Sheree Chadwick v E.L.K Pty Ltd T/A the Rensburg Clinic

[2018] FWC 3919

[2018] FWC 3919

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sheree Chadwick
v
E.L.K Pty Ltd T/A The Rensburg Clinic
(U2018/3099)

COMMISSIONER MCKINNON MELBOURNE, 2 JULY 2018

Application for an unfair dismissal remedy – effective date of dismissal – jurisdictional objection (not filed within 21 days).

[1] On 23 March 2018, Sheree Chadwick applied to the Commission for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act) in connection with her employment by ELK Pty Ltd trading as The Rensburg Clinic (the Clinic). Dr Hendrick Rensburg is the Clinic owner.

[2] The Clinic objects to the application and says it was lodged out of time because the dismissal took effect on 28 February 2018. If the Clinic is correct about the date of dismissal, the application is two days late.

[3] A hearing was held on 29 June 2018 to deal with the jurisdictional objection. The parties were each represented with permission.

[4] There is no dispute that Ms Chadwick was dismissed from her employment and that her last day of employment was 13 February 2018. This decision deals with the effective date of dismissal and if necessary, whether exceptional circumstances warrant an extension of time to make the application.

Relevant law

[5] An application for unfair dismissal must be made within 21 days after the dismissal took effect unless additional time is allowed by the Commission. 1

[6] In Ayub v NSW Trains 2, a Full Bench of the Commission observed as follows:

“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd as follows:

[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination of Employment Contracts by Notice(1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith[1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; [1997] AC 749 at 767–768; Carter v Hyde [1923] HCA 36 ; (1923) 33 CLR 115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd(1987) 9 NSWLR 673 at 677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323 ; (1999) 47 NSWLR 473 at [99]).

[18] A notice of termination may validly operate notwithstanding that it is stated to take effect subject to a condition, provided that the notice is expressed with sufficient certainty so that conditional date of termination is ascertainable, the condition upon which the termination becomes operative has been fulfilled and the employee is in a position to know that the condition has been satisfied.”

[7] The Full Bench went on to say at [48]:

“…Our conclusion is that, in respect of a dismissal without notice, s 394(2)(a) is to be interpreted on the basis that the dismissal cannot not [sic] take effect for the purposes of Pt 3–2 of the FW Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed. It is in that sense the dismissal is regarded as having been communicated to the employee.”

Relevant facts

[8] On 13 February 2018, Ms Chadwick left work early and attended her doctor. She obtained a medical certificate for absence from work from 12 February 2018 to 6 March 2018. 3 The Respondent says the medical certificate is “bogus”.

[9] On 23 February 2018, a letter was prepared for Ms Chadwick by the Clinic which included the following:

“By your actions, you have terminated your employment with the practice by:

(a) abandoning your employment and your contractual employment responsibilities and obligations and

(b) by repudiating your contract of employment, which the practice as your employer accepts herewith.

(c) your conduct at work in the last few months were not the standard we negotiated with you, in spite of, written warnings and counselling. You were a stress for the staff and most of the patients alike. Yet, we were understanding and empathetic to your problems and went out of our way to help you.

However entirely without prejudice, even if we do not have to, we invite you to officially resign and then arrange a meeting with us to discuss, in appropriate ways to assist you if you so wish. However, if we do not receive an acceptable written response from you by noon on Wednesday 28 February 2018, you will have to understand that your employment will terminate forthwith for the above reasons.”

[10] It is agreed that Ms Chadwick collected the letter from the Clinic on 26 February 2018.

[11] Ms Chadwick responded in writing to the issues raised in the letter and delivered her response personally to the Clinic before midday on 28 February 2018. The letter began as follows:

“Concerning your letter of 23rd February 2018 I am keeping my response short, for the purpose of reaching a settlement, but full details will be set out in my Application for Unfair Dismissal if this matter cannot be resolved between us.

The letter that Francis Zampogna gave to me on your behalf was dated 23^rd February 2018. As you know it was given to me on the 26^th of February 2108 [sic] at approximately 1.30pm requesting a written response by noon Wednesday 28thFebruary 2018. That is a totally unacceptable time frame for me to respond by my response follows.”

[12] On the afternoon of 28 February 2018, after receiving Ms Chadwick’s response, Ms Beena Go sent a text message to Ms Chadwick. Ms Go is described as a friend of Dr Rensburg’s who was trying to “assist and be the go between as much as I could” between Ms Chadwick and Dr Rensburg. The text message said:

“Hi Sheree

Hendrick says he is extending d deadline to ur reply until d week end and is willing to meet up w U on Friday at 11am at Spritz. Let me know if u can make it on Friday. Thanks.”

[13] According to Ms Go, the text message was sent after a discussion with Dr Rensburg about wanting to help Ms Chadwick by again offering resignation instead of dismissal, together with a reference and a ‘lump sum’ as she had no entitlements left and was in financial stress. I am satisfied on the evidence that the text message was sent on the instruction of Dr Rensburg.

