Ms Leanne Reisenberg v Sitka Pty Ltd (Bannockburn Residential Aged Care)
[2010] FWA 4216
•8 JUNE 2010
[2010] FWA 4216 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
Ms Leanne Reisenberg
v
Sitka Pty Ltd (Bannockburn Residential Aged Care)
(U2009/3646)
COMMISSIONER CRIBB | MELBOURNE, 8 JUNE 2010 |
Termination of employment - application to amend pursuant to s.111(l) – application denied.
[1] This matter concerns an application by Ms Leanne Reisenberg (the applicant) to amend the application she lodged under section 643(1)(a) of the Workplace Relations Act 1996 (the Act). This application alleges that the termination of her employment by Sitka Pty Ltd (Bannockburn Residential Aged Care) (the respondent) was harsh, unjust or unreasonable and also that there had been a breach of s.661 of the Act.
[2] The application to amend is made pursuant to s.111(1)(l) of the Act. It seeks to change the grounds of the application from s.643(1)(a) (harsh, unjust or unreasonable) to an alleged contravention of s.659(2)(a)on the grounds of temporary absence due to illness.
[3] The respondent opposed the granting of the application to amend.
[4] Following difficulties in scheduling a hearing of the application to amend, it was agreed that the parties would file written submissions. Directions to this effect were issued on 18 November 2009. The applicant filed written submissions on 7 December 2009 and the respondent on 24 December 2009.
[5] Mr B Green, solicitor, represented the applicant and Mr M Rahilly, solicitor, represented the respondent.
[6] This decision deals with the applicant’s application to amend the grounds of her application lodged under s.643 of the Act.
BACKGROUND
[7] The applicant commenced employment with the respondent in November 2008 and was terminated on 16 April 2009. 1 Ms Reisenberg lodged her unfair dismissal claim on 6 May 2009 which was within time.2
[8] The application set out the grounds as s.643(1)(a) – harsh, unjust or unreasonable – and s.643(1)(b) – alleged contravention of s.661 – failure to give notice of termination. It was conceded by the applicant that the termination of the applicant in her fifth month of employment was within the threshold period of six months pursuant to s.643(6) of the Act. 3
[9] Ms Reisenberg’s application was set down for a telephone conciliation conference at 2.00pm on Wednesday 27 May 2009. It was the respondent’s contention that, prior to the conference, there were written exchanges between the parties regarding monies outstanding and entitlements. 4 The respondent thought that these issues had been resolved.5
[10] On 26 May 2009, the respondent lodged a jurisdictional objection on the grounds that the applicant was terminated during the six month qualifying period. Conciliation was objected to by the respondent prior to the jurisdictional objection being dealt with. The applicant opposed the jurisdictional objection.
[11] The application was re-listed for teleconference for 3 June 2009 before Deputy Industrial Registrar McCarroll. Following the teleconference, (on 3 June 2009), the applicant gave formal written notice that she was not pursuing the s.643(1)(a) ground of her application. However, she sought to amend her claim to provide the ground for her claim to be analleged contravention of s.659(2)(a) on the basis of a temporary absence from work because of illness and/or injury. The reason given for the request to amend by the applicant’s solicitor, in the letter of 3 June 2009, was “Given our belated instructions (due to our client not realising the critical importance of relevant statements immediately prior to and during termination….” 6
[12] As indicated earlier, the application to amend the grounds of the application by the applicant by the applicant is opposed by the respondent.
