Cassandra Stokes v Songbird In-Home Services Pty Ltd
[2023] FWC 3098
•24 NOVEMBER 2023
| [2023] FWC 3098 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Cassandra Stokes
v
Songbird In-Home Services Pty Ltd.
(C2023/6128)
| DEPUTY PRESIDENT SAUNDERS | NEWCASTLE, 24 NOVEMBER 2023 |
General protections application involving an alleged dismissal – jurisdictional objections – whether application was filed out of time – whether applicant was dismissed
Introduction
On 3 October 2023, Ms Cassandra Stokes lodged an application pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving a dismissal. The respondent to the dispute is Ms Stokes’ former employer, Songbird In-Home Services Pty Ltd (Songbird).
Ms Stokes contends that Songbird contravened the general protections provisions in dismissing her from her employment. Songbird raised two jurisdictional objections to the application. First, Songbird contends that it did not dismiss Ms Stokes. Secondly, Songbird contends that if Ms Stokes was dismissed, then the application was lodged in the Commission more than 21 days after the dismissal took effect.
The Commission must determine these jurisdictional objections before it can exercise powers under s 368 of the Act to deal with a dispute about whether Ms Stokes was dismissed in contravention of the general protections.[1]
On 17 November 2023, I conducted a hearing in relation to the two jurisdictional objections raised by Songbird. Mr Matthew Wood, CEO of Songbird, gave evidence, as did Ms Kirbie McWhirter, outsourced Human Resources Manager for Songbird. Ms Stokes gave evidence in support of her case.
Relevant facts
On Sunday, 10 September 2023, Ms Stokes sent an email in the following terms to Ms McWhirter:
“Good afternoon Kirbie,
After careful consideration, I have decided to resign from Songbird.
I would like to give two weeks’ notice.
However, due to the way I am treated at Abbott Street by certain staff, and the desire for Songbird to move me from Abbott in a swift manner, I don’t feel comfortable or safe working there any longer.
Please advise me on where we go from here. I am not sure how I can work for the duration of my notice period. I am very deflated, confused, intimidated, and upset and I do not wish to attend the premises again.
I wish to inform you that I left work early on Sunday 10th, specifically due to the intimidation I feel when in the presence of Trudi Kime. I will be forwarding a formal complaint in relation to this matter in the near future to Matt Wood. I have been unable to clock in or out for weeks now and so could not reflect this on my timesheet. I left at 1340hrs.
I will spend Monday 11th completing a ‘handover’ for Cienna, in order for things to run smoothly upon my departure. I expect this to take me a couple of hours. I will spend my 4-hour non-billable shift to complete this.
I would like to request a separation certificate which I would like to receive in a timely fashion in order for me to gain employment elsewhere.
I look forward to your direction.
Thanking you,
Cassie”
At 3:49pm on Monday, 11 September 2023, Ms Stephanie Coggins, Songbird HR Business Partner, responded to Ms Stokes’ email of 10 September 2023 as follows:
“Hi Cassie,
Confirming we have received your resignation effective today 11/9/23. A certificate of service and a resignation acceptance letter are currently being drafted and will be shared with you shortly.
I’ve left you a couple of voicemails as I have been unable to reach you today regarding your comments mentioned below, handover and finalising your offboarding. Could you please give me a call to discuss these areas further?
In regards to your handover, please provide Ned & Cienna an update by close of business today.
We will also need for you to return your company laptop and mobile phone to the Thornton office. Please return these items to the office by the close of business Thursday.
If you have any questions, please do not hesitate.
Kindest regards,
Stephanie”
At 4:59pm on 11 September 2023, Ms Stokes emailed her handover notes to Ms Coggins. Those handover notes commence with the following message from Ms Stokes:
“Hi Ned and Kirbie,
For timesheet purposes, I spent 1100hrs to 1600hrs gathering this information.
I decided to draft it today and edit tomorrow morning, for delivery at lunchtime. This was to ensure I had added everything. However, I received an email @ 1549pm this afternoon requesting this handover be sent by close of business today 11th September. Due to this request, I am unable to complete an edit.
Let me know when I can collect my Separation Certificate and return Songbird property. Please advise me of the expected payment date of any monies owed to me. I require reimbursement for travel expenses and a mobile phone cover. I have completed logs during my employment for this. Please advise me on who to submit them to.
Best wishes,
Cassandra Stokes.”
At 6:06pm on 11 September 2023, Ms Coggins sent an email to Ms Stokes in the following terms:
“Hi Cassie,
Thank you for sending through a copy of your handover.
To answer some of the questions in your handover document:
·A copy of your certificate of service and resignation acceptance letters will be emailed to you tomorrow.
