Charlotte Barraclough v Origin Energy

[2019] FWC 6413

[2019] FWC 6413

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Charlotte Barraclough
v
Origin Energy
(U2019/6281)

COMMISSIONER YILMAZ MELBOURNE, 20 SEPTEMBER 2019

Application for an unfair dismissal remedy - application lodged out of time - whether exceptional circumstances - application dismissed.

Introduction and background

[1] This decision concerns a jurisdictional objection raised by Origin Energy Limited (the Respondent) to an application by Ms Charlotte Barraclough (the Applicant) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Cth) (the Act). The application was made on 6 June 2019.

[2] The Applicant was employed by the Respondent as an Inbound Sales Consultant on 1 May 2017 and in September 2018 was appointed to the role of Specialist Consultant.

[3] On 9 May 2019, the Applicant received a letter from the Respondent informing her that she was not required to attend work while an investigation was conducted into allegations relating to her conduct and that she would be paid for that period. 1 The Applicant was informed that she would receive a letter of allegation as well as enough notice to attend a formal meeting and bring a support person if required.2 The alleged conduct in question related to making inappropriate use of the company’s Skype for Business and email communication tools and falsification of sales records to provide herself and other employees with a financial advantage.

[4] On 14 May 2019, the Applicant attended a meeting with Ms Cassandra Keep, Sales Manager, and Mr Andrew Smith, People & Culture Consultant. The allegations against the Applicant were put to her and she was asked to respond. The Applicant claims she was not given any of the evidence that the Respondent had in relation to the allegations prior to the meeting of 14 May 2019. At the conclusion of the meeting, the Applicant was invited via email to an outcomes meeting scheduled for 15 May 2019 to discuss the outcome of the investigation. The header of the email invitation provides that the meeting will occur on 15 May 2019, however, the body of the email erroneously states the outcome meeting is scheduled for 16 May 2019. 3

[5] On 15 May 2019, the Applicant attended the outcomes meeting with Ms Cassandra Keep and Mr Andrew Smith. The Applicant was informed that her employment would be terminated and was provided with a written Letter of Termination dated 15 May 2019. 4 The Letter of Termination provides that the Applicant will be paid two weeks’ pay in lieu of notice and confirms the date of termination as Wednesday 15 May 2019.5

[6] The Applicant claims that because she was still suspended on 15 May 2019, the termination does not take effect until the following day, that being 16 May 2019. 6 The Applicant further claims that the invitation to attend the outcomes meeting confused her because the body of the email referred to 16 May 2019 and not 15 May 2019.7

[7] It is clear from the evidence before me and the Letter of Termination provided to the Applicant that the date of termination occurred on 15 May 2019 and had effect on the same day.

[8] The Applicant filed her unfair dismissal claim on 6 June 2019, which was one day after the statutory 21-day limit.

[9] The Applicant claims her dismissal was unfair, and the allegations made against her were inaccurate as she did not obtain any financial gain for herself and she did has not receive prior warnings in relation to her conduct.

The Applicant’s submissions

[10] The Applicant submits that on 8 May 2019, she was suspended from employment pending a formal meeting. 8 The suspension was due to allegations of fraudulent conduct to obtain financial gain through deception9 and the sending of inappropriate messages using the company’s communication tools.10

[11] On 9 May 2019, the Applicant submits she was invited to a formal meeting scheduled for 14 May 2019 but was not provided with any evidence relating to the allegations against her. During the meeting, the Applicant submits she apologised for the “deceptive conduct” 11 and explained that she was unaware that staff were not permitted to give sales away. She claims that the allegation is unfounded as she gave the sale away to a colleague so they could receive the commission from the sale, and that she received no financial gain as an outcome.

[12] In respect to the allegation of inappropriate messaging, the Applicant claims that none of her messages on Skype for Business or otherwise were in anyway inappropriate and that the Respondent could not explain to her how her messages were inappropriate. 12 She also submits that staff were told they could use the Skype for Business function for personal use.

