Celia Malone v Trustee for SNDC Unit Trust T/A Dalkeith Fresh IGA

[2020] FWC 4134

[2020] FWC 4134

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Celia Malone
v
Trustee for SNDC Unit Trust T/A Dalkeith Fresh IGA
(U2020/5174)

DEPUTY PRESIDENT BINET PERTH, 24 AUGUST 2020

Application for an Unfair dismissal remedy – extension of time - application dismissed

[1] On 17 April 2020, Ms Celia Malone (Ms Malone) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging she was unfairly dismissed by the Trustee for SNDC Unit Trust T/A Dalkeith Fresh IGA (SNDC) on 24 March 2020.

[2] On 28 April 2020, SNDC filed a Form F3 Employer Response to the Application. SNDC’s response raised two jurisdictional objections to the Application. Namely that Ms Malone’s Application was out of time (First Jurisdictional Objection) and that she resigned and was not dismissed (Second Jurisdictional Objection).

[3] The Application was lodged on 17 April 2020. The Application was therefore, lodged 24 days after Ms Malone says her dismissal took effect. An unfair dismissal application must be lodged with the FWC within 21 days after the dismissal takes effect. The FWC may only allow a further period for lodgement in exceptional circumstances.

[4] On 27 May 2020, the parties participated in conciliation, but the issues in dispute could not be resolved.

[5] Taking into account the parties wishes and circumstances, it was determined, that a hearing rather than a determinative conference would be the most effective and efficient way to determine the Application. Consequently, the Application was listed for a Hearing in Perth on Thursday, 20 August 2020 (Hearing).

[6] Directions for the filing of materials in advance of the Hearing were issued to the parties on 1 July 2020 (Directions). The Directions required SNDC to file its materials in relation to the First Jurisdictional Objection no later than 4pm, Thursday 9 July 2020 and Ms Malone to file her materials in relation to the First Jurisdictional Objection no later than 4pm Thursday 16 July 2020.

[7] SNDC did not file any materials by the date specified in the Directions.

[8] On the 13 July 2020, Chambers tried to contact the SNDC via telephone with no avail.

[9] On the same day, Chambers notified the parties, via email, noting SNDC had failed to submit their materials and had been granted an extension until 4pm Monday, 13 July 2020 to provide those materials.

[10] On the 15 July 2020, Chambers again unsuccessfully tried to contact SNDC via telephone.

[11] Notwithstanding that the Directions required Ms Malone to file materials with respect only to the First Jurisdictional Objection Ms Malone failed to do so. Instead on 16 July 2020, Ms Malone filed materials in relation to the Second Jurisdictional Objection and in relation to the merit of the Application.

[12] On 16 July 2020, Chambers informed Ms Malone that notwithstanding the failure of the SNDC to file any materials in relation to the First Jurisdictional Objection that it was necessary for the FWC to be satisfied that exceptional circumstances existed warranting the granting of an extension to file the Application before the merit of the Application could be considered. Ms Malone was, therefore, given an extension to file materials in relation to the First Jurisdictional Objection in accordance with the Directions.

[13] On 20 July 2020, Ms Malone filed materials in relation to the First Jurisdictional Objection.

[14] On 29 July 2020, Ms Malone requested that in the absence of SNDC filing any submissions or evidence in relation to the First Jurisdictional Jurisdiction, that the Hearing date be vacated and the First Jurisdictional Objection be determined ‘on the papers’.

[15] On the 31 July 2020, Chambers tried to contact SNDC via telephone, with the same result as previous attempts.

[16] The Form F3 – Employer Response does not disclose any factual dispute as to the date on which Ms Malone tendered her resignation rather the dispute between the parties involves the application of the relevant legal principles to determine whether the resignation constituted a dismissal for the purposes of the FW Act. Similarly, the Form F3 – Employer Response does not disclose any factual dispute as to whether exceptional circumstances exist. In these circumstances, at Ms Malone’s request, and in the absence of any request to be heard orally or indication that SNDC would in fact attend any hearing or conference convened in relation to this Application, I have determined the First Jurisdictional Objection ‘on the papers’.

