Cath Piltz v Sydney Night Patrol and Inquiry Co. Pty Ltd T/A SNP Security Limited

[2013] FWC 650

[2013] FWC 650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Cath Piltz
v
Sydney Night Patrol and Inquiry Co. Pty Ltd T/A SNP Security Limited
(U2012/13289)

COMMISSIONER MCKENNA SYDNEY, 30 JANUARY 2013

Application for unfair dismissal remedy - Application out of time - Application dismissed.

[1] Cath Piltz (“the applicant”) has lodged an application pursuant to s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy. The applicant considers that her termination of employment with Sydney Night Patrol and Inquiry Co. Pty Ltd trading as SNP Security Limited (“the respondent”) was a harsh, unjust and unreasonable dismissal. The applicant was formerly employed by the respondent as a casually-employed security guard. It appears the applicant was a regularly rostered casual until November 2011. Thereafter, the regularity ceased; there is general dispute between the applicant and the respondent as to the circumstances concerning the offer and acceptance of casual shifts from after November 2011.

[2] In her Form F2 application form, the applicant contended she had been notified of the dismissal on 22 August 2012. In its Form F3 (Employer’s Response to Application for Unfair Dismissal Remedy), the respondent contended the applicant was dismissed on 26 June 2012 in circumstances where the applicant had last worked for the respondent on 12 November 2011. The respondent further contended the applicant consistently had been offered work until April 2012, but had refused all offers to work and had not been offered work since that time. The respondent objected to the applicant’s application on the basis it was not lodged within 14 days after the dismissal took effect.

[3] Irrespective of the date the applicant specified as the date of the dismissal (22 August 2012) or the date the respondent initially 1 specified (26 June 2012), the application was not made within time given it was lodged on 14 September 2012.

[4] As the conciliation before a Fair Work Australia (as the tribunal was then named) conciliator did not result in a settlement of the matter, the application was allocated to me as a regional matter. The matter was initially listed for a mention by telephone on 5 November 2012 and, subsequently, on 15 November 2012. Further to discussions with the parties on 15 November 2012, I issued directions for the filing and service of materials with a view to, with the consent of the parties, determining the question of an extension of time on the papers.

Applicant’s case

[5] The applicant’s reasons for the delay were encapsulated as follows. The applicant:

• did not know she had been dismissed, and she had not resigned;



• had no clear dismissal date from the respondent to gauge time restrictions for making an application for an unfair dismissal remedy as she was never given any notice of the termination of employment;



• had not received any correspondence from the respondent regarding any reasons for the termination of employment;



• had not received any employment separation certificates or any termination payments;



• had not been granted any say in the termination of employment;



• had not been asked to return any uniforms to the respondent;



• was unfamiliar with legislated timeframes for applying for an unfair dismissal remedy, but acted with haste to make an application once she became aware;



• is not member of a union and had not worked anywhere that had access to remedies for this kind of situation.

[6] The applicant also submitted that the initial advice she sought concerned bullying in the workplace. It took time to search and clarify the issues of unfair dismissal and what to do about that. The applicant submitted she did not know, nor was made aware, that she had in fact been dismissed. The applicant submitted she became aware of the termination of employment from her job search provider upon transition to the respondent’s new licensee in August 2012.

[7] As to action taken to dispute the dismissal, the applicant’s materials indicated that on 20 August 2012 she telephoned the respondent’s new licensee, United Security, regarding the changeover of the respondent’s North Coast operations as she believed her employment had not been transferred as with previous licensees for the area. United Security put the applicant in touch with the Area Manager for the Coffs Harbour region regarding the transfer of staff from the respondent to United Security. Among other matters, the applicant also contacted the following organisations in connection with the termination of employment or alleged bullying, or both: WorkCover Authority of New South Wales; Law Access; Northern Rivers Community Legal Centre; Fair Work Australia and the Fair Work Ombudsman. Between 23 August 2012 and 14 September 2012, the applicant had both email and telephone correspondence with WorkCover and Fair Work Australia regarding the procedures and legislative requirements for applying for an unfair dismissal remedy. The applicant was concerned about “the out of time business”, but Fair Work Australia advised the applicant she could make an application on the basis of exceptional circumstances and also apply for the filing fee to be waived. On 14 September 2012, the applicant then lodged her application together with an application to waive the application fee.

[8] As to the merits of the application, the applicant reiterated matters related to her contact with the respondent and various other organisations. The applicant submitted that as the entire process for making an application for an unfair dismissal remedy was new to her, it took time to clarify the correct issues and agencies she needed to contact. The applicant submitted that she believed the merits of her case are reasonable and fair.