[13] The Applicant submits she was informed of her dismissal on 15 May 2019. 13 The Applicant submits the reasons for her dismissal were unfair because the conduct she was accused of was common practice in the workplace.14 The Applicant also contends that the Respondent has not terminated other staff in the inbound sales team who have also shared sales, rather the commission was taken away from the recipient. The Applicant submits that prior to her termination of employment, she had no prior warnings.

[14] The Applicant asserts that her application for an unfair dismissal remedy is not out of time as the dismissal did not take effect until 16 May 2019. 15

The Respondent’s submissions

[15] The Respondent submits that in a meeting on 15 May 2019, the Applicant was verbally informed that her employment was terminated effective immediately and the Letter of Termination confirmed the termination of employment effective on and from 15 May 2019. The Respondent adds that the date of termination was clear and unambiguous. 16 The Respondent claims that the Applicant has provided no basis to support the assertion that because she was suspended at the time of the meeting on 15 May 2019, her dismissal did not take effect until the next day.17

[16] The Respondent submits that the statutory 21-day limit should be stringently enforced, unless there are exceptional circumstances. The Respondent submits the Applicant has not alleged exceptional circumstances for the purposes of s.394(3) of the Act. 18

Consideration

[17] On 16 August 2019, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application. The Respondent sought leave for legal representation, and I granted leave to Johnson Winter & Slattery.

[18] At the hearing it was not contested that the Applicant’s employment was terminated effective from 15 May 2019. However, the Applicant contends that as she was suspended, the termination in her view took effect from 16 May 2019. If that is correct, she submits that her application was submitted within the 21-day timeframe.

[19] Section 394(2) of the 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 s.394(3).

[20] The application was filed one day out of time.

[21] However, s.394(3) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(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 termination; and

(d) Prejudice to the employer; and

(e) Merits of the application; and

(f) Fairness between the person and other persons in a similar position

[1] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 19 where it was held that:

“To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” 20

[2] I now turn to the Applicant’s arguments for an extension of time in relation to each of the considerations of s.394(3).

The reason for the delay

[3] The Applicant argues that she became confused over the date of termination because the invitation for the 15 May 2019 meeting had within the notes section the date of 16 May 2019. Nonetheless, the Applicant believes her application was filed within the 21-day time period.

[4] Further, the Applicant submits her priority was to find alternative work before pursuing her unfair dismissal claim. 21 She also claims that on or about 21 May 2019, she contacted the Young Workers Centre to seek advice before she lodged her application.22 She submits that the Young Workers Centre did not get back to her until a few days before the 21- day deadline and that they informed her they were not able to assist her with her claim.23

[5] The Respondent submits that the Applicant’s explanation for her confusion does not constitute exceptional circumstances and in any event, she could have referred to her letter of termination of employment that is “unambiguous” 24. The Respondent claims that it is the Applicant’s inaction in not confirming the date of her dismissal and not diligently prosecuting her Application that has resulted in her not filing her Application within the statutory time period.25

[6] Having considered the submissions and evidence before me, I am not satisfied that the Applicant has made out an acceptable explanation of the reason for the delay in lodging the application out of time. The explanations by the Applicant do not constitute exceptional circumstances, she admits her priority was to find work rather than advance her unfair dismissal claim, she failed to consult her termination letter (she admitted to searching through her emails to recall her termination of employment date instead of referring to her termination letter) 26 and she merely submitted that she tried to obtain advice unsuccessfully.

[7] The Applicant’s reasons for the delay do not weigh in favour of a finding that there are exceptional circumstances.

[8] Nevertheless, all factors in s.394(3) must be considered in determining whether there are exceptional circumstances.

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

[9] It is not in contention that the Applicant was informed on 15 May 2019, that her termination of employment was effective immediately.

[10] In my view, the Applicant chose not to prioritise her unfair dismissal claim within the 21-day statutory limit over finding alternative work. Therefore, this consideration cannot weigh in her favour.

Action taken to dispute the dismissal

[11] The Applicant submits she disputed her dismissal in strong terms when she was dismissed. She says she told her employer that her dismissal was harsh, unjust and unfair as she was dismissed while others participating in the “common practice” 27 were not dismissed.

[12] The Applicant did nothing further to dispute her dismissal other than file the application. This consideration for an extension of time does not weigh in favour of the Applicant.

