1
Fair Work Act 2009
s.394—Unfair dismissal
Renee Lancaster
v
Canberra Urology Pty Ltd
(U2020/10525)
DEPUTY PRESIDENT DEAN SYDNEY, 24 DECEMBER 2020
Application for an unfair dismissal remedy – minimum employment period.
[1] Ms Renee Lancaster (Applicant) was employed by Canberra Urology Pty Ltd
(Respondent) until her employment ceased on 20 July 2020.
[2] On 3 August 2020 she made an application pursuant to s.394 of the Fair Work Act
2009 for an unfair dismissal remedy.
[3] The Respondent disputes that the Applicant was dismissed and objects to the
application on the grounds that the Applicant had not completed the minimum employment
period as required by s.382(a) of the Act.
[4] The matter was listed for hearing by telephone on 24 November 2020 to determine
whether the Applicant has met the minimum employment period for making her unfair
dismissal application. At the hearing, I granted permission for both parties to be represented.
The Applicant was represented by Mr Gary Pinchen and the Respondent by Mr John Wilson.
Background
[5] The Applicant commenced employment with the Respondent on 18 March 2019 as a
permanent part-time Medical Receptionist, working Monday to Thursday from 9:00 am until
5:00 pm.
[6] There is no issue that the Respondent is a small business and at all times relevant to
this application employed only one or two persons, including the Applicant. Accordingly, the
Applicant must have completed a minimum employment period of 12 months in order to be a
person protected from unfair dismissal pursuant to s.382(a) of the Act.
[7] The Respondent claims that the Applicant resigned from her employment in
November 2019 and that she was re-employed shortly thereafter. The Respondent argues that
the Applicant had two periods of employment and that her second period of employment from
November 2019 to 20 July 2020 fell short of 12 months. On that basis it follows that the
[2020] FWC 6447 [Note: An appeal pursuant to s.604 (C2021/140) was
lodged against this decision.]
DECISION
E AUSTRALIA FairWork Commission
[2020] FWC 6447
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Applicant did not satisfy the minimum employment period and therefore is not a person
protected from unfair dismissal.
[8] The Applicant denies that the alleged resignation in November 2019 ever occurred and
maintains that she had continuous service with the Respondent for about 16 months.
Relevant legislation
[9] Section 382 of the Act provides that a person is protected from unfair dismissal only if
the required minimum employment period has been completed.
[10] Sections 383 and 384 of the Act provide:
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.
384 Period of employment
(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; …”
[11] Continuous service is defined in s.22 of the Act:
“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).
(2) The following periods do not count as service:
(a) any period of unauthorised absence;
(b) any period of unpaid leave or unpaid authorised absence, other than:
[2020] FWC 6447
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(i) a period of absence under Division 8 of Part 2-2 (which deals with
community service leave); or
(ii) a period of stand down under Part 3-5, under an enterprise agreement
that applies to the employee, or under the employee’s contract of
employment; or
(iii) a period of leave or absence of a kind prescribed by the regulations;
(c) any other period of a kind prescribed by the regulations.
(3) An excluded period does not break a national system employee’s continuous
service with his or her national system employer, but does not count towards the
length of the employee’s continuous service.
(3A) Regulations made for the purposes of paragraph (2)(c) may prescribe different
kinds of periods for the purposes of different provisions of this Act (other than
provisions to which subsection (4) applies). If they do so, subsection (3) applies
accordingly.”
Evidence
[12] In support of the Respondent’s contention, Dr Mulcahy, Director of the Respondent,
gave evidence and provided two statements.
[13] In his statement filed on 13 October 2020, Dr Mulcahy gave his account of the events
leading to the Applicant’s alleged resignation. Dr Mulcahy said:
1. On the afternoon of Thursday 21 November 2019, upon him asking the
Applicant if she had dealt with some overdue accounts, the Applicant said words to
the effect of ‘That’s it. I’ve had enough of this place. I’m out of here.’ The Applicant
then proceeded to collect her personal belongings from on and around her desk and put
them in her bag.
2. He then asked the Applicant: “What are you doing?” to which she responded:
“I’m leaving. I’m out of here” and walked out of the office.
3. He took that the Applicant was resigning from her employment.
4. When he returned to work on Monday 25 November 2019, he noticed the
Applicant sitting at her desk. He then said to her: “What are you doing here? You said
you were leaving. The Applicant ignored his questions. He then went to the Practice
Manager and asked why the Applicant was there but was told not to say anything to
her and leave her alone.
[14] Upon receiving a witness statement from the Applicant denying his version of events,
Dr Mulcahy filed a second statement on 17 November 2020 which he corrected the date on
which the alleged resignation occurred. Dr Mulcahy said that the Applicant walked out of the
office on Wednesday 13 November 2019, rather than 21 November and that it was on
Monday 18 November 2019 rather than 25 November when he next saw the Applicant in the
office.
