Carole Medcalf v Brewarrina Business Co-operative Ltd T/A Brewarrina Business Centre

[2014] FWC 6260

[2014] FWC 6260

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carole Medcalf
v
Brewarrina Business Co-operative Ltd T/A Brewarrina Business Centre
(U2014/7620)

DEPUTY PRESIDENT BOOTH SYDNEY, 18 SEPTEMBER 2014

Application for relief from unfair dismissal - jurisdictional objection - out of time.

[1] Carole Medcalf has made her career in the management of community based organisations. In March 2012 she was invited by the Chairperson of the board of the Brewarrina Business Co-operative (the ‘Co-operative’)to take up the position of CEO of the organisation. She relocated to Brewarrina, a remote locality situated some 930 kilometres west of Sydney to take up the role. The Co-operative is a not-for-profit organisation, governed by a board of directors, established to ensure sustainable enterprise in Aboriginal communities by providing financial management and governance support to many Aboriginal organisations.

[2] Ms Medcalf says that on Friday 21 March 2014 her employment was terminated when she was handed a letter from the board dated 19 March 2014 by Mr Barker, a board director of the Co-operative, whilst walking down the street in Brewarrina. The letter said in part “the Brewarrina Business Centre can no longer financially afford your services.” 1 The date the termination was to take effect was 24 March. The Co-operative says that the board and Ms Medcalf mutually agreed to end the employment relationship and a sum of money over and above Ms Medcalf’s entitlements was paid as part of this agreement.

[3] Ms Medcalf says she lodged an application for an unfair dismissal remedy with the Fair Work Commission on Monday 24 March 2014. She lodged the application that is before me on 28 May 2014. This application has been lodged after the 21 day time limit set by the Fair Work Act 2009. 2 To have been within time the application would have had to have been lodged by 14 April 2014. It was lodged on day 65 after the dismissal or 44 days late. Ms Medcalf asks the Commission to extend the time for the lodgement of her application in order that she can argue her case for an unfair dismissal remedy.

[4] Ms Medcalf was self represented when she came before me and the Co-operative did not appear. I proposed to Ms Medcalf during the hearing, and later to the Co-operative by email, that they be provided with the transcript of the hearing, be given an opportunity to respond and I make a decision following this. Both Ms Medcalf and the Co-operative agreed with that approach.

[5] The issue before me is whether Ms Medcalf should be granted an extension of time. To determine this I must consider whether there are exceptional circumstances 3 pertaining to the delay in relation to the six factors that are set out in the Act that I must consider.4 If I find that there are exceptional circumstances I must then consider whether, in all the circumstances, an extension of time is warranted.

[6] I will take each of the factors that I must consider in turn.

The reason for the delay

[7] Ms Medcalf says that in or around February 2014 it became apparent to her that the board did not want to meet with her.

[8] On 16 March 2014 she lodged a general protections application to the Fair Work Commission alleging that her duties had been changed and her salary had been reduced. 5

[9] Her general protections application was heard in conference by telephone before Vice President Lawler on 14 April and 15 May. The Co-operative did not participate in the first conference.

[10] Ms Medcalf says that on 14 April she told Vice President Lawler that she had made an unfair dismissal application on 24 March. At the second telephone conference she says he told her that his Associate had been unable to locate any record of it in the Commission. After this hearing I made my own inquires of the Commission’s registry and there was no record located.

[11] She says that she did not receive an acknowledgement of the application that she believed she had lodged on 24 March 2014. She put that down to having sent the application from her computer at work and being unable to access the office or the computer after 24 March.

[12] She says she was occupied for the remainder of the week packing her belongings and arranging storage for some of them, where they remained for 3 months. She left Brewarrina at the beginning of the following week to travel to Kiama where she now resides. She says she was occupied for the third week after her dismissal with preparation for the general protections conference scheduled for 14 April. Following this she says, in effect, that she was relying upon her exchange with Vice President Lawler to ascertain the status of her application. She says it was only in the second conference on 15 May that she and Vice President Lawler realised that her first application had not been received. She says she and Vice President Lawler exchanged emails and telephone calls in the period following the conference and she then decided it would be prudent to lodge another application, which she did on 28 May.

[13] Ms Medcalf says she used the Commission’s eFiling online document lodgement system for the lodgement of both unfair dismissal applications, having registered for eFiling and created a username and password. She says on neither occasion did she receive an acknowledgement. She says she followed the eFiling of her second application with an emailed copy and only then did she receive an acknowledgement.

