Sandrine Heitzmann v Australian Vanlines Pty Ltd
[2014] FWC 1029
•11 FEBRUARY 2014
[2014] FWC 1029 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Sandrine Heitzmann
v
Australian Vanlines Pty Ltd
(U2013/13591)
COMMISSIONER WILSON | MELBOURNE, 11 FEBRUARY 2014 |
Application for relief from unfair dismissal; Jurisdiction - correct identification of Respondent; whether dismissal at the initiative of the employer; date of termination.
[1] Ms Sandrine Heitzmann was employed by Australian Vanlines Pty Ltd (“Australian Vanlines” or “the company”) as Import Coordinator and commenced employment with the company on 6 March 2008. 1 Her employment with the company finished in 2013 and the circumstances surrounding her termination of employment are now the subject of an unfair dismissal application to the Fair Work Commission.
[2] This decision surrounds three jurisdictional questions raised by the Respondent to these proceedings, namely;
- whether the application correctly identifies Australian Vanlines Pty Ltd as the employer at the time of termination of employment;
- whether Ms Heitzmann’s employment ended as a result of a dismissal at the initiative of the employer; and
- the date on which her employment ended.
[3] A fourth question, mooted in the preparation for hearing of this matter, was whether the application was frivolous or vexatious. That question was not proceeded with by the Respondent. 2
[4] The hearing of these matters proceeded before me on 24 January 2014 and 5 February 2014.
Identification of Respondent
[5] In the course of the hearing on 24 January 2014 I determined that the application correctly identified the legal name of Ms Heitzmann’s former employer as Australian Vanlines Pty Ltd.
[6] In submissions filed prior to and during the course of the hearing, Australian Vanlines argued that at the time of her departure from employment, Ms Heitzmann was employed by another company, namely Australian Vanlines (VIC) Pty Ltd. 3 Relevant to the background of this submission is that Ms Heitzmann’s location of employment moved from Sydney to Melbourne in October 2012. It was argued that in the course of this relocation, Ms Heitzmann’s employment also moved from one company, Australian Vanlines Pty Ltd, to another, Australian Vanlines (VIC) Pty Ltd.4
[7] The Applicant submitted that even if such a move had occurred in the employing entity, there has been a transfer of employment between associated entities for the purposes of s.22 of the Fair Work Act 2009 (“the Act”). For the reason I now refer to, it was unnecessary for me to determine this issue.
[8] Notwithstanding the submissions of Australian Vanlines, the evidence provided in the hearing on 24 January 2014 indicated that Ms Heitzmann’s employment remained with Australian Vanlines Pty Ltd.
[9] Mr A Vasilaras, solicitor for Ms Heitzmann, submitted a number of payslips and annual PAYG payment summaries, each of which referred to the employer being Australian Vanlines Pty Ltd, ABN 47 002 481 352. 5
[10] The payslips provided to the Commission consist firstly of a bundle tabled in the proceedings by Ms Heitzmann’s solicitor, and of a second bundle provided directly by Ms Heitzmann to my Chambers shortly before the hearing commenced. The bundle handed to the Commission refers to pay periods between 20 – 26 February 2013 and 2 – 8 October 2013. The emailed bundle is a comprehensive set of payslips for the pay periods between 7 May 2008 and 14 May 2013. Each of the payslips in both bundles refer to payment being made by Australian Vanlines Pty Ltd.
[11] On the other hand, the PAYG payment summaries refer to the “payer’s details” being either Vallaydam Holdings Pty Ltd (ABN 80002966323) or Australian Moving and Shipping (NSW) Pty Ltd (the ABN of which is not discernible on the documents provided). Vallaydam Holdings Pty Ltd is indicated as the Payer for all periods reported, other than the period of 28 April 2011 to 30 June 2011, when Australian Moving and Shipping (NSW) Pty Ltd is reported as the Payer.
[12] Why the PAYG payment summaries refer to different entities to either of those in contest in these proceedings was not explained in the proceedings before the Commission and there is not a PAYG payment summary provided to the Commission in respect of the tax year completed 30 June 2013, which is one of the years in which the contested issues arise (and, of course, is the latest year for which a PAYG payment summary would be available).
[13] As a result of the payslips referring to the two possible dates on which Ms Heitzmann’s employment ended, 22 January and 27 August 2013, I relied upon the information set out in the payslips which plainly indicates that payment was provided to Ms Heitzmann from Australian Vanlines Pty Ltd.
[14] As a result of this evidence I found that at the time at which employment ended Ms Heitzmann was employed by Australian Vanlines Pty Ltd and that her application for unfair dismissal filed with the Fair Work Commission on 14 September 2013 correctly identifies that company as the Respondent in these proceedings.
