Ms Jennifer Anne Sharkey v Serco Australia Pty Ltd

[2010] FWA 7740

[2010] FWA 7740

FAIR WORK AUSTRALIA

DECISION

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

Ms Jennifer Anne Sharkey
v
Serco Australia Pty Ltd
(U2010/749)

COMMISSIONER THATCHER SYDNEY, 5 OCTOBER 2010

Jurisdiction - minimum employment period - when employee is given notice of termination.

[1] Jennifer Anne Sharkeyhas made application to Fair Work Australia (FWA) for an unfair dismissal remedy on the grounds that the termination of her employment by Serco Australia Pty Ltd (Serco) as Client Service Officer, Villawood Immigration Detention Centre (Villawood centre) was harsh, unjust or unreasonable.

[2] Serco has lodged a jurisdictional objection on the basis that Ms Sharkey was not protected from unfair dismissal because she had not completed the minimum employment period of 6 months.

[3] Ms Sharkey commenced employment on 28 October 2009. The objection turns on Serco’s action in having a letter of instant dismissal couriered to Ms Sharkey’s place of residence on 27 April 2010 and Ms Sharkey not opening the letter until 29 April 2010.

[4] Serco submits that Ms Sharkey’s employment was terminated with effect from 27 April 2010 and that she was employed for a period of less than 6 months. Ms Sharkey submits that her employment was terminated on 29 April 2010 and she was employed in excess of the 6 months minimum employment period.

THE ACT

[5] Section 382 (When a person is protected from unfair dismissal) of the Fair Work Act 2009 (the Act) is contained in Division 2 (Protection from unfair dismissal) of Part 3-2 (Unfair Dismissal) of the Act and relevantly prescribes:

“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) ... ;

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

(iii)... ” (emphasis added)

[6] It will be noted that s.382 includes the expressions ‘period of employment’ and ‘minimum employment period’. Those terms are relevantly referred to in ss.383-384 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) ...

384 Period of employment

(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.

(2) However:

(a) a period of service as a casual employee ....; and

(b) if:

(i) the employee is a transferring employee ....”

[7] Consideration may be given to extrinsic material not forming part of an Act that is capable of assisting in ascertaining the meaning of a provision, to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, taking into account its context in that Act and the purpose or object underlying that Act. 1  The Explanatory Memorandum to the Fair Work Bill 2008, when dealing with what were to become ss.382-384 relevantly included:

“Division 2 - Protection from unfair dismissal

1510. This Division sets out when a person may be entitled to a remedy for unfair dismissal.

Clause 382 - When a person is protected from unfair dismissal

1511. This clause outlines the situations when a person may be entitled to an unfair dismissal remedy. It does this by providing a definition of when a person is protected from unfair dismissal - this expression is subsequently used in clause 390 to set out when FWA may order a remedy for unfair dismissal.

1512. Paragraph 382(a) provides that a person must have completed a minimum employment period with his or her employer. A requirement that an employee serve a minimum period before having access to an unfair dismissal remedy enables an employer to have a period of time to assess the capacity and conduct of a new employee without being subject to an unfair dismissal claim if they dismiss the employee during this period.

1513. Paragraph 382(b) provides that a person will be protected from unfair dismissal if ... an enterprise agreement applies to their employment.

...

Clause 383 - Minimum employment period

1515. This clause sets out what is the minimum employment period. It is one year for employees of a small business and six months for all other employees. Whether an employee has served the minimum employment period is assessed either when the person is given notice of dismissal, or when the dismissal actually takes effect, whichever happens first.

...

Clause 384 - Period of employment

1517. This clause outlines when an employee's service counts towards the minimum employment period.

1518. An employee's period of employment is defined as the period of continuous service the employee has completed with the employer. Service as a casual employee does not count towards the period of employment unless it was on a regular and systematic basis and the employee had a reasonable expectation of continuing engagement on a regular and systematic basis.

1519. What constitutes continuous service is defined in clause 22. According to that definition, the following periods are excluded periods and do not count towards the period of employment:

• any period of unauthorised absence;

• any period of unpaid leave or unpaid authorised absence other than community service leave, a period of stand down under Part 3-5 or a period of leave or absence of a kind prescribed in the regulations.

1520. Any excluded period does not break continuous service but does not count towards the length of the employee's continuous service.

1521. A period of employment with one employer can include periods of employment with another employer in certain circumstances due to the definition of service in clause 22. This occurs where the employee is a transferring employee in relation to a transfer of business or where the employee transfers between associated entities (as defined in clause 12).