[17] In the absence of any submissions or evidence filed on behalf of SNDC in relation to the First Jurisdictional Objection, I have determined the First Jurisdictional Objection based on the Form F3, – Employer Response filed on behalf of SNDC, and on the materials filed on behalf of Ms Malone.

Background

[18] Ms Malone was employed at the IGA store in Dalkeith as a shop assistant on a casual basis when SNDC took over the business in June 2018.  1

[19] She alleges that during her employment SNDC failed to pay her weekly wages on time, did not allow her to take breaks to which she was entitled, refused to pay overtime to which she was entitled, and failed to pay shift penalties for shifts she worked in December 2018. She says that SNDC conducted an audit which revealed that she was owed over $4,000, yet this remains unpaid. She also alleges that SNDC has not contributed superannuation on her behalf since the end of 2018. She says that she raised her concerns with SNDC, but her concerns remained unresolved.  2

[20] Ms Malone says that the alleged late/underpayments caused her to incur additional costs due to her being unable to meet her living expenses as and when they became due.

[21] In early March 2020, Ms Malone began experiencing short vomiting episodes. 3 She visited her doctor on 9 March 2020, who prescribed medication.4 She says that on one occasion, the vomiting occurred as she was leaving for work, causing her to call in sick.5

[22] On 16 March 2020, Ms Malone received a text from SNDC asking if she was available to work the following day. She informed them that she was sick and not sure she would be able to work. Her employer told her that given community concerns about COVID-19, they would not roster her the following week, to give her a chance to recover. Ms Malone says that the prospect of further time off work was not financially sustainable for her, so she decided to return to live with her family in Alice Springs.

[23] Ms Malone booked a flight departing on Saturday 21 March 2020. However, she became sick shortly before she was due to depart, and decided to cancel her flight. 6 She went to the hospital later that same day. The following day she returned to the hospital again.7

[24] Ms Malone visited her doctor on 23 March 2020. On the following day, 24 March 2020, she returned to the hospital again. 8 While in hospital, she received a text from her employer, letting her know that she had missed the start time of her shift and asking whether she would be coming to work. She replied:9

“I’m actually in the hospital in case anyone cares. And wasn’t sent a roster. I’m not coming back to work there.”

[25] Ms Malone confirms that her text was intended to be a resignation.

[26] Her employer responded:  10

“Well we actually do care that why we text as not like you not to show up without notice. Your roster wasn’t sent out as it stays the same weekly. We realised you weren’t well as we didn’t hear from you. No problem take care of yourself hope you get better soon.”

[27] Ms Malone says that the hospital was being overwhelmed with COVID-19 patients, and discharged her to the care of her General Practitioner. Ms Malone visited her doctor again on 26 March 2020, and 31 March 2020. 11 She says that her doctor prescribed her a medication which caused her to have migraines. She says once she commenced medication, she felt a little bit better.12

[28] On 16 April 2020, Ms Malone’s boyfriend sent an email to Mr Mullaly (Ms Malone’s Paid Agent) seeking his assistance as follows: 13

“I was actually trying to get in touch regarding my girlfriend Celia, She has finally left that place after getting really sick, i know there is a time limit for how long you have to submit the claims after she quit (was on the 24/3 she officially said she wasn' t coming back) and i think she has missed it but i was hoping something could still be done.”

[29] Mr Mullally replied the following day and asked Ms Malone to provide the necessary information for him to prepare the Application. She did so the same day, and the Application was lodged on 17 April 2020.

[30] Ms Malone says that when her script ran out, she became sick again and returned to see her doctor on 1 May 2020, and 4 May 2020.  14 

Consideration

[31] Subsection 394(2) of the FW Act provides that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to subsection 394(3) of the FW Act.

[32] Ms Malone submits that her dismissal took effect on 24 March 2020 when she informed her employer that she would not be returning to work. SDNC submit that Ms Malone resigned and was not dismissed for the purposes of the FW Act.

On what date was Ms Malone dismissed?

[33] The term ‘dismissed’ is defined in section 386 as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[34] Section 386(2) contains some exceptions which are not applicable to this Application.

[35] Ms Malone accepts that her employment was not terminated on SDNC’s initiative. She accepts that she resigned from her employment on 24 March 2020, but submits that she was forced to do so because of the conduct or course of conduct engaged in by SDNC.

