Ms Marie Oakley v Jenny Lyn Aged Care Centre Pty Ltd

[2011] FWA 4542

[2011] FWA 4542

FAIR WORK AUSTRALIA

DECISION

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

Ms Marie Oakley
v
Jenny Lyn Aged Care Centre Pty Ltd
(U2011/5145)

COMMISSIONER CARGILL SYDNEY, 18 JULY 2011

Termination of employment – Extension of time.

[1] This decision arises from an application by Ms Oakley (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for a remedy in respect of her alleged dismissal by Jenny Lyn Aged Care Centre Pty Ltd (the respondent). The respondent submits that the application has been lodged outside the statutory time limit and objects to an extension of time being granted.

[2] The substantive matter was dealt with by a Fair Work Australia (FWA) Conciliator but did not settle. It then came before me as part of the Sydney jurisdictional roster on 27 May 2011.

[3] The applicant was represented by Mr Baker, solicitor and the respondent by Mr Frazer, solicitor. Both representatives appeared by permission. Written submissions had been lodged by both parties prior to the hearing. Each representative made oral submissions. There was no witness evidence.

BACKGROUND FACTS

[4] It should be noted that there is little, if any, disagreement between the parties about the facts in this matter. Rather, it is the conclusions which should be drawn from the facts which are in dispute.

[5] The applicant commenced employment with the respondent in July 2001. At the time of the alleged dismissal she occupied the position of recreational activities officer. During 2009 the respondent raised some performance issues with the applicant. On 10 December 2009 the applicant began a period of unpaid sick leave. She has not returned to work since that time.

[6] The applicant submitted a workers’ compensation claim. This was declined by the respondent’s workers’ compensation insurers but appears to have remained the subject of ongoing correspondence between Mr Baker and the insurer.

[7] On 3 June 2010 Mr Baker wrote to the respondent to confirm that he was acting for the applicant in relation to her workers’ compensation claim. He also raised a number of other possible claims which may be brought if the applicant’s employment was to be terminated. In a response dated 9 June 2010, the Aged Care Association Australia – NSW (ACAA) wrote that it acted on behalf of its member “Jenny Lyn Nursing Home” and asked that any further communication in respect of the applicant be directed to it.

[8] On 11 June 2010 a meeting was held with the applicant, Mr Baker, the applicant’s union representative and the respondent. Various issues were discussed including the provision of a further medical report. During August and October there was an exchange of correspondence between Mr Baker and ACAA concerning this report.

[9] In a letter dated 8 October 2010 ACAA informed Mr Baker that its member was of the view that the applicant’s employment should be terminated on the ground of her ongoing extended unpaid sick leave. It noted that the applicant was being given the opportunity to provide her response prior to any final decision being made. The date nominated for such a response was 15 October 2010.

[10] No response was received and, in correspondence addressed to the applicant dated 19 October, ACAA invited the applicant to respond directly. A copy of the letter of 8 October was attached for the applicant’s information. The applicant provided a very detailed 25 page response to ACAA. This response was dated 27 October.

[11] On 16 November 2010 ACAA again wrote to the applicant. It noted that the issues raised by the applicant in her response did not address the question of her extended sick leave and possible return to work. The applicant was requested to respond to this particular issue. She provided a further detailed response to ACAA which was dated 26 November 2010.

[12] In a letter to the applicant dated 7 December 2010 and headed “Termination Of Your Contract” ACAA stated, among other things,

“In view of the fact that you are unable to return to work, and given your extended period on unpaid leave, your employment with Jenny Lyn Nursing Home is terminated effective Tuesday, 11 January 2011 (5 weeks from the date of this letter).”

[13] The letter noted that any entitlements would be paid into the applicant’s bank account prior to 11 January. It went on to note that the termination did not affect the applicant’s workers’ compensation claim and, further, that the applicant should deal directly with the insurer in respect of that matter.

[14] On 11 January 2011 Mr Baker sent an email to ACAA concerning the workers’ compensation claim. There was no mention of the termination. The reply email from ACAA dated 12 January, was substantively in the following terms:

“As you should be aware from our most recent correspondence and from our discussions with your personal assistant, Sharon Scott (also Ms Oakley’s sister) Ms Oakley’s employment was terminated.

In regards to her workers compensation claim you should deal directly with GIO.”

[15] On 31 January 2011 the respondent wrote to the applicant referring to the ACAA letter of 7 December and confirming that her employment had been terminated. A final payslip, separation certificate and statement of service were attached. It appears that this material was received by the applicant on 4 February 2011.

[16] The present claim was lodged with FWA on 16 February 2011.

SUBMISSIONS ON BEHALF OF THE APPLICANT

[17] The primary submission on behalf of the applicant is that both the ACAA letter of 7 December 2010 and the respondent’s letter of 31 January 2011 were invalid, unlawful and defective notices of termination and consequently the applicant remains an employee of the respondent.

[18] It is submitted that ACAA had no right to terminate the applicant’s employment either under the relevant enterprise agreement or otherwise. The organisation was not the applicant’s employer and the respondent had no right to delegate its power to dismiss to ACAA. ACAA is not a party to the enterprise agreement and the parties had not agreed to its involvement in the matter.

