Ms Judith Lord v Furtado Property Pty Ltd T/A Taj Property Group Pty Ltd

[2015] FWC 4729

[2015] FWC 4729

FAIR WORK COMMISSION

DECISION

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

Ms Judith Lord
v
Furtado Property Pty Ltd T/A TAJ Property Group Pty Ltd
(U2015/746)

DEPUTY PRESIDENT GOSTENCNIK MELBOURNE, 14 JULY 2015

Application for relief from unfair dismissal; whether applicant had completed minimum employment period; application dismissed

[1] Judith Ann Lord (Applicant) has applied for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Act). The Applicant’s former employer, Furtado Property Pty Ltd T/A TAJ Property Group Pty Ltd (Respondent), dismissed the Applicant from her employment with the Respondent on 9 February 2015. The Respondent maintains that the Applicant commenced her employment on 6 January 2015 and consequently she cannot maintain this application because she has not been employed by the Respondent for the minimum employment period set out in s.383 of the Act and therefore is not a person is protected from unfair dismissal as described in s.382 of the Act.

[2] Initially the Respondent also raised a jurisdictional objection on the basis that it was a small business employer within the meaning of s.23 of the Act, but has since, properly in my view, abandoned that objection and conceded that it is not a small-business employer. 1

[3] There is no dispute that the Applicant commenced employment with the Respondent in February 2012 2 and that she worked for the Respondent as an employee until the middle of 2013, at which time the Applicant was diagnosed with bowel cancer, and subsequently was unfit for work and did not return to work as an employee until 6 January 2015. The Applicant claimed that during this time, she remained an employee of the Respondent and that the Respondent had kept open her job until such time as she was fit to return. The Respondent claimed that employment ended in mid to late 2013. It claimed that the Applicant left her employment because of serious illness.3

[4] The documentary evidence relied upon by the parties to support their respective cases is less than satisfactory but there is sufficient material upon which I am able to conclude that the Applicant’s employment with the Respondent, which began in February 2012, ended at some point well before she began a further period of employment with the Respondent on 6 January 2015. I did not find the oral evidence given by the Applicant and by Mr Graham Furtado of any assistance. The evidence of both witnesses was vague, and in the case of Mr Furtado, evidence about the preparation and completion of a questionnaire to Centrelink was the subject of a caution from me to Mr Furtado, which ultimately resulted in Mr Furtado declining to answer particular questions about the questionnaire. 4

[5] Turning then to the documents introduced into evidence. First there is the employment separation certificate completed by the Respondent on 5 July 2013. 5 That separation certificate indicates that there was a separation because of illness. Second, pursuant to a request from Centrelink dated 3 December 2013, the Respondent completed a questionnaire concerning the Applicant’s employment.6 The answers given in the questionnaire by the Respondent indicate that the Applicant was employed on a casual part-time basis, that she last attended work on 28 November 2013, that the Applicant had a position to return to when she was fit for work, and the question “was the employment of Mrs Judith Ann Lord terminated because of” is not completed. The questionnaire also discloses two tick a box options given to answer the following question: Does Mrs Judith Ann Lord have a position to return to when she was fit for work? The options are: “Yes (go to question 7)” and “No - when was employment terminated? --/--/--”. The Respondent ticked the “Yes” box in answer to the question.

[6] Mr Furtado gave evidence that he did not recall making any statements to the effect that he would hold open the Applicant’s job while she was receiving treatment. 7 This evidence is inconsistent with the answer given by the Respondent in the questionnaire. To put the answer given in the questionnaire in context, the letter from Centrelink dated 3 December 2013 provides the following information:

Centrelink’s authority to request this information

Section 192 of the Social Security (administration) act 1999 empowers the secretary or a delegate to require any person to give information relevant to Centrelink customers receiving the correct entitlement.

This is a notice given under section 196 of the Social Security (administration) act 1999. Penalties can apply for failing to provide information or for deliberately giving false or misleading information.

[7] I prefer the information contained in the questionnaire about the status of the Applicant’s employment, to the evidence given by Mr Furtado. The questionnaire was completed 17 December 2013. Consequently, at that date employment was continuing albeit that the Applicant was not fit to perform work.

[8] Mr Furtado’s evidence was also the Respondent provided the employment separation certificate to the Applicant in good faith, believing it would assist in her application to Centrelink for welfare, and did not otherwise continue her employment with the Respondent or bind the Respondent to continue the employment in the future. 8 The employment separation certificate indicates a separation because of illness; it says nothing about whether the employment had been terminated. It also says nothing about whether employment was to be kept open. The employment separation certificate was completed on 5 July 2013.

[9] More than six months later, the Respondent completed the questionnaire. The answers given in the questionnaire make the clear representation that employment is on-going and that the Applicant has a job to return to when she was fit to resume work. The answers given in the questionnaire were given in circumstances where the Respondent was warned by Centrelink of the consequences of deliberately giving false or misleading information. It seems to me that the representation in the questionnaire made by the Respondent is that the Applicant’s employment had not ended and that she would be able to return to her position when she was fit for work.

[10] There is no other credible evidence which would suggest that the Applicant’s employment was terminated by the Respondent or in some way ended by the Applicant. There is no evidence that the Respondent resiled from the representation so clearly made in the answers given in the questionnaire sent to Centrelink or that it informed the Applicant that it was resiling from that representation. The responses in the questionnaire are consistent with the Applicant’s assertion that employment at that stage was on-going and that a position was available into which she could return once she was well enough to do so.

