[2011] FWA 6853 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Ms Tarilee Tebble
v
Rizmas Pty Ltd
(U2011/8949)
COMMISSIONER ROE |
MELBOURNE, 5 OCTOBER 2011 |
Unfair dismissal - minimum period of employment.
[1] At the hearing of this matter on 4 October 2011 I advised the parties of my decision and summarised my reasons. I now publish the edited and in some respects elaborated reasons for my decision.
[2] This is an application for an unfair dismissal remedy pursuant to Section 394 of the Fair Work Act 2009 (the Act). The Application for unfair dismissal remedy is made by Ms Tarilee Tebble (Applicant) in respect of her dismissal by Rizmas Pty Ltd T/A Thomastown TAB (Rizmas).
[3] The Applicant represented herself and Ms Teresa Williams, a Director of the Respondent, represented the Respondent. The Respondent was assisted by Baker Jones Lawyers in the period prior to the hearing on 4 October 2011.
[4] The Application was made on 17 June 2011. The Applicant was employed as a cash control operator at the TAB from early March 2009 until 4 June 2011. The Applicant was employed as a casual employee and she worked regular and systematic shifts during the period of her employment. Rizmas is a small business employing less than 15 employees and there is one associated entity. Ms Williams for Rizmas submitted that there were less than 15 employees in the two entities combined. The Applicant accepted this assessment and I am satisfied that it is correct. There is no contest that the employment of the Applicant ceased on 4 June 2011, however Rizmas says that the Applicant resigned and the Applicant says that she was dismissed.
[5] A conciliation by telephone was unsuccessful. The parties agreed at the start of the proceedings that further conciliation would be pointless and that the matter should proceed by way of a hearing. The Applicant and the Respondent prepared submissions and witness statements. The Respondent submitted eight witness statements. There were a number of summonses for documents requested by both the Applicant and the Respondent. I agreed to some of these requests and the documents were produced. I rejected some of the requests and, through my Associate, gave reasons in writing and allowed for the possibility that these matters could be further argued at the hearing on 4 October 2011. At the hearing the parties agreed not to press this matter further.
[6] Although it was not raised in the earlier material, the Respondent, in its submission, raised a jurisdictional objection that the Applicant had resigned from her employment on 29 September 2010 and was reemployed on 11 or 12 October 2010. I am satisfied that if this is the case then the Applicant does not have the required minimum employment period as specified in Section 383 of the Act. I am satisfied that a resignation does break the period of continuous service as defined by Section 22 of the Act. The period between a resignation and reemployment cannot be characterised as a period during which the employee is “employed by the employer” unless the employer specifically agrees to regard it as such and that is not the situation in this case.
[7] In Ngo v Link Printing Pty Ltd, 1 a Full Bench of the Tribunal set out some of the considerations to take into account when considering whether there is a resignation or a termination of employment.
“The relevant law was the subject of extensive consideration by Gray J in Birrell v Australian National Airlines Commission (referred to in paragraph [8]). The conclusion to be drawn from that case is, we think, clear - a unilateral withdrawal of a notice of termination of a contract of employment is not possible (p.110). There was some suggestion by the appellant that Birrell has been overtaken by later cases. We do not agree; Birrell was applied by the Federal Court in 1993 in Saddington v Building Workers Industrial Union [(1993) 49 IR 323 at 336], by the Commission in the same year in Ampol Ltd v Transport Workers Union of Australia [(1993) 54 IR 134 at 138] and in 1995 by Ryan J as a member of the Industrial Relations Court in Fryar v Systems Services Pty Ltd [(1995) 60 IR 68 at 87-88].” 2
[8] There is no requirement for an employer to accept a resignation for it to be effective. In certain circumstances there can be a mutual agreement to withdraw a resignation prior to it taking effect which would mean that the period of continuous service may not be broken. In certain circumstances such as a resignation in anger quickly withdrawn; or in a situation of coercion; or where the employee has leave entitlements which may be utilised it is possible that the resignation could be found not to have been effective. These circumstances are not relevant in this case.
[9] The relevant sections of the Act are:
“22 Meanings of service and continuous service
General meaning
(1) A period of service by a national system employee with his or her national system employer is a period during which the employee is employed by the employer, but does not include any period (an excluded period) that does not count as service because of subsection (2).
...
