Brooke Menhennet v Laurent
[2020] FWC 2826
•2 JUNE 2020
| [2020] FWC 2826 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Brooke Menhennet
v
Laurent
(C2020/1459)
COMMISSIONER YILMAZ | MELBOURNE, 2 JUNE 2020 |
Application to deal with contraventions involving dismissal – whether application made outside the prescribed 21 days - whether to allow a further period – exceptional circumstances - extension of time granted.
[1] On 14 February 2020, Ms Brooke Menhennet (the Applicant) was dismissed by Laurent. Ms Menhennet alleges her dismissal is an adverse action and contravention of her protection of a workplace right after she questioned her employer about her entitlement relating to time off in lieu of working on a public holiday.
[2] Mr Raines, the Applicant’s Representative lodged an application on behalf of the Applicant pursuant to s.365 of the Fair Work Act 2009 (the Act) by email to the Commission on 6 March 2020. In lodging the application, Mr Raines sent an email to the generic general protections team (GPT) email address. The application was then referred internally to Registry which resulted in the recorded receipt date of 10 March 2020. The Applicant’s Representative submits the application was lodged on time. Registry recorded the application late by 4 days.
[3] This matter was referred for an extension of time hearing. The first question to be dealt with is what is the correct date the application was lodged? If the application is correctly lodged within the statutory time frame, the matter will be referred to conciliation. If the matter is not correctly lodged within the required time, the extension of time proceedings will determine whether to allow a further period of time for the lodgement of the application. Should the application not be within time, an extension of time will be granted only where the Commission is satisfied there are exceptional circumstances.
[4] Laurent submit that if the application is outside the statutory time period, it should be dismissed.
Applicant’s submissions
[5] Mr Raines submits that he met with the Applicant immediately following her termination of employment on 14 February 2020. While aware of the statutory timeframe, Mr Raines held off filing the application until receipt of the written letter of termination of employment and employment separation certificate. While both documents were requested from Laurent, neither were received. Consequently, on the 21st day, Mr Raines emailed the application to the GPT email address at 5.32pm on Friday 6 March 2020. Monday 9 March 2020 was a public holiday in Victoria and the application found its way to Registry on 10 March 2020 where it was stamped as received on that same day.
[6] Mr Raines submitted in evidence a copy of the email that he sent with the application to the GPT email address which clearly identifies the sent date and the GPT email address.
[7] Mr Raines submits that the application was on time as it was lodged on the 21st day. He further submits that should it be found that the application is not on time, representative error is an exceptional circumstance to satisfy the granting of an extension of time. 1
[8] In relation to the alleged contravention of the Act, it is submitted that the events leading up to the dismissal demonstrates that Laurent’s actions and reasons given concern section 340 – workplace rights of Division 3 of the Act. The series of events leading to the termination of employment are described as follows:
• When employed at the Braeside site on 28 August 2019, the Applicant was told she would be required to work public holidays and would be paid the standard rate and accumulate time off in lieu.
• The Applicant worked Christmas Day 2019 from midday till 10.00pm. On or around 1 January 2020, she enquired from the operations manager why her time off in lieu records were not updated to reflect her hours of work.
• After not receiving a response, she again inquired on or around 7 January 2020, however, on this occasion she describes her inquiry as a complaint.
• On or around 14 January 2020, the Applicant raised her complaint with the owners and indicated to them that if she lost her time off in lieu, she would take the matter up with the Fair Work Ombudsman.
• On 14 January 2020, the Applicant was asked to attend the operations manager’s office where she was given a verbal warning for being loud and causing issues around her pay.
• On or around 20 January 2020, the operations manager informed staff they would no longer be entitled to time off in lieu. 2
• On 14 February 2020, the owner’s son instructed Ms Menhennet to see the operations manager in his office. Ms Menhennet’s employment was terminated.
Respondent’s submissions
[9] Laurent denies that the termination of employment is due to a contravention of workplace rights, but rather a termination of employment during the probationary period due to inconsistent performance and the Applicant not meeting business standards. 3
[10] It submits the Applicant was paid above market rates and her contract of employment confirms a requirement that employees work reasonable additional hours, in addition to the requirement to work on public holidays. 4
[11] Laurent submits its business is a 24-hour operation which requires employees working hours to include public holidays and overtime.
[12] Laurent submits the application was lodged outside the statutory time limit and an extension of time should be denied.
Was the Application lodged on time?
[13] Mr Raines submits he lodged the application on time, i.e. the last of the 21-day statutory period.
[14] On 10 March 2020, the general protections team forwarded the application lodged by Mr Raines to Melbourne Registry, where it was date stamped as received on that date.
[15] Rule 14 of the Fair Work Commission Rules prescribes the following addresses as approved for the lodgement of a document that is permitted to be received electronically.
[16] According to the Rules, the application is accepted when it is received by an approved email address when sent by email, therefore the application is out of time.
[17] As the application is out of time, I will now consider whether there are exceptional circumstances to grant an extension of time.