[9] As to fairness as between the applicant and other persons in a similar position, the applicant submitted she had made every endeavour throughout her period of employment to work harmoniously with the respondent. The applicant noted she had never previously been dismissed and she considered that other persons in a similar position would seek appropriate action as she has done, including contacting various agencies.

[10] The applicant also relied on a witness statement she had prepared, which contained a number of attachments.

Respondent’s case

[11] The respondent’s submissions, supplemented by a witness statement, indicated the applicant was removed from the respondent’s payroll system on 26 June 2012. The respondent submitted the applicant worked shifts when available with the respondent from her start date until her last shift on 12 November 2011. The applicant was offered work by text messages on 14, 15, 16 and 21November 2011, but refused all offers of work. The respondent’s submissions noted the exchanges that had occurred on and after 21 November 2011 between the parties concerning casual placements, with the most recent offer being an offer by text message on 23 April 2012, to which the applicant did not respond.

[12] On 26 June 2012, the respondent transferred 95 per cent of its work to United Security, a company that, the respondent submitted, operates on the North Coast of New South Wales. United Security completes the work for the respondent’s clients on the respondent’s behalf and the employees of that company wear the respondent’s uniforms but they are not the respondent’s employees. The respondent submitted that a number of the respondent’s employees were advised of the fact they were no longer working for the respondent and, as such, they were to contact United Security regarding work. As the applicant had not worked for the respondent since 12November 2011 she was not advised of the change, but was removed from the respondent’s payroll system.

[13] The respondent submitted that the applicant’s last day of employment was 12 November 2011, this being the date of the last shift she worked. The respondent further submitted the applicant lodged her application for an unfair dismissal remedy some nine months out of time. The respondent submitted this case has similarities to Crowe v Success Venture Parramatta Unit Trust T/A ParkRoyal Parramatta[2012] FWA 9382 at [44], where Bull C had commented:

“[44] I find it passing strange for the Applicant to not contact the Respondent until eight months later, in March 2012, to enquire about further work, if the Applicant truly believed that she was still employed by the Respondent for the preceding eight months, and had simply not been provided with any rostered shifts”.

[14] As to the matters in s.394 of the Act, the respondent submitted that while there may be argument about the date employment ends in the case of a casual employee, where an employer no longer provides shifts to a casual employee (in this case, several months before the employee queried her status with the employer and then claimed unfair dismissal), it is a reasonable assumption that the employee’s employment came to an end on 12 November 2011 and the applicant lodged the application on 14 September 2012. The respondent’s submissions referred to Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery[2010] FWA 1394 at [22]-[24] and Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13] as to the meaning of “exceptional circumstances”. The respondent also cited a range of other decisions in submitting the applicant had failed to establish exceptional circumstances in support of an extension of time. Among other matters the respondent submitted:

• The applicant was employed on a regular and systematic basis as a casual and once the employment ceased she had the opportunity to challenge the dismissal but did not.



• The applicant contended she was unfamiliar with the provisions of the Act regarding timeframes for making an application for an unfair dismissal remedy, but ignorance of the law is not an exceptional reason to grant an extension of time.



• The applicant contended that as she was not a member of a union she could not access remedies to this situation; however, this could not be considered to be exceptional.



• The applicant contended she initially sought advice with respect to workplace bullying and it took time to identify what could be done with respect to an application concerning unfair dismissal; however, it was the applicant’s responsibility to obtain appropriate advice within the relevant timeframe and her position is this respect is not exceptional.

[15] The respondent submitted the applicant would have been aware in November 2011 that she was no longer employed by the respondent as she was no longer offered shifts consistently after 21November 2012. Further, as the applicant was not offered any further shifts after 23 April 2012 she had ample opportunity to raise her objections before lodging the application on 12 September 2012. The respondent submitted the applicant waited eight months to dispute the dismissal, when she made contact with United Security. The respondent further submitted the applicant then waited a further three weeks to lodge her application for an unfair dismissal remedy with Fair Work Australia.

[16] The respondent submitted that there would be “major prejudice” to the employer due to the lapse of time between the date the applicant was last employed and the date the application was lodged, if an extension of time were granted.

[17] As to the merits of the application, the respondent submitted the applicant would have no case for an unfair dismissal remedy as the applicant declined a number of offers to work and, in effect, left the respondent with no alternative to not offer her ongoing work.

[18] The respondent submitted the applicant was not been treated differently from any other employee as there was no one else in the respondent’s employment who had consistently declined the opportunity to work with it.