1522. Under paragraph 384(2)(b) when a transfer of business occurs, a new employer can choose not to recognise service of the employee with the old employer for the purposes of the unfair dismissal provisions. However, they must inform the employee in writing before the new employment starts. This does not apply if the transfer of business was between associated entities.

1523. Consequently, where there is a transfer of employment between associated entities, service with the first employer will always count towards service with the second employer. This means that an employee can access unfair dismissal remedies without having to serve another minimum employment period when they are transferred between employers as part of a corporate restructure.

1524. Clause 22 is intended to be able to apply multiple times, so that an employee who had been a transferring employee in relation to a transfer of business or had been moved between associated entities more than once would be able to count service with each employer towards their minimum employment period.”

[8] The Explanatory Memorandum supports the following construction of the provisions of ss.382-384 insofar as they relate to whether an employee has completed a period of employment of at least the minimum employment period:

(a) An employee (to whom an enterprise agreement applied) is protected from unfair dismissal if the employee has completed a minimum employment period with the employer;

(b) The minimum employment period is assessed either when the person is given notice of the dismissal, or when the dismissal actually takes effect, whichever happens first;

(c) The minimum employment period is one year for employees of a small business and six months for all other employees;

(d) An employee's period of employment is defined as the period of ‘continuous service’ the employee has completed with the employer. For that purpose ‘continuous service’ is defined in s.22 of the Act (which excludes unauthorised leave and certain periods of unpaid leave or unpaid authorised absence) as qualified by s.384(2), which relates to certain casual and transferring employees.

[9] Of course, the task of FWA is to construe the Act and not the Explanatory Memorandum.

[10] It was not contested that:

(a) Ms Sharkey commenced employment on 28 October 2009;

(b) At the time of the termination of her employment, an enterprise agreement applied in relation to Ms Sharkey’s employment;

(c) Ms Sharkey’s employment was a period of continuous service for the purposes of s.384.

[11] Ms Sharkey’s contract of employment relevantly included the following:

“1. Position/classification and contract of employment

...

(c) You will not be required to serve a period of probationary employment. Nevertheless, as your position at Serco is a new contract of employment, all qualifying periods set out in the Fair Work Act 2009 and the Serco Immigration Detention Centres Agreement 2009 will apply.

...

5. When you commence employment with the Company, you will be covered by the Serco Immigration Detention Centres Agreement 2009 (‘Agreement’). ... This Agreement will operate and apply to your employment in accordance with the provisions in the FW Act. A copy of this Agreement is attached for you to retain.”

[12] The Serco Immigration Detention Centres Agreement 2009 (the Agreement) does not specifically refer to any qualifying period of employment. It refers to a probation period of 6 months. Unlike its predecessor, the Act does not exclude persons on probation from making application for unfair dismissal remedies.

[13] Clause 12 of the Agreement provides that where termination is for reasons other than serious misconduct and the like, Serco may terminate employment by the giving of the relevant minimum period of notice or payment in lieu of notice.

FACTS

[14] Evidence was given by the following:

On behalf of the Respondent

• Kevin Alan Sigston, formerly Manager, Villawood centre (employment terminated on 3 June 2010). Mr Sigston was responsible for the overall operation of the centre, including the rostering, leave approval, performance management, disciplining and dismissal of employees.



• Ronald Philip Rogers, National HR Manager, Immigration Services

On behalf of the Applicant

• Ms Sharkey



• Lisa Renee Dixon, Applicant’s adult daughter

[15] The Villawood centre operates on a 24/7 basis. Ms Sharkey had worked from 8.00am until 10.00pm or 11.00pm, Mondays to Fridays. 2

[16] Ms Sharkey resides with Ms Dixon, her mother, her granddaughter and her brother.

[17] On 2 March 2010 Ms Sharkey was stood down on full pay in circumstances where alleged misconduct had been made against her. The alleged misconduct involved her non-cooperation in a Department of Immigration and Citizenship (DIAC) incident investigation. The incident involved Ms Sharkey’s alleged assault of a girl who was an inmate of the Villawood centre and had been sent back to her country. 3

[18] At the time she was stood down, Ms Sharkey surrendered the mobile telephone that her employer had issued her. She has no fixed telephone line in her residence. As her son and daughter have mobile telephones, in emergency situations she has used their phones. However at the time when she was stood down, when Mr Rodgers had asked how she could be contacted whilst on suspension, Ms Sharkey, who at the time was angry, said words to the effect of: ‘Put it in writing and send it to me’ and ‘If I did have a telephone number I wouldn’t provide it to you.’ 4

[19] Ms Sharkey remained stood down on full pay up until her employment was terminated.

