Sperandio v Lynch

Case [2006] FCA 1648

FEDERAL COURT OF AUSTRALIA

Sperandio v Lynch [2006] FCA 1648

INDUSTRIAL LAW – Termination of employment – Whether by reason of employee’s temporary absence because of illness or employee’s physical or mental disability – Appropriateness of reinstatement – Workplace Relations Act 1996 (Cth) ss 170CK, 170CR

EMPLOYMENT – Summary dismissal – Whether justified by conduct of employee

CONTRACT – Offer and acceptance – Whether contract complete before attempted withdrawal of offer 

Workplace Relations Acts 1996 (Cth): s 170CK(2)

JOSIE SPERANDIO v DRS JAMES AND SANDRA LYNCH T/AS DOCTORS OF NORTHCOTE
VID715 OF 2005

JESSUP J
1 DECEMBER 2006
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID715 OF 2005

BETWEEN:

JOSIE SPERANDIO
Applicant

AND:

DRS JAMES AND SANDRA LYNCH T/AS DOCTORS OF NORTHCOTE
Respondents

JUDGE:

JESSUP J

DATE OF ORDER:

1 DECEMBER 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.On or before 8 December 2006, the applicant file and serve –

(a)    a minute of the orders which she proposes to give effect to the reasons of the court published this day;

(b)   a memorandum of the particulars of the calculations, if any upon which she relies in support of the orders which she seeks; and

(c)    a brief note of the contentions which she proposes to make on the date fixed under order 3 below.

2.On or before 15 December 2006, the respondents file and serve –

(a)    a minute of the orders, if any, which they propose by way of variation of or substitution for the orders proposed by the applicant;

(b)   a memorandum of the particulars of the calculations, if any, upon which they rely in support of the varied or substituted orders; and

(c)    a brief note of the contentions which they propose to make on the date fixed under order 3 below.

3.The proceeding be fixed to hear the parties’ submissions on the orders to be made by the court at 4.15pm on 19 December 2006.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID715 OF 2005

BETWEEN:

JOSIE SPERANDIO
Applicant

AND:

DRS JAMES AND SANDRA LYNCH T/AS DOCTORS OF NORTHCOTE
Respondents

JUDGE:

JESSUP J

DATE:

1 DECEMBER 2006

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The respondents, Drs James and Sandra Lynch, are medical practitioners who have conducted a general practice in Northcote, a suburb of Melbourne, for many years.  In 1979, they employed the applicant, Ms Josie Sperandio, then aged 17, as a receptionist.  The applicant remained so employed until 2001, when she was appointed to the position of Practice Manager, in which position she remained until dismissed from her employment in circumstances described below. 

  2. On 4 March 2005, while absent from work on sick leave, the applicant received a letter from the respondents in the following terms:

    We express sincere regret that after such a long period of service and assistance over twenty five years it appears that over the last twelve months…

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Details
AGLC
Sperandio v Lynch [2006] FCA 1648
Case
[2006] FCA 1648
Decision Date

CaseChat Overview and Summary

The applicant, in this case, brought proceedings against the respondents, her former employers, alleging wrongful termination of her employment. The applicant claimed that the termination of her employment was either due to her temporary absence from work due to illness or injury or because of her physical or mental disability, which would contravene s 170CK(2) of the Workplace Relations Acts 1996 (Cth). She also sought reasonable notice of the termination, which she estimated to be 24 months. The respondents denied the allegations and argued that they had legitimate grounds for summarily terminating her employment and that she was employed on a fixed-term contract that would have ended on 25 October 2005. If the question of reasonable notice arose, they contended that the applicant was entitled to no more than about five or six weeks.

The primary legal issues before the court were whether the applicant's termination of employment was due to her temporary absence from work or her physical or mental disability, and whether the respondents had a legitimate basis for summarily terminating her employment. The court had to determine whether the applicant's termination contravened s 170CK(2) of the Workplace Relations Acts 1996 (Cth), and if so, what amount of reasonable notice, if any, the applicant was entitled to. The court also had to consider the evidence regarding the applicant's competency and the proposed move to a new clinic, as well as the respondents' concerns about the applicant's skills and training.

The court found that the applicant's termination was not due to her temporary absence from work or her physical or mental disability. The court held that the respondents had legitimate grounds for summarily terminating the applicant's employment, as they had concerns about her competency and the move to the new clinic. The court found that the applicant was employed on a fixed-term contract that would have ended on 25 October 2005, and that the applicant was not entitled to any reasonable notice beyond that date. The court concluded that the applicant's termination did not contravene s 170CK(2) of the Workplace Relations Acts 1996 (Cth), and that the applicant was not entitled to any additional reasonable notice beyond the end of her fixed-term contract.

