Ms Pember had left messages for her. Ms Vesna Blunt gave evidence that she did not check her emails until after Ms Blunt had advised her of the content of the dismissal letter. She said she does not check her emails regularly.

[16] During her employment, Ms Blunt had two days of unpaid sick leave on 25 June 2014 and 7 July 2014. 13

Calculating the minimum period of employment

[17] The Fair Work Act 2009 (the Act) provides that an employee is not protected from unfair dismissal unless he or she has served the minimum employment period. In this case the minimum employment period is 6 months.

[18] The minimum employment period is the period of continuous service an employee has completed.

[19] Section 22 of the Act provides that excluded period of service does not count towards an employee’s length of continuous service. A period of unpaid authorised absence such as unpaid approved sick leave does not count for an employee’s length of continuous service.

[20] Ms Blunt submitted that a notice of termination received outside of business hours is not deemed to be received until the next business day. No authority for this proposition was cited and I do not accept it. There is nothing at common law or the Fair Work Act 2009 which restricts the termination of an employee’s employment to business hours. Termination of employment can occur at any time including outside of normal business hours.

[21] Ms Blunt further submitted that as she did not read the letter of termination until the Monday night, the termination did not take effect until then.

[22] I accept that termination of employment does not take effect until that termination is communicated to the employee. Ms Blunt relied upon the decision in Gisda Cyf v Barratt 14 as authority for the proposition that dismissal by letter is effective when the employee reads the letter. The facts in that case are significantly different to the facts in this case. In that case the applicant was absent when the letter was delivered and she had given instructions for it not to be opened in her absence. In this case Ms Blunt received the letter but did not open it. I do not doubt that Ms Blunt had other things on her mind at the time but I do not accept that she did not have a reasonable opportunity to open and read the letter.

[23] A Full Bench of the Australian Industrial Relations Commission considered this issue in Commonwealth of Australia (Australian Taxation Office v Wilson 15 when a notice of dismissal was effective and held as follows:

“[11] Counsel for the Commonwealth referred us to a number of authorities but conceded that there are few on point. One decision which appears to us to bear directly on the issue is Transport Workers' Union of Australia v National Dairies Limited (1994) 57 IR 183. In National Dairies Keely J, sitting in the Industrial Relations Court of Australia, was required to decide whether the employment in question terminated before or after the date on which legislation providing statutory remedies for unfair dismissal commenced to operate. In the course of his judgment His Honour said:

"It was accepted by the respondent's counsel, for the purpose of the present hearing, that the employer's letter of purported termination was not received by the applicant until 30 March 1994. In my opinion the mere posting of the letter of termination does not in itself amount to a termination of the employment of the employee concerned until its contents are communicated to the employee. I am unable to uphold the respondent's submission that the intention of the legislature was to make it a contravention of the Act for an employer to perform actions "pursuant to which the employer seeks to terminate an employee even if that wish is never communicated to the employee ie even if a letter of termination posted by an employer is never received by the employee.""

With respect we agree with His Honour's conclusion. Whilst it is clear that a contract can be terminated unilaterally, it is beyond contemplation, unless there is special provision in the contract to the contrary, that a contract could be terminated without communication of the termination to the other party. We think that at common law, where termination occurs by letter, generally the termination is not effective until the letter is received. There may be a qualification to that general position. It may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. If an employer has attempted in good faith to communicate the termination and the Commission forms the view that the employee has deliberately avoided receipt of such communication, it may be arguable that in such circumstances termination occurred despite the fact that it has not physically been communicated to the employee. Those circumstances did not, however, exist in this matter and we therefore refrain from further discussion of the point.”[Emphasis added]

[24] In this case Ms Blunt received the letter. I know of no authority for the proposition that an applicant who physically receives a letter of termination, but does not read it, is taken not to have been dismissed when the letter is received. It was submitted that I should not believe Ms Blunt when she said she did not receive the letter as the first time this was put by Ms Blunt was in her witness statement and submissions filed by Ms Blunt on 16 December 2014. I do not accept this submission.

[25] I do accept the submissions of Jackson McDonald that Ms Blunt knew that her employer was considering terminating her employment; she knew the letter was from her employer; she was expecting a letter from her employer about issues associated with her complaint and the performance issues raised by Jackson McDonald; and she had the opportunity to read the letter.

[26] I therefore find that Ms Blunt was given notice of the termination of her employment on 25 July 2014 and hence she had not served the minimum employment period.

[27] Given this decision it is not necessary for me to resolve the question of whether Ms Blunt’s leave on 25 June and 7 July 2014 counted towards her service.

[28] As Ms Blunt had not served the minimum period of employment, her application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

V. Blunt for the Applicant.

S. Kemp for the Respondent.

Hearing details:

2014.

Melbourne and Perth, by video link.

17 December.

<Price code C, PR561649>

 1   Exhibit R4 at pages 1-4 and Applicant’s Submissions at [5]

 2   Exhibit R3 at [9]

 3   Exhibit A1 at 8.1.1 and 8.1.2

 4   Ibid 8.1.8 and Exhibit R3 at [14]

 5   Exhibit R1 at [12] and Exhibit A1 at 9.1

 6 R4 at pages 11-12

 7   Exhibit A2 at [12]

 8   Exhibit R4 at page 11

 9   Ibid at page 10

 10   Exhibit R3 at [26]-[27]

 11   Ibid at [29]-[30]

 12   Ibid at [33]-[34]

 13   Exhibit R4 at page 20

 14   [2010] IRLR 1073 SC

 15   PR901127

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