[20] On Friday 23 April 2010 Mr Rogers drafted a ‘Strictly Private and Confidential” letter to Ms Sharkey which Mr Sigston signed. The letter included:

“The investigation outcome has now been given to me. I would like to arrange an appointment with you to inform you of the outcome.

Would you please be available to meet with me at the National Office Conference Room at Villawood on Tuesday 27 April 2010 at 1.00pm. Please feel free to bring a support person if you require.” 5

[21] The letter was couriered (by a courier company) to Ms Sharkey’s home address and she received it at around 5.00pm. 6

[22] After 6.00pm that day Ms Sharkey visited her medical practitioner who provided her with a medical certificate that she would be unfit for work from 23 April 2010 to 29 April 2010. Mrs Sharkey’s evidence was that she had been unwell since 20 April 2010 and on 23 April 2010 decided to see the doctor. Ms Sharkey’s witness statement attached a note dated 29 June 2010 from the medical practitioner stating that on 23 April 2010 Ms Sharkey had seen the doctor ‘for a gynaecological problem for which she needed rest and quiet - plus treatment and ?further investigation if the problem persisted’. 7 There was no evidence of any medication being prescribed. There was no evidence to suggest that the medical practitioner had advised Ms Sharkey to leave her home.

[23] Ms Sharkey considers her household not to be a place where she is able to get peace and quiet. At some stage Ms Sharkey decided it was in her best interests to accept an offer to stay at the home of a friend, which she did on Monday 26 April 2010.

[24] Although on Friday 23 April 2010 Ms Sharkey had obtained a medical certificate that she was unfit for work until 29 April 2010 and at that time was certain that she would not be attending the meeting on Tuesday 27th April 2010, 8 she did nothing advise Serco of this until the morning of the meeting, namely 27 April 2010. When asked under cross-examination why she did not telephone or leave a voice mail, Ms Sharkey stated: ‘that would be me calling them on their long weekend and they weren't at work’.9

[25] On the morning of Monday 26 April 2010 (a public holiday), 10 Ms Sharkey wrote the following (hand-written) letter to Mr Sigston:

“27th April 2010

Hello Kevin,

Thank you for your letter advising an outcome is available to the external investigation held and your request to meet with me today at 1.00pm.

I am unable to meet with you today due to illness. Doctors Certificate following.

I have contacted my representative who is available on Friday 30.4.10 at 10.30am.

Please advise my daughter Lisa if this is acceptable to you. Tel contact no (number given)

Regards

(Signature - J Sharkey)

Please note

All letters received only have North Sydney tel & fax details. There is no mention of Villawood contact. Please pass this message to Kevin Sigston at Villawood.” 11

[26] Ms Sharkey did not send the letter herself. Rather, at around 8.30am on Monday 26 January 2010 she requested her daughter to fax the letter to the number she provided (Serco’s Head Office at North Sydney) on Ms Dixon’s way out the next day, namely Tuesday 27 April 2010. Ms Dixon sent the fax around 9.00am that next day.

[27] Shortly thereafter, Serco’s head office emailed the fax to Mr Sigston at Villawood. Mr Sigston considered the late notice of unavailability to be unacceptable, given that 4 days notice had been given of the meeting. He considered the advice ‘could've come earlier to allow us to make alternative arrangements.’ 12 There was an urgency to finalise the matter that day which ‘was to do with the six-month probation period’13.

[28] Given that Ms Sharkey’s fax invited Mr Sigston to telephone her daughter, around lunch time he telephoned Ms Dixon. I accept Mr Sigston’s evidence that:

“I had a brief discussion with Ms Sharkey’s daughter, in which words to the following effect were said:

Me: I need to meet with Jennifer today. Is there any way I can meet with her, even if I go to her house?

Daughter: No. She is sick.

Me: I really need to get some information to her today. Can I send her a letter by courier to her home address?

Ms Sharkey’s daughter did not respond to my proposal. Further, Ms Sharkey’s daughter did not say this would not be suitable. At no stage during this call did Ms Sharkey’s daughter inform me that her mother was away or was going away or was at any address other than her residential address.”

