Jurisdictional Objection – Unfair Dismissal Application
On 3 August 2020 Ms Renee Lancaster (Applicant) made an application against her employer Canberra Urology Pty Ltd pursuant to the Fair Work Act 2009 for an unfair dismissal remedy. – With our representation. In this instance the Respondent, Canberra Urology disputed that the Applicant was dismissed from her employment. The Responded also objected the application on the grounds that the minimum period of employment. – also known as the probation period hadn’t been completed.
The Respondent
The Responded claimed the Applicant took her belongings and left whilst saying, “That’s it. I’ve had enough of this place, I’m out of here” and “I’m leaving. I’m out of here”. The Respondent said in a statement filed on 13 October 2020 that he took this as the Applicant resigning from her employment. In this statement the Respondent claimed he noticed the Applicant sitting at her desk the following day, asking “What are you doing here? You said You were leaving”, to which the Applicant ignores him. As such the respondent believed jurisdictional objection applied in this instance.
The Applicant’s Argument
The Applicant’s submission put forward matters to support no such resignation having occurred. 1) The Applicant was not paid a final payment with her entitlements upon the alleged resignation continued to accrue leave. 2) The Applicant wasn’t asked to return the Respondent’s property including office keys and parking pass following the alleged resignation. 3) 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 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
Outcome
The matter was put forward to Deputy President Dean through the Fair Work Commission to determine whether the Applicant in this instance met the minimum employment period. Deputy Pretendent Dean said that even if he were to accept the version of events advanced by the Respondent that the Applicant words and conduct “That’s it. I’ve had enough of this place, I’m out of here” and “I’m leaving. I’m out of here” alone do not in his view constitute a clear and unequivocal intention to resign.
Accordingly, Deputy President Dean was satisfied the Applicant had more than 12 months of employment with the Respondent. Therefore, the Applicant in this instance is a person protected from unfair dismissal.
The Respondent’s jurisdictional objection to having not met the minimum employment period to put forward an unfair dismissal application was dismissed by Deputy President Dean.
The Case Was Later Appealed By The Respondent
This case was later appealed to a full bench of the Fair Work Commission. In the case of Renee Lancaster v Canberra Urology Pty Ltd the inital outcome determined by Deputy Presedent Dean was maintained on appeal.
Need Support?
If you are in need of support, contact our team of expert Workplace Advisors. We will will work though your unfair dismissal claim and assist you with lodging an application. Get in touch quickly as you only have a very strict 21 days from the date of dimissal. Day one commences the day following the dismissal.