The court ordered that the applicant file and serve a minute of the orders, a memorandum of the particulars of the calculations, and a brief note of the contentions by 8 December 2006. The respondents were ordered to file and serve a minute of the orders, a memorandum of the particulars of the calculations, and a brief note of the contentions by 15 December 2006. The proceeding was fixed to hear the parties' submissions on the orders to be made by the court at 4.15pm on 19 December 2006.

Orders

Orders of the court

1. On or before 8 December 2006, the applicant file and serve –

(a) a minute of the orders which she proposes to give effect to the reasons of the court published this day;

(b) a memorandum of the particulars of the calculations, if any upon which she relies in support of the orders which she seeks; and

(c) a brief note of the contentions which she proposes to make on the date fixed under order 3 below.

2. On or before 15 December 2006, the respondents file and serve –

(a) a minute of the orders, if any, which they propose by way of variation of or substitution for the orders proposed by the applicant;

(b) a memorandum of the particulars of the calculations, if any, upon which they rely in support of the varied or substituted orders; and

(c) a brief note of the contentions which they propose to make on the date fixed under order 3 below.

3. The proceeding be fixed to hear the parties’ submissions on the orders to be made by the court at 4.15pm on 19 December 2006.

Background

Background to the litigation

In this proceeding, the applicant alleges that the termination of her employment was done either by reason of her temporary absence from work because of illness or injury or by reason of her physical or mental disability and was, therefore, in contravention of s 170CK(2) of the Workplace Relations Acts 1996 (Cth) (as the relevant provision was numbered at the time). She also alleges that the respondents had no legitimate basis for summary termination, and that she should have been given reasonable notice of the respondents’ intention to terminate her employment, which she fixes, in the circumstances, at 24 months. The respondents deny that the applicant was dismissed by reason of her temporary absence on sick leave, or by reason of any physical or mental disability, and say that she was dismissed for the reasons stated in their letter dated 4 March 2005 as set out above. They assert that they were entitled to dismiss the applicant from her employment summarily, but if they were not, they contend that the applicant was employed on a fixed-term contract which would have ended on 25 October 2005; or, if the question of reasonable notice arises, that the applicant was entitled to no more than about five or six weeks in the circumstances.BACKGROUND For many years, the respondents carried on their practice from a clinic in St Georges Road, Northcote. In 2003, they decided to move the practice to a new clinic which they proposed to establish in High Street, Northcote – a move which eventually took place on 25 October 2004. For the respondents, the move would involve both an expansion in the size and turnover and the practice and, it appears, a significant modernisation in their methods of operation. Dr Sandra Lynch said that the move involved a huge financial risk for them. The respondents were concerned that the skills of their staff in a number of respects were less than would be required at the new clinic. This related in part to the ability to operate with the new practice management computer system which was proposed for High Street, and in part to what was referred to as customer relations. By 2004, the respondents had their concerns about the applicant in particular in each of these respects. Dr Sandra Lynch expressed the view that the applicant was a good receptionist, but, notwithstanding that she had been appointed the Practice Manager, did not do any actual practice management, which was done by Dr Lynch herself. Dr Lynch gave as an example that she drafted her own letters and spent many hours in administration. About 12 months before the proposed move, Dr Lynch engaged a consultant to assess the skills of the existing staff, to talk to them about their concerns, to identify what up‑skilling procedures were necessary and to institute change. Dr Lynch engaged consultants to provide training for the staff. One of them, Ms Paula Febey (to whom I shall refer again later) provided instructions on customer relations. The focus of these training sessions and generally in the practice was, according to Dr Lynch, that “this was a new place, … a different standard – a higher standard of professionalism was required.” The respondents alleged that the applicant had, in the past, refused to undertake training to improve her skills, and that it was only very late in the piece in 2004 that she undertook some training in relation to the new methods proposed for High Street. The exact extent of the applicant’s co-operation in this and similar respects was never satisfactorily resolved as a matter of evidence. However, I infer from the whole of the evidence that the proposed move to High Street was an event of such significance for the respondents, and was such a preoccupation for them by about mid-2004, as to sharpen their underlying concerns as to the applicant’s general level of competency to perform at the higher levels of efficiency that would be required in the role of Practice Manager. Likewise the applicant, I infer, felt herself under somewhat greater pressure in her job as a result of the higher expectations that the respondents had of all the staff at the practice, and the sense of anticipation which pervaded the practice about the move to High Street.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

JESSUP J

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Ratio Decidendi

Legal Principle Established

Established by: JESSUP J

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