18 Dec HR Law Newsletter – December 2014

December Newsletter

19 December 2014

An interesting case of an employee evading service of her Notice of Termination.

Have you ever encountered a situation where an employee has avoided receiving unfavourable news (i.e. notice of termination, notice of disciplinary action or information about an investigation)? The recent case of Kirsch v ThyssenKrupp Polysius Australia Pty Ltd [2014] FWC 8640 involved such issues as part of the subject employee’s application for an extension of time to make an unfair dismissal claim in respect of the termination of her employment.

On 4 December 2014, Deputy President McCarthy held that Kirsch “deliberately and manipulatively evaded” the employer’s attempts to discuss the redundancy of her position with her. In brief, the facts of the matter are as follows:

1. In early February 2014, Krisch (“the Applicant”), was advised that as a result of corporate restructuring that it was likely that her position would be made redundant, which would impact on her employment.

1. On 6 May 2014, the Applicant was notified that her position was redundant. She was also advised that a meeting would be held on 8 May 2014 to discuss redeployment opportunities.

1. On 7 May 2014, the Employer sent a confirmation email to the Applicant about the redundancy of her position and reminded the Applicant of the scheduled meeting for 8 May 2014.

1. On 8 May 2014, the Applicant text the Employer to advise that she was sick and would not be attending work.

1. On 9 May 2014, the Applicant provided a medical certificate to the Employer which certified her as unfit for work from 8 May 2014 to 14 May 2014.

1. Also on 9 May 2014, the Employer informed the Applicant by email to the Applicant’s work email account that a decision about her employment would be made on 14 May 2014 and she was invited to respond with any issues she wished to raise by 13 May 2014. In addition, the Employer phoned the Applicant to request that she read the email and responded by the deadline.

1. On 12 May 2014, the Employer sent the letter of 9 May 2014 to the Applicant’s personal email account, as well as couriering the letter to the Applicant’s home address.

1. On 13 May 2014, a voice message was left on the Applicant’s phone regarding the redundancy.

1. No response was received from the Applicant and on 14 May 2014, the Employer sent a letter of termination to the Applicant by email and courier.

Unbeknown to the Employer, the Applicant left the country on 14 May 2014 and did not return until 30 May 2014. The Employer believed that the Applicant was due to leave the Country on 15 November 2014, which was the first day of her annual leave.

Upon returning to the Country, the Applicant attended work on 3 June 2014, claiming that she had just read the notice of the Termination and that she did not accept it. She was asked to leave the workplace. The Applicant filed an unfair dismissal application on 16 June 2014. The Employer objected to that application on the basis that the Applicant had filed out of time.

In dismissing the Applicant’s application, Deputy President McCarthy found that no exceptional circumstances existed whereby the time for filing of the application should be extended. It was held that the Applicant was dismissed on 14 May 2014 and that the Employer “made every feasible effort to engage the Applicant in discussions about the redundancy”.

The Applicant’s argument had been that she did not read her emails until 3 June 2014 and that she “never opened these letters [meaning the two letters couriered to her residence] and I am [the Applicant] still not aware of the content”, because the stamp on the envelop was from another entity, ThyssenKrupp Materials Handling Pty Ltd and not the Employer named in the employment agreement, ThyssenKrupp Polysius Australia Pty Ltd. As such, she was not aware of the termination until 3 June 2014.

In response to the Applicant’s argument, Deputy President McCarthy stated that the Applicant’s account was “disingenuous”, finding that “it is obvious that the envelopes involved something that was intended for her and it is just as obvious that if she did not open them it was not because of ignorance but rather that she did not want to be informed of the contents that clearly would have been something that her employer wished her to be informed of”. Deputy President McCarthy stated further that “rather than the tendering of those envelopes supporting her contention that she had been totally ignorant of her dismissal it only served to confirm that she had conducted herself in a way to evade being notified of her dismissal”.

Lastly, in finding in favour of the Employer, Deputy President McCarthy said “indeed it appears to me that throughout the week of 8 to 14 May 2014 the Applicant was deliberately exploiting and abusing the obligations that the Respondent [the Employer] has under the Fair Work Act 2009 regarding redundancy”.

What lesson can be learned?

The Employer in this case was able to successfully defend the Applicant’s claim because it was able to show that it had made every feasible effort to engage with the Applicant. If faced with a similar situation of an employee evading unfavourable news, all reasonable attempts should be made to engage with the employee, such as phoning the employee, emailing any notice to multiple email addresses (if available), couriering the notice, texting the employee, etc. In making efforts to engage with the employee, employers should be mindful not to act in a way that may give rise to harassment (for example, calling multiple times in one day). Consideration should also be given to whether the employee is off work and whether contacting the employee is appropriate, for example, it may not be appropriate if the employee is on WorkCover for a stress related illness.

HR Law can assist if you are having difficulty engaging with an employee. Please contact us if you have any questions about this article or require assistance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Was the Agreement you reached at the Conciliation Conference Binding?

You’ve reached an agreement to settle a claim, but what have you actually agreed to? Is it binding?

In the recent case of Marcinkowski v Woolworths Limited [2014] FWC 8432, the Fair Work Commission found that no binding agreement had been reached because Marcinkowski had withdrawn his agreement to the settlement within a “cooling off period”.

In short, the case involved an in-principal settlement agreement which had been reached at a Conciliation Conference regarding Marcinkowski’s unfair dismissal application. The parties acknowledged and agreed that the settlement agreement was subject to a three day cooling off period. What was in dispute was when the cooling off period commenced and accordingly, finished.

