Natalie Di Lucca v Centahealth Menai General Practice T/A SR Medicos Pty Ltd

[2018] FWC 3750

[2018] FWC 3750

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Natalie Di Lucca
v
Centahealth Menai General Practice T/A SR Medicos Pty Ltd
(C2018/2910)

COMMISSIONER PLATT ADELAIDE, 25 JUNE 2018

Application to deal with contraventions involving dismissal – date of dismissal – application made within time allowed – conciliation unsuccessful - certificate issued.

Summary

[1] Ms Natalie Di Lucca has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment was terminated by Centahealth Menai Practice T/A SR Medicos Pty Ltd (Centahealth) in contravention of the general protections provisions of the Act on 5 May 2018.

[2] This application was lodged on 29 May 2018.

[3] The application identified that it was made beyond the 21 days from the date of dismissal but did not provide an explanation.

[4] On 7 June 2018, the Commission corresponded with the parties in relation to the matter being listed for a conciliation conference. On 11 June 2018, Centahealth advised that it would not participate in a conciliation conference and raised a jurisdictional objection on the basis that the application was lodged out of time.

[5] On 14 June 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a Hearing by telephone conference on 26 June 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties who were directed to provide an outline of argument of their respective positions by 21 June 2018.

Submissions

[6] Ms Di Lucca provided written submissions which are relevantly summarised as follows:

•  Ms Di Lucca had been seeking advice from her accountant in respect of the calculations of her entitlements.

•  On 4 April 2018, her accountant contacted Centahealth concerning discrepancies in Ms Di Lucca’s time and wage records and the hours paid on the payslips.

•  On 5 May 2018 Ms Di Lucca received an email advising that her employment would be terminated, effective from 28 May 2018.

•  Ms Di Lucca’s last day of work was on 8 May 2018.

•  Ms Di Lucca believes she was dismissed for making a complaint concerning the payment of her entitlements.

•  Ms Di Lucca lodged her application on 29 May 2018 with the assistance of her accountant.

[7] On 21 June 2018 Centahealth filed a Form F8A which advised that on 5 May 2018 it gave notice to Ms Di Lucca that her employment would cease on 28 May 2018 and that the Applicant had “technically” terminated her employment on 5 May 2018. Centahealth asserted that Ms Di Lucca had disclosed company documents (time sheets) and information to a third party which led to the dismissal. Centahealth also alleged there were issues with Ms Di Lucca’s work performance.

[8] Centahealth did not file any submissions or statements in accordance with the Directions, however, Mr Mizan Rahman (Practice Manager) on its behalf, sought that the Commission conciliate the matter.

[9] A Hearing was conducted by way of telephone conference on 25 June 2018. A sound file record of the telephone conference was kept. Ms Di Lucca sought to be represented by Mr Avendra Narayan from Tax Assist Accountants. Mr Narayan was unable to establish a proper basis for a grant of permission and his s.596 application was refused. Ms Di Lucca represented herself. Mr Mizan Rahman represented Centahealth.

[10] Ms Di Lucca reiterated the information contained in her submissions and confirmed that having received the notice on 5 May 2018, she continued to perform work until 8 May 2018.

[11] Mr Rahman confirmed that Ms Di Lucca’s last day of work was 8 May 2018 and that the application had been lodged within time. Mr Rahman stated that Ms Di Lucca was dismissed for providing confidential documents (her payslips and time and wage records) to an external party, and that he had lost confidence in her.

[12] At the conclusion of the Hearing and prior to making my decision I conducted conciliation with the parties, Ms Di Lucca was assisted by Mr Narayan and Mr Rahman represented Centahealth. Conciliation did not resolve the matter.

Applicable Law

[13] Section 366 of the Act relevantly states:

“Time for application

(1) An application under section 365 must be made:

(a)  within 21 days after the dismissal took effect; or

(b)  within such further period as the FWC allows under subsection (2).

(2)  The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)  the reason for the delay; and

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

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

(d)  the merits of the application; and

(e)  fairness as between the person and other persons in a like position.”

Consideration

[14] I find that the dismissal took effect on 8 May 2018 this being the last day Ms Di Lucca attended work.

[15] The application being filed on 29 May 2018 was therefore made within the time permitted.

[16] It appears that conciliation has already been conducted without success and accordingly I will issue a certificate under section 368 of the Act. An Order¹ reflecting this decision will be issued.

COMMISSIONER

Appearances:

N Di Lucca the Applicant.

M Rahman on behalf of the Respondent.

Hearing details:

2018.

Adelaide.

25 June.

Printed by authority of the Commonwealth Government Printer

<PR608428>

1 PR608429.