Prejudice to the employer

[13] The Applicant submits that the Respondent is a very large company and is not self-represented, therefore the lateness of the application will not cause disadvantage or unfairness to the employer. 28

[14] The Respondent does not argue prejudice, but submits, the mere absence of prejudice is not sufficient to grant an extension of time.

[15] I agree with the submissions of the Respondent and I find this to be a neutral consideration.

Merits of the application

[16] There is no contention between the parties regarding the reason for the termination of employment. However, the Applicant describes the reason for the termination of her employment as supposed fraud by deception for financial gain 29. The Applicant also submits she did not obtain financial gain from the conduct. Nevertheless, it is an uncontested fact that the Applicant gave her sale to a colleague so that the colleague would benefit from a commission of which he/she was not entitled to.

[17] The Applicant also contests why she was dismissed while she says others who had engaged in the same conduct were not. She submits her behaviour was common practice among the inbound sales team.

[18] The Respondent submits that the Applicant was terminated for misconduct as the Applicant participated in an arrangement with a small group of employees that swapped sales between each other to allow one or more participants to earn commission to which they were not entitled. 30

[19] The Respondent accepts that the merits of the dismissal and the procedure were not tested, therefore no determination concerning merit can be made. Accordingly, the merits of the claim are a neutral consideration.

[20] In the absence of testing of the merit, I do consider this to be a neutral consideration.

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

[21] The Applicant submits that she was not treated equally to other employees in a like situation. She submits that other employees that swap sales in the inbound sales team are not dismissed and have the commission removed from them.

[22] However, the Respondent submits that the Applicant was one of a number that were dismissed for the same conduct. 31 The Respondent submits that three other employees lodged applications under the Act within the statutory timeframe, while the Applicant did not.32

[23] Both parties made submissions in relation to this consideration, however insufficient evidence was advanced so that I may determine the weight of this consideration. Given the conflicting submissions concerning fairness with others in a similar position, I consider this to be a neutral factor.

Conclusion

[24] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. To extend the statutory time frame of 21 days is a high bar.

[25] Having considered the evidence and submissions against each of the considerations in s.394(3), I am not satisfied that on balance there are exceptional circumstances for the extension of time to file the application for an unfair dismissal remedy. Accordingly, the application is dismissed. An order to this effect will be issued separately.

COMMISSIONER

Appearances:

Ms C Barraclough on her own behalf

Mr E Mentiplay for the Respondent

Hearing details:

2019

Melbourne (telephone hearing)

16 August.

Printed by authority of the Commonwealth Government Printer

<PR712409>

 1   Affidavit of Cassandra Keep at CK-1.

 2   Ibid.

 3   Ibid at CK-2.

 4   Ibid CK-3.

 5   Ibid.

 6   Applicant’s Amended Outline of Argument filed 23 July 2019 at Q3 and Applicant’s Oral Submissions.

 7   Applicant’s Oral Submissions.

 8   Witness Statement of Charlotte Barraclough at pg 5.

 9   Ibid; Applicant’s Form F2 at Q3.

 10   Applicant’s Form F2 at Q3.

 11   Witness Statement of Charlotte Barraclough at pg 5.

 12   Ibid.

 13   Ibid; Applicant’s Amended Outline of Argument filed 23 July 2019 at Q3.

 14   Applicant’s Amended Outline of Argument filed 23 July 2019 at Q5.

 15   Ibid at Q3, Q4.

 16 Respondent’s Outline of Argument filed 29 July 2019 at [10].

 17 Ibid at [8].

 18 Ibid at [16].

 19   [2011] FWAFB 975.

 20 Ibid at [13].

 21   Applicant’s Oral Submissions.

 22   Ibid.

 23   Ibid.

 24 Respondent’s Outline of Argument filed 29 July 2019 at [19].

 25 Ibid at [21].

 26   Applicant’s Oral Submissions.

 27   Applicant’s Amended Outline of Argument filed 23 July 2019 at Q5.

 28   Ibid at Q6.

 29   Applicant’s Outline of Argument filed 23 July 2019 at Q7.

 30 Respondent’s Outline of Argument filed 29 July 2019 at [34].

 31 Ibid at [37].

 32   Ibid.