Cheryl Golding v Woolworths Limited T/A Woolworths Supermarkets

[2015] FWC 4977

[2015] FWC 4977 [Note: An appeal pursuant to s.604 (C2015/5558) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

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

Cheryl Golding
v
Woolworths Limited T/A Woolworths Supermarkets
(U2015/7093)

COMMISSIONER WILSON MELBOURNE, 23 JULY 2015

Application for Unfair Dismissal Remedy; extension of time for the making of application; application refused.

[1] This matter concerns an application made by Cheryl Golding alleging unfair dismissal against her former employer, Woolworths Limited, trading as Woolworths Supermarkets. Ms Golding’s application to the Fair Work Commission was first received in the Commission by email on 23 April 2015, and the application discloses that the date upon which her dismissal took effect is 26 March 2015.

[2] Section 394(2) of the Fair Work Act 2009 (the Act) requires an unfair dismissal application to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). It is apparent from the dates referred to above that the application is 7 days out of time.

[3] In this decision, I have considered whether an extension of time should be granted to Ms Golding for the making of her application, and for the reasons set out below, I am not satisfied that a further period should be allowed for the making of her application.

[4] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires I must be satisfied that there are exceptional circumstances for the making of the application taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.2

[5] The Respondent, Woolworths Supermarkets, objects to the application continuing given that it was commenced after the statutory period for the making of an unfair dismissal application and that the circumstances of the matter are such that an extension of time should not be granted.

[6] Those circumstances include that Ms Golding was first employed as a shop assistant, initially at Woolworths Albany and then at another store, Woolworths Bayonet Head also in Albany, WA. Ms Golding’s application states that she was first employed on 20 February 2006, whereas the Respondent contends Ms Golding’s commencement date was 22 February 2006.

[7] There has been a history of performance management issues involving Ms Golding since August 2014, with the employer referring to a number of discussions and formal counselling sessions and other interventions with Ms Golding. Her store manager, Matthew Russell, gave evidence that there had been an altercation between he and Ms Golding in November 2014; that there had been a meeting between the two in December 2014 regarding missing stock markdowns and her behaviour towards staff and other matters; and in January 2015 there had been a need to address Ms Golding’s performance in the role of shrinkage assistant which in turn led to counselling and commencement of a performance improvement plan (PIP) process. Mr Russell records these matters in his witness statement in the following way;

“On the 07/01/15 Cheryl's performance in the role of shrinkage assistant was not meeting company expectations so her performance was addressed by Maria Tait (Assistant Store Manager). Cheryl unleashed a torrent of abuse at Maria in front of other staff and customers during trade. Cheryl walked out and left a holiday form at the service desk requesting leave. When Cheryl returned to work on the 08/01/15 we had a performance discussion to address her misconduct, also present was Maria Tait and Christine Pallet. Cheryl was placed on a performance improvement plan to address her behaviour and issued a first warning letter for misconduct. Cheryl was also read the code of conduct, asked to read it and then signed the document. During this meeting Cheryl requested to no longer continue in the role of shrinkage assistant and work on checkouts instead. After consideration and addressing the issues with Cheryl from previously documented performance issues in this role I offered her time to think through. I also outlined Woolworth's expectations for a checkout operator role. Cheryl signed a document stating that she wished to return to checkouts on the 09/01/15.

On the 11/02/15 Cheryl received a performance review which issues pertaining to her initial performance improvement plan were to be addressed, also present at this meeting was Maria Tait and Christine Pallet. In the time between 09/01/15 and 11/02/15 new issues had become apparent in Cheryl's performance as a checkout operator. Cheryl had recorded three register shorts in that period and received both a customer compliment and customer complaint about her service. Cheryl had been made aware of these at the times they occurred. A revised performance improvement plan was created to address these new performance issues in this meeting.

On the 25/02/15 a scheduled performance meeting to address Cheryl's performance improvement plan took place, also present was Maria Tait and Cheryl denied  having a witness. In that two week period four customer complaints had been received and Cheryl had recorded a register short again by $20. In this meeting and after consideration it was made very clear to Cheryl that if her performance did not improve in these areas there would be further disciplinary consequences.
On the 11/03/15 the next scheduled performance meeting took place with Cheryl, also present was Maria Tait and Cheryl denied having a witness. At this meeting 3 new customer complaints were addressed. After two days of consideration and in consultation with Michelle Dropulic (Human Resources Specialist) I scheduled another meeting with Cheryl on the 13/03/15. In this meeting I issued Cheryl with a final warning letter.”