Applicant’s submissions in reply

[19] In reply to the respondent’s submissions, the applicant’s submissions noted she was removed from the respondent’s payroll system on 26 June 2012. The applicant reiterated that she did not know she had had been dismissed and nor did she resign. The applicant submitted that if she had been advised she had been dismissed, she would have lodged the application within time. Further, the applicant was not given the same advice about contacting United Security that had been given to other employees. The applicant also submitted the respondent had not contacted Centrelink regarding terminations of employment apropos the transferral of work to United Security nor attended to other matters such as providing her with written advice of termination of employment or an Employment Separation Certificate.

[20] The applicant confirmed she had been offered work by telephone and text message, but it was difficult for her to ascertain who had made those communications so these requests went ignored. The applicant submitted that as her email requests and questions were ignored by the respondent’s North Coast management she decided to just let things be on the basis that when the respondent needed her for work they would be in touch, as this had been the respondent’s pattern of behaviour in the past. Various matters in the applicant’s submissions were also addressed by way of witness statement.

[21] On the basis of the best record of text messages she had available, the applicant contested the respondent’s contention she was offered, but refused, work on the dates in November 2011 specified in the respondent’s submissions. The applicant contested the description in the respondent’s submissions concerning other work that may have been available; she provided her own detailed description of such matters. The applicant also submitted she was unaware until now (which appeared to be the time of the submissions) about the transfer of work to United Security, albeit this had occurred on 26 June 2012 notwithstanding that she had made inquiries as early as February 2012 about such matters. In the absence of anything such as documentation from the respondent, the applicant considered she was still on the respondent’s books as a casual employee. Finding out about the dismissal through the job provider was “infuriating”, whereupon the applicant “made haste to remedy it”.

[22] The applicant contested the respondent’s submissions as to the effective date of dismissal having been in November 2011. She submitted it is harsh and unreasonable to assume she had been dismissed, without any due process, when she had been in contact with the respondent and United Security after that time.

[23] The applicant submitted that her application for an unfair dismissal remedy was accepted after hurried emails, telephone calls and online enquiries; and the application was made with submissions concerning exceptional circumstances. The applicant submitted the application was reviewed and accepted. 2 The applicant considered her circumstances were exceptional, due, in particular, to: (a) the confusion caused by the respondent concerning times and dates of the termination of employment; and (b) the lack of notice of termination of employment or “hint or anything” that would have led her to believe her employment had ceased with the respondent. The respondent, the applicant submitted, had no grounds on which to terminate her employment. The applicant submitted the application is deserving of an extension for time, as the merits of the application are valid, worthy, genuine and sound; and the respondent failed in its duty to do the right thing by her, such as in relation to matters including lack of communication. In this respect, the applicant referred to the authorities the respondent had cited and questioned the relevance of some of the cases relied on by the respondent. Further, the submissions finally recapped a range of matters. In particular, the applicant disputed the respondent’s submissions as to the effective date of the termination of employment, and highlighted some inconsistencies in the respondent’s submissions in such respects. The applicant noted that she had carer’s responsibilities for part of the time in question, with the result that “chasing up unanswered phone calls, emails, and text messages wasn’t on the top of my to do list”. The applicant also made submissions, in the context of a reply to the respondent’s submissions concerning s.394(3)(f) of the Act, as to the treatment of other security guards.

[24] In closing, the applicant submitted the respondent failed in its duty to inform her of any reason to terminate her employment and the reasons for that decision were speculative. The applicant submitted that an extension of time should be granted so as to allow the substantive application to be heard, as there was no clear indication as to the effective date of the termination of employment - only assumptions and accusations from the respondent – and no evidence to substantiate the respondent’s claims.

Consideration

[25] Despite submissions from the respondent that the effective date of the termination of employment of the applicant was in November 2011, it is common ground that the respondent intermittently offered the applicant further casual employment in 2012. Thus, it appears that that applicant and the respondent still (nominally at least) had a casual employment relationship on foot, even though the applicant did not work any further shifts as a casual employee after November 2011. The respondent determined to remove the applicant’s name from its books/payroll system in June 2012, in circumstances where the applicant had not worked certain shifts that had been offered to her on a number of occasions in the period preceding that date. Until November 2011, the applicant was a regularly rostered casual employee at a local hotel.

