Charmaine Logan v Blue Tongue Electrical Pty Ltd T/A Blue Tongue Electrical

[2013] FWC 9847

[2013] FWC 9847

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Charmaine Logan
v
Blue Tongue Electrical Pty Ltd T/A Blue Tongue Electrical
(U2013/9622)

COMMISSIONER WILLIAMS PERTH, 18 DECEMBER 2013

Termination of employment - extension of time.

[1] This matter involves an application made by Mrs Charmaine Logan (Mrs Logan or the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Blue Tongue Electrical Pty Ltd T/A Blue Tongue Electrical (Blue Tongue or the respondent).

[2] The application states that Mrs Logan was dismissed on 29 April 2013. The application was made on 16 May 2013.

[3] The respondent however asserts that the applicant was dismissed on 17 April 2013 and so objects to the application on the grounds that it has not been made as required by the Act within 21 days after the dismissal took effect.

[4] The matter was listed for hearing to deal with the conflict between the parties as to the date of dismissal and to hear evidence and take submissions on whether, if an extension of time to make the application is required, this extension should be granted by the Commission.

[5] At the hearing of this matter Mrs Logan gave evidence as did Mr Taylor, a Director of the respondent.

Findings on the evidence

[6] Mrs Logan and Mr Taylor have given conflicting evidence particularly about the events of 17 April 2013.

[7] Having considered the evidence of Mrs Logan and Mr Taylor I make the following findings.

[8] Mrs Logan was first engaged by Blue Tongue on 26 May 2009 1. She was at this time engaged in the position of Administration/Accounts Assistant.

[9] The engagement initially was on the basis that Mrs Logan would be a contractor and she would use her Australian Business Number (ABN) and regularly invoice Blue Tongue for her services

[10] There is conflict in Mrs Logan’s own evidence as to whether this arrangement was proposed by her or was one she agreed to at the insistence of the Directors of Blue Tongue 2.

[11] The evidence includes an email from Mrs Logan dated 28 May 2009 to the respondent which asks two questions, firstly whether she could start on the Thursday and also:

“2. Would you consider me using my ABN and not a drawing a wage?”

[12] I am satisfied on the balance of probabilities that the arrangement that Mrs Logan would operate as a contractor was initiated by her, contrary to her original evidence in her Statutory Declaration that this was “...at the insistence of the directors...”.

[13] The arrangement between Mrs Logan and Blue Tongue changed a number of times. For a period she was being engaged only as a contractor. For another period she was being paid as a contractor for some hours and for the balance of her hours worked she was paid as an employee.

[14] It is not disputed by the respondent that at the time of dismissal the applicant was an employee of the respondent.

[15] Over the time of the applicant’s employment the business grew reasonably rapidly in terms of the number of people employed and the size of the contracts it was engaged in. The workforce increased from approximately 15 in 2009 to approximately 50 at the time the applicant was dismissed. Consequently the workload of the applicant increased over the period of her employment. Whilst the applicant did increase her total hours of work the respondent on a number of occasions also asked her to work full-time hours however she was not willing to do so.

[16] Extra staff were employed to assist in the office as the workload increased. In addition to the applicant the respondent employed another full-time person in the office from September 2012 through until April 2013 when this person resigned.

[17] The applicant was to take a period of annual leave from 18 April 2013.

[18] On Wednesday, 17 April 2013 the day before she commenced leave she was summoned to the Director’s office. Both Mr Taylor and Mr Webster, another Director of Blue Tongue, were present. There is some conflict about exactly what was said to the applicant.

[19] Mr Taylor says it was explained that the Directors had decided they did not want to continue with the part-time position that Mrs Logan occupied. The company had decided that rather than having one part-time position, the applicant, with a full-time assistant they would prefer to have one full-time accounts role. Mr Taylor said that they were conscious Mr Logan had previously declined invitations to work full-time and so they were doing away with her position and would be recruiting someone to replace her in the new full-time position 3.

[20] At this point the evidence of Mrs Logan and Mr Taylor is in conflict. Mrs Logan says she specifically asked whether she was being sacked and Mr Taylor replied “no” because they wanted her to come back for the two months after she returned from her holiday to train her replacement. She says at this point she became upset and the meeting adjourned and she went outside to compose herself. Her evidence is that she was then told by the Directors that she should leave early and she said to them that she would let them know whether or not she would be prepared to train her replacement.

[21] Mr Taylor’s evidence however is that after explaining that they were going to convert her position into a five-day week position she said she could not work the five days a week. Mrs Logan then became upset and went downstairs to compose herself. She then returned to the office and they discussed whether she would be willing to train her replacement and Mr Taylor and Mr Webster said that they would discuss that with her later as well as who was going to do the pays in the next fortnight.

[22] Mr Taylor’s evidence was that Mrs Logan was fairly upset and they said to her that “...we all now need to call it quits and go our separate ways”. His evidence was that it was made clear to her that she was dismissed.