Date on which employment ended
Whether termination at the initiative of the employer
[15] It is convenient to deal with the two remaining jurisdictional questions together. These are the date on which Ms Heitzmann’s employment ended, and whether or not there has been a termination at the initiative of the employer. The convenience arises from the questions being resolved from a similar factual base.
[16] The evidence in this matter, which only concerns the jurisdictional issues, includes that of four witnesses as follows;
- Mr Sidney Vallaydam, Australian Vanlines Director;
- Mr Tony Nasser, Australian Vanlines (VIC) Pty Ltd Manager;
- Mr Bryan Arlidge, formerly Acting Manager Australian Vanlines (VIC) Pty Ltd; and
- Ms Sandrine Heitzmann, Applicant.
[17] Australian Vanlines’ Director Mr Vallaydam contends that Ms Heitzmann herself terminated her employment with the company in February 2013. The factual circumstances include a significant and acrimonious dispute between Ms Heitzmann and other employees in late January 2013. The dispute commenced on 21 January 2013 when there was an argument between Ms Heitzmann and others. In the course of the argument Ms Heitzmann left the premises. The next day, on 22 January 2013, she had a meeting with Mr Vallaydam and Mr Bryan Arlidge, the then acting manager of Australian Vanlines (VIC) Pty Ltd. The meeting was again acrimonious and ended with Ms Heitzmann leaving the office and going to her car in order to leave the premises. She was followed to her car by Mr Arlidge and she said to him words to the effect that she was quitting.
[18] Ms Heitzmann says that she lost control with one employee in particular on 21 January 2013 and again in the meeting on 22 January 2013; that she did not resign on 21 January but she did say she was quitting on 22 January 2013.
[19] Following these arguments the Respondent allocated Ms Heitzmann’s duties to another person and Ms Heitzmann was absent for a number of days.
[20] Ms Heitzmann’s evidence, which I accept, is that she returned to work on 29 January 2013. Her evidence indicates that she returned to work for about two weeks; that there was an exchange between her and others about her being offered employment in the group’s Brisbane office (which was not agreed); and that subsequently she submitted a WorkCover claim.
[21] In relation to the WorkCover claim, Ms Heitzmann’s evidence is that she returned to work in April for a while, after which she was again absent on workers’ compensation leave. In the course of being on workers’ compensation she mentioned to the WorkCover claims agent that she had the intention of going to Europe later in 2013 for personal reasons and sought authorisation from them and the company to do so.
[22] I accept Ms Heitzmann’s evidence on these matters as accurate, and note they are consistent with the documentary evidence and with Mr Nasser’s evidence, which I also accept.
[23] The Respondent uses the circumstances to argue that Ms Heitzmann’s employment ended when she left the premises on 22 January 2013 and that it ended because she resigned her employment.
[24] In contrast, the Applicant argues that Ms Heitzmann’s employment did not end with the Respondent until 27 August 2013 when it wrote to Ms Heitzmann. The correspondence from the company is set out on letterhead referring to the incorrect employer, Australian Vanlines (VIC) Pty Ltd. For the reasons referred to above I regard this as a factual mistake on the part of the employer. Nonetheless, the correspondence sent to Ms Heitzmann included the following;
“Dear Sandrine,
Australian Vanlines has employed you for over the past 4 years and it is with regret that we now find it necessary to terminate your employment with the company.
Since the 6th February 2013 you have been on a Workers Compensation claim. Based on your Doctors certificate you were required to return to full time duties on the 23rd February 2013. Despite the Doctors prognosis you felt you were not capable of returning as certified. Following further assessments the appointed rehabilitation program provided a certificate of capacity which stated that you were able to work for two days a week however you were unable to complete the tasks required of you which you were employed to undertake.
We have also been made aware by a representative of Gallagher Basset that you have elected to take 6 weeks leave to travel overseas. This has been done without authorisation and you have not following Company policy in requesting leave.
We consider that you have abandoned your employment.
Considering you were unable to complete the tasks that the company has set for you Australian Vanlines’ Management have no choice but to move forward with this resolution and terminate your employment effective immediately.
Australian Vanlines will advise Gallagher Bassett who are our underwriters for the workers compensation immediately of this decision.
We are also required to advise the Department of Immigration given you are being employed in Australia under a 457 Visa.
Whilst you are overseas, no payments will be made in regards to accrued leave or workers compensation payments.
Any accruals will be paid on the return of company issued phone and computer laptop.
It is with regret that we have to act in this manner.