[2020] FWC 6447
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[15] Dr Mulcahy was questioned as to the inconsistency of his evidence in terms of the date
the alleged resignation occurred. Mr Pinchen pointed out that Dr Mulcahy had given three
different dates on which he claimed the Applicant resigned, namely, 14 October 2019 first
stated in the Form F3 (Employer’s Response); 21 November 2019 in his statement of
13 October; and 13 November 2019 in his statement of 17 November.
[16] Dr Mulcahy explained the inconsistencies by saying that he relied on a diary which
was managed by the Practice Manager and that the error arose because the diary was complex
and contained multiple entries.
[17] In cross examination, Dr Mulcahy:
said that he was sure that the Applicant would not be returning after walking out on
13 November2019.
agreed that he received a text message from the Applicant at 1:05 pm on 14
November saying that she was going to leave work early because her son was
unwell and that he responded by saying: ‘No problem’.
said that the Applicant’s text message implied that she had changed her mind and
returned to work.
explained that he did not follow up with the Applicant after her ‘walk out’ and did
not ask for the return of the office keys and various things because she was in an
agitated mood and was very aggressive on 13 November and he did not want to
‘raise her temperature even higher’.
said that the Applicant was not paid out her annual leave entitlements after the
purported first period of employment because she returned to work and became re-
employed.
said that he did not have any conversation with the Applicant about the ‘walk out’
because it was dealt with by the Practice Manager.
The Applicant
[18] The Applicant provided a witness statement on 5 November 2020 in reply to Dr
Mulcahy’s statement of 13 November. She denied having resigned or ‘walked out’ of the
office on 21 November 2019. She set out her recollection of events occurred on the day which
included leaving the office with Dr Mulcahy and the Practice Manager at about 3:00 pm
following a team discussion, after which the Applicant, the Practice Manager and Dr Mulcahy
met at Capital Brewing Co in Fyshwick for drinks. The Applicant gave evidence she received
a text message at 3.35pm from the Practice Manager letting her know where they were seated,
as they had travelled in separate cars.
[19] The Applicant said that during her employment with the Respondent, there was only
one employment agreement that commenced on 18 March 2019. She at no point had any
discussion with either the Practice Manager or Dr Mulcahy about her alleged resignation on
21 November 2019, adding that she had never been paid out any annual leave entitlements
and that she had a continuous and unbroken employment period of 16 months with the
Respondent.
[20] The Applicant asserted that the discrepancy in dates provided by the Respondent in the
Form F3 (Employer’s Response to Unfair Dismissal Application) and the submissions of 13
October 2020 reflects the ingenuine and false nature of the Respondent’s allegation.
[2020] FWC 6447
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Submissions
The Respondent
[21] Mr Wilson submitted that the question before the Commission is whether the
Applicant’s conduct on 13 November 2019 amounted to her: (a) merely absenting herself
from the workplace on an unauthorised manner; or (b) terminating the employment on her
own initiative.
[22] It was submitted that that the evidence points to and supports a conclusion that the
Applicant, by her acts and conduct on 13 November 2019, gave immediate notice that she was
resigning from her employment. Mr Wilson relied on the decisions in Siagian v Sanel1 and
Howes v Gosford Shire Council2 to support the proposition that despite the resignation was
not brought about with the required notice, it did not render it a nullity; it still effectively
brought an end to the employment relationship if not the contract of employment; and there
was no need for the employer to accept it.
[23] In terms of whether the Applicant’s action on 13 November 2019 amounted to her
giving immediate notice, Mr Wilson made reference to the decision in Koutalis v Pollett3
where Rares J said:
“43 The question whether a resignation did or did not occur does not depend upon
the parties’ subjective intentions or understandings. Rather, it depends upon what a
reasonable person in the position of the parties would have understood was the
objective position immediately after Mr Pollett left the Koutalis’ business’ premises on
the morning of 5 May 2014, based on what each party to the conversation had said or
done, in light of the surrounding circumstances amount to her immediately terminating
or resigning from her employment at that point in time. …”
[24] It was submitted that on the basis of the unchallenged evidence of Dr Mulcahy and the
test provided by Rares J in Koutalis, what the Applicant said and did on 13 November 2019
indicated that her employment ended on that day. Taking into account that the period of
employment for the purpose of s.384(1) is defined in s.22 as a singular period of service, the
Applicant’s employment after 13 November was a fresh period of employment and not
sufficient for her to bring the unfair dismissal application.
The Applicant
[25] The submissions made on behalf of the Applicant put forward the following matters
which are claimed to support the conclusion that the alleged resignation did not occur:
The Applicant was not paid out a final payment with her entitlements upon the
alleged resignation and she continued to accrue her annual leave.
The Applicant was never asked to return the Respondent’s property including the
office keys and parking pass following the alleged resignation.
