Tania Hunt v Reinforced Concrete Pipes Australia Pty Ltd T/A Rcpa Pty Ltd

[2016] FWC 2660

[2016] FWC 2660

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tania Hunt
v
Reinforced Concrete Pipes Australia Pty Ltd T/A RCPA Pty Ltd
(U2015/13876)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 28 APRIL 2016

Application for relief from unfair dismissal – jurisdictional objection - application lodged out of time – effective date of dismissal found to be 7 October 2015 with application lodged within time.

[1] Mrs Tania Hunt (the Applicant) made an application by telephone on 27 October 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by the Reinforced Concrete Pipes Australia Pty Ltd T/A RCPA Pty Ltd (RCPA – the Respondent) on 7 October 2015 with effect from 26 May 2015 was unfair.

[2] RCPA in its Form F3 – Employer Response to Unfair Dismissal Application raised a jurisdictional objection, contending that the application had been lodged outside the 21 day statutory timeframe for lodgement specified in s.394(2) of the Act. Specifically, RCPA contended in its Form F3 that Mrs Hunt was notified of her dismissal on 7 October 2015 with the dismissal taking effect on 26 May 2015.

[3] The Fair Work Commission (the Commission) subsequently issued Directions on 20 November 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the effective date of dismissal and extension of time issues. Amended Directions were issued on 26 November 2015. In its written submissions, RCPA contended that Mrs Hunt became aware of her dismissal on 30 September 2015.

[4] The extension of time issue was the subject of a hearing on 11 December 2015. At the hearing, Mr Alan Dircks appeared with permission for Mrs Hunt, while Ms Kelly Minogue of the Australian Industry Group appeared for RCPA.

[5] For the reasons set out below I have concluded that the effective date of Mrs Hunt’s dismissal was 7 October 2015 and that her application was therefore lodged within the 21 day statutory timeframe. Accordingly, RCPA’s jurisdictional objection is dismissed. The application will now be listed for a conference convened by one of the Commission’s Conciliators.

Background

[6] Mrs Hunt commenced employment with RCPA on 12 March 2008.

[7] RCPA in its Form F3 stated that it had sought to contact Mrs Hunt on numerous occasions by both telephone and email since April 2015.

[8] On 2 September 2015, RCPA wrote to Mrs Hunt in the following terms:

“Dear Tania

Your last payment was made on the 26th May, 2015 for 8.5 hours worked for the week.

RCPA (Vic) Pty Ltd has tried several times to contact yourself in regards to the continuation of your employment. The last correspondence we had from you was via telephone conversation on the 30th July, 2015 with Nick Monaghan stating that you had a specialist appointment in regards to your shoulder and you will get back to him. It’s been several weeks and we still haven’t heard from you.

You have said on several occasions that you have medical certificates and you are going to email/scan or post them to us and as yet we haven’t received one certificate since 27th April, 2015 (Stating that you have the capacity for preinjury employment/full capacity)

As we haven’t received any further medical certificates we are taking this as you are not returning to your duties at RCPA (Vic) Pty Ltd – Kilmore Branch.

If we do not hear from you in regards to this matter by 10th September, 2015, we will view this as resignation of employment and all entitlements will be paid accordingly.” 1

[9] Mrs Hunt contacted RCPA’s Human Resources Manager by telephone later that day promising to forward the requested documentation. During the conversation, Mrs Hunt also advised that she would be appealing the decision regarding her unsuccessful Workcover claim. However, the relevant documents were not subsequently forwarded to RCPA by Mrs Hunt.

[10] On 25 September 2015, RCPA again wrote to Mrs Hunt, with the letter stating:

“Dear Tania,

We sent you a letter on 2nd September 2015, with regards to your ongoing absence from work. You spoke with Nick Monaghan and said that you would forward the relevant documentation to us regarding your continued absence – we have not received any documentation.

You also said that you would be appealing the Workcover decision, and in discussion with Allianz we are of the understanding that no appeal has been lodged.

By not sending us the appropriate documentation to support your prolonged absence we consider you to have repudiated your employment contract with RCPA. As such if we do not receive the required documentation by close of business on Monday the 29th September 2015, we shall terminate your employment effective May 13, 2015.” 2

[11] Australia Post unsuccessfully attempted to deliver the letter, which was sent by registered post, on 29 September 2015, with Australia Post leaving a card for Mrs Hunt to collect the letter from its Seymour outlet. Mrs Hunt did not collect the letter. RCPA subsequently arranged for the letter to be couriered to Mrs Hunt’s home on 30 September 2015, with Mrs Hunt signing that she had received the letter on that day.