SUBMISSIONS
Applicant
[13] It was submitted by Mr Green, on behalf of the applicant, that the purported reason for Ms Reisenberg’s dismissal (poor work performance) was denied. 7 It was stated that, in the period immediately before the applicant’s termination, she had had a medical problem at least from 17 March 2009. Medical certificates certifying that the applicant was unfit for work from 17 – 19 March 2009 and from 24 – 25 March 2009 were provided with the written submissions.8
[14] The applicant contended that, at the time of giving her initial instructions, she was “beset emotionally and financially.” 9 This had resulted in her not realising the importance of her temporary illness and the legal significance in terms of any claim she might make. Given this situation, the applicant had not conveyed this matter as part of her instructions.10 It was argued that there was no prejudice to the respondent and so the application should be granted. If there was some prejudice to the respondent, Mr Green contended that it would be outweighed by the detriment to the applicant if she was unable to pursue her claim.11
[15] Further, it was submitted that there was a bullying culture of favourites within the workplace which mitigated against the fair and competent treatment of staff. In spite of this, the applicant had “helped out” by covering at least 20 shifts of other employees at very short notice. She pointed out that she could not have been performing poorly if she had been asked to cover this many shifts. 12
[16] In terms of the termination of the applicant’s employment, it was stated that she was summarily dismissed during her first performance review. At the meeting, it was alleged by the applicant that the Manager told her that she had been directed “from above” to dismiss her. The applicant said that she had not been given a reason for her dismissal. 13
Respondent
[17] Mr Rahilly, on behalf of the respondent, submitted that the application to amend should not be granted as the submissions, on behalf of the applicant, did not disclose a good reason for the application to be granted. 14
[18] It was argued that, prior to the conciliation conference, there were numerous letters and emails between the representatives of both parties regarding outstanding monies and entitlements. At no time, it was said, did the applicant’s solicitor raise any issue regarding the applicant’s absenteeism. 15
[19] During the conciliation conference, the respondent recalled that the applicant suggested that she had been admonished for poor attendance. It was stated that, as the conference progressed, it became apparent that the applicant’s case was not solid. At the end of the conference, it was stated that the applicant’s solicitor said that he had been unaware that the applicant had been taken to task about her absenteeism. The solicitor had then indicated that this could be a ground to make an unlawful dismissal claim. 16
[20] It was the respondent’s position that the applicant was seeking to make an opportunistic claim based on a “fleeting comment” made during the conciliation conference. Accordingly, the respondent submitted that the application for leave to amend the claim should not be granted. 17
CONCLUSIONS
[21] The applicant is seeking that the Tribunal allow an amendment to her application to replace the grounds under s.643(1)(a) with the grounds under s.659(2)(a).
[22] Section 111(1)(l) of the Act provides:
“(1) The Commission may do any of the following in relation to a proceeding under this Act or the Registration and Accountability of Organisations Schedule:
…
(l) allow the amendment, on any terms it thinks appropriate, of any application or other document relating to the proceeding;”
[23] This section provides the Tribunal with a broad discretion to allow an amendment to an application or other document relating to proceedings before it. It must, therefore, be exercised cautiously with careful consideration of the principle of a “fair go all round” to all parties concerned.
[24] I have carefully considered the submissions from both parties. I have not been persuaded to grant the applicant’s application to amend her unfair dismissal application. I do not consider that the broad discretion available to the Tribunal in s.111(1)l) readily extends to effectively allowing or enabling a change to be made to the basic foundations of an application. This is particularly where a conciliation conference has already taken place with respect to the unfair ground of the application. The respondent prepared for and participated in the conciliation conference on the basis that they were defending a claim that the termination of the applicant’s employment was harsh, unjust or unreasonable. Unfortunate as it is for the applicant, which is acknowledged, it would be unfair to the respondent to allow the grounds of the applicant’s claim to be amended so fundamentally at this stage of the process.
[25] Further, should such an amendment be considered, the Tribunal would need to take into account the time limit for making an application set out in s.643(14) of the Act. It would be illogical and unfair for an application to be made within time on one particular ground and then to be amended at a later time to change the basis on which the application was being made.
[26] Accordingly, the application by Ms Reisenberg, to amend the grounds of her application, is refused.
[27] The respondent’s jurisdictional objection had not yet been dealt with. A programming conference will be set down shortly to discuss progression of the jurisdictional objection and other outstanding matters.
COMMISSIONER
1 Applicant’s submissions dated 7 December 2009 and Respondent’s submissions dated 24 December 2009
2 Respondent’s submissions dated 24 December 2009
3 Applicant’s submissions dated 7 December 2009
4 Respondent’s submissions dated 24 December 2009
5 Ibid
6 Letter to Deputy Industrial Registrar McCarroll from Cuthberts, on behalf of the applicant, dated 3 June 2009
7 Applicant’s submissions dated 7 December 2009
8 Attachments to the Applicant’s submissions dated 7 December 2009
9 Applicant’s submissions dated 7 December 2009
10 Ibid
11 Ibid
12 Ibid
13 Ibid
14 Respondent’s submissions dated 24 December 2009
15 Ibid
16 Ibid
17 Ibid
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