[36] Ms Malone describes the conduct which she says forced her to resign as follows: 15

“During that week I was so overwhelmed by the employers neglect of its obligations to pay overtime, breaks and wages on time and then to brutally ignore my sick conditions was the straw that broke me.

…

I just couldn’t take it anymore. They breached the Award on numerous occasions with respect to rates being overtime and breaks, were late with wages causing me financial hardship and clearly they wanted to get me into work when I told them I was sick.”

[37] The onus is on the employee who asserts that they were forced to resign to prove that they did not resign voluntarily. 16 The employee must prove that the employer forced the employee’s resignation by identifying action on the part of the employer to bring the relationship to an end or action that has that probable result.17 

[38] The line distinguishing conduct that leaves an employee no effective or real choice but to resign, from an employee resigning at their own initiative is a narrow one. The requisite employer conduct is an essential element. 18

[39] Notwithstanding her text resignation on 24 March 2020 it would appear that Ms Malone decided to resign when she made the decision to move to Alice Springs and booked her flight. Presumably, Ms Malone made this decision sometime after 16 March 2020, and before 21 March 2020, when her flight was scheduled to depart. The text she received on 24 March 2020 from her employer could, therefore, have played no part in her decision to resign. The extent to which her employer’s conduct caused her resignation must be conduct which occurred before 21 March 2020, being the alleged award breaches or the notification that the employer intended not to roster her for a week to allow her to fully recover.

[40] In Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWC 3941, 19 SDP O’Callaghan also considered a situation where an employee says that she was forced to resign by the late payment of her wages and a failure on her employer’s part to contribute superannuation on her behalf. In that case the applicant tendered bank statements which confirmed that wage payments, paid by electronic bank transfer, were frequently late. Evidence was also given of failed efforts on the part of the relevant union to address compliance issues with her employer.

[41] In finding that the applicant was not ‘dismissed’ for the purposes of section 386 SDP O’Callaghan explained that:

“Here, I am not persuaded that resignation was the only option open to Ms Bruce. I am particularly concerned that a pattern of irregular wage payments and the non-payment of superannuation ought not to be too readily taken to effectively terminate the employment relationship as distinct from creating a situation where the recalcitrant employer is bought to task, or possibly penalised under the appropriate legislation. The alternative position could have the potential to place the ongoing employment of many employees at risk rather than acknowledging that enforcement options exist and may be applied. 20

…

Whilst in absolutely no way condoning Fingal Glen’s behaviour, I have concluded that the resignation decision was based on Ms Bruce’s perception and a perfectly understandable and subjective response. That resignation decision was not, as of 10 January 2013, the only option open to Ms Bruce.” 21

[42] In contrast to the applicant in Bruce v Fingal Glen Pty Ltd (in liq), Ms Malone did not tender any evidence to demonstrate that the award breaches she alleges occurred did in fact occur.

[43] Nor did Ms Malone tender any evidence of her raising her concerns about award compliance with her employer. There are a multitude of ways in which an employee may pursue these concerns without leaving their employment at low or no cost to themselves, for example, by contacting the office of the Fair Work Ombudsman, seeking assistance from their union, or seeking assistance from a community legal centre. Alternatively, in the same way, that Ms Malone has engaged a paid agent to represent her in these proceedings, she could have engaged a lawyer or an agent to recover any wages owed to her. Alternatively, she could have commenced proceedings in the small claims court on her own behalf. If there was ambiguity with respect to her entitlements under the relevant award, she could have lodged a dispute application in the FWC. The Australian Taxation Office has established mechanisms for employees to raise with it, for its action, failures on the part of employers to meet their statutory obligations to pay superannuation.

[44] Nor did Ms Malone tender any evidence that she has since sought to recover any amounts allegedly owed to her. Such evidence would give weight to her assertion that her claims of award breaches are credible and that recovery of those amounts was such a pressing concern to her that her only option was to resign from her employment.

[45] I am not satisfied that resignation was the only option open to Ms Malone to address her concerns with respect to the alleged award breaches by her employer.

[46] The text messages tendered by Ms Malone do not demonstrate that the employer required her to work while she was sick. To the contrary, the texts evidence a sympathy for her condition and an intention not to offer her further shifts until she was fully recovered. Given the prevailing concerns about the evolving COVID epidemic, the actions of her employer in deciding not to roster her while she was unwell was consistent with health and safety information being provided to the community more broadly at that time.