[11] The third document is a chain of emails dated 9 December 2013 with the subject line “office staffing for body corporate”. 9 The first email in the chain contains the following:

Charles has requested that we send an email the (sic) body corporate secretary Mark and Stephanie, regarding the staffing situation at the Brook.

Explaining that Jude is not returning to the position etc. as they need to know what is happening.

[12] This document is said to show that the Applicant had left her employment because of illness and that the Respondent was acting consistently with that fact and was taking steps to advise the body corporate accordingly.

[13] Two simple observations may be made about this document. First, as with much of the evidence in this case, the email is vague in that the advice that it suggests be given to the body corporate, is equally consistent with the Applicant’s long-term absence on account of illness as with the ending of employment. Secondly, the suggestion that it is consistent with the ending of employment falls down when one has regard to the answers given in the questionnaire which were completed one week after this email was sent. When the email is read consistently with the questionnaire, it seems to me that the email does no more than confirm that the Applicant will be away from her position for some lengthy period and so other arrangements with the body corporate will need to be made.

[14] The fourth document is an email from the Applicant to Mr Furtado dated 5 June 2013. 10 That email provides as follows:

Any chance you could help me out?

I require a separation certificate as a matter of priority so I can apply for sickness benefits through Centrelink.

Could you also arrange to credit any holidays owing asap?

We also need to sort my Super as discussed . . .

[15] It seems to me clear that the Applicant was seeking a separation certificate stating that she was not working because of illness. This is not the same as a separation certificate given in circumstances where employment has ended. Moreover, the request for a credit of holidays seems to me to be a request that she should be paid annual leave so that she would receive some payment for a period that would otherwise be unpaid. It is also to be observed that this communication occurred more than six months prior to the position that is disclosed in the questionnaire completed by the Respondent on 17 December 2013.

[16] The final document is an email from the Applicant to Mr Furtado dated 2 June 2014. During the period leading up to this email it is common ground that the Applicant conducted, separate from any employment with the Respondent, a business in which she managed some properties in relation to which the Respondent had an interest. The first part of the email is dealing with aspects of that arrangement. That arrangement is not relevant to any question that I need to determine. The email relevantly advises Mr Furtado as follows:

I was a little disappointed to hear that I wouldn’t be able to utilise your advertising services to relet Unit 36 at The Brook ($395 let fee). I thought you had mentioned in the past that it wouldn’t be a problem and I also thought that I was considered to still be employed by Furtado Property (Centrelink thinks I have a job to return to . . .).

Well anyway, as you may understand, I’m in a conundrum.

. . .

I have taken on the position of kinship carer for my niece Alysha (heart kid currently in the intensive care). I’ve been living at the Mater hospital for the best part of two weeks and must consider Alysha as my first priority as I’m employed by the Department of Child safety care for her. As much as I would love to be building my business or returning to work for you (if you would have me) is just not possible at this time.

[17] The Respondent suggested that the words appearing in brackets in the last paragraph extracted above, suggest that the Applicant did not consider that there was any position into which she could return. I did not accept that such a conclusion is clear on the face of the email and the proposition was not accepted by the Applicant. 11

[18] However, it does seem to me that the email discloses an intention not to return to any position with the Respondent at that time and there is no indication of any future likelihood of doing so. The earlier arrangement as disclosed by the answers in the questionnaire shows that a position was available with the Respondent for the Applicant when she was fit to return to work. The indication in the email is that Applicant will not be resuming work for the Respondent because of the need to care for another. In those circumstances, the Respondent was entitled to treat the email as ending the employment and in effect an acceptance that the Respondent was no longer keeping a job open until she was fit to return to work.

[19] It seems to me that the Applicant acknowledges in the email that the capacity to return to work when she was fit might no longer exists. It is in this context that she asks in the email “I also thought that I was considered to still be employed by Furtado Property”. In the knowledge that a return to work was now uncertain, the Applicant advises the Respondent that “returning to work for you (if you would have me) is just not possible at this time”.

[20] In those circumstances I find that the first period of employment with the Respondent ended on 2 June 2014.

[21] Given that finding, it is unnecessary for me to make any findings about the disputed conversation that occurred in the car park of the Respondent’s premises in or about December 2014 which ultimately resulted in the Applicant beginning a new period of employment with the Respondent in January 2015.

[22] It follows that there was a period of continuous service of the Applicant with the Respondent beginning in February 2012 and ending on 2 June 2014. This period does not count as a period of continuous service for the purposes of determining whether the Applicant had completed the minimum period of employment. For that purpose, the relevant period is that period which commenced on 6 January 2015 and ended on 9 February 2015. This is a period of less than six months.

[23] Consequently the Applicant had not completed the minimum period of employment as set out in s.383 of the Act. The Applicant was therefore not a person protected from unfair dismissal. The application must be dismissed. An order giving effect to this decision will be separately issued.

DEPUTY PRESIDENT

Appearances:

Ms J. Lord

Ms L. Oldham for the Respondent

Hearing details:

Melbourne and Brisbane

29 June

2015

 1   Transcript PN 24 – PN 25

 2   Transcript PN 58

 3   Exhibit 5 at [12]

 4   Transcript PN 197 – PN 208

 5   Exhibit 4 Annexure JL2

 6   Ibid Annexure JL1

 7   Exhibit 5 at [13]

 8   Ibid

 9   Exhibit 5 Annexure GF7

 10   Exhibit 5 Annexure GF5

 11   Transcript PN 75 – PN 88

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