[8] From Mr Russell’s perspective there was no improvement in these matters during March, and towards the end of the month, on 23 March 2015, a customer made a complaint to him about Ms Golding’s customer service. That in turn led to a performance meeting with Ms Golding which was held initially on 25 March and resumed on 26 March 2015. In the course of that meeting and after a break was taken by the participants, Mr Russell informed Ms Golding that her employment had been terminated. She was subsequently issued with a termination letter dated 28 March 2015. The letter of termination provided by Woolworths Supermarkets records following:

“On 25/02/15 and 13/03/15 we met with you to discuss the Company's concerns about your performance not meeting the company's expectations. During our meeting on both occasions, we informed you that if your performance/conduct did not improve, your employment may be terminated.

On 25/03/15, you attended a meeting with Matthew Russell and Rebecca Sharland about your performance. At this meeting, we informed you that your performance/conduct was still unsatisfactory as set out in the attached document. During this meeting I then informed you that the Company was considering terminating your employment and gave you the opportunity to comment on and respond to the issues raised.

After considering all of the matters discussed, I confirm that the Company decided to terminate your employment with effect from 26/03/15, as a result of your failure to improve your performance/conduct to meet the standards expected by the Company.”

[9] Ms Golding addresses these matters in her unfair dismissal application by putting forward that the number of complaints received against her were not unreasonable; that the introduction of the PIP process made the problem bigger than it was; and that the process attached to the PIP was unfair or weighted against her; and that in overall terms she considered the complaint against her amounted to bullying. Her conclusion on these matters is that it seemed to her “it takes only a few … negative comments to have a big effect”.

[10] The evidence before me includes the documents filed by both parties in preparation for the hearing of the matter, and the oral evidence of;

• Ms Golding, the Applicant;



• Michelle Dropulic, HR specialist – Woolworths Supermarkets W.A., on behalf of the Respondent; and



• Matthew Russell, store manager – Albany Brooks Garden, on behalf of the Respondent.

[11] The material before me confirms that the circumstances by which Ms Golding’s employment ended are essentially the matters set out in the letter of termination provided to her and dated 28 March 2015.

[12] For the purposes of s.396 of the Fair Work Act 2009 (the Act), Ms Golding is otherwise a person protected from unfair dismissal and the Small Business Fair Dismissal Code has no application to her circumstances.

EXTENSION OF TIME

[13] The Act requires that, in deciding whether to grant an extension of time, the Commission must be satisfied that there are exceptional circumstances taking into account six criteria set out in s.394. Consideration of whether there are exceptional circumstances requires consideration of all the circumstances, with it being well established that “[t]o 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”. 3

[14] In considering whether an extension of time should be granted to Ms Golding, I am required to consider all of the criteria in s.394, which I now do.

Consideration of the factors set out in section 394(3) of the Act

1. The reason for the delay

[15] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend. 4 An applicant needs to provide a credible reason for the whole of the period that the application was delayed.5 The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.6

[16] In this regard it is relevant to explain that the 21 days for lodgement does not include the date that the dismissal took effect, and the first day of the period commences on the day following the dismissal. If the final day of the 21 day period falls on a weekend or on a national public holiday (where the Commission is closed) the timeframe will be extended until the next business day. However, public holidays or weekends that fall during the 21 days will not extend the period of lodgement. 7

[17] Ms Golding’s evidence is that the reason for the delay in her making the application to the Fair Work Commission is that immediately after the termination she gave her family her priority. At or around the same time her husband was told he would also lose his job with another employer and for unrelated reasons. As a result she was very concerned about the consequences of her own loss of employment. The fact that she had been dismissed “threw her into a loop and put her head into a spin”. While she knew that there was the possibility of challenging her dismissal through the unfair dismissal process, she needed to speak to someone in the Fair Work Commission about the matter which required her to travel, it appears to Perth, in order to speak with someone who could assist. Ms Golding’s evidence in this regard is very unclear and she was unable to precisely indicate to me the person or organisation to whom she had spoken or when that may have been. Her evidence appears to indicate that she initially spoke to a person who provided her with the relevant form, which she took some time to complete and return to the Fair Work Commission.

[18] In her oral evidence Ms Golding was unable to point to any precise reason for the lateness of the application, however her written submissions to the Commission on the subject of extension of time indicates that she may have miscalculated the time period for the making of an application by omitting weekends and public holidays from the time period allowed.

[19] Insofar as the impact of weekends and public holidays are concerned, it is of course to be noted that within the period between the time of Ms Golding’s dismissal on Thursday, 26 March 2015, and the date on which the application was received by the Fair Work Commission, being Thursday, 23 April 2015, there were not only the usual weekend periods but also the public holidays around Easter.

[20] The “delay” to be considered in this case is the period it took after the 21 day prescribed period for Ms Golding to lodge her application. In all, that period was a total of 7 days, being the period after Thursday, 16 April 2015 which was the last date by which lodgement of her unfair dismissal application would have been within the prescribed 21 day period.

