issued by Senior Deputy President Cartwright on 6 November 2006

s.643 Application for relief re (HUU) termination of employment

Appeal - termination of employment - extension of time - Workplace Relations Act 1996 - ss.643(1)(a) and 643(14).

[1] This is an appeal, for which leave is required, by Ms Makenja (the appellant) against a decision made by Senior Deputy President Cartwright under s.643(14) of the Workplace Relations Act 1996 (the Act) on 6 November 2006. [1] In that decision the Senior Deputy President declined to extend the time for lodgement of the appellant's application for relief in relation to the termination of her employment beyond the period of 21 days specified.

[2] At the conclusion of the hearing on 19 December 2006 we granted leave to appeal, upheld the appeal and granted the application for an extension of time. These are our reasons for decision.

[3] On 12 September 2006 the appellant made an application for relief in relation to the termination of her employment by Baptist Community Services (the respondent). The application was made under s.643(1)(a) of the Act. Pursuant to s.643(14) such an application is to be filed within 21 days of the termination or such period as the Commission allows. The respondent had purported to terminate the appellant's employment by letter dated 13 July 2006. The application was lodged some 60 days after that date.

[4] The respondent objected to an extension of the time for lodgement and raised the jurisdictional objection that the appellant's employment had not been terminated at the respondent's initiative. The jurisdictional objection, if successful, would have been fatal to the application in any event. [2]

[5] The Senior Deputy President dealt with the application to extend time by inviting written submissions pursuant to s.648 of the Act. As indicated he decided not to extend time.

[6] The material before the Senior Deputy President indicates that the appellant commenced employment with the respondent in March 1994. She had a period during which she was unfit for work in the first half of 2006. On 3 May 2006 the respondent encouraged employees with excessive leave to take a period of annual leave. The appellant immediately applied for leave, which was granted, from 12 May to 30 June 2006. According to a statutory declaration by Mr Wright of the respondent, the appellant did not respond to attempts to contact her after 3 May and on 9 May 2006 the respondent learned that she was travelling overseas. On 29 June 2006 the respondent's nursing manager received a text message from someone purporting to be the appellant's father stating that the appellant was not well and was unable to return to work. Attempts by the respondent to make contact with the sender were unsuccessful. The appellant did not return to work after her leave.

[7] On 5 July, some 5�days after she was due to return, the respondent wrote to the appellant at her address in New South Wales. The letter included the following paragraphs:

Your approved annual leave was from the 11th May to the 30th June and your manager has tried to contact you during and after that time without success, to determine your current work capacity in line with our operational requirements. We have been informed you may be overseas and we are uncertain of your intention of returning. Your rehabilitation provider has also tried to contact you without success and confirmed your home address appears to be uninhabited.

You are required to respond to this letter by noon Wednesday 12th July 2006 noting your current medial status and work capacity. Failure to contact myself (9023-2794) or Alex Zarb - Executive Care Manager (9346 1243) by the 12th July will leave us no option but to consider you have abandoned your employment, and terminate your employment with Baptist Community Services.

[8] The respondent's letter of 5 July went unanswered. It was followed by a further letter from the respondent to the appellant dated 13 July 2006. This letter was also directed to the appellant's New South Wales address. That letter was relevantly in the following terms:

A letter was sent to your last known address above on 5 July 2006. This letter requested you to contact with Joshua Key or myself by 12 July 2006 due to your unexcused absence following your annual leave which ceased on 30 June 2006.

Despite several attempts to contact you, to date you have not made contact with myself, Joshua or any Senior Managers at Shalom Centre for Aged Care.

As was stated in the letter, failure to make contact would be considered abandonment of employment and would result in your employment with Baptist Community Services being terminated. As you have made no attempt to contact us your employment with BCS will cease as of 13 July 2006.

[9] In fact the appellant had travelled overseas to Tanzania, presumably for the period of her annual leave, although Mr Wright's declaration indicated that she had booked her ticket on 20 April 2006, before she applied for leave. On her version of the events she fell ill in Tanzania and was unable to return to Australia as planned, spending at least some period in institutional care. There was some medical evidence to support this. Again on her version, she thought the respondent had been informed on two occasions, at the end of June and again in mid July, by her father that she was ill and would not be returning.

