Amanda Katherine Gimbert v Tea Gardens Ice Cream Shack

[2022] FWC 1659

[2022] FWC 1659

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Amanda Katherine Gimbert
v

Tea Gardens Ice Cream Shack

(U2022/6071)

COMMISSIONER PLATT ADELAIDE, 4 JULY 2022

Application for an unfair dismissal remedy – application for an extension of time – extension of time not required – application to proceed.

Introduction

1. The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]

1. This decision concerns whether I should exercise my discretion to allow Ms Amanda Gimbert a further period for her unfair dismissal application (Application) to be made against Tea Gardens Ice Cream Shack (Tea Gardens or the Respondent).

1. At the conclusion of the Extension of Time Hearing on 30 June 2022, I determined that the cessation of the Applicant’s employment took effect on 7 June 2022, and as such, no extension of time was necessary for the unfair dismissal application to proceed. These are the substantive reasons for that determination.

Background

1. Ms Gimbert lodged an application pursuant to s.394 of the Act in relation to the termination of her employment with Tea Gardens which her form F2 Unfair Dismissal Application advised took effect on 9 May 2022.

1. The Application was lodged on 7 June 2022.

1. On 16 June 2022, the Applicant sent an email to the Commission explaining the circumstances surrounding the lodgement of the Application.  

1. On 20 June 2022, the Respondent lodged a form F3 Employer Response and objected to the Commission’s jurisdiction to hear the matter on the basis that Ms Gimbert had not been dismissed, that the Application was lodged out of time and that the Applicant’s employment does not meet the minimum employment period. This decision is only in relation to the extension of time issue. The issues of whether the Applicant was dismissed and whether the Applicant met the minimum employment period will only be considered to the extent that they are relevant to my determination of whether to grant an extension of time.  

1. On 20 June 2022, I issued directions and advised that the extension of time issue would be considered at a Hearing, by telephone conference, on 30 June 2022. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. Acknowledging that Ms Gimbert had provided reasons for her late filing in her Form F2 Application and in the email sent to the Commission on 16 June 2022, she was provided a further opportunity to file any material addressing the factors outlined in s.394(3) of the Act. The Applicant sent a further email to my Chambers on 27 June 2022 and attached further documentary evidence.

1. The Respondent filed written submissions, and further documentary evidence in support of its position on 29 June 2022. The Respondent did not file any witness evidence.

1. The Applicant responded to the Respondent’s written submissions on 29 June 2022.

Hearing

1. A hearing was conducted by way of telephone conference on 30 June 2022. A sound file record of the telephone conference was kept. Ms Gimbert represented herself and Mr Mitchell Hickey represented the Respondent. Mr Hickey was granted permission, unopposed, to represent the Respondent on the basis of s.596(2)(a) – complexity and efficiency.

1. Ms Gimbert gave evidence at the Hearing. Her position is summarised as follows:

·  The Applicant attended a paid trial shift on 29 October 2021.

·  The Applicant was provided with a letter of offer on 11 November 2021 and worked her first ‘non-trial shift’ on 19 November 2021.

·  The Applicant was employed on a casual basis.

·  The Respondent issued rosters on a monthly basis which would determine when the Applicant, and other casual employees, would work.

·  The Respondent would ask employees in the last week of each month for any dates that they were unavailable for the next month.

·  The Respondent would publish a roster for the next month (plus one week) in the first week of every month.

·  Whilst the roster was released for the month in advance, it was common for the Applicant and other employees to get contacted by the Respondent to work cover shifts throughout the month.

·  The Applicant generally worked 2-3 days per week from 19 November 2021 to April 2022.

·  During April 2022, two of the Applicant’s daughters, and then subsequently the Applicant herself, contracted COVID-19 and therefore the Applicant had an extended period of isolation during which she could not attend work.

·  The Applicant worked what turned out to be her final shift on 20 April 2022.

·  The Applicant was able to leave isolation on 6 May 2022.

·  On 8 May 2022 (Mother’s Day), the Applicant was due to work a cover shift.