[12] On 1 October 2015 Mrs Hunt’s solicitors wrote to Allianz Workers Compensation in the following terms:

“We advise that our client has instructed that she is suffering from a right shoulder injury arising out of the accident that occurred on 21 March 2015.

We request that you accept the right shoulder injury under the original claim and advise us of your determination as soon as possible.” 3

[13] Based on the material before the Commission, it does not appear that letter was copied to RCPA.

[14] On 7 October 2015 Mrs Hunt was sent an email entitled Pay Advice and Separation Certificate with those documents attached. The email stated:

“Please find attached the pay advice for your termination as per letter dated 25th September and signed by you as receiving this on the 30th September.” 4

[15] As previously noted, Mrs Hunt’s unfair dismissal application was made by telephone on 27 October 2015.

When did Mrs Hunt’s employment cease?

[16] In order to determine whether Mrs Hunt’s application was made within the statutory timeframe specified in s.394(2) of the Act it is first necessary to determine when her employment ceased.

The Applicant’s case regarding the date of termination

[17] Mrs Hunt submitted that the only correspondence she received advising that her employment had been terminated was on 7 October 2015. In support of that submission, Mrs Hunt relied in the Full Bench decision in Burns v Aboriginal Legal Service of Western Australia (Inc) 5 (Burns) which stated as follows:

“[24] As we have already stated, the facts of this matter are not in dispute. The letter of termination purports to make the termination effective from 14 April 2000. The letter, however, was dated 18 April 2000 and was delivered by courier to the appellant's home address on 19 April 2000. In our view, a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated. The earliest that such communication could be said to have occurred in this case was the date upon which the letter of termination was received at her home address, i.e. 19 April 2000.” (Underlining added)

[18] Mrs Hunt also submitted that:

• the threat of termination was conditional on certain events occurring or not occurring;



• as a result, there was no certainty that RCPA would actually terminate her employment;



• the deadline of 29 September 2015 set out in the letter of 25 September 2015 precedes the date on which she received the letter, i.e. 30 September 2015;



• apart from the correspondence of 7 October 2015, there is no document that states that she had been terminated; and



• as her application had been made within 21 days of 7 October 2015, there was no necessity for her to seek an extension of time.

[19] At the hearing, Mrs Hunt reiterated that the alleged termination letter of 25 September 2015 was conditional on certain events occurring and that the effluxion of time negated the statement of intent set out in the letter as she was not aware of the requirement to provide medical certificates by close of business on 29 September 2015 until 30 September 2015.

The Respondent’s case regarding the date of termination

[20] RCPA submitted that:

• Mrs Hunt’s submission that the email of 7 October 2015 was the only correspondence advising her of her termination was incorrect;



• even though it had backdated the termination date to the last pay period where Mrs Hunt had worked, the effective cessation of her employment occurred on 30 September 2015 when she received the letter of 25 September 2015;



• Mrs Hunt was provided with multiple opportunities to respond to the request for the information pertaining to her absence or have her employment regarded as abandoned or deemed that she resigned; and



• based on a termination date of 30 September 2015, Mrs Hunt’s application had been lodged outside the 21 day timeframe.

[21] At the hearing, RCPA acknowledged that it had originally cited 7 October 2015 as the termination date, adding that this had been done in error by its representative prior to the representative receiving the full suite of material regarding Mrs Hunt’s termination from it. RCPA also disputed Mrs Hunt’s contention that when she contacted Mr Monaghan after receiving RCPA’s letter of 2 September 2015 he advised her that RCPA did not require her to provide her medical certificates. Finally, RCPA reiterated that Mrs Hunt’s termination took effect on 30 September 2015.

Consideration of the issues

[22] Drawing on the decision in Burns, it is clear that the earliest date that could be relied upon as the termination date is 30 September 2015, which is the date on which Mrs Hunt received the letter of 25 September 2015. However, the question is whether the letter of 25 September 2015 in fact provided notice of termination, given that the termination of Mrs Hunt’s employment was contingent on her not providing the required medical certificates by close of business on 29 September 2015.