[10] It seems to be accepted that the appellant returned to Sydney on 22 August 2006. At that time she received the mail from the respondent notifying her that her employment had been terminated on 13 July. She made contact with a firm of solicitors and in due course the application for relief was filed, as already indicated, on 12 September 2006.

[11] The Senior Deputy President's decision includes the following passage:

"[5] While Ms Makenja lodged her application 21 days after arriving back in Australian on 22 August 2006 and learning of termination of her employment, she had not contacted Baptist Community Services prior to returning to Australia, despite the employer's request to her father to do so, in circumstances where, on the medical certificate provided, she could have done so. Had she made contact as requested, it would have been apparent that her employment was terminated on 13 July 2006." [3]

[12] We have not been able to discover the basis for the finding in the last sentence of the passage that the appellant had been requested to contact the respondent. The appellant's version of events was that her father had contacted the respondent before the expiry of the period of leave to let the respondent know that she was ill and could not return. The terms of the respondent's letters to the appellant, dated 5 and 13�July respectively, clearly indicate that it was aware that the address to which they were delivered appeared uninhabited and that the respondent believed the appellant was probably overseas. There was no other evidence from the respondent that it had made contact with the appellant after receiving the message from her father in late June. The respondent indicated that it had received a telephone call from someone purporting to be the appellant's father on 19 July 2006. The employee who took the call asked that person to get the appellant to ring the respondent herself. This conversation occurred after the purported termination. There is no suggestion that the employee informed the caller that the appellant's employment had already been "terminated".

[13] There is no firm basis for the conclusion that the appellant received a request to contact the respondent. It might be expected that her father would have passed on a request made to him on 19 July, but in the absence of proper evidence it should not be assumed that the appellant received that or any other request. Moreover, in a letter dated 31 August 2006 to the appellant's solicitors, the respondent described the call of 19 July as being "on an inaudible line" which leaves open whether the person who made the call of 19 July in fact heard or understood the respondent's request that the appellant contact the respondent. Of course there may be evidence which sheds greater light on the issue, but it has not been produced at this stage.

[14] In our view the finding that the appellant had been requested to contact the respondent is erroneous. The Senior Deputy President relied on the appellant's failure to contact the respondent "as requested", therefore the finding was a significant element in the decision not to extend time. We grant leave to appeal. We shall deal with the application to extend time ourselves. We do so having regard to the guidance provided by the legislature in the note following s.643(15) which appears to be equally relevant to s.643(14). That note refers to Brodie-Hanns v MTV Publishing Limited. [4]

[15] On balance, and on the limited material before the Commission, we incline to the view that there is an acceptable explanation for the delay on the appellant's version of events. On that version she acted promptly on becoming aware that the respondent had terminated her employment, engaging a solicitor to write to the respondent and filing an application after receiving a negative response. It is also plain that she actively contested the termination once she became aware of it. There does not appear to be any particular prejudice to the respondent and no question has so far arisen as between the appellant and other persons in a like position.

[16] The merits of the application are difficult to assess at this stage. No one has been cross-examined and there are many potentially relevant questions. Much will depend upon the appellant's credibility. But we cannot conclude that the case is without merit.

[17] In all of the circumstances it is appropriate to extend the time for lodgement to the actual date of lodgement, 12 September 2006. The application should be allocated to another member of the Commission.

[18] There is an additional matter which was not raised in argument. Section 643(14) requires an application to be lodged within 21 days of "the day on which the termination took effect." Normally a termination of employment would not "take effect" before it was communicated to the employee concerned, although that may not always be the case. In this case it does not seem to be in contest that the appellant was not aware of the letter of termination until 22 August 2006. The application for relief was filed within 21 days of that date. In cases in which abandonment of employment is alleged the time at which the termination took effect may only be ascertainable after resolving factual and legal issues. It will be rare for such issues to be resolved fairly without a hearing. But if on one view of the material before the Commission the application was within time, there is a strong case for allowing the application under s.643(14).

A Harding of counsel with W Ward for Baptist Community Services.

[2] See s.643(1)(a) and the definition of "termination" in s.642.

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