Chantal Black v Lou Lou Hair Salon

[2018] FWC 4052

[2018] FWC 4052

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chantal Black
v
Lou Lou Hair Salon
(U2018/4383)

COMMISSIONER PLATT ADELAIDE, 6 JULY 2018

Application for an unfair dismissal remedy – extension of time – held application made within time – no extension required.

Summary

[1] Ms Chantal Black has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Lou Lou Hair Salon (the Salon) which her form F2 Unfair Dismissal Application advised took effect on 5 April 2018.

[2] Ms Black filed her unfair dismissal application in the Commission on 27 April 2018. Ms Black’s application identified that it was made beyond 21 days from the date of dismissal and provided the following explanation:

•  She had taken the last few weeks to collect and consider her files and payslips;

•  She mistakenly considered that the appropriate time limit was 28 days; and

•  That she was “blindsided” by the dismissal as she thought that she was considered a valuable assets to her employer.

[3] On 8 May 2018, the Salon lodged a Form F3 Employer Response which indicated that the dismissal occurred on 3 April 2018 and raised a jurisdictional objection on the basis that the application was lodged out of time. It also raised an objection in relation to what is describes as the “vexatious” nature of the application. I note that this is not a jurisdictional objection, but in any event, this decision only deals with the extension of time issue.

[4] On 25 May 2018, the parties participated in a conciliation conference. This did not resolve the dispute and as a result the matter was referred to me to determine the jurisdictional objection.

[5] Directions were made that the extension of time issue would be considered at a telephone conference on 6 July 2018. Ms Black was directed to provide any statements concerning the extension of time and any documents to be relied upon by 21 June 2018. The Salon was invited to file any material in reply by 28 June 2018.

Submissions

[6] Ms Black provided a written submission and a witness statement (including various attachments). Those submissions largely related to the merits of the application, however the portion in relation to the extension of time issue can be relevantly summarised as follows:

•  She was dismissed effective 5 April 2018;

•  The reason the application was lodged outside of 21 day time limit was because she had been mistakenly advised that the application could be lodged within 28 days, excluding Public Holidays and weekends; and

•  The application was only lodged 24 hours after the deadline.

[7] The Salon provided a written submission and witness statements from Ms Lucy Casella (Salon Owner), Ms Jessica Holben (Salon Manager) Carl Casella (Business Partner) and Dewita Carson (Employee Mentor). Again, that material largely addressed the merits of the claim rather than the extension of time issue. The relevant submissions in relation to the extension of time issue can be relevantly summarised as follows:

•  Ms Black was dismissed effective 4 April 2018; and

•  Ms Black has lodged her application out of time, as well as the submissions in support of her application for an extension, without any reason provided for the delay.

[8] A hearing was conducted by way of telephone on 6 July 2018. A sound file record of the telephone hearing was kept. Ms Black was self-represented and attended with her father Mr Trevor Black and Mr Casella and Ms Holben appeared on behalf of the Respondent.

[9] The following facts are not in dispute:

•  The Salon is operated by Ms Lucy Casella and Mr Carl Casella;

•  The Salon had concerns about Ms Black’s work performance and met with her on 4 April 2018;

•  A dismissal letter dated 3 April 2018 was prepared in advance of the meeting;

•  At the meeting Ms Black was advised that she was dismissed and the letter was provided to her.

•  The letter included the following:

“… …

Starting from this pay week you are on your final two week annual leave ending April 13 2018. From that point you will then be paid two weeks in lieu as notice.

… …”

•  Ms Black was paid all of her entitlements on the next pay day (prior to 13 April 2018).

[10] The Salon contended that despite the letter the dismissal took effect on 4 April 2018.

Applicable Law

[11] Section 394 of the Act relevantly states:

“394 Application for unfair dismissal remedy

....

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

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

(e) the merits of the application; and

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

[12] It appears to me that although Ms Black was notified of her dismissal on 4 April 2018 it did not take effect until 13 April 2018. Although the Salon suggests that the dismissal took effect on the 4 April 2018 this position is in conflict with the terms of the dismissal letter.

[13] This correspondence expressly states that Ms Black would commence a period of annual leave with that leave ending on 13 April 2018 and her payment in lieu of notice then being made.

[14] Although Ms Black subsequently received a final payslip which recorded that her annual leave was paid on 5 April (for the pay period between 30 March 2018 and 5 April 2018), the payment of her entitlements at that time is not inconsistent with the employment ceasing at the end of a period of leave on 13 April 2018.

[15] It is clear from the Salon’s correspondence that Ms Black was on a period of annual leave until 13 April 2018.

[16] Ms Black has recorded the date that her dismissal took effect as 5 April 2018 in both her application and the materials filed. However, I accept that this is likely due to the fact that she considered her last day at work as the effective date of termination, rather than taking into account the period of leave.

[17] I find that the date the dismissal took effect was 13 April 2018.

[18] For the reasons I have set out above, I am satisfied that Applicant made the application within time.

[19] An Order¹ reflecting this decision will be issued.

[20] The matter will be allocated to a Western Australian Member for hearing on the merit.

COMMISSIONER

Appearances:

C Black and T Black, forthe Applicant.

C Casella and J Holben, the Respondent.

Hearing details:

2018.

Adelaide:

6 July.

Printed by authority of the Commonwealth Government Printer

<PR608843>

1 PR608844.