·Your completed shifts will be paid during the usual pay run next Wednesday (20/9). On the Friday following the usual pay cycle (22/9), final pay runs are completed for anyone leaving the business. This will include any outstanding payments including leave entitlements.
…
·Return of Songbird property – Please return all items by Thursday (14/9) to the Thornton office.
Please let me know if there are any other questions I can answer for you.
Kindest regards,
Stephanie”
At 9:15am on 12 September 2023, Ms Coggins emailed Ms Stokes a ‘letter of resignation acceptance’ and wished Ms Stokes all the best for her future endeavours. The ‘letter of resignation acceptance’ is dated 11 September 2023 and states:
“I write to confirm receipt of your written resignation, dated 10 September 2023, from your position at Songbird as Home Lead.
As requested your last day of employment will be 11 September 2023.
If you have any entitlements owing to you, they will be paid on the Friday following your final payroll following your resignation.
I remind you of your ongoing obligations regarding confidentiality and the requirement that you not divulge to another person, firm or company, any information relating to Songbird, our employees or our clients, or any of the commercial (including financial) information of Songbird which you may have acquired in the course of your employment. Further, I recommend you refer back to your employment contract to ensure you continue to be aware of your post-employment restraints.
If you have any questions in relation to this letter, or your post-employment commitments, please contact Human Resources team …
Thank you for your valuable contribution whiles at Songbird and I wish you well with your future endeavours.”
Dismissal
The question of when a person has been dismissed is governed by s 386 of the Act. It relevantly provides:
“(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or his employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or his employer.”
Ms Stokes relies on s 386(1)(b) of the Act. She contends that her resignation was forced by a course of conduct engaged in by Songbird.
Section 386(1)(b) of the Act concerns the resignation of an employee where the resignation was “forced” by conduct or a course of conduct on the part of the employer. The question of whether a resignation did or did not occur does not depend on the parties’ subjective intentions or understandings.[2] Whether an employee resigned depends on what a reasonable person in the position of the parties would have understood was the objective position, based on what each party had said or done, in light of the surrounding circumstances.[3]
The test to be applied in determining whether a resignation was “forced” within the meaning of s 386(1)(b) is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.[4] The requisite employer conduct is the essential element.[5]
When did Ms Stokes’ resignation take effect?
Ms Stokes clearly communicated her decision to resign in her email to Songbird on 10 September 2023. However, she did not resign with immediate effect. Her 10 September 2023 email stated that she “would like to give two weeks' notice … [but she did not] feel comfortable or safe working there any longer”. Ms Stokes asked for advice on “where we go from here” and stated that she would work on 11 September 2023 “completing a ‘handover’”. Objectively construed, Ms Stokes’ email of 10 September 2023 constituted a request by her not to work out her two-week notice period, save for Monday, 11 September 2023.
At 3:49pm on 11 September 2023, Songbird communicated, by email, that it had received Ms Stokes’ “resignation effective today 11/9/23”. Consistent with that statement, Songbird instructed Ms Stokes to provide her handover “by close of business today” and return her “company laptop and mobile phone”. Objectively construed, the email sent to Ms Stokes at 3:49pm on 11 September 2023 constituted an acceptance by Songbird of Ms Stokes’ request not to work out her two-week notice period, save for Monday, 11 September 2023. It follows that the parties agreed to reduce the two-week notice period to one day and Ms Stokes’ resignation took effect on Monday, 11 September 2023.
Ms Stokes confirmed in her oral evidence that she understood that her resignation took effect on 11 September 2023. Her understanding in this regard is also evident from the fact that she sent her handover notes, in an unedited form, to Songbird at 4:59pm on 11 September 2023 and asked when she could collect her separation certificate and return Songbird’s property. I consider that any reasonable person would have reached the same understanding as Ms Stokes did about when her resignation took effect.
Exceptional circumstances?
Section 366(1) of the Act states that a general protections application involving a dismissal must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 366(2). Because Ms Stokes’ resignation took effect on 11 September 2023, the period of 21 days ended at midnight on 2 October 2023. Ms Stokes lodged her general protections application in the Commission at 2:30pm on 3 October 2023. The application was therefore filed one day outside the 21 day period. Ms Stokes asks the Commission to grant a further period for the application to be made under s 366(2).
The Act allows the Commission to extend the period within which a general protections application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[6] Exceptional circumstances may 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.[7]
The requirement that there be exceptional circumstances before time can be extended under s 366(2) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) any action taken by the person to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.
Reasons for the delay
The delay required to be considered in s 366(2)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[8] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[9]
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 explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[10]
Ms Stokes made the following written submissions in support of her application for an extension of time:
“The application was lodged late due to the following reasons:
1. I originally thought the best option was to ‘move on’.
2.I was unaware of the Fair Work Commission policies and procedures regarding applications. I have never been involved in an issue of this nature.