[29] After discussing the matter with Mr Rogers, Mr Sigston arranged for the letter terminating Ms Sharkey’s employment to be couriered to her home address that afternoon. The letter included:

“Following due consideration of the result of this investigation, it has been deemed that your actions during the DIAC investigation do not concur with Serco’s values and approach in such matters. Serco is therefore terminating your employment with effect from today, 27 April 2010, in accordance with clause 12(b) of the Immigration Detention Centres Agreement 2009. You will be paid one week’s salary in lieu of notice.” 14

[30] The courier placed the letter, which was inside a courier parcel, 15 under the door of Ms Sharkey’s residence at 5.09pm. Ms Dixon’s evidence was that she found the letter and put it on the cupboard and did not communicate to her mother that the couriered letter had been received. Her evidence was that she did not really know where her mother was staying while she was away. In an emergency she wouldn't have contacted her - she would have gone to her brother as he was in charge at the time.

[31] Ms Sharkey read the letter on her return home on Thursday 29 April 2010.

[32] In making my findings of fact, I have accepted the evidence of Mr Sigston, who I found to be a reliable witness. His evidence was consistent and highly probable. Where Mr Sigston’s evidence differed from that of Ms Dixon, I prefer that of Mr Sigston, given that on Ms Dixon’s oral evidence (which differed from her written statement 16) because of a medical condition she could not remember ‘very well what was going on’.17

[33] Further in establishing the facts I have not accepted most of the evidence of Ms Sharkey for reasons that relate to factors of probability 18 and logic19 (based on an orderly process of reasoning) and consistency.20 There was no necessity for me to rely on much of the evidence of Mr Rogers because it did not refer to facts material to the jurisdictional objection and which were in contest.

CASE LAW

[34] Each party relied on the decision of the Full Bench of the Australian Industrial Relations Commission in P.T. Wilson v Commonwealth of Australia 21 (PT Wilson). That case considered whether the termination of the employee’s employment occurred prior to the expiration of the probationary period or after. The circumstances of the case were that the ATO had written to the employee advising that it was reviewing her continuing employment and there was to be a meeting on a nominated day to discuss her employment. On the nominated day before the meeting took place, the employee left work to go to the doctor. The ATO had intended to dismiss her that day and, as she was absent, sent a letter of termination effective from that day by registered post. She received the letter on a subsequent day. In its decision the Full Bench stated:

“[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 i.e., 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.”

[35] It was submitted on behalf of Serco that it accepts that as a general proposition, the termination of an employee’s employment does not occur until the termination is actually communicated to the employee. Rather its interpretation of the qualification in PT Wilson to that general proposition, when applied to the existing case, is that:

(a) the letter to Ms Sharkey terminating her employment could ordinarily be expected to have been received by her on 27 April 2010; or

(b) Serco had attempted, in good faith, to communicate the termination of employment to Ms Sharkey and she had deliberately avoided receipt of the letter.

[36] That is, on a proper reading of PT Wilson, Ms Sharkey’s employment should be regarded as being terminated on 27 April 2010 because, in the circumstances, Serco did what would be ordinarily expected to communicate that decision to Mr Sharkey that day.

[37] In the alternative, Ms Sharkey’s employment should be regarded as being terminated on 27 April 2010 because Ms Sharkey had deliberately avoided receipt of the letter that day.

[38] It was submitted on behalf of Ms Sharkey that:

(a) Serco’s letter of termination of employment, could not in the particular circumstances, ordinarily be expected to have been received on 27 April 2010; and,

(b) Ms Sharkey had not deliberately avoided receipt of such communication.

[39] Further, it was submitted on behalf of Ms Sharkey that even if FWA formed the view that Serco could reasonably have expected its letter to have been received, Ms Sharkey had not deliberately avoided receipt of such advice.

CONSIDERATION

[40] I note that in PT Wilson the Full Bench observed that, at common law, whilst generally a termination by letter is not effective until the letter is received, there may be a qualification to that general position in that it may be that, in some circumstances, a termination is effective when its communication could ordinarily be expected to have been received. In the circumstances to which the Full Bench referred, it considered that it may be arguable that a termination is effective despite the fact that it has not physically been communicated to the employee. It is not necessary for me to examine whether those circumstances are an example of ‘some circumstances’ or an exhaustion of those circumstances - although the wording seems to favour the former.