[23] Mr Taylor told her he did not feel she should be driving home because she was upset and Mr Webster said in any event that she was not to take the company vehicle.

[24] Mr Taylor’s evidence is that later that day Mrs Logan telephoned him, apologised and told him that she was prepared to come back to train her replacement and if necessary that she should come in on the 29th to do the wages. Mr Taylor’s evidence was that he replied “...Thank you very much for that. We will call you if we need you.”

[25] Mr Taylor’s evidence was that thereafter he never called her 4.

[26] Mr Taylor that day changed all the passwords on the respondent’s computer server and Mr Webster rang a number of important people and emailed them to confirm she was no longer working for the respondent.

[27] Mrs Logan’s evidence regarding the phone call with Mr Taylor on 17 April 2013 is that she rang him and said she was prepared to come back to train her replacement and would be back in the office on 1 May 2013, however Mr Taylor asked her to cut short her holiday and he would like her back on 29 April 2013, which she agreed to.

[28] Mr Taylor’s evidence which is not contradicted is that the company got a replacement person from 24 April 2013 to process the payroll.

[29] The evidence is that the company placed an advertisement on the SEEK website for the new full-time position on 17 April 2013.

[30] I note that the evidence of the applicant was that during the meeting on 17 April 2013 Mr Webster asked if she could assist with the advertisement for her replacement 5.

[31] This evidence of the applicant is implausible given she left the respondent’s premises shortly after the discussion with the Directors and the evidence is the SEEK advertisement 6 was listed the same day.

[32] Following these events it was not until 29 April 2013 that the applicant returned to the respondent’s premises. She had a discussion that morning with Mr Webster another of the respondent’s Directors about her holiday. Mr Webster then asked her whether she had been spoken to by Mr Taylor recently. Mrs Logan told Mr Webster she had not. Mrs Logan’s evidence is that Mr Webster then told her that she was no longer required to train her replacement and that her “...employment with Blue Tongue was terminated with immediate effect.” Whether or not this is the case does not determine whether she had already been dismissed on 17 April 2013.

[33] Turning to consider then any evidence that supports one version of the critical events on 17 April 2103 over the other.

[34] Both witnesses agree that Mrs Logan on 17 April 2013 did not drive the company car home as she would have normally. Mrs Logan says that this was because she was upset however Mr Taylor says that what occurred was his fellow director Mr Webster made it clear to Mrs Logan that she was not able to take the company car home because it was company property. Mrs Logan’s husband was contacted and came and picked her up. Either of the parties’ explanation of these events is plausible.

[35] On 17 April 2013 Blue Tongue posted a job advertisement on the SEEK website for a full-time Office Manager. In my view this evidence does not support either party in terms of the date of dismissal.

[36] On 17 April 2013 Mr Webster sent an email at 2.10 p.m. to a number of persons including the respondent’s bankers advising that “...Until further notice all correspondence regarding myself, Alan Taylor, Blue Tongue Electrical is sent to my email address...Due to some unforeseen circumstances Charmaine Logan no longer works for bluetongue electrical.

All account queries to be directed to myself or Rob.”

[37] Unambiguously this demonstrates that the second Director in the business Mr Webster was of the same understanding as Mr Taylor that the applicant had been dismissed on 17 April 2013. This email strongly supports the respondent’s version that Mrs Logan was dismissed on 17 April 2013.

[38] Between 17 April 2013 and 29 April 2013 the applicant received a number of phone calls on her company mobile phone regarding business matters. Because the applicant had been the sole person responsible for the respondent’s accounts and office administration these phone calls do not necessarily indicate that she was still employed as she asserts but rather that she alone held information the respondent would need in the future and so contacting her about these matters was unavoidable. In my view this evidence does not support either party in terms of the date of dismissal.

[39] No steps were taken by either Director on 17 April 2013 to have the applicant return any of the respondent’s keys, such as to their post office box, or any other items of the respondent’s such as her Bunnings store card and the mobile phone supplied and paid for by the respondent. On 29 April 2013 the respondent’s receptionist sent a text message to the applicant telling her that her mobile phone sim card would be swapped so she could no longer use the respondent’s mobile phone account.

[40] The applicant submits that this evidence indicates that she remained employed up until 29 April 2013 however it is clear from the evidence generally that the respondent was not a highly organised business. It was a small business that had grown quickly. The administrative disciplines that might be expected in a large organisation where employees who are dismissed are the same day required to return all company property were unsurprisingly not present in this case and so this evidence does not support either version of the date of dismissal.

[41] Largely it is the evidence of the applicant versus the evidence of Mr Taylor which will determine this matter. Their evidence differs on the whether she was effectively told on 17 April 2013 that she was dismissed on that day or not.

[42] The applicant gave her evidence in a certain but at times quite forceful manner. Some of her evidence however was deliberately self serving such as her evidence in chief that it was at the Director’s “insistence” that she started as a contractor, tendering invoices using her ABN number, which is evidence she contradicted under cross examination and which her own email dated 28 May 2009 contradicts showing it was she who was suggesting to the respondent this be the arrangement.

