Allison Fitzgerald v Highway NN Pty Ltd

[2019] FWC 7693

[2019] FWC 7693

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Allison Fitzgerald
v
Highway NN Pty Ltd
(C2019/5777)

DEPUTY PRESIDENT MANSINI MELBOURNE, 15 NOVEMBER 2019

Application to deal with a general protections dispute involving dismissal – application filed out of time – circumstances not exceptional – application dismissed.

[1] This decision concerns whether to extend the time within which to lodge an application for the Commission to deal with a general protections dispute involving dismissal, made under s.365 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined that Mrs Allison Fitzgerald (the Applicant) did not file within the statutory timeframe and should not be allowed a further period within which to lodge her application. The reasons for that decision follow.

Background

[3] On 29 April 2019, the Applicant commenced casual employment with Highway NN Pty Ltd (the Respondent) and did not work a fixed roster from week to week.

[4] On 11 June 2019, the Applicant notified the Respondent of her incapacity to work because she had the flu. 1 The Respondent requested to stay informed about “how she was getting on”.

[5] On 12 June 2019, the Applicant notified by text message of her ongoing illness meaning she remained unfit for work on 13 and 14 June 2019.

[6] On 17 and 18 June 2019, the Applicant was rostered, but did not attend, for work. She claims she was unaware of having been so rostered and was “out of contact” for the period 17 to 21 June 2019 due to her ongoing illness. The Applicant says she did answer a call on 17 June 2019 from CVGT, a third party organisation “whose job it is to help job seekers get and keep work”, and claimed to have asked them to notify her employer of her ongoing illness. 2 The Respondent claims that the Applicant was well aware and had been informed in advance of her rostered hours for the month of June. It did not receive a message via CVGT and did not consider this an appropriate means of communication.

[7] The Applicant first sought to make contact with the Respondent again by text message sent on 24 June 2019, followed up by a phone call on 25 June 2019.

[8] On 25 June 2019, the Applicant spoke with the Respondent’s manager by telephone. The Applicant claims to have been told (amongst other things) that her role had been filled and she would not be rostered for any further shifts.

[9] On 2 July 2019, the Applicant sent a text message to the Respondent requesting a separation certificate and confirming that she would return her uniform. On 30 July 2019, a separation certificate was provided by the Respondent to Centrelink and recorded:

a) the reason for termination as “Abandonment of employment – went off for 2 days unwell and didn’t contact site or notify until 2 weeks had passed – expected job to be still there and as a casual no job remained it had to be filled by another employee. Not suitable”; and

b) the date employment ceased as 19 June 2019. 3

[10] The Respondent did not consent to attempt conciliation prior to the determination of whether to extend the time for filing of the application. Accordingly, a program was set for the exchange of materials and a Hearing was convened, by telephone, on 8 November 2019.

Was the application made out of time?

[11] Section 366 requires that a general protections application involving dismissal be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

[12] It is not contentious that the application was filed outside the 21 day statutory timeframe. However, the following is in dispute:

a) whether the Applicant was dismissed; and, in turn,

b) the effective date of the alleged dismissal.

[13] Although there appears to be a legitimate jurisdictional issue regarding whether the Applicant’s employment ended at her own initiative, at least on its face the application alleges dismissal in contravention of Part 3-1 of the Act and this is sufficient for the Commission to deal with it pursuant to s.365 of the Act. 4

[14] It remains necessary to identify a date on which the alleged dismissal took effect. If the employment came to an end by way of dismissal, this does not take effect unless and until it is communicated to the employee who is being dismissed, though it may be communicated orally. 5

[15] The Applicant consistently maintained that her employment was dismissed by telephone, effective 25 June 2019, whereas the Respondent argued it was 19 June 2019 being the date that it understood the Applicant had abandoned her employment. Certainly on the materials before the Commission, there was a communication between the parties on 25 June 2019 and the employment relationship was mutually understood to have come to an end by 25 June 2019 at the latest. 6 Whilst I make no finding that the Applicant was dismissed, for the purposes of this application I accept that 25 June 2019 was the effective date of the alleged dismissal.

[16] As the application was not then lodged until 18 September 2019, the period of 21 days ended at midnight on 16 July 2019 and the application was lodged 64 days out of time.

[17] The Applicant asks that the Commission allow a further period for the application to be made. The Respondent opposes.

Are there exceptional circumstances?

[18] Having concluded that the application was made after the prescribed timeframe, it is necessary for the Applicant to obtain an extension of time under s.366(2) to make the application. This can only occur if I am satisfied that there are “exceptional circumstances”. The matters of which I must be satisfied are set out in s.366(2) of the Act.

[19] The exceptional circumstances test establishes a high hurdle for an applicant. 7 In this context, to be exceptional the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.8 Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.9

[20] My consideration of the matters set out at s.366(2) follows.