[14] The Co-operative submits that since Ms Medcalf was able to successfully lodge a general protections application and was successfully notified by email of the date of the conference to be conducted by the Commission in relation to this application that it is not unreasonable to assume that Ms Medcalf would have used the same method for filing both applications. Ms Medcalf denies using the same method for lodging the s.372 and the two s.394 applications. They say, in effect, that had Ms Medcalf pressed to ascertain the status of her unfair dismissal application with the Commission during the conference on 14 April she would have discovered that it had not been received and could have still lodged her application within time.

[15] I appreciate that the chain of events in her apparent failed lodgement of her application and the conduct of the conferences before Vice President Lawler, where she anticipated her application was being followed up, was frustrating. However I do not accept that Ms Medcalf was blameless in the situation. An applicant before the Commission cannot abrogate responsibility for taking charge of their own application by relying on a Member of the Commission to follow up an application that is different from the one that is before that Member.

[16] I can understand that losing her job was a great stress for Ms Medcalf and that the logistical difficulties she no doubt faced in leaving the workplace and the town of Brewarrina preoccupied her. However, I cannot conclude that she was unable to check the status of her application to the Commission directly with the Commission either before or around the time of her conference with Vice President Lawler. When she left the workplace on 24 March she could have telephoned the Commission during the period she was packing her belongings and getting ready to travel to Kiama. She could have done so during the drive from Brewarrina to Kiama or at any other time before 14 April.

[17] I do not regard these events as exceptional, just very unfortunate.

Whether the person first became aware of the dismissal after it had taken effect

[18] Ms Medcalf was aware of her dismissal on 21 March 2014. I regard this factor as neutral in my decision making.

Any action taken by the person to dispute the dismissal

[19] Ms Medcalf says that the action she took to dispute the dismissal was to lodge the first application. The Co-operative say that the employment relationship was ended by mutual agreement and Ms Medcalf did not seek discussions with the Co-operative before she left the premises on 24 March having processed her own termination payment. Ms Medcalf says that it was impossible to discuss anything with anyone since the board had been refusing to meet with her and there was a period of mourning owing to Ms Barker’s (Chairperson of the board) death.

[20] There is factual conflict surrounding this and, in the absence of evidence to make a finding about it, I regard this factor as neutral in my decision making.

Prejudice to the employer (including prejudice caused by the delay)

[21] The Co-operative submits that the respondent would be prejudiced if Ms Medcalf was granted an extension of time. Ms Barker, Chairperson of the board, died on 25 March 2014. As a significant elder of her community her death triggered a period of mourning. They say her death means that her evidence regarding the Co-operative’s performance management of Ms Medcalf cannot be given. Ms Medcalf says that all the relevant documents are held by the Co-operative and there would be no prejudice. The Chairperson’s death is tragic but given the date of this event her evidence would not have been available even if the application had been lodged in time. I regard this factor as neutral in my decision making.

The merits of the application

[22] Ms Medcalf contends that she was the object of a campaign against her by a staff member or staff members, including a physical attack on her home, and that the board isolated her and gave her no due process before dismissing her. She claims her dismissal is harsh because she has been impacted by more than just job loss because she was required to buy a property in Brewarrina as rental accommodation was impossible to find. She says she has had to leave that property and has been unable to sell it due to a depressed property market. She says she is now forced to rely on the generosity of her brother for housing.

[23] The Co-operative submits that her employment was terminated for poor performance following a performance improvement process. Ms Medcalf denies this. The Co-operative contend that the employment relationship was mutually terminated and a settlement was reached. Ms Medcalf made no submissions in relation to this contention.

[24] I did not hear evidence in relation to these competing contentions, because the Co-operative did not appear at the hearing. I do not have sufficient material before me to consider the merits of Ms Medcalf’s application.

[25] I regard this factor as neutral in my decision making.

Fairness as between the person and other persons in a similar position

[26] This factor was not put and I regard it as neutral in my decision making

Conclusion

[27] Taking into account all the circumstances of this case, and considering the matters I am required to take into account pursuant to s.394 (a) to (f) of the Act, I have decided against granting Ms Medcalf an extension of time to lodge her application. Nothing in the unfortunate circumstances that unfolded following her dismissal prevented her from inquiring about the status of her application. She had a responsibility to do so and her failure to follow up is not an exceptional circumstance that warrants the exercise of the Commission’s discretion to extend time.

[28] I order that her application for an unfair dismissal remedy pursuant to s.394 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

C Medcalf, the Applicant

Hearing details:

2014.

Sydney

8 August 2014.

Final written submissions:

Respondent’s Submissions received 23 August 2014.

Applicant’s Submissions received 29 August 2014.

 1   Letter to Ms Medcalf from the members of the Board of the Brewarrina Bussiness Co-operative 19 March 2014.

 2 Section 394(2)(a), Fair Work Act 2009

 3   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at 13

 4 Section 394(3), Fair Work Act 2009

 5 Section 372, Fair Work Act 2009.

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