Kind Regards
Tony Nasser
Branch Manager- VIC
Australian Vanlines” 6
[25] The evidence of Mr Nasser includes the following which I accept;
- Ms Heitzmann reported to him from about April 2013, which is around the time he became Victorian Manager.
- As part of this reporting, Ms Heitzmann attended for full-time work for about two weeks in mid April 2013 and that after that period she worked part-time, possibly for two days per week until early July 2013.
- In about early July 2013, Ms Heitzmann moved from part-time work to workers compensation leave.
- On 16 August 2013 Ms Heitzmann informed him that she had booked a trip to Europe in the near future and that she would return at the end of September.
- While he had an interaction with Ms Heitzmann about this issue he may also have heard about the leave from either Mr Vallaydam or the workers compensation claims agent.
[26] Mr Nasser and Ms Heitzmann agree there was communication between them about her August 2013 leave. In particular, Ms Heitzmann points to the following email advice;
“From: “Sandrine Heitzmann”
Date: Friday, 16 August 2013 10:58 AM
To: “Tony Nasser”
CC: “Doug Wheeler; “Saurabh”
Subject: Leave
H (sic) Tony,
As discussed, I will be on leave as of Monday, back on the 30th of September=
Should you need to get in touch, email would be best as I will be overseas -=may not have regular access but will check them now and then.
Thanks guys,
Sandrine=” 7
[27] Mr Vallaydam submits that the only reason there was a continuing relationship with Ms Heitzmann beyond January 2013 was because of the direction of the workers compensation authority. The proposition is also put by the Respondent that, in the event Ms Heitzmann was employed by the Respondent after 22 January 2013, her ultimate termination was not at the initiative of the employer but rather as a consequence of her abandoning her employment.
[28] As referred to above there is evidence before me to the effect that there were payments made by Australian Vanlines to Ms Heitzmann and the payslips refer to those payments extending well beyond February 2013.
[29] In considering all the circumstances of this matter, it is apparent that Ms Heitzmann remained employed by Australian Vanlines Pty Ltd until 27 August 2013.
[30] It would be inconsistent with the evidence before the Commission to find otherwise.
[31] Plainly, work was undertaken by Ms Heitzmann after 22 January 2013 directly in the premises of Australian Vanlines and under the supervision of its managers. Mr Nasser, the Victorian Manager, agrees that such work was undertaken between at least April and July 2013 (irrespective of what may have happened as a result of, or during, a workers’ compensation claim).
[32] To find in favour of Australian Vanlines’ argument that Ms Heitzmann’s employment was resigned on 22 January 2013, and that the resignation was given effect to, would leave without resolution the question of what is to be found in relation to the work performed by Ms Heitzmann and the payments she received after January. If Australian Vanlines’ argument were accepted, it would be necessary to find that there was a re-employment of Ms Heitzmann, under a fresh contract of employment after January. There is simply no evidence to suggest this might have occurred, and no party submitted it had.
[33] Plainly, payments were made directly after 22 January 2013 by Australian Vanlines to Ms Heitzmann including in respect of the work she performed for the company after 22 January 2013.
[34] A proper construction of the evidence leads to the view that while there may well have been a statement on the part of Ms Heitzmann on 22 January 2013 that she was quitting employment, the subsequent conduct of both Ms Heitzmann and Australian Vanlines Pty Ltd was such as to regard this statement as not operative and of no effect.
[35] In relation to the end of employment in August 2013, the evidence indicates that Ms Heitzmann notified the company of her intentions to take leave and that it did not raise an objection to her taking the leave she requested. Her email to Mr Nasser, dated 16 August 2013, is friendly and open, and apparently not from someone who expected to end their relationship at that point. On the other hand, there is no evidence before me that would indicate Mr Nasser took issue with what Ms Heitzmann sought to do in relation to leave. There is also no evidence in the matter heard before me, other than her absence from Australia on leave, that would suggest Ms Heitzmann intended to end her employment.
[36] As a result of the foregoing, it is appropriate I find that Ms Heitzmann’s termination of employment was at the initiative of the employer and that the date of her dismissal was 27 August 2013.
[37] Having made these findings, I now return the file to be Fair Work Commission’s unfair dismissal case management team in order for it to be allocated a hearing on the merits of the application.
COMMISSIONER
Appearances:
Mr A Vasilaras for the Applicant
Mr S Vallaydam for the Respondent
Hearing details:
2014.
Melbourne:
January, 24 and February, 5
1 Exhibit A2, Attachment A
2 Exhibit R1, para 17
3 Exhibit R1, paras 4-5
4 Exhibit R1, para 4
5 Exhibit A3
6 Application dated 14 September 2013, attachment
7 Exhibit A5
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