3. Staff, participants, and family members expressed to me that they were hoping that I would/could improve the culture at Abbott Street by lodging a complaint with Fair Work Commission.
4.Staff, participants, and family members agreed that I have been treated poorly and encouraged me to lodge a complaint for myself.
5.The need to find immediate employment elsewhere in order to gain an income and remain housed.
6. The anxiety and depression I experienced post-employment.
After consideration of the above, I lodged the complaint. I apologise for the delay. Due to the serious nature of this application, I would like to request that the issues be dealt with despite my late lodging. If not for the benefit of myself, but for those who remain working and living at Abbott Street. The outcome of this application would give Songbird the opportunity to make any necessary improvements to their procedures and practices that are lacking at this time.”
In her oral evidence, Ms Stokes explained that she did not seek medical treatment following her resignation but was feeling low, shell-shocked and disappointed. Ms Stokes said that she “curled up in a ball for a week or two” following her resignation.
Taking into account all the circumstances, I do not consider the matters relied on by Ms Stokes, individually or together, to be an acceptable or reasonable explanation for the delay in filing her general protections application. I accept that Ms Stokes felt low, shell-shocked and disappointed following what she contends was her forced resignation. These feelings are not uncommon or unusual in the aftermath of circumstances which led an employee to feel as though they had no option but to resign. Similarly, it is commonly the case that employees will spend part of the period immediately following their dismissal seeking alternative employment. As to Ms Stokes not being aware of the 21 day time period in which to lodge a general protections application following a dismissal, this does not provide an acceptable or reasonable explanation for the delay. Although I have sympathy for Ms Stokes’ circumstances, I do not consider that she has provided an acceptable or reasonable explanation for the 21 day delay in lodging her unfair dismissal application.
The absence of an acceptable or reasonable explanation for the delay in lodging the application on 3 October 2023 weighs against a conclusion that there are exceptional circumstances.
Action taken to dispute the dismissal
There is no evidence to suggest that Ms Stokes took any steps to challenge her dismissal, other than lodging her general protections application. Accordingly, this is a neutral consideration in my assessment as to whether there are exceptional circumstances.
Prejudice to the employer
I cannot identify any significant prejudice that would accrue to Songbird if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the unfair dismissal application are set out in the materials that have been filed and I do not repeat them here. The substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.
Ms Stokes contends that she made several complaints to Songbird about a range of matters including safety issues, ongoing bullying and harassment of individuals (both staff and clients of Songbird). Ms Stokes believes that she was targeted and placed under undue pressure and coercion to accept offers of changed employment or be terminated.
Songbird contends that it met with Ms Stokes and addressed her concerns. Songbird submits that it did not receive a formal or informal complaint from Ms Stokes. Songbird also says that it gave Ms Stokes the option to move locations to an alternative home or remain at the Abbott Street house. Songbird denies that it pressured Ms Stokes to resign.
On the basis of the limited material before the Commission, I am of the view that Ms Stokes has reasonable prospects of succeeding in her claims that she was forced to resign and that adverse action was taken against her because she made complaints to Songbird. Having regard to all the circumstances, I consider the merits of the application to weigh in support of Ms Stokes’ argument that there are exceptional circumstances.
Fairness as between the person and other persons in a like position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a general protections application. However, cases of this kind will generally turn on their own facts.
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion on extension of time application
Taking into consideration the matters I am required to take into account under s 366(2) of the Act and all of the matters raised by Ms Stokes, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although Ms Stokes’ general protections application has reasonable prospects of success, particularly having regard to the reverse onus which applies under s 361 of the Act, the balance of relevant matters under s 366(2) are either neutral or weigh against a finding of exceptional circumstances. In my view, the circumstances of this case are not out of the ordinary course, unusual, special or uncommon.
Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 366(2).
Outcome
Ms Stokes’ general protections application is dismissed because it was lodged in the Commission more than 21 days after her resignation took effect and there are not any exceptional circumstances to warrant an extension of time being granted.
In light of my decision not to extend time for the application to be lodged in the Commission, I do not need to make findings as to whether Ms Stokes’ resignation was ‘forced’ within the meaning of s 386(1)(b) of the Act.
DEPUTY PRESIDENT
Appearances:
Ms C Stokes, on behalf of herself
Mr M Wood, for the Respondent
Hearing details:
2023.
Newcastle
17 November.
[1] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [67]
[2] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]
[3] Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704 at [30]
[4] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47(2)]
[5] Bupa Aged Care Australia Pty Ltd v Tavassoli[2017] FWCFB 3941 at [47(2)]
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[7] Ibid.
[8] Long v Keolis Downer[2018] FWCFB 4109 at [40]
[9] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31]
[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
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