·  On 7 May 2022, the Applicant’s daughter contacted Ms Rinkin asking whether the Applicant could swap her shift the next day, because her daughters had organised a Mother’s Day gift for the Applicant. Ms Rinkin told the Applicant’s daughter that the Applicant was required to make the decision on what to do for the shift.

·  On 8 May 2022, the Applicant informed Ms Rinkin, by telephone, that she was unable to work the shift.

·  Later that day, after the telephone call, the Respondent posted a new roster for the month of May and early June. The Applicant (who had previously been rostered to work 3-4 days a week) had no shifts in the second iteration of the May roster, however her name still appeared on the list of employees.

·  The Applicant’s evidence was that whilst her shifts had been taken from her, the fact that she remained on the list of employees indicated to her that she was still employed by the Respondent. The Applicant contended that it was common for employees to swap shifts between themselves and/or be called in to work when they were not rostered on, and the Applicant expected that she would be able to work in this manner throughout May.

·  However, the Applicant did not work at all throughout May.

·  On 7 June 2022, the Applicant realised that she had not been sent the email from Ms Rinkin asking employees to provide their unavailability for the following month. The Applicant also realised that she could not log onto the application the Respondent used for posting their roster. The Applicant enquired with a colleague, who sent her a screenshot of the June roster, which showed that the Applicant’s name was no longer on the roster.

·  Upon seeing that her name was no longer on the roster and that her access to the work roster application had been removed, the Applicant took the view that she had been dismissed.

·  The Applicant lodged her unfair dismissal on 7 June 2022.

1. The Respondent did not lead any witness evidence despite being given the opportunity to do so at the commencement of the Hearing. The Respondent relied on documentary evidence and submissions. During closing submissions, the Respondent requested to re-open their case and present evidence from Ms Rinkin who had been present during the entire period of the Hearing. The request was refused on fairness grounds.

1. The Respondent contentions are summarised below

·  The Applicant should have been aware that she was no longer employed when her shifts for May were taken off in the second iteration of the May roster. As such, the Applicant’s employment ended on 8 May 2022, and the Application was lodged 8 days out of time.

·  The Applicant failed to identify any factors which would establish “exceptional circumstances” such that an extension of time to lodge the Application should be granted.

Consideration

1. A dismissal does not take effect until an employee is aware that the employee has been dismissed or has at least had a reasonable opportunity to become so aware.[3] Whether an employee has had a reasonable opportunity to become aware will necessarily turn on all the facts of the matter.[4]

1. In my view, the Applicant only had a reasonable opportunity to become aware that she was no longer employed by the Respondent when she was made aware that she was not included on the June roster, and that she no longer had access to the Respondent’s roster application. In the absence of any evidence to the contrary led by the Respondent, I accept the position put forward by the Applicant that she believed that she was still employed after her shifts were taken off the May roster. The Applicant led evidence that she expected to be called in to cover shifts throughout May, especially as her name was still included on the roster even though she had no rostered shifts. I find that the Applicant’s employment relationship with the Respondent came to an end on 7 June 2022 as a result of the actions of the Respondent to remove the Applicant’s name from the roster and remove her access to the rostering application.

Conclusion

1. Having found that the Applicant’s employment relationship ended on 7 June 2022, it is clear that the Application was made within time, and no extension of time is necessary for Application to proceed. The matter will be re-allocated to another Member of the Commission to determine the other jurisdictional objections and the merits of the Application.

COMMISSIONER

Appearances (by telephone):

A Gimbert, the Applicant.
M Hickey for the Respondent.

Hearing details:

2022.
Adelaide:
June 30.

[1] Section 394(2)(a) of the Act.  Note that the 21 days for lodgment does not include the date that the dismissal took effect by reason of the operation of the Acts Interpretation Act 1901 (Cth) s.36(1) (item 6—where a period of time ‘is expressed to begin after a specified day’ the period ‘does not include that day’)

[2] Section 394(3) of the Act

[3] Ayub v NSW Trains[2016] FWCFB 5500, [36].

[4] Foyster v Bunnings Group Ltd[2017] FWCFB 3923, [17].

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