Ms Stacy Johnson v The Royal National Agricultural and Industrial Association of Queensland T/A RNA

[2015] FWC 4857

[2015] FWC 4857

FAIR WORK COMMISSION

DECISION

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

Ms Stacy Johnson
v
The Royal National Agricultural and Industrial Association of Queensland T/A RNA
(U2015/4382)

COMMISSIONER ROE MELBOURNE, 16 JULY 2015

Application for relief from unfair dismissal - no reasonable prospects of success.

[1] Ms Johnson made an application for relief from unfair dismissal on 30 March 2015. The Royal National Agricultural and Industrial Association of Queensland (RNA) submitted that the application was made out of time. On 11 May 2015 Senior Deputy President Drake determined that the application had in fact been made within time. A conciliation conference was held on 2 June 2015 and it did not resolve the matter. The matter was listed for hearing in August and directions were issued for the parties to file material. Ms Johnson provided material in support of her application on 22 June 2015. Ms Johnson also sought an order for production of a large number of documents. The employer objected to the production of the documents and the matter was listed for hearing on 3 July 2015. Upon examining the file I was concerned about the prospects of the matter and raised this with the parties. I was concerned that should the matter proceed as programmed it would involve significant cost to the employer and the public which may not be in the public interest.

[2] On 6 July 2015 RNA confirmed in writing what had been foreshadowed at the hearing on 3 July 2015. RNA applied for the matter to be dismissed under Section 587(1)(c) of the Fair Work Act 2009 on the grounds that it had no reasonable prospects of success. RNA also provided two pieces of correspondence to Ms Johnson signed by the RNA Chief Executive. The first stated:

“I confirm that the RNA now acknowledges that your employment with RNA ended on 16 March 2015 by reason of your voluntary resignation.”

The letter advised that they were providing a Statement of Service which confirmed this and which replaced an earlier Statement of Service dated 26 March 2015 which had referred to Ms Johnson having been dismissed summarily on 2 March 2015.

The second piece of correspondence was the Statement of Service which confirmed that the employment ended by way of voluntary resignation effective 16 March 2015.

[3] As foreshadowed at the hearing on 3 July 2015 I provided Ms Johnson with a period of seven days to provide any submission as to why the matter should not be dismissed. Ms Johnson provided a submission on 13 July 2015. I intend to determine the matter on the basis of the material before me.

[4] In the witness statement provided to the Fair Work Commission on 22 June 2015 Ms Johnson confirms:

● She was employed from 23 June 2014.
● On 24 February 2015 she gave a signed resignation letter to RNA effective from 16 March 2015. The reason was that Ms Johnson and her partner were intending to go to the UK for at least 12 months and she had work visas for the UK.
● On 2 March 2015 Ms Johnson was arrested at work by the Queensland police who obtained a search warrant for her home. The police found more than $16,000 in cash.
● The police took her RNA swipe card and told her that RNA had asked for it to be returned and told Ms Johnson that she would not be going back to work.
● Sometime after 16 March 2015 Ms Johnson asked RNA to provide a statement of service, her final pay and her personal belongings.
● RNA responded by providing a Statement of Service which stated that she had been terminated on 2 March 2015 (this was later corrected to 3 March 2015) and that any monies owing would be held until further investigations from relevant authorities. Entitlements to 3 March 2015 were subsequently paid in May 2015.

[5] It is difficult to see how Ms Johnson could achieve reinstatement if she was successful in her case given that she admits that she had resigned her employment to travel overseas. The maximum compensation which could be awarded to Ms Johnson is pay for the period from 3 March 2015 until the date her employment would have ended on 16 March 2015. The employer has now conceded that Ms Johnson resigned effective 16 March 2015 and was not dismissed and has provided documentary evidence confirming this.

[6] In her submission of 13 July 2015 Ms Johnson argues that although RNA have acknowledged that she resigned they are still refusing to pay wages for the period from 3 March until 16 March 2015. I am satisfied that this is a separate issue concerning entitlements and it is not relevant to the issue of unfair dismissal. Ms Johnson submits that the police on advice from RNA took her swipe card on 3 March 2015 and as a result she could not return to work. This may be a relevant consideration as to the issue of why Ms Johnson failed to contact the employer or return to work during the period from 3 March 2015 until 16 March 2015 but as the parties accept that Ms Johnson had resigned her employment it is not relevant to the issue of unfair dismissal. It may be relevant to the issue of the dispute over payment from 3 March 2015 until 16 March 2015. Ms Johnson also argues that she was unable to return to work and it was difficult to contact the employer for some of the period because she was in hospital. Again this may be relevant to the dispute about payment from 3 March 2015 until 16 March 2015 however it is not relevant to the issue of unfair dismissal.

[7] I note that RNA vigorously contests the facts and submissions which are relevant to the issue of any entitlement to payment for the period from 3 March 2015 to 16 March 2015.

[8] Ms Johnson says that she resigned her employment effective 16 March 2015. The employer does not now contest that submission. I am therefore satisfied that the application has no reasonable prospects of success and I dismiss the application pursuant to Section 587(1)(c) of the Act. An order is published separately.

COMMISSIONER

Appearances:

Ms S Johnson appeared for herself.

Ms A Smeaton appeared for the Respondent.

Hearing details:

2015

Melbourne

July 3

Final written submissions:

13 July 2015

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