Consideration
[18] Section 366(1) of the Act requires that an application under s.365 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow.
[19] Section 366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:
(a) The reason for the delay; and
(b) Steps taken to dispute the termination; and
(c) Prejudice to the employer; and
(d) Merits of the application; and
(e) Fairness between the person and other persons in a like position
[20] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 5 where it was held that:
“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 6
The reason for the delay
[21] Mr Raines submits that the application was lodged on time, on the 21st day by email, however, if for any reason the application is out of time the delay was due to representative error.
[22] Considering the Rules and the internal process of forwarding the email, the application is out of time. The lateness of the application was compounded by the fact that the application was sent by email at 5.25 pm on Friday 6 March 2020, prior to the public holiday of Monday 9 March 2020. Upon Registry receiving the application on Tuesday 10 March 2020, this rendered the application out of time by 4 days.
[23] Mr Raines continued to question during the hearing how the application was considered late and pressed the evidence of his email on Friday 6 March 2020.
[24] The obvious error was that Mr Raines emailed the application to the GPT generic email rather than an approved registry email address as required by Rule 14 of the Fair Work Commission Rules.
[25] Mr Raines did not explain why he did not email the application to the approved email address. In any event and given the GPT email address is not readily accessible to the public, the error is indicative of a representative that has had previous correspondence with the Commission and has relied on communicating with the Commission via the GPT email address. This is an error that has resulted in his client’s out of time application.
[26] Relevant to this consideration is whether the representative’s error is a ground for an extension of time. There is no indication that the representative did not act promptly; the delay was compounded by use of an incorrect email address and the occurrence of a public holiday. In this case the applicant relied on her representative, which she is entitled to; she did not contribute to the delay and is blameless for the error.
[27] Mr Raines submits the merits of the application are compelling to warrant consideration for an extension of time.
[28] Having regard to the submissions and evidence, I am satisfied that the error by the representative is an exceptional circumstance in this case. I do consider this consideration to weigh in the Applicant’s favour.
Steps taken to dispute the termination
[29] Laurent indicated that no steps were taken to dispute the dismissal. However, neither party addressed this consideration adequately. Consequently, I consider this consideration neutral.
Prejudice to the employer
[30] Neither party addressed this consideration. Consequently, I consider this consideration neutral.
Merits of the application
[31] Mr Raines on behalf of his client contends that the reasons for the termination of her employment was her workplace right to question her time off in lieu of working a public holiday.
[32] In addition to the timelines referred to in paragraph 8 of this decision, it is submitted that Ms Menhennet advised co-workers both on 31 January 2020 and 14 February 2020 that she was planning to recover her entitlements through the Fair Work Ombudsman.
[33] Laurent submit the termination of employment occurred during the probationary period of employment and was due to Ms Menhennet not meeting performance standards. During the hearing, I indicated that in a general protections matter, there is an onus on the employer to demonstrate that adverse action has not been taken and that there has not been a contravention made against the Act. When invited to address this point, Laurent provided no submissions or detail to support its position or counter the allegation of a contravention of a workplace right. Instead, Mr Jewel indicated that his understanding was that a discussion was held between the applicant and the operations manager of Laurent, regarding the applicant’s performance where it was said that ‘for both parties it just wasn’t working out within her probation period’. 7 Mr Jewel further said, in terms of why the applicant was terminated ‘she clearly knows that’8, however no further details were given in relation to this.
[34] Mr Raines submits his client’s intention to pursue her entitlements caused discontent in the workplace as other employees were also unhappy.
[35] While this consideration was not subject to testing, the submissions of the Applicant in the absence of any material supporting Laurent’s decision to terminate her are arguable and in her favour.
Fairness between the person and other persons in a like position
[36] Both the Applicant and Respondent did not make submissions in relation to this consideration. Consequently, I consider this to be a neutral factor in the present matter.
Conclusion
[37] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time.
[38] On balance of all the considerations, I am persuaded that the error for the delay is solely attributable to the representative using the wrong email address and the time of lodgement rendered the application out of time as it was referred to Registry four days after receipt in the Commission. I am also persuaded by the arguments advanced concerning merits, which if the extension is denied further disadvantages the applicant who is blameless in the delay.
[39] Having considered all of the evidence and submissions against each of the factors set out in s.366(2), I am satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application will be referred to conciliation.
COMMISSIONER
Appearances:
Greg Raines for the Applicant
Wayne Jewel for the Respondent
Hearing details:
2020
Melbourne (via telephone)
21 May
Printed by authority of the Commonwealth Government Printer
<PR719767>
1 Applicant’s oral submissions 21 May 2020.
2 Ibid, Applicant’s outline of Argument and Form F8.
3 Respondent’s oral submissions 21 May 2020.
4 Ibid.
5 [2011] FWAFB 975.
6 Ibid at [13].
7 Respondent’s Oral submissions 21 May 2020.
8 Ibid.
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