[41] The case of PT Wilson is distinguishable from the present case. That case involved the proper application of a provision which required a finding of whether the termination of the respondent’s employment occurred prior to the 3 month probationary period. As acknowledged by the Full Bench, there was no provision in the then legislation about how the end of a probationary period should be determined and the Full Bench determined the issue of when the termination was effective by application of the common law. The concept of the common law is of an expanding and ever changing system of legal principles and features an inductive form of legal reasoning where legal principle is derived by synthesising the text of many individual judgments and following the doctrine of precedent.

[42] In contrast, the application before FWA requires a determination of whether the employee’s period of employment is equal or greater than the minimum employment period, where the meaning of both terms is provided by statute and, of course, statute law qualifies or overrides the common law. 22 In the current matter, the task of FWA is to construe the statutory provisions and to apply such to the findings of fact.

[43] Given that the end of the minimum period of employment occurs at the earlier of the two alternatives in paragraph 383(a), in this matter it is appropriate to consider ‘the time when the person is given notice of the dismissal’.

[44] I can apprehend no reason why, for the purposes of paragraph 383(a), the term ‘notice’ should not be given its ordinary meaning as defined in The Macquarie Dictionary, namely: ‘a notification of the termination, at a specified time, of an agreement, as for rental or employment.’

[45] In my view, in circumstances where termination of employment does not occur in a face-to-face situation, for the purposes of paragraph 383(a), the time when the person is given the notice occurs at a time when the communication could ordinarily be expected to be received, even though that may be earlier than when the dismissal becomes effective (which is the second of the alternatives). For example if the termination is given by email, a notice of termination is ‘given’ at a point in time when, given the particular circumstances, that email could ordinarily be expected to be received.

[46] In the circumstances of this case, that point in time was 5.09pm on Tuesday 27 April 2010. That is the time when the notice of termination could ordinarily have been expected to be received, for the reason that:

(a) Ms Sharkey had specifically requested that her employer only communicate with her by correspondence and, apart from her fax which was sent on 29 April 2010, failed to provide Serco with advice of any alternative means of communicating with her;

(b) Serco had respected Ms Sharkey’s request and couriered its letter of 23 April 2010 to her residence which she received that day. Therefore, in the absence of anything to the contrary, it would be reasonable to expect that Ms Sharkey would receive further correspondence that was couriered to the same address less than a week later;

(c) Ms Sharkey had invited Serco to telephone her daughter about the proposed meeting. When Serco did this, Mr Sigston was told by Ms Sharkey’s representative only that Ms Sharkey was sick and could not meet with him. Notwithstanding it was a normal working day, the daughter, knowing that Mr Sigston was intending to courier a letter to Ms Sharkey’s home that day, said nothing to indicate that Ms Sharkey would not be home that day;

(d) The letter dated 27 April 2010 was couriered to the same address as the letter of 23 April 2010 and received at Ms Sharkey’s home during Serco’s working hours and the hours that Ms Sharkey had worked, albeit just after normal business hours;.

(e) Ms Sharkey deliberately avoided personal contact with Mr Sigston on 27 April 2010 and there was no evidence to suggest that her medical condition prevented her from telephoning him.

[47] Given my finding in respect of the application of subparagraph 383(a)(i) it is not necessary to consider the alternative in subparagraph 383(a)(ii), namely the point in time ‘immediately before the dismissal’, which should be taken to mean ‘immediately before the dismissal took effect’ - about which much of the case was argued. However if I were to have done so, I would not have relied on common law case law which supports the proposition that the termination of a contract of employment cannot have effect without communication of the termination to the employee. Firstly, I would be construing the statute and not the common law. Secondly, the term ‘dismissal took effect’ is contained in s.394(2), which refers to the period of time in which applications for unfair dismissal remedy must be made. Subparagraph 394(3)(b), which prescribes one of the considerations that FWA must take into consideration in determining whether it is satisfied there are exceptional circumstances for extending the period of 14 days, states “(b) whether the person first became aware of the dismissal after it had taken effect.” According to paragraph 1574 of the Explanatory Memorandum to the Fair Work Bill 2008, the provision is intended to address situations where the applicant fails to lodge the application within 14 days because they were unaware they had been dismissed until some time after the dismissal occurred.

CONCLUSION

[48] At the relevant time Ms Sharkey was not an employee who had completed a period of employment with Serco of at least the minimum employment period. Therefore she is not a person protected from unfair dismissal.

[49] FWA has no jurisdiction to hear and determine Ms Sharkey’s application for an unfair dismissal remedy.

[50] The application is dismissed. I order accordingly.