[47] While she was clearly disgruntled about her conditions of employment, this was a matter which on her own evidence has prevailed for a considerable period of time. On her own evidence it appears her decision to resign was driven by her concerns that her health condition would prevent her earning enough money to support herself, hence her decision to return home to her family.

[48] On the evidence, before me, I am not satisfied that Ms Malone did not resign voluntarily. 22 I am also not satisfied that she was forced to resign from her employment because of conduct, or a course of conduct, engaged in by her employer. I have also considered whether Ms Malone ought be granted an extension of time to lodge the Application if her resignation could be said to constitute a ‘dismissal’ for the purposes of section 386 of the FW Act.

Do exceptional circumstances exist?

[49] The FW Act allows the FWC to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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. 23 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.24

[50] Section 394(3) of the FW Act requires that, in considering whether to grant an extension of time, the FWC must take into account the following:

a. the reason for the delay;

b. whether the person first became aware of the dismissal after it had taken effect;

c. any action taken by the person to dispute the dismissal;

d. prejudice to the employer (including prejudice caused by the delay);

e. the merits of the application; and

f. fairness as between the person and other persons in a similar position.

[51] 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.

[52] The test of exceptional circumstances establishes a high hurdle for an applicant to overcome for an extension to be granted. 25

[53] Having taken into account the factors set out in sub-section 394(3) of the FW Act, ultimately, the power to grant an extension for the filing of an application which has been lodged out of time is a discretionary one. 26 The requirement that there be exceptional circumstances before the time for the lodgement of an application can be extended under section 394(3) of the FW Act contrasts with the broad discretion conferred on the FWC under section 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.

Were there reasons for the delay?

[54] The onus is on Ms Malone to provide a credible reason for the delay.

[55] While the delay to be considered is the period subsequent to the expiration of the 21 day period, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. 27

[56] In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic, 28 the Full Bench explained the correct approach by reference to the following example:

“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.”

[57] 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. 29

[58] The FW Act does not specify what reason for delay might tell in favour of granting an extension. However, decisions of the FWC have referred to an acceptable or reasonable explanation. Ignorance of the 21 day timeframe is not, of itself, an exceptional circumstance. 30

[59] The reasons for the delay were submitted to be as follows:

“In summary, the reason for the delay was the illness of the applicant, the COVID19 lockdown and her not having telephone or internet access until 16 April 2020.”

[60] Ms Malone tendered evidence that she was in hospital on the day that she tendered her resignation, that she visited her doctor on 26 March 2020 and 31 March 2020 and that she returned to see her doctor on 1 May 2020 and 4 May 2020. 31

[61] There is medical evidence to suggest that Ms Malone was unwell during some of the 21 day period immediately following her resignation however there is no medical evidence that she was sick all of the period between her tendering her resignation and her filing the Application. She tendered a medical certificate which certified her unfit for work only on the dates 23 March 2020 to 25 March 2020 inclusive.

[62] In fact, her evidence is that her symptoms improved with medication (albeit ‘a bit’) and did not deteriorate again until her script ran out in May after the Application was lodged.

[63] There is no medical evidence before me detailing how her illness prevented Ms Malone from lodging the Application on time or earlier or arranging for her boyfriend or her Paid Agent to lodge the Application on her behalf.

[64] It is clear from the email that Ms Malone’s boyfriend sent to Mr Mullay that her boyfriend was aware that a time limit applied to the filing of the Application and that he was aware of the approximate duration of that time limit. Presumably so to was Ms Malone.

[65] There is no evidence before me as to the date on which Ms Malone’s telephone and presumably her internet connection was cut. I accept that her ability to access free public internet at places such as local libraries and cafes would have been limited from 23 March 2020 to 25 May 2020. However, I note that free internet access is now widely available in many public places. It is clear from the fact that her boyfriend contacted Mr Mullally, and that she responded, that both of Ms Malone and her boyfriend had some internet access notwithstanding not having access at their home.

[66] I consider the evidence before me provides a reasonable explanation for some but not all of the delay.

[67] The absence of an acceptable explanation for all of the delay weighs against a conclusion that there are exceptional circumstances.