Woolworth’s argued that the cooling off period commenced on the day of the Conciliation Conference, being 21 July 2014 and accordingly concluded on 23 July 2014. Marcinkowski argued that he was informed by the Conciliator (and indeed did receive a generic unsigned correspondence from the Fair Work Commission) noting that the file would remain open until 24 July 2014, after which time, if the parties had not contacted the Conciliator, the matter would be deemed settled. Marcinkowski emailed the Conciliator at 3.44pm on 24 July 2014, stating “After seeking legal advice, I would like to forfeit the offer and like to proceed to the arbitrators”.

Deputy President McCarthy found that the cooling off period did not expire until 24 July 2014 and accordingly that there “was no agreement between the parties to settle the matter”.

What can we learn from Marcinkowski v Woolworths decision?

In formulating a settlement offer, or agreeing to an offer, it is important to consider what you are actually agreeing to. The following is a list of some of the considerations which should be taken into account before the offer is agreed to and/or before the Conciliation Conference is concluded:

1. Is the settlement offer a “full and final settlement”, meaning that the settlement will be in satisfaction of all claims which the employee might have? Are there any exclusions, for example, a common law Workers’ Compensation Claim? You cannot of course contract out of a statutory Workers’ Compensation Claim or a Superannuation Claim.

This is an important consideration, particularly where an employee may have made other claims or indicated an intention to make other claims (for example, underpayment of wages or entitlements).

1. If there is a “cooling off period” during which either party may withdraw the proposed settlement, when does the period commence and finish? This should be made clear before the conclusion of the Conciliation Conference to avoid uncertainty.

1. Is the offer subject to the parties signing a Deed of Settlement? If so, who will be preparing the Deed? Are there any terms which must be included in the Deed, for example, a release by the employee (is there to be a mutual release?), non-disparagement provision, confidentiality clause? These matters should be made clear as part of any settlement negotiations to avoid any later dispute. Also not that the Commission can provide the parties with its standard terms of settlement to record the settlement terms reached, and it should be made clear from the outset as to whether or not the parties are agreeable to using this.

1. If the settlement involves either party doing something (i.e. paying compensation, discontinuing proceedings, providing a statement of service, etc.) when will the party be required to complete it by? For instance, seven days after both parties executed a Deed of Settlement?

1. Will the parties bear their own costs of the proceedings?

1. If a monetary settlement is agreed to, are the parties clear on the amount? For instance, if the settlement is six weeks wages, what does it included? Is tax included or excluded from the settlement amount?

HR Law is able to assist with settlement negotiations and preparation of a Deed of Settlement. Please contact us if you have any questions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Does an Employee have a right to take and/or accrue annual leave while receiving Workers’ Compensation benefits?

A look at the rights of New South Wales and Queensland Employees.

What does the Fair Work Act 2009 (Cth) (“FW Act”) provide?

Pursuant to section 130(1) of the FW Act, an Employee covered by the FW Act is not entitled to take or accrue any leave when the employee is absent from work because of a personal illness, or a personal injury, for which the Employee is receiving compensation payable under a law that is about workers’ compensation.

Subsection 130(2) of the FW Act provides an exception, where the workers’ compensation legislation permits the taking or accruing leave during a compensation period.

Accordingly, under the FW Act an Employee does not have a right to accrue or take leave while receiving Workers’ Compensation benefits unless the State workers’ compensation legislation permits the taking and accruing of leave.

What is the position in Queensland?

Section 119A of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (“WCR Act”) provides that a worker is entitled to take or accrue annual leave, sick leave and long service leave under an Industrial Act or industrial instrument during the period to which the compensation relates.

The note contained under section 119A(2) of the WCR Act clearly states that section 119A removes the restriction contained in section 130 of the FW Act.

This means that in Queensland an Employee has a right to take and accrue annual leave while the employee is receiving workers’ compensation payments.

What is the position in New South Wales?

Unlike Queensland, whether an Employee working in New South Wales has a right accrue or take annual leave while receiving workers’ compensation payments, has been ambiguous.

Previously the position taken in respect of section 49 of the Workers’ Compensation Act 1987 (NSW) (“WC Act”) has been that the WC Act does not permit or bestow a right on the Employee to take or accrue annual leave and as such section 130(1) of the FW Act applies, meaning that an Employee in New South Wales did not have an entitlement to take or accrue annual leave while they are receiving workers’ compensation payments.

On 11 November 2014, the Federal Circuit Court of Australia delivered its decision on the interpretation of section 49 of the WC Act, in the case of NSW Nurses and Midwives’ Association v Anglican Care [2014] FCCA 2580 (“Anglican Care Case”). In that case, the Court considered whether or not section 49 of the WC Act permits the taking or accruing of leave during the compensation period.

Judge Emmett found that section 49 of the WC Act did not prevent a worker from receiving annual leave payments while also receiving workers’ compensation payments, but rather that the WC Act “expressly contemplates receipt of both workers compensation and accrued leave”. Her Honour stated that “section 130(2) of the FW Act would be enlivened by reason of section 49 of the WC Act because that section does not prevent it, in that sense, it allows or permits it”. In other words, her Honour found that an employee in New South Wales accrues annual leave while receiving workers’ compensation payments.

On the basis of the Anglican Care Case, the current position at law is that an employee in New South Wales is entitled to accrue and take leave while receiving workers’ compensation payments. Unfortunately it is unlikely that this will be a settled point, as there is current legislation before the Senate which will alter this position and we are yet to hear whether Anglican Care will appeal the decision of the Federal Circuit Court of Australia.

HR Law will endeavour to provide updates as and if the current position in respect of New South Wales changes. In the meantime, please contact HR Law if you have any queries about what your employee’s entitlements are.

HR Law Team