COMMISSIONER

 1 Paragraph 15AB(1)(a) of the Acts Interpretation Act 1901. Subparagraph 15AB(2)(e) of that Act provides that the material that may be considered includes any Explanatory Memorandum relating to the Bill containing the provision.

 2   PN327 & PN362.

 3   PN333.

 4   PN287.

 5   Exhibit C1, Annexure KS1.

 6   PN101.

 7   Exhibit V1, Annexure JS-6.

 8   PN354.

 9   PN399.

 10   PN351.

 11   Exhibit V1, Annexure JS-7.

 12   PN108-PN113.

 13   PN137.

 14   Exhibit V1, Annexure JS-1

 15   PN411.

 16   Ms Dixon’s sworn statement stated that she had used the word ‘no’ when she ‘did not agree that he (Mr Sigston) could send a letter to my mother by courier. Under cross-examination Ms Dixon agreed that she did not respond to Mr Sigston’s proposal that he needed to get a letter to Ms Sharkey that day because ‘I didn’t see how you could really respond to a question like that. I can’t exactly stop him from sending a letter.’ (PN527)

 17   PN550.

 18   Based on the balance of probabilities. It is highly probable that Ms Sharkey was aware of the date that her qualifying period of employment was to expire, particularly given she had consulted with her representative prior to writing the fax. It was probable that Ms Sharkey did not make her doctor’s appointment until after her receipt of the letter dated 23 April 2010 as she had not made an appointment on previous days although she was unwell since 3 days previously (PN318) and her explanation for not seeing the medical practitioner earlier that day was that the surgery was in a shopping centre. It is highly improbable that Ms Sharkey did not inform a member of her household where she could be contacted in an emergency. It is highly probable that a member of her household would have become aware of the delivery of the courier’s sachet and would have advised her of this. Given the wording of the letter dated 23 April 2010 which invited her to bring a representative to the meeting and that she consulted her representative on the matter, that Ms Sharkey had been stood down on full pay for approximately 2 months and the seriousness of the allegation, it is highly improbable that Ms Sharkey anticipated that she would be cleared at the meeting and would be able to return to work. Ms Sharkey’s evidence that she was not aware that her employment potentially could be in jeopardy if the allegations were substantiated (PN335) is not plausible.

 19   There seems to be no reasonable explanation of why, on having obtained a medical certificate that she would be unfit for work until 29 April 2010, Ms Sharkey decided not to contact Serco earlier than she did (PN322) given the operating hours of the centre and the proposed time of the meeting.. There was no reason given for why, having drafted the fax on the morning of 27th April, Ms Sharkey asked her daughter to wait until the next morning to send the fax. There seems no logical reason why Ms Sharkey could not have sent a fax saying that she could not attend the proposed meeting because she was sick directly to Mr Sigston at the Villawood centre - as there was insufficient evidence to support her assertion that many faxes go missing at the Villawood centre constantly. (PN419). Indeed there seems to be no reason why, given the potential seriousness of the meeting and that she was not suffering serious illness, she did not simply call Mr Sigston to advise of her illness as her evidence was that it was her practice to phone a manager to advise of her inability to attend work due to sickness (PN364). Logic demands a finding that she deliberately wanted to avoid contact with Mr Sigston on 27 April 2010. Given that she nominated Ms Dixon to be the point of telephone contact in the fax, it does not seem reasonable that Ms Sharkey did not instruct her daughter on what to say if Serco phoned to say that the proposed alternative date was not suitable. (PN388).

 20   In her written statement Ms Sharkey stated that she had ‘simply advised’ Mr Rogers that she did not have a contact number and preferred communications in writing. Her oral evidence was that she had use of 2 mobiles at her home, ‘but none of them particularly belong to me (PN294), she has use of all of them at any given time (PN294) and she had said words ‘Even if I had one, I’d not be prepared to provide one.’ (PN297) Ms Sharkey’s evidence of the fax she asked her daughter to send did not include the medical certificate. However in her oral evidence part of the reason Ms Sharkey gave for not sending to the Villawood centre a benign fax about not being able to attend the meeting she stated: ‘There would’ve been a doctor’s certificate.’ (PN420)

 21   PR901127, 26 February 2001, per Giudice P, Williams SDP and Bacon C.

 22 Implicit in the Constitution is the principle that the general power to enact laws in s 51 over certain topic areas for the peace, order, and good government of the Commonwealth is taken to incorporate a power to enact laws which override common law rights. In terms of statutory interpretation, there is an assumption that Parliament would not have extinguished valuable common law & proprietary rights without clear language.

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