[14] Ms Chadwick, Dr Rensburg and Ms Go met as arranged at Spritz on 2 March 2018. There was no discussion about whether Ms Chadwick was still employed. Dr Rensburg gave Ms Chadwick a cheque for $1700 which he explained as wages he had forgotten to process. 4

[15] According to Dr Rensburg and Ms Go, Ms Chadwick was asked if she wanted to resign and responded in words to the effect:

“I won’t then get Centrelink payments for 6 weeks. I’ll take the dismissal as it is.” 5

[16] Ms Chadwick says “the matter of my employment” was not discussed at any stage during the meeting. 6 Mr Johanssen, a friend of Ms Chadwick who appears to have been sitting near enough to the table to hear what was being said, agrees.7 Dr Rensburg confirmed that her employment was not discussed. From his perspective, it had already come to an end.

[17] Ms Go says at the end of the meeting, Ms Chadwick asked for the cheque to be made out to cash, took the cheque, and left. I accept the totality of this evidence, including that Dr Rensburg offered Ms Chadwick a further opportunity to resign and Ms Chadwick replied “I’ll take the dismissal as it is.”

[18] On 6 March 2018, Ms Chadwick says she attended the Clinic for work and discovered the locks had been changed. She called Dr Rensburg but there was no response. 8 The significance of the date of 6 March 2018 is that it was the last day of Ms Chadwick’s medically certified absence.

[19] On 8 and 9 March 2018, Ms Chadwick sent text messages to Dr Rensburg seeking written confirmation of her employment status. 9

[20] On 12 March 2018, Ms Zampogna from the Clinic called Ms Chadwick to say that Dr Rensburg had a letter of termination for her and requested she meet with him again. 10 Ms Chadwick says a meeting then occurred on 13 March 2018 with Dr Rensburg. This does not appear to be in dispute, although what transpired in that meeting is. For reasons that will shortly become apparent, nothing turns on it for present purposes.

Conclusion

[21] In my view, the dismissal took effect on 2 March 2018. This was the extended date for Ms Chadwick to respond to the letter of 23 February 2018, which clearly communicated to her that her employment would terminate “forthwith” on 28 February 2018 in the absence of an ‘acceptable written response’, which I take to mean a resignation. Ms Chadwick provided her response within the allocated time, but did not resign. She expressed concern in her response that she had not been given enough time to respond. The Clinic either did not see the response as sufficient or was concerned about not having given enough time for the response. Perhaps it hoped that with additional time, it could persuade her to resign. Whatever its motivation, additional time was given to Ms Chadwick for her response. The effect was to extend the notice of termination to 2 March 2018.

[22] On 2 March 2018, the parties met. There was a brief exchange. Money was handed to Ms Chadwick who said she would not resign but would take the dismissal “as it is”. At that point, I am satisfied that Ms Chadwick knew her employment had come to an end.

[23] The events subsequent to 2 March 2018 are difficult to explain. If Ms Chadwick was returning to work on 6 March 2018 after her period of medical leave, the period had not yet expired. There is no evidence about any steps taken the following day on 7 March 2018, once the medical certificate had expired, to make contact with Dr Rensburg. On 8 and 9 March 2018, Ms Chadwick sent text messages to Dr Rensburg seeking written clarification of her employment status. By this time, the evidence is that Ms Chadwick had sought legal advice. 11

[24] The text messages bear the hallmarks of legal advice, using phrases such as “please advise, by return SMS, the status of my employment”. The language used is in stark contrast to the language used by Ms Chadwick in her response of 28 February 2018, which accuses Dr Rensburg of defamation, “lies and fabrication” and refers to feeling compelled to “accept an unlawful termination without any compensation whatsoever”. I am not persuaded that Ms Chadwick was not aware that she had been dismissed after 2 March 2018.

[25] I find that the dismissal took effect on 2 March 2018. Her unfair dismissal application was filed within 21 days after the dismissal took effect.

[26] The jurisdictional objection in relation to the time for filing the application is dismissed.

COMMISSIONER

Appearances:

C Fordham for the Applicant

S Edwards for E.L.K. Pty Ltd

Hearing details:

2018.

Melbourne:

June 29.

Printed by authority of the Commonwealth Government Printer

<PR608654>

 1   Fair Work Act 2009 (Cth), s.394(2)

 2   [2016] FWCFB 5500

 3   Exhibit 5, Statement of Sheree Chadwick at Attachment A

 4   Exhibits 1, Outline of Evidence of Dr Hendrick Rensburg; Exhibit 2, Statement of Beena Go; Exhibit 5, Statement of Sheree Chadwick; and Exhibit 6, Statement of Aaron Johanssen, Audio recording of hearing on 29 June 2018

 5   Exhibits 1, Outline of Evidence of Dr Hendrick Rensburg and Exhibit 2, Statement of Beena Go, Audio recording of hearing on 29 June 2018

 6   Exhibit 5, Statement of Sheree Chadwick

 7   Exhibit 6, Statement of Aaron Johanssen

 8   Exhibit 5, Statement of Sheree Chadwick

 9   Exhibit 5, Statement of Sheree Chadwick

 10   Exhibit 5, Statement of Sheree Chadwick

 11   Audio recording of hearing on 29 June 2018