Reason for the delay – s.366(2)(a)

[21] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an “acceptable” or “reasonable” or “credible” explanation. 10 The absence of an explanation for any part of the delay will usually weigh against an applicant in such an assessment whereas a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour.11 Ultimately, it is a question of degree and insight.12

[22] The period of the delay is that commencing immediately after the time for lodging an application had expired and ending on the day on which the application was lodged. However, the circumstances from the date the dismissal took effect may be considered relevant in assessing the explanation for the delay. 13

[23] In summary, the Applicant gave the following reasons for her delay:

a) Lack of knowledge or understanding of her right to bring a general protections claim involving dismissal, despite being employed on a casual basis;

b) Initial confusion about the reason for and effective date of the alleged dismissal which meant that she did not “feel confident” to submit her application pending receipt of the separation certificate from Centrelink which would confirm the effective date (not received by the Applicant until 16 September 2019);

c) Difficulties in obtaining Centrelink welfare payments, a challenging process because the Respondent had recorded the reason for separation as abandonment which Centrelink characterised as “misconduct”;

d) The Applicant experienced a “flare up” of her existing depression and was caring for her husband who was sick with the flu;

e) The Applicant was unable to afford to challenge the dismissal sooner.

[24] It has already been established that there were differing perceptions about whether a termination, abandonment or resignation of employment had occurred. It follows that the Applicant may have legitimately been confused including as to the effective date. However, I do not accept this or the Applicant’s initial ignorance about her rights to be an acceptable or credible explanation for the Applicant’s delay in making this claim, particularly because:

a) The Applicant was able to and did access advice from the Fair Work Ombudsman’s telephone hotline and the Fair Work Commission’s website;

b) The Applicant clearly understood that her employment had come to an end on and from 25 June 2019 – she did not need to sight the separation certificate to verify this or to make this application;

c) Even if it was not otherwise clear, from as early as 2 July 2019, the Applicant was in receipt of information via Centrelink that the Respondent considered she had abandoned her employment; and

d) The Applicant was at all relevant times of the view that the reason for not being rostered again after 25 June 2019 was due to her absence from work due to illness.

[25] In any event, mere ignorance is not sufficient or reasonable explanation for delay. 14

[26] I appreciate that the Applicant may have initially been focussed on obtaining welfare payments but do not accept that the Applicant’s challenges with Centrelink or the appeal process (which was ongoing as at the time of the hearing on 8 November 2019) either prevented her from simultaneously making this claim or constitutes reasonable excuse for the delay. Further, and although the Applicant did not apply for a waiver of the filing fee, this was available to her and accordingly the cost of bringing the claim is not an acceptable excuse for the delay. 15

[27] The Applicant’s own evidence reflects that both the Applicant and her husband were unwell until 25 June 2019 which I have found to be the effective date of the alleged dismissal. Accordingly these factors do not explain the delay in filing the application, which was required to be filed within 21 days after 25 June 2019.

[28] The absence of an acceptable, reasonable or credible explanation for the delay weighs against a conclusion that there were exceptional circumstances.

Action taken to dispute the dismissal – s.366(2)(b)

[29] In respect of s.366(2)(b), I am required to take into account any action taken by the Applicant to dispute the dismissal.

[30] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 16 The Commission will consider any action taken to put the employer on notice that the issues in contest had not reached finality and would be contested in the near future.17

[31] I accept that the Applicant had been (and still is) contesting Centrelink’s decision about her welfare payments in an effort to reverse the adverse financial consequence of the separation certificate reflecting that the employment ended due to “abandonment”. In this regard, the Applicant is in dispute with a third party about the characterisation of the reason for the employment coming to an end which is not a direct challenge of the alleged dismissal itself.

[32] The Applicant was not able to identify any direct communication with the Respondent to dispute the dismissal after the telephone call of 25 June 2019. In her materials she stated that she felt that she “could not appeal the decision as my position with the company had been filled by someone else and Karena didn’t want to hear my good reason why I didn’t call in”. 18 Prior to being served with this claim, the Respondent was not on notice that the Applicant intended to dispute the alleged dismissal.

[33] I consider the absence of any action taken to dispute the dismissal is a matter which weighs against a finding of exceptional circumstances.

Prejudice to the employer – s.366(2)(c)

[34] The Respondent submitted that it would suffer some prejudice if the Applicant were granted an extension of the time in which to bring this claim including due to difficulties in locating ageing evidence and because one key witness has since left employment and would not readily be available to give evidence.

[35] Whilst the retrieval of documents and departure of a witness from employment with the Respondent is perhaps inconvenient, in the context of this case, I do not consider either excuse properly amounts to prejudice of a kind that would weigh against a finding of exceptional circumstances.

Merits of the application – s.366(2)(d)

[36] An application to extend time is essentially an interlocutory matter that does not allow for the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.