[43] Other aspects of Mrs Logan’s evidence are also incorrect. Her evidence that at the meeting with the Directors on 17 April 2013 she was asked by Mr Webster to assist in the advertisement for her replacement is inconsistent with the fact that an advertisement which she had no involvement in was listed on the SEEK website the same day. In addition the applicant’s evidence that Mr Webster on 29 April 2013 told her that she was “terminated with immediate effect” is implausible in the face of Mr Webster’s unambiguous statement in his email of 17 April 2013 that this was the date she no longer worked for Blue Tongue.

[44] Mr Taylor by comparison gave his evidence in an open manner without guile, readily admitting both his and the respondent’s failings. There were no apparent inconsistencies between his evidence and any of the documentary supporting materials.

[45] Having considered both witnesses and the evidence of Mr Webster’s 17 April 2013 email, I have decided that I prefer the evidence of Mr Taylor over that of the applicant. I am satisfied that on 17 April 2013 Mrs Logan was told that the respondent wanted to replace her part-time position and the assistant position with a single full-time accounts position and that consequently the Mrs Logan’s position was no longer required as of that date and they would be advertising for a replacement.

[46] Further I find that later that day Mrs Logan rang and spoke to Mr Taylor. In that conversation Mrs Logan said she was prepared to come back to train her replacement and would come in on the 29th to do the wages if necessary and that in reply Mr Taylor said that they would call her if they needed her. The evidence is that the respondent did not subsequently ring Mrs Logan and request that she come in to do the wages or train her replacement.

[47] I am satisfied then that Mrs Logan was dismissed by the respondent on 17 April 2013 and understood, or should have, that her dismissal was effective as of that date.

Should a further period for the application to be made be allowed?

[48] Section 394 of the Act, set out below, prescribes that an application for unfair dismissal remedy must be made within 21 days after the dismissal took effect.

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.”

[49] The dismissal took effect on 17 April 2013 and the application was made on 16 May 2013. The application has not been made within 21 days after the dismissal took effect as required.

[50] Section 387 (3) of the Act empowers the Commission to allow a further period for the application to be made if satisfied there are exceptional circumstances. The provision also details particular matters that are to be taken into account in considering whether there are exceptional circumstances.

Are there exceptional circumstances?

[51] The applicant submits that the date of the dismissal was never made clearly known to the applicant. No notice in writing was ever provided citing the date and reasons for the termination. The applicant continued to carry out work related matters for the respondent after 17 April 2013.

[52] My findings on the evidence are that Mrs Logan was dismissed on 17 April 2013 and understood her dismissal was effective as of that date.

[53] The applicant has not provided any acceptable reason for the delay in making the application.

[54] The applicant was aware of her dismissal on the date it took effect 17 April 2013. I do not accept the submission of the applicant’s representative that her payslips support her belief that she was dismissed on 29 April 2013.

[55] It appears the applicant did take some action to dispute her dismissal in the sense of taking advice about her situation. I do not accept the applicant disputed the fairness of her dismissal in her email to the respondent on 3 May 2013. This email was limited to her views about entitlements the respondent owed.

[56] I do not accept there would be any material prejudice to the respondent if the Commission was to extend the time for Mrs Logan to make this application.

[57] In terms of merit, the respondent’s argument is that the position Mrs Logan held is no longer required. If this is the case then it is likely it will be held there was a valid reason for the dismissal however more would need to be demonstrated to satisfy the Commission that the dismissal was a genuine redundancy, as defined in the Act, and consequently that there is no jurisdiction for the applicant to pursue her claim.

[58] Separately the allegations the respondent has made that the applicant has defrauded it in a number of ways over the course of her employment whilst appearing to have some substance on their face can only be judged after a full hearing of the matter, which is beyond the scope of an extension of time applications such as this.

[59] There clearly are very significant hurdles for the applicant to succeed in her substantive unfair dismissal application and I conclude that there is little merit in the applicant’s case.

[60] Fairness between the applicant and other persons is not relevant in this instance.

Conclusion

[61] In my view there is nothing before the Commission to persuade me that there are exceptional circumstances in this case that would warrant additional time being allowed to the applicant to make her unfair dismissal application.

[62] The application was not made within the statutory 21 day time period and consequently cannot proceed and will be dismissed. An order to that effect will now be issued in conjunction with this decision.

COMMISSIONER

Appearances:

H Kremer, representative for the applicant.

J Brits, representative for the respondent.

Hearing details:

2013.

Perth:

November 19.

 1   Exhibit R1.

 2   Exhibit A2 at paragraph 5 versus Transcript at PN79 - PN84.

 3   Transcript at PN385 - PN396.

 4   Ibid., at PN526.

 5   Ibid., at PN30.

 6   Exhibit A5.

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