Ms Gail Miller v Djerriwarrh Health Service
[2011] FWA 5787
•1 SEPTEMBER 2011
[2011] FWA 5787 |
|
EX TEMPORE DECISION |
Fair Work Act 2009
s.394-Application for unfair dismissal remedy
Ms Gail Miller
v
Djerriwarrh Health Service
(U2011/8314)
COMMISSIONER SMITH | MELBOURNE, 1 SEPTEMBER 2011 |
Jurisdiction; minimum period of employment; application dismissed.
[1] The following decision, now edited, was issued during proceedings conducted on 25 August 2011.
[2] Dr G. Miller seeks relief in relation to her termination of employment by Djerriwarrh Health Service.
[3] Djerriwarrh object to the application on two grounds. The first is that Dr Miller had not served the minimum period of employment and the second is that it was out of time. However, the focus is of course as to whether or not Dr Miller served the minimum period of employment.
[4] The meaning of the minimum period of employment is provided in s.383 of the Act as follows:
“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.”
[5] Section 383(b) of the Act does not apply in this matter.
[6] Dr Miller was employed on 15 November 2010. Djerriwarrh submit that Dr Miller was terminated on 12 May 2011, whereas Dr Miller argues that she was not advised of her termination until 17 May 2011. It is common ground that if Dr Miller was advised on 17 May 2011, then her application is both within time and that it was also in excess of six months required by s. 383(a) of the Act for the minimum employment period.
[7] In relation to these competing contentions, two witnesses were called by Djerriwarrh; Mr David Grace, the deputy CEO, and Ms S. Wooten. It was the evidence of Mr Grace that:
- preparation was under way for the termination of employment of Dr Miller;
- approval had been given to terminate Dr Miller on 6 May 2011;
- he put the termination letter in an envelope and, with his executive assistant, delivered the letter together with two pay slips;
- efforts were made to contact Dr Miller both before 12 May 2011 and by SMS on 12 May 2011;
- the SMS was sent on 12 May 2011 to advise Dr Miller that the letter of termination had been put in her letterbox.
[8] I note in passing that the SMS and the attempts to contact Dr Miller on her mobile phone were in error as she had changed her mobile number had not been drawn to the attention of the persons involved. The employer had been advised earlier. In addition, it was the evidence of Mr Grace that photographs had been taken of him putting the letter in Dr Miller's letterbox. The evidence of Ms Wooten supported the evidence of Mr Grace and corroborated many of his statements. In addition, Ms Wooten also advised that Dr Miller's pass had been deactivated which became evident when she sought to attend for duty on 17 May 2011.
[9] Dr Miller argues that an agreement existed which meant that:
- she was full-time after four months;
- that DHSV funds various agencies and as such her service was at least 23 years in the sector.
[10] The only documents delivered to her were two pay slips and there was no letter of termination. She also argues that when she attended for duty on 17 May 2011, this was the first time that she became aware of the fact that she had been dismissed.
[11] There are a number of facets of Dr Miller's evidence and arguments which are not relevant. The first is her argument that the period of employment was approximately 23 years given the funding arrangements and some areas of portability contained in the industrial instruments. It is not in dispute that Dr Miller commenced employment with the employer on 15 November 2011 and that this employer is a separate employer, separately incorporated, and that therefore is the only relevant period. Dr Miller also argues that the six-month period is somehow related to the days worked and not the calendar period. This argument lacks substance.
[12] On the critical point as to whether or not Dr Miller received the letter of termination on either 12 or 13 May, her evidence was that there was an envelope which contained an unopened pay slip and separately an open pay slip. All those who gave evidence differ on this important point, not only in their oral evidence but also in the statutory declarations provided. In resolving this evidence, I must apply the balance of probabilities. In the employer's favour there is extensive evidence on the creation of the documents and the delivery of the documents. It is clear that the employer took all necessary steps to ensure that the termination was effected on 12 May 2011.
[13] The evidence of Dr Miller is that the letter of termination was not in the envelope and that all she was given were two pay slips. One of the pay slips was that of Mr Grace and this is said by Dr Miller to evidence the fact that there was an error by Mr Grace when he collected the materials. It is not denied that Dr Miller had a copy of the pay slip of Mr Grace. The other matter which Dr Miller states is relevant is that if she had received a letter of termination, she would have questioned it.
[14] From the material put to me, the preponderance of the evidence favours the submission of the employer. I find that Dr Miller became aware of her termination of employment on 13 May 2011. I find that Dr Miller's employment was terminated within six months of her employment, which commenced on 15 November 2010, and therefore she is not a person who is protected from unfair dismissal. The application is dismissed.
COMMISSIONER
Appearances:
Dr G. Miller.
J. Hooper, solicitor, with D. Grace on behalf of Djerriwarrh Health Service
Hearing details:
2011.
Melbourne:
August, 25.
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