Fair Work Act 2009

s.394 - Unfair dismissal

Morisset High School P&C Association T/A Morisset High School P&C

Application for an unfair dismissal remedy - effective date if dismissal

[1] Ms Burke was employed in the School Canteen of Morisset High School and was employed by Morisset High School P&C Association (the P&C).

[2] On 6 April 2017 Ms Burke filed an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act).

[3] The P&C argued that Ms Burke's dismissal took effect on 13 December 2016, and objected to Ms Burke's application on the basis that the application was made out of time.

[4] Ms Burke argued that the effective date of her dismissal was 16 March 2017 and accordingly her application was made within time.

[5] The matter was listed for hearing by telephone on 23 June 2017 to determine the effective date of termination, and whether or not, an extension of time was necessary.

[6] On 13 December 2016 the P&C sent a letter (the Letter) to Ms Burke in the following terms:

"We are writing to you to advise you that the P&C Committee have been working to rectify an issue that we discovered concerning your contract.

As employers of the Morisset High School Canteen, we have a legal requirement to ensure that all contracts are all correct and up to date. We need to adhere to the award and conduct regular reviews and updates as required.

In gathering and examining the employment contracts we have been able to review, there seems to be an issue the currency and accuracy of the documents. We have spoken to P&C Federation and the Fair Work Commission to seek advice about the best way forward to ensure we are addressing all issues correctly.

The advise [sic] that we did receive have suggested the best way to ensure that this is fair and legal is to declare all positions within the Canteen open, and readvertise these positions.

We will be advertising in the following newspapers Lakes Mail, Central Coast Advocate and Newcastle Herald on the week starting the 9th January 2017. We are looking forward to seeing your application and hopefully working with you in 2017.

[7] Ms Burke continued working until the end of school term up to and including 16 December 2016.

[8] The Canteen positions were re-advertised on 25 January 2017. Ms Burke applied for a position, and was notified via an email on 16 March 2017 that her application had been unsuccessful.

[9] The applicant subsequently lodged this application 21 days later on 6 April 2017.

[10] The P&C asserted that the Letter constituted notice of Ms Burke's dismissal.

[11] Ms Burke submitted that the Letter was not a dismissal letter, and she considered that she had remained employed until she received the email on 16 March 2017.

[12] It is well established that a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated.[1] In Ayub v NSW Trains[2], the Full Bench said:

"[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective. [(1986) 60 ALJR 78] Where notice is given of the termination of the employment contract, then the contract will terminate at the end of the period of notice specified in the communication to the employee. [(1984) [1984] FCA 378; 5 FCR 447] The principles in this respect were summarised by the Supreme Court of NSW (White J) in Fardell v Coates Hire Operations Pty Ltd [(2010) 201 IR 64] as follows:

[82] To be effective, a notice of termination of a contract of employment must specify a time when termination is to take effect, or that time must be ascertainable (G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78 at 79; Burton Group Ltd v Smith [1977] IRLR 351 at 354). The notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties (Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; [1997] AC 749 at 767-768; Carter v Hyde [1923] HCA 36; (1923) 33 CLR 115 at 126; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 at 677; Fightvision Pty Ltd v Onisforou [1999] NSWCA 323; (1999) 47 NSWLR 473 at [99])."[3]

[13] In this case it is clear that the Letter does not specify any time for Ms Burke's termination to take effect and as a result, cannot be regarded as a valid notice of termination.

[14] I find that the effective date of termination was on 16 March 2017. It follows that the application has been made within the 21 day time limit as prescribed by the Act. Accordingly, the P&C's jurisdictional objection is dismissed.

[15] The application will be referred for conciliation. An order to that effect will issue with this decision.

[1] Burns v Aboriginal Legal Service of Western Australia Inc (2000) T3496.

[2] [2016] FWCFB 5500.

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