[21] I find that Ms Golding’s explanation about the prioritisation of her family, together with her possible confusion about the inclusion or otherwise of weekend and public holidays within the period for the making of an unfair dismissal application as being her explanation for her delay in making an application to the Commission.

[22] I also take into account that Ms Golding may have been quite distressed about her termination, which in itself is not an unusual factor, and that she may have some personal organisational difficulties which may have precluded her from being as diligent as she could in pursuing the question of her rights and whether an unfair dismissal application could be made by her. However these matters are not unusual in themselves and do not otherwise amount to acceptable reasons for the delay in making an application.

[23] As a result of these circumstances, I consider an acceptable reason has not been put forward for the delay by Ms Golding in making an unfair dismissal application. Accordingly, this criterion does not resolve in her favour in my consideration of whether an extension of time for filing should be granted.

2. Whether the person first became aware of the dismissal after it had taken effect

[24] On the basis of the evidence before me, I am satisfied that Ms Golding first became aware of the termination of her employment on 26 March 2015, and that the reasons for her termination were advised to her through a letter dated 28 March 2015, which she received on or close to that date. This is therefore not a circumstance where Ms Golding only became aware of her termination at some point after the time that it occurred. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

[25] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time. 8

[26] The only action taken by Ms Golding to dispute her dismissal was to make an application for unfair dismissal.

[27] Ms Golding’s evidence was imprecise about when she sought out advice or information about making an unfair dismissal application. As a result, I am unable to determine whether that action was taken shortly after her termination or very close to the time that she made the application, or somewhere in between.

[28] In the circumstances of this matter, I take the view that consideration of this criterion resolves in favour of the Respondent.

4. Prejudice to the employer (including prejudice caused by the delay)

[29] The delay in the filing of the application is 7 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time.

[30] While there has been prejudice and disruption to the employer already with these proceedings, there is likely to be further prejudice if I were to grant the extension of time. Balanced against this is the probability that a full merits proceeding is not likely to bring forward much additional material to that already before the Commission. It is acknowledged that the process of having to respond to an unfair dismissal application itself creates some prejudice to the former employer. However the consideration of the Commission in relation to this criterion is a consideration as to prejudice beyond this usual requirement of having to respond to the claim. The presumption is that in the event an employer claims that there will be prejudice arising from the extension of time, the employer must produce evidence to demonstrate prejudice. In the event that such evidence is brought forward, the employee would then need to demonstrate that the facts as shown by the former employer do not amount to prejudice. 9

[31] In relation to this matter, there is no evidence before the Commission that there would be undue prejudice to the former employer if an extension of time is to be granted.

5. The merits of the application

[32] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

[33] The material before the Commission at this time discloses that there had been significant discussion between Woolworths Supermarkets and Ms Golding in the 6 months prior to her dismissal and that there had been several occasions in the course of 2015 when significant conversations were had with Ms Golding about her work performance. While the evidence of the Woolworths witnesses has not yet been tested, the witness statements they have provided would indicate that there is a significant defence on the part of the Respondent to the allegation made by Ms Golding that she has been dismissed unfairly.

[34] In relation to the Commission’s consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead the Commission’s consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient. 10

[35] Having regard to all of the material on the file at this time, I consider that this criterion resolves in favour of the Respondent.

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

[36] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past. 11

[37] In applying Ms Golding's facts to this criterion, it is my view that fairness to other unfair dismissal applicants in similar circumstances to her would give rise to an expectation that there had been some process of diligent inquiry or dispute by her not long after the dismissal. However, this is not clearly the situation in Ms Golding’s case.

[38] Taking into account all relevant factors, and principally for the reason that I do not consider there to be an acceptable explanation for the delay in Ms Golding making her unfair dismissal application, I am not satisfied there are exceptional circumstances that would warrant allowing a further period for the making of her application for unfair dismissal remedy. In forming this view I have given consideration not only to the particular circumstances of Ms Golding's case but also to the criteria set out within s.394(3) of the Act.

[39] For these reasons, I decline to grant an extension of time pursuant to s.394 of the Fair Work Act and will issue an order dismissing Ms Golding’s application as being out of time.

COMMISSIONER

Appearances:

Ms C Golding on her own behalf

Ms P Hartley, Ms M Dropulic and Mr M Russell for the Respondent

Hearing details:

2015.

Melbourne

24 June (by telephone)

 1   Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations[2014] FWCFB 2288 at [21]

 2   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287, at [9]

 3   Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation[2007] AIRC 848

 4   Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 5   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers (2010) 197 IR 403, 408‒409

 6   Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287

 7  

 8  

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

 9  

Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited (2003) PR927201 [16].

 10  

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

 11  

Wilson v Woolworths [2010] FWA 2480, at [24]‒[29]

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