Did Ms Malone first become aware of the dismissal after it had taken effect?

[68] As Ms Malone resigned from her employment she was aware of her ‘dismissal' as soon it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This factor weighs against Ms Malone being granted an extension. 32

Did Ms Malone take action to dispute the dismissal?

[69] Action taken by an applicant to contest the termination, other than by virtue of making the application will be relevant and may weight in favour of granting the extension of time. 33

[70] Ms Malone did not take action to dispute the dismissal other than to file the Application. This circumstance weighs against the conclusion that there are exceptional circumstances.

Prejudice to the employer

[71] Prejudice to the employer will go against the granting of an extension of time. The mere absence of prejudice to the employer is an insufficient basis to grant an extension of time. 34

[72] The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.

[73] A long delay gives rise “to a general presumption of prejudice”. 35

[74] I cannot identify any prejudice that would accrue to SNDC if an extension of time were to be granted. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in consideration of whether there are exceptional circumstances. The mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.

Merits of the Application

[75] If a claim has merits, this will weight in favour of the grant of an extension of time. 36

[76] In considering the merits of an application for an extension of time, the FWC is not normally in a position to make findings of fact on contested issues because to do so would require the parties in effect to present their evidentiary cases twice. 37

[77] For the reasons outlined earlier in this decision, I am satisfied that the Second Jurisdictional Objection would be upheld and the matter would not proceed to a consideration of the merits of Application. If I am wrong in this regard given the limited materials before me, it is not possible to make any firm or detailed assessment of the merits at this stage. As I am unable to determine whether the merits of the present case tell for or against an extension of time I therefore consider the merits to be a neutral consideration.

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

[78] The FWC may have consideration to fairness in matters of a similar kind that are currently before the FWC or have been decided in the past. This consideration is concerned with the importance of the application of consistent principles in cases of this kind; however, cases of this kind quite often turn on their own facts. 38

[79] 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

[80] Having regard to the matters I am required to take into account under section 394 of the FW Act, and all of the matters raised by Ms Malone, I am not satisfied that Ms Malone was dismissed or that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. 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 section 394(3) of the FW Act.

[81] Accordingly, Ms Malone’s Application for an unfair dismissal remedy must be dismissed. An Order to this effect will be issued with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR721615>

 1   Witness Statement of Celia Malone dated 16 July 2020

 2   Ibid.

 3   Form F2

 4   Bundle of documents filed 1 July

 5   Witness Statement of Celia Malone dated 16 July 2020

 6   Form F2

 7   Applicant’s Bundle of Documents Filed on 1 July 2020

 8   Form F2

 9   Applicant’s Bundle of Documents Filed on 1 July 2020

 10   Ibid.

 11   Ibid.

 12   Witness Statement of Celia Malone dated 20 July 2020

 13   Ibid.

 14   Applicant’s Bundle of Documents Filed on 1 July 2020

 15   Witness Statement of Celia Malone dated 1 July 2020. See also Applicant’s Outline of Submissions dated 16 July 2020.

 16   Australian Hearing v Peary (2009) 185 IR 359.

 17   O'Meara v Stanley Works Pty Ltd, PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100].

 18   Doumit v ABB Engineering Construction Pty Ltd, Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 19   Bruce v Fingal Glen Pty Ltd (in liq)[2013] FWC 3941.

 20 Ibid [26].

 21 Ibid [27].

 22   Australian Hearing v Peary (2009) 185 IR 359.

 23   Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

 24   Ibid.

 25   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [16].

 26   Kyvelos v Champion Socks Pty Ltd (unreported, AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [8].

 27   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 at [31].

 28   [2016] FWCFB 349.

 29   Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].

 30   Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [14].

 31   Applicant’s Bundle of Documents Filed on 1 July 2020.

 32   Meek v Baycorp Pty Ltd t/a Baycorp Pty Ltd[2016] FWC 1291 at [15].

 33   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300.

 34   Ibid.

 35   Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556.

 36   Haining v Deputy President Drake (1998) 87 FCR 248, 250.

 37   Kyvelos v Champion Socks Pty Ltd (AIRCFB, Giudice J, Acton SOP, Gay C, 10 November 2000) Print T2421 at [14].

 38   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818 at [31].