[26] I would conclude that the effective date of the termination of employment (albeit by then as an on-call, irregular casual employee after the regular placements at the hotel ceased) most likely occurred on or about 26 June 2012 when the respondent removed the applicant’s name from its payroll system. The applicant was not aware of this development concerning the removal of her name from the payroll system (with the corollary inferentially being that she would not be offered any further casual placements), as this development was not communicated to her. It is not entirely clear, but it appears that the applicant became aware that her employment had not been transferred from the respondent to United Security on or about 20 August 2012. Certainly, in the applicant’s application form indicated (in response to Q.1) that 22 August 2012 was the date she was notified of the dismissal; and the information in the application form correlates with matters later described in the materials filed by the applicant pursuant to the directions.

[27] Disregarding the respondent’s contention that the applicant was dismissed in November 2011, I proceed on the basis that the termination of employment - through removal of the applicant’s name as a casual employee from its payroll system - formally occurred on 26 June 2012. Accepting the date advanced in the applicant’s case at its highest, the applicant became aware that the dismissal took effect when she became aware of it, that is, on or about 22 August 2012: see, for example, Commonwealth of Australia (Australian Taxation Office) v Wilson [PR901127]; Burns v Aboriginal Legal Service of Western Australia (Inc) [Print T3496]; Mackenja v Baptist Community Services [2007] AIRCFB 38. Accepting the August 2012 date relied on by the applicant at its highest, in the sense that this was the date she became aware of the termination of employment, the application was filed on 14 September 2012 and is, thereby, out of time.

[28] The applicant was not contemporaneously aware in June 2012 that the respondent had removed her name from its payroll system; she was not advised of that development by any means. The applicant first became aware of the dismissal well-after it had taken effect - that is, she became aware of the dismissal on or about 22 August 2012. The reason the applicant did not lodge an application for an unfair dismissal remedy on or before 22 August 2012 is answered by her lack of knowledge that her name had been removed from the payroll system on 26 June 2012 (with the resultant, unilateral termination of the employment relationship on 26 June 2012 through what may be considered to be, for instance, permanent removal for casual rostering). (I should also note, in passing, the question remained unaddressed in the parties’ submissions as to whether the applicant had any expectation of continuing employment on something akin to a regular and systematic basis, given the pattern of offers and acceptance of work following November 2011.)

[29] The period from 22 August 2012 to the date the applicant lodged the application for an unfair dismissal remedy on 14 September 2012 then arises for consideration. Apart from the initial time-lag that was brought about by the applicant’s lack of knowledge that the respondent had removed her name from its payroll system, the reasons for the subsequent delay between 22 August 2012 and 14 September 2012 appear to rely on matters including, but not limited to, lack of familiarity with the timeframe for making an application for an unfair dismissal remedy, pursuing inquiries related to alleged workplace bullying and lack of union membership.

[30] On and from 22 August 2012, the applicant took steps to dispute the dismissal by contacting the respondent and various agencies prior to lodging the application on 14 September 2012. If there could be considered to be prejudice to the respondent concerning the acceptance of the late lodgement of the applicant’s application for an unfair dismissal remedy, any prejudice could be considered to be a prejudice of the respondent’s own making in failing to communicate to the applicant the fact it had removed her name from its payroll system. The merits of the application are in dispute, albeit it seems to be common ground the applicant did not, for the reasons outlined in her materials filed pursuant to the directions, respond to at least some offers of casual work that the respondent offered in 2012. I did not consider that the matters advanced by either party were of particular relevance to the question of fairness as between the applicant and other persons in a similar position.

[31] Although the initial time-lag to 22 August 2012 in lodging the application is explained by the applicant’s lack of knowledge of the fact the respondent had formally removed her name from its payroll system, the subsequent period between 22 August 2012 and 14 September 2012 exceeded 14 days (being a period which might otherwise be considered as a general timeliness benchmark from the date the applicant became aware of the dismissal). Had the application been filed within 14 days after 22 August 2012, it may have been open to conclude that an extension should be granted. That is, absent any other considerations, the applicant would have had a respectably arguable case that she should be allowed the benefit of this time formulation from the date she became aware the dismissal had taken effect. However, the lodgement of the application exceeded a period of 14 days from after that later date of 22 August 2012. Considering the materials relied on by the parties, the statutory criteria and cases referred to in the parties’ submissions, such as Joy Manufacturing and Nulty, I have not been satisfied that a case of exceptional circumstances has been made out such as to grant an extension of time.

[32] An order dismissing the application has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

C Piltz, in person.

G.Ward for Sydney Night Patrol and Inquiry Co. Pty Ltd T/A SNP Security Limited.

Hearing details:

On the papers.

Final written submissions - 20 December 2012.

 1   The respondent otherwise contended in subsequent materials that the last shift worked in November 2011 as the relevant date.

 2   The applicant’s submissions here appear to refer to the lodging of the application.

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<Price code C, PR533605>