Tiana Hudson v Thompson Health Care Pty Ltd T/A Macleay Valley House Residential Care

[2014] FWC 3504

[2014] FWC 3504

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tiana Hudson
v
Thompson Health Care Pty Ltd T/A Macleay Valley House Residential Care
(U2014/4038)

DEPUTY PRESIDENT BOOTH SYDNEY, 28 MAY 2014

Termination of employment - uncertainty as to the date the dismissal took effect - whether extension of time application necessary - application within time - extension of time not required.

[1] Ms Tiana Hudson was employed by Thompson Health Care Pty Ltd (Thompson Health Care) at the Macleay Valley House residential aged care facility as a Nursing Assistant from 21 March 2011 until her dismissal without notice on grounds of serious misconduct.

[2] Ms Hudson lodged an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) on 24 January 2014 for an unfair dismissal remedy.

[3] It is agreed that Ms Hudson’s employment was terminated by way of a letter of termination dated 20 December 2013 which stated, amongst other things “...your employment is terminated effective immediately.” However, there is disagreement about the date the dismissal took effect pursuant to s.394 of the Act.

[4] The matter came before the Commission by way of telephone hearing on 16 May 2014. By permission granted pursuant to s.596 of the Act Ms Hudson was represented by Mr Byrnes, solicitor and Thompson Health Care were represented by Mr Boyce of counsel. Evidence was given by Ms Hudson on her own behalf and by Mr Luke Young, Employee Relations Manager, for Thompson Health Care.

[5] Due to the disagreement concerning the date the dismissal took effectthree key questions were addressed in the hearing. Firstly, what was the date the dismissal took effect? Secondly, having regard to the date the dismissal took effect, is the application out of time? Thirdly, if the application was lodged out of time, should the Commission exercise its discretion pursuant to s. 394 of the Act to extend the time for the making of the application?

[6] In addressing these questions in this decision I have had regard for s.394 of the Act which reads as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

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

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

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[7] The terms “dismissed” and “dismissal” found in s.394(1) and s.394(2)(a) of the Act have recently been considered by a Full Bench of the Commission. In Mr Peter Mihajloviv v Lifeline Macarthur 1 the Commission points out that s.386(1) guides the interpretation of s.394(1) by defining the circumstances in which a person can be said under the Act to have been dismissed.

[8] Section 386 (1) of the Act reads as follows:

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[9] This decision makes it clear that the use of the word “dismissal” in s.394(2)(a) of the Act has the same meaning and that a termination of employment at the initiative of the employer occurs at the time that the employment relationship comes to an end. This is to be distinguished from the end of the contract of employment as the employment relationship and the contract of employment are not necessarily co-terminous. 2

[10] Therefore, another way of asking the first question, namely “what was the date the dismissal took effect?” is to pose the question “when did the employment relationship between Ms Hudson and Thompson Health Care come to an end?”

[11] It has been held by a Full Bench of the Commission in the case of Beverly Jean Burns and Aboriginal Legal Service of Western Australia (Inc.) that “a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated.” 3 (See also Transport Workers Union of Australia v National Dairies Limited4 and P.T Wilson v Australian Taxation Office5).

[12] In October, November and December 2013 Ms Hudson was subject to a number of requests made in writing by Thompson Health Care for her to attend a disciplinary interview to respond to allegations concerning her conduct at, and in relation to, her work. Ms Hudson was represented by Mr Byrnes in relation to those requests. Ms Hudson did not attend the first or second scheduled interviews due to personal illness and efforts by Thompson Health Care to reschedule the interviews to accommodate Ms Hudson and Mr Byrnes were not successful. As events transpired Ms Hudson did not attended a disciplinary interview.

[13] On 20 December 2013 Mr Byrnes wrote to Thompson Health Care on behalf of Ms Hudson indicating that he would be in contact with Thompson Health Care in the “new year”.