[23] In Thickbroom v Newcastle Wallsend Coal Company Pty Ltd 6 (Thickbroom) Justice O’Connor considered the issue of a contingent retrenchment notice, determining, inter alia, as follows:

“… The retrenchment is conditional on the outcome of the vote which is to be taken before the retrenchment (on one view) takes effect. Applying the principle set out in Fryar v System Services Pty Ltd which is relevant to a case such as this the “certainty” of the employment situation and thus the opportunity to adjust to a change in circumstances should it occur would not operate until after 13 July, the nominated date for the vote. This letter is either a conditional notice of retrenchment, or a notice of retrenchment subject to a condition subsequent which is not satisfied (the meeting to vote on the enterprise agreement having been cancelled by letter dated 8 July, after the decision to close the mine was taken). On either construction it is not a valid notice.” (Citation not included in original)

[24] In Thickbroom, the applicant was sent a letter on 29 June 1998 giving notice of his retrenchment with effect from 3 August 1998 and advising that the notice of retrenchment would be withdrawn were employees to vote in support of a proposed enterprise agreement on 13 July 1998. In other words, the applicant’s retrenchment was conditional or contingent on the proposed enterprise agreement not being endorsed by employees, an action over which the applicant did not have control. The applicant was subsequently sent a further letter on 8 July 1998 advising that the second respondent in that case had decided not to enter into a certified agreement with anyone and that the company intended to proceed with the notice of retrenchment.

[25] An analysis of the material before the Commission in this case indicates that:

• RCPA’s letter of 25 September 2015 does not state that Mrs Hunt’s employment has been terminated, rather it advises Mrs Hunt that her employment will be terminated if she does not provide the required medical certificates by close of business on 29 September 2015 – in other words, Mrs Hunt’s proposed termination was conditional on her not doing something within the timeframe specified in the letter;



• Mrs Hunt only received the letter advising her of that requirement on 30 September 2015, though RCPA had previously requested that she provide the medical certificates;



• upon receipt of that letter, Mrs Hunt did not contact RCPA; and



• there is no letter explicitly stating that Mrs Hunt has been dismissed until the email of 7 October 2015 which provided Mrs Hunt with electronic copies of her termination pay notice and an Employment Separation Certificate.

[26] In this case, unlike in Thickbroom, the conditional element of Mrs Hunt’s dismissal (i.e. the provision of the medical certificates) was within her control, i.e. she as opposed to anyone else had control over whether or not she provided the medical certificates to RCPA. However, the weight that can be attached to that consideration is significantly diminished by the fact that by the time Mrs Hunt became aware of that condition the timeframe for compliance had already passed. Also significant is that RCPA should have been aware of that fact when it had the letter couriered to Mrs Hunt on 30 September 2015. Why RCPA did not amend the letter prior to having it couriered to Mrs Hunt was not canvassed in the material before the Commission. In those circumstances, the letter provided no clarity or certainty as to whether or not Mrs Hunt had been terminated. That she had been terminated only became clear to Mrs Hunt when she received the email of 7 October 2015 which had attached to it her termination pay advice and Employment Separation Certificate.

[27] The above analysis supports a finding that 7 October 2015 was the date on which the termination of Mrs Hunt’s employment took effect.

Conclusion

[28] For all the above reasons, I am satisfied that the effective date of termination of Mrs Hunt’s employment was 7 October 2015, i.e. the date she received the email from RCPA and attached termination pay advice and Employment Separation Certificate.

[29] As previously noted, Mrs Hunt’s unfair dismissal application was lodged with the Commission on 27 October 2015 which is one day within the 21 day statutory timeframe. Accordingly, RCPA’s jurisdictional objection is dismissed.

[30] The application will now be listed for a conference convened by one of the Commission’s Conciliators.

Appearances:

A. Dircks for Tania Hunt.

K. Minogue for Reinforced Concrete Pipes Australia Pty Ltd.

Hearing details:

Melbourne.

2015:

December 11.

 1   RCPA Outline of Submissions at Attachment RCPA 7

 2   Ibid at Attachment RCPA 3

 3   Form F2 – Unfair Dismissal Application

 4   RCPA Outline of Submissions at Attachment RCPA 5

 5   Print T3496

 6 (1998) 83 IR 193 at 197

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