383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a) a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was on a regular and systematic basis; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”
[10] I therefore determined that the most efficient and fair way to deal with the matter was to determine this threshold question of minimum employment period before hearing the evidence in respect to the other matters in contention. It was agreed that I would hear and consider the evidence that was relevant to this question only and then, in the event that I decided that the resignation did not occur, the case would effectively start again and the witnesses would be recalled together with the other witnesses in the proceedings. In the event that I found that there was a resignation then the period of continuous service would be from 12 October 2010 until 4 June 2011, a period of less than twelve months, which is less than the required minimum employment period. Hence the matter would then be dismissed.
[11] The parties agreed and I was satisfied that the part of the evidence submitted which was relevant to the threshold jurisdictional question was:
[12] I admitted this evidence and considered it. The witnesses were all subject to cross examination and I also considered the submissions of the parties. I do not intend to canvas all of the matters raised in the evidence and submissions in this decision.
[13] The Respondent did not refer to the alleged resignation on 29 September 2010 in the original employer’s response to the Application. The Applicant understandably did not deal with this matter in her statement submitted for the proceedings. The Respondent referred in her initial response to the Application to previous resignation(s) by the Applicant and to January 2010 in particular. The Applicant suggested that Ms Williams’ memory was prompted by Ms Frampton following a conversation the Applicant had with Ms Frampton after the alleged dismissal on 4 June 2011. However, in these proceedings Ms Williams, Mr Williams and the Applicant all clearly recalled that an incident took place on 28 and 29 September 2010 and all clearly recalled the dates because of their proximity to the Grand Final and other matters which affected them. I was left in no doubt that the memories were clear in many material respects, including the date of the incidents.
[14] The group certificate (Exhibit T1) for the Applicant includes the following: “period during which payments were made 01/07/2010 to 04/06/2011”.
[15] It was not contested evidence that Rizmas pays the employees each week on a Monday. The evidence of the Applicant was that she worked regularly on Tuesdays, Fridays, Saturdays and Sundays.
[16] The wages book shows that the Applicant did not work at all for the week ended 10 October 2010 and that the Applicant worked only one day in the week ended October 3. The Applicant agrees that the only day she worked in the week ended October 3 was Tuesday 28 September 2010. The wages book is consistent with the evidence of Ms Williams and Mr Williams that the Applicant did not work between Wednesday 29 September 2010 and Monday 11 October 2010 inclusive. I accept this evidence. Given the Applicant does not work regular Mondays and given that she did not work at all in the week ending October 10, the first day she was likely to have worked after Tuesday 28 September was Tuesday 12 October.
[17] Mr Williams, Ms Williams and the Applicant all agree that the Applicant was upset, understandably so in my judgment, about $80 being deducted from her wages on or about 28 September 2010 due to a shortfall in the previous week. Mr and Ms Williams had been away on holiday immediately prior to this incident. I am satisfied that the Applicant approached Ms Williams about the $80 and that Ms Williams said that she had to speak to the other employee involved before she could reimburse the Applicant. The Applicant was not happy with this response. The Applicant worked on 28 September. There is no contest that Mr Williams and the Applicant spoke further about this on the 28 September 2010 and that Mr Williams said that she would need to talk with Ms Williams to resolve the matter.
[18] The Applicant, Ms Williams and Mr Williams agree that the Applicant left a note which was found on the following day, 29 September, by Mr Williams and was conveyed to Ms Williams. The note either directly or indirectly referred to the fact that the Applicant was upset over the $80 matter. The Applicant says that she wrote words to the effect that she was taking a week off work to decide if she wanted to continue in the employment with the employer whereas Mr Williams says that the Applicant wrote words to the effect that she was resigning immediately.
[19] Mr Williams, Ms Williams and the Applicant agree that she returned her work key with the note. Mr Williams, Ms Williams and the Applicant agree that it was normal practice for the key to be retained throughout employment including during periods of absence on leave.
[20] Mr Williams gave evidence that on or about the 30 September 2010 he spoke to Ms Lisa Frampton about whether or not the Applicant would want “her job back” and asked her to talk to her and “if she wanted to come back to get in touch with Teresa (Williams)”. It was known that Ms Frampton and the Applicant got on well at work and met socially on occasion. Ms Frampton confirms this. Sometime after this Ms Frampton says that she did meet with the Applicant and did pass on the message and that the Applicant said that she would think about it. The Applicant and Ms Frampton agree that sometime between 29 September 2010 and 12 October 2010 the Applicant met with Ms Frampton at a hotel and the issues surrounding the $80 and her absence from work were discussed. Ms Frampton says that the meeting at the hotel happened the day after Mr Williams had spoken to her. Ms Frampton was quite clear that Mr Williams had told her that the Applicant had resigned not that she was on leave or was thinking of resigning. The Applicant says that she told Ms Frampton that she was thinking of resigning, not that she had resigned. Ms Frampton denies that this occurred.