[19] It is also submitted that, through its website, ACAA recognises that its role is limited to advice and assistance to its members. This cannot be extended to take on the role of the employer with all the consequent rights, obligations and powers. It is further noted that the 7 December letter does not mention that ACAA was acting on behalf of its member, the respondent.

[20] Mr Baker submitted that his correspondence to ACAA was provided as a mere courtesy. At no time did he or the applicant give or acquiesce to ACAA having any power in relation to the applicant’s employment. Further Mr Baker submitted that his silence in relation to the letter of 7 December was not relevant. It was not his role to raise the issue of the legitimacy of the termination with ACAA.

[21] It is submitted that the respondent’s letter of 31 January was not valid or effective. It purported to rely on the earlier unlawful letter from ACAA. It also failed to provide the requisite notice of termination.

[22] It is submitted in the alternative that, if the letter of 31 January was effective, it was received by the applicant on 4 February and the application was lodged within 14 days of its receipt. Consequently the claim is not out of time.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

[23] It is submitted that the test of “exceptional circumstances” in section 394(3) is a high one and extensions of time should not be readily given: Cheval Properties v Smithers[2010] FWAFB 7251.

[24] It is submitted that there is no evidence from the applicant as to the reason for the delay in lodgement and hence there is nothing on which it could be determined that there were exceptional circumstances. The applicant’s submissions as to the reason for delay are without foundation.

[25] ACAA had clearly informed the applicant and her representative that it was acting on behalf of the respondent. Subsequently, both the applicant and her representative had communicated directly with ACAA as the respondent’s representative. Further, there is no suggestion that ACAA was acting in any capacity other than as a representative of its member. As a registered organisation it could do this. ACAA was not purporting to exercise power in its own right but was merely conveying the respondent’s decision to the applicant.

[26] It is submitted that the letter of 7 December is clear and certain in its terms. The letter provided effective and valid notice of termination. The application is out of time and should be struck out. The applicant was aware of her rights as was her representative. This is reflected in earlier correspondence including the letter of 3 June 2010.

[27] It is submitted that the question of when the applicant first became aware of the dismissal does not arise. The email of 11 January 2011 from the applicant’s representative indicates an acceptance that notice of termination had been received by the applicant.

[28] The applicant took no action to dispute her dismissal between the time notice was provided to the date the claim was lodged. It is noted that the letter of termination followed an exchange of correspondence as to the applicant’s capacity to work wherein she confirmed her unfitness to return.

[29] The respondent does not assert any significant prejudice.

[30] It is submitted that the applicant’s claim is poor and has no prospects of success. She had been absent on unpaid leave for more than 12 months and was likely to remain absent for a significant further undetermined period. The respondent accorded considerable procedural fairness to the applicant including giving her the opportunity to demonstrate fitness for work. It did not act in haste but only when it was apparent that she would remain unfit for an indefinite period.

CONCLUSIONS

[31] Section 394(2) provides that an application for an unfair dismissal remedy must be made within 14 days after the dismissal took effect or within such further period as FWA allows under subsection (3). That subsection is in the following terms:

“FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[32] Before addressing these factors it is necessary to consider the issues of whether the applicant’s employment has been validly terminated and, if so, when.

[33] I am satisfied that the letter from ACAA to the applicant dated 7 December 2010 provided valid and effective notice to the applicant that her employment with the respondent was to cease on 11 January 2011. It is tolerably clear that ACAA was doing no more than communicating the respondent’s decision to the applicant. It was not purporting to exercise any right or power of its own but was simply the mouthpiece for its member, the respondent.

[34] ACAA had been representing the respondent in its dealings with both the applicant and her representative. This situation had been in place for some time. There is no question that the representative role of ACAA had to be authorised under the enterprise agreement or agreed to by the applicant.

[35] Having determined that the effective date of the applicant’s dismissal was 11 January 2011, it follows that this claim should have been made within 14 days of that date. As indicated earlier, the application was not lodged until 16 February 2011. It is therefore out of time and it is necessary to consider whether or not an extension of time should be granted.

[36] I now return to the provisions of section 394(3) as set out above.

[37] Essentially the reason for the delay in lodgement which is advanced by the applicant is that there had been no termination of her employment. Although this is a novel argument it does not seem to me to be compelling in light of the history of dealings between the parties and their respective representatives.

[38] Paragraph (b) of the subsection is somewhat problematic in this case. The applicant’s alternative submission is that she did not become aware of the termination until 4 February 2011 when she received the respondent’s letter. However it is relevant to consider that there is no dispute that the applicant had received the 7 December letter notifying her of the date of the dismissal of 11 January.

[39] The applicant has taken no other action to contest the dismissal.

[40] The respondent is not asserting any significant degree of prejudice.

[41] There is insufficient material before me to form any concluded view about the merits of the application. In the circumstances I am prepared to accept that it is not without merit.

[42] There is nothing before me to suggest that the issue of fairness between the applicant and other persons in a similar position is of particular relevance in this case.

[43] After having taken into account the factors in section 394(3) and all of the material in this matter I am not satisfied that there are exceptional circumstances such that I should extend the period for lodgement of this claim.

[44] The application is dismissed.

COMMISSIONER

Appearances:

L. Baker, solicitor, for the applicant

P. Frazer, solicitor, for the respondent

Hearing details:

2011.

Sydney.

May 27.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR511575>