[37] On the materials before the Commission, there is a real question to be determined before an adverse action in the form of “dismissal” is established. There are two major difficulties for the Applicant in this respect:

a) the casual nature of her employment – the Applicant accepts that over her six weeks of casual employment, her hours were irregular and varied from week to week, suggesting she was truly casual meaning her employment ended at the conclusion of each engagement; and

b) the failures to attend for work without notice – the Applicant admits that she notified of the initial three absences due to illness, however did not then present for rostered shifts in the week of 17 June 2019, was not able to be contacted and did not contact the Respondent again until 24 June 2019, suggesting the Respondent may have had reasonable cause to believe she did not intend to accept any further shifts.

[38] Further, the Respondent denies any breach of the general protections provisions or that the Applicant’s inability to work the three notified shifts due to the flu had anything to do with why she was not rostered again for work. The Applicant had been on its books as a casual for a short time. In the absence of any contrary indication from the Applicant, it had no choice than to assume that she did not wish to accept further shifts and it then proceeded to fill the role which it needed to be done. Indeed, the Respondent maintains that the Applicant’s separation was entirely of her own doing.

[39] The Applicant strongly disputed the Respondent’s contentions and maintained that it was not until the discussion of 25 June 2019 that the Respondent communicated her employment was dismissed and that the real reason that her employment came to an end was because of her unavailability due to illness.

[40] On the materials before the Commission, the Applicant’s case appears weak and unlikely to succeed on the merits. However for present purposes I acknowledge that the Applicant is able to at least make out the basis of a general protections claim involving dismissal.

[41] In these circumstances, I consider the merits weigh only very slightly in favour of a finding of exceptional circumstances.

Fairness as between the person and other persons in a similar position – s.366(2)(e)

[42] Applications to extend time generally turn on their own facts. The parties did not draw to my attention any relevant persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position.

[43] I consider this to be a neutral consideration in the present matter.

Conclusion

[44] The time limit that applies to the exercise of a person’s right to bring an application under s.365 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.

[45] Having regard to all of the matters that I am required to take into account under s.366(2), I am not satisfied that the requisite exceptional circumstances exist. The absence of an acceptable, reasonable or credible explanation for the lengthy delay in filing the application weighs heavily against a finding of exceptional circumstances. The absence of any action taken to directly dispute the dismissal with the Respondent also weighs against such finding. The merits are weak and weigh only very slightly in favour of the Applicant, with the other factors considered neutral.

[46] In my view, the circumstances of this case are not exceptional, either individually or when considered together.

[47] I decline to grant an extension of time under s.366(2). Accordingly, the Applicant’s application under s.365 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

A Fitzgerald (by telephone) on her own behalf.

T Dance (by telephone) for the Respondent.

Hearing details:

8 November 2019.

By telephone.

Printed by authority of the Commonwealth Government Printer

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 1   Attached to the Applicant’s Outline of Argument: Extension of Time filed 30 September 2019 (Applicant’s Outline of Argument) was a medical certificate dated 22 August 2019 in support of her illness, on which the practitioner stated “she could have suffered upto 10 days”.

 2   Application filed on 18 September 2019 at paragraph 3.1; Applicant’s Evidence at the Hearing on 8 November 2019; Unsigned Witness Statement of Daniel Fitzgerald attached to the Applicant’s Outline of Argument.

 3   Separation Certificate attached to Applicant’s Outline of Argument.

 4   Hewitt v Topero Nominees[2013] FWCFB 6321 at [50].

 5   Plaksa v Rail Corporation NSW [2007] AIRC 333 (unreported, Cartwright SDP, 26 April 2007) at para. 8; citing Barolo v Centra Hotel Melbourne, Print Q9605(unreported, AIRC, Whelan C, 10 December 1998) Print Q9605; Ayub v NSWTrains [2016] FWCFB 5500 (Hatcher VP, Wells DP, Johns C, 30 September 2016) at para. 17.

 6   Application filed on 18 September 2019 at paragraphs 1.2 and 1.3; Applicant’s Outline of Argument at paragraph 1a; Applicant’s Evidence at the Hearing on 8 November 2019; Respondent’s Evidence at the Hearing on 8 November 2019.

 7   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901(Stogiannidis) at [14].

 8   Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975(Nulty) at [12] and Perry v Rio Tinto Shipping Pty Ltd t/a Rio Tinto Marine[2016] FWCFB 6963 (Perry) at [21].

 9   Ibid.

 10   Perry at [23]; Matthews v Roy Morgan Interviewing Services Pty Ltd[2018] FWC 7355 at [7].

 11   Stogiannidisat [39].

 12   Green v Bilco Group Pty Ltd[2018] FWC 6818 at [8].

 13   Shaw v Australia and New Zealand Banking Group Limited[2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd[2014] FWCFB 2149 at [31]-[33]; Perry at [23].

 14 Nulty at [14].

 15 Under s.367 of the Act and Regulation 3.03 of the Fair Work Regulations 2009 (Cth).

 16   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300.

 17   Wilson v Woolworths [2010] FWA 2480 at [19]-[21].

 18   Applicant’s Outline of Argument at paragraph 1i.