[21] Ms Williams says that she had two conversations with the Applicant between the 29 September 2010 and her return to work whilst the Applicant says that there was only one conversation. The Applicant says that shortly before she returned to work she went to collect her pay with her sister. She says that her sister went in to collect the pay because at that stage she was thinking that she was “not going to return to work” and she did not want to talk to Ms Williams. Ms Williams told her sister that she would not give her the pay but would only give it to the Applicant so the Applicant then went in and spoke to Ms Williams. The Applicant says that Ms Williams then paid the disputed $80. Ms Williams agrees with the account up to this point and says that this meeting was on 4 October 2010. The Applicant says that Ms Williams then agreed to a roster change and the Applicant then agreed to return to work shortly thereafter. Ms Williams says that this did not occur and that the meeting resulted in an angry exchange and that the return to work was not discussed. Ms Williams says that it was in a subsequent conversation on 11 October 2010 that the roster change was agreed and the Applicant agreed to return to work the following day, 12 October 2010.
[22] I do not regard the Group Certificate as significant. I accept the submission of the Respondent that it is normal for only one certificate to be issued for an employee for a year whether or not there is more than one period of employment during that year. I do not regard it as significant that the note left by the Applicant has not been retained or produced by the Respondent. It is common for the filing systems of a small business to not be comprehensive. The Respondent regarded the matter as resolved and the employment relationship with the Applicant as being re-established and continuing. The Respondent and the Applicant continued as if nothing had happened. However, this cannot alter the factual situation if there has been a resignation and it had taken effect. In the absence of an agreement for continuity of service then service does not continue in these circumstances.
[23] I do not consider it likely that the Applicant would have waited two weeks to go and collect her pay. Furthermore it is consistent with her own evidence about “taking a week off” that she would have gone to collect her pay after one week, that is on the Monday 4 October 2010. I am therefore satisfied that the following is the sequence of events:
[24] The Applicant was not certain about the time period between her conversation with Ms Williams and the return to work. The Applicant considered that she probably only missed a week of work. However, I am satisfied that the Applicant missed two weeks of work. It is not necessary that I make any finding as to whether or not there was an angry exchange between the Applicant and Ms Williams on 4 October 2011.
[25] Having considered all of the evidence and the submissions I am satisfied that the Applicant left a note which was received by Mr Williams on 29 September 2010 to the effect that she was resigning her employment with immediate effect. The main reasons I reach this conclusion are:
[26] The Applicant submitted that there were matters included in the Statement of Ms Williams, other than matters relating to the jurisdictional question which form the basis for my decision, which the Applicant could demonstrate are not correct. There are also matters included in the evidence of the witnesses for the Respondent, other than the matters relating to the jurisdictional question which form the basis for my decision, which in some respects challenge the validity of some of the matters raised in the Applicant’s statement. The full merits of the case of the Applicant and the Respondent in respect to unfair termination have not been considered as I considered it appropriate to confine the initial hearing to the matter of whether or not the minimum period of employment requirement was met. The credibility of the witnesses was not a vital matter in reaching my conclusions in respect to whether or not the Applicant resigned in September 2010. I do not consider that the scope of the credibility matters raised is of such magnitude that a broader examination of the evidentiary material would have affected my decision in respect of the jurisdictional matter. The decision to focus on the evidence which directly relates to the jurisdictional matter only in the first instance was supported by the parties at the start of the proceedings.
[27] I have to some extent relied on the evidence of the Applicant in reaching my conclusions. I do not consider the Applicant to have been dishonest. She was and still is understandably distressed by the circumstances in which she finds herself. She was regarded as a good worker by the Respondent and clearly took pride in her work. It is simply on balance that I am convinced that she left a note for her employer which was to the effect that she was resigning her employment with immediate effect.
[28] Having found that the Applicant did not have the minimum period of continuous service required for protection from unfair dismissal I must dismiss the Application.
[29] An order to this effect is published separately.
COMMISSIONER
Hearing details:
2011
Melbourne
4 October 2011
1 C1999/20724 Print R7005, McIntyre VP, Marsh SDP, Harrison C.
2 Ngo v Link Printing Pty Ltd (C1999/20724) Print R7005, McIntyre VP, Marsh SDP, Harrison C, at [16].
Printed by authority of the Commonwealth Government Printer
<Price code C, PR515323>