On 14 November 2019, being the day immediately after the day the Applicant was
said to have resigned, she attended work and later on that same day sent a text
[2020] FWC 6447
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message to Dr Mulcahy advising him that she was required to leave early due to
her unwell child. Importantly Dr Mulcahy responded by texting ‘no problem’.
There was no question as to her alleged resignation.
[26] Mr Pinchen argued that the text exchange between the Applicant and Dr Mulcahy on
14 November was not consistent with the claim of the Respondent that the Applicant had
resigned.
[27] Mr Pinchen referred to the inconsistency of Dr Mulcahy’s version of events as to the
date of the alleged resignation as demonstrating that his evidence was not credible.
[28] It was submitted that there was no resignation and no break in the employment
contract in any shape or form. The Applicant did not have two separate and broken periods of
employment. Her period of employment and service with the Respondent is continuous and
therefore meets the minimum employment period of 12 months for a small business
employer.
Consideration
[29] The entire crux of this matter is whether the Applicant’s employment with the
Respondent ceased and recommenced in November 2019 by reason of the alleged resignation
which is contested by the Applicant.
[30] If I am satisfied that the alleged resignation occurred, the Applicant’s period of
continuous service with the Respondent would not satisfy the minimum employment period
by virtue of s.384 of the Act. In this regard, I concur with Deputy President Saunders’
observation made in Harris v Laing O’Rourke Australia Constructions Pty Ltd:
“[9] … The Act does not deem or otherwise permit an employee whose employment
relationship with an employer comes to an end and is later re-employed by the same
employer to have their earlier period of service with the employer combined with their
later period of service as part of their “continuous service” with the same employer.
Put another way, a “gap” between periods of employment with the same employer
would not satisfy the ordinary meaning of “continuous service” because the service is
broken and there is nothing in s.22 or elsewhere in the Act to alter this outcome.”
[31] It is also clear that the unfair dismissal provisions under the Act are concerned with
the ending of the employment relationship rather than the contract of employment.
[32] Now I turn to consider whether the alleged resignation occurred.
[33] It is well established that a resignation must be clear and unequivocal. Having
considered the evidence and submissions made, I am not satisfied that the Applicant resigned
in November 2019. On the evidence before the Commission, there is nothing that reaches that
benchmark.
[34] The circumstances under consideration by Rares J in Koutalis can be distinguished
from those presently before the Commission. In Koutalis it was found that the proper
inference was that the employee resigned in a conversation with his employer. That was made
[2020] FWC 6447
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clear because immediately after that conversation the employee had a further discussion with
a third party and in unequivocal terms stated that he had resigned his employment.
[35] To the extent there is a discrepancy between the evidence of the Applicant and the
Respondent, I prefer the evidence of the Applicant. The Respondent has proposed three
different dates upon which the resignation purportedly occurred. Dr Mulcahy’s contention in
this regard was not assisted by his uncertainty as to when the resignation was supposed to
have occurred, despite his explanation that it was a result of the complexity of his diary which
was managed by the Practice Manager. The Applicant, by way of contrast, was unequivocal in
her denial that she did not, at any stage in November 2019, tender her resignation or ‘walk
out’ with the intention not to return.
[36] Even if I accept the version of events advanced by Dr Mulcahy that the Applicant, on
13 November 2019 (ie the third date put forward by the Respondent), said “That’s it. I’ve had
enough of this place, I’m out of here” and “I’m leaving. I’m out of here” and took her
belongings and left, those words and conduct alone do not in my view constitute a clear and
unequivocal intention to resign. This is particularly so given the conduct of the Applicant
afterward, in that she attended work the following day as normal.
[37] Despite Mr Wilson’s submission that there was no suggestion of a case of a ‘heat of
the moment’ resignation, it was Dr Mulcahy’s evidence that the Applicant was in an agitated
state and was aggressive at the time in question. Even if I did accept the Respondent’s
evidence in this regard, the Applicant’s words and conduct could not be reasonably
understood to be conveying a real and unequivocal intention to resign.
[38] In summary, I am not satisfied that the evidence supports a finding that the Applicant
resigned in November 2019. Accordingly, I am satisfied and find that the Applicant had more
than 12 months employment with the Respondent when her employment ceased on 20 July
2020. As a consequence, she is a person protected from unfair dismissal.
Conclusion
[39] For the reasons above, the Applicant has met the minimum employment period.
Accordingly, I dismiss the Respondent’s jurisdictional objection. The application will now be
dealt with in the normal course.
DEPUTY PRESIDENT
Appearances:
G Pinchen for Renee Lancaster.
J Wilson for Canberra Urology Pty Ltd.
Hearing details:
NORK COMMISSION THI SEAL OF THE FAIL De
[2020] FWC 6447
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2020.
Sydney (By telephone):
November 24.
Printed by authority of the Commonwealth Government Printer
PR725029
1 (1994) 122 ALR 333.
2 (1962) NSWLR 58.
3 [2015] FCA 1165.