[14] On the same day, 20 December 2013, Thompson Health Care wrote a letter to Ms Hudson terminating her employment “effective immediately”. The letter was dispatched from Sydney via Australia Post Express Post to Ms Hudson’s residential address. According to a Tracking Service receipt obtained by Mr Young from the Australia Post website the letter was received by Australia Post on 23 December 2013 and “awaiting collection” at South West Rocks Local Post Office and “delivered” on 30 December 2013. 6

[15] Ms Hudson gave evidence that she did not receive this letter until 8 January 2014 and this was the moment she became aware of her termination of employment. Her uncontested evidence was that her 11 year old daughter was “down the front of the property playing with friends” and “she’s seen the postman put the letter in the mailbox and she brought it up to me”. 7

[16] Ms Hudson said in evidence that she did not become aware that $1,532 had been deposited into her bank account on 23 December 2013 as she used only phone banking and did not thereby ascertain the particulars of deposits into her account. She said that she did not receive a payslip or a statement of service.

[17] On the face of it the Tracking Service receipt obtained by Mr Young from the Australia Post website and Ms Hudson’s evidence are at odds. Both Mr Young and Ms Hudson are relying on third party information. It falls to me to draw a conclusion about the date Ms Hudson received the letter based on the evidence before me.

[18] Mr Young’s evidence was a presumption based on an interpretation of an Australia Post document. I do not doubt the authenticity of the document however I cannot reliably conclude that Ms Hudson received the letter on 30 December 2013 or even that it was placed in her residential mail box on that day.

[19] Mr Young gave evidence that on a previous occasion when a letter from Thompson Health Care to Ms Hudson had not been delivered to Ms Hudson’s residential address the Australia Post tracking internet site had indicated this. Mr Boyce urged upon me the view that had that been the case on this occasion I could infer that the Australia Post tracking internet site would do the same and thus I could infer that the letter had been delivered on 30 December 2013. I do not accept this submission. There could be a number of explanations for the absence of a reference of this kind on the Australia Post internet site including that the letter was delivered, albeit later than 30 December 2013.

[20] Mr Boyce referred me to a number of authorities to the effect of service being deemed to have taken place either “in the ordinary course of the post” (s.29(1) Acts Interpretation Act 1901) or “on the fourth working day” (s.160 Evidence Act 1995). However, Mr Byrnes submitted that “it’s my understanding that any of those presumptions are set aside if there is evidence as to when service actually occurs”. 8 I accept that submission.

[21] In the face of uncontested evidence about the physical arrival of the letter on 8 January 2014 and no evidence from Australia Post about their movement of mail I prefer the conclusion that the letter was delivered to Ms Hudson on that day. I conclude that this was the first time she became aware of the termination of her employment.

[22] Considering the evidence before me I conclude that the answer to the first question, namely “what was the date the dismissal took effect?” is 8 January 2014.

[23] The answer to the second question, namely “having regard to the date the dismissal took effect, is the application out of time?” is no. Her application for an unfair dismissal remedy was lodged on 24 January 2014, day 16 after the date the dismissal took effect.

[24] Accordingly, it is unnecessary for me to consider the third question, namely “if the application was lodged out of time, should the Commission exercise its discretion pursuant to s.394 of the Act to extend the time for the making of the application?”

[25] The jurisdictional objection made by Thompson Health Care is dismissed.

[26] Ms Hudson’s application pursuant to s.394 of the Act may proceed to be heard on its merits. The file will be returned to the Unfair Dismissal Team for directions and further listing.

DEPUTY PRESIDENT

Appearances:

K Byrnes, B & C Lawyers, for Ms Tiana Hudson

C Boyce of Counsel, for Thompson Health Care Pty Ltd T/A Macleay Valley House Residential Care

Hearing details:

2014.

Telephone Hearing:

May 16.

 1   [2014] FWCFB 1070

 2   Ian Pinondang Siagian v Sanel Pty Ltd 1994 IRCA 2

 3   Print T3496

 4   1994 IRCA 20

 5   [2001] AIRC 163

 6   Exhibit B1 - Affidavit of Luke Young, Annexure O - 8 May 2014

 7   Transcript PN215

 8   Ibid., PN369

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