Chloe Von Fahland v Mackay Golf Club Inc
[2024] FWC 636
•11 MARCH 2024
| [2024] FWC 636 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Chloe Von Fahland
v
Mackay Golf Club Inc
(U2024/300)
| COMMISSIONER DURHAM | BRISBANE, 11 MARCH 2024 |
Application for an unfair dismissal remedy – whether to extend time – extension granted.
On 9 January 2024, Ms Chloe Von Fahland (Ms Von Fahland/the Applicant) made an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy. It is contested that the employment relationship was ended by Mackay Golf Club Inc (the Club/The Respondent) on 17 December 2023.
Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) states 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 section 394(3). As the Applicant lodged her application on 9 January 2024, and the date of the dismissal, as provided in the application was 17 December 2023, she was two (2) days out of time.
In order for the application to proceed, Ms Von Fahland requires the Commission to grant a further period of time within which to bring her application.
I issued directions on 19 January 2024, for the parties to file their material. The question of whether to grant additional time was dealt with at a Determinative Conference/Hearing on 13 February 2024. Ms Von Fahland represented herself and Mrs Jasmin Evans represented the Respondent.
Ms Von Fahland did not call any witnesses, however Mr David Roche (General Manager) and Ms Kathleen Geoghegan (Food and Beverage Manager) provided oral evidence for the Respondent and were subsequently cross examined by Ms Von Fahland.
All the material relied upon by both the Applicant and Respondent has been taken into consideration.
Having considered the evidence and submissions of the parties, and the factors in s.394(3) of the Act, I am satisfied that there are exceptional circumstances to allow a further period for the application to be made. My detailed reasons follow.
Background and timeline
Ms Von Fahland was employed by the Club on 24 October 2020 as a casual Food and Beverage Attendant.[1] On or around 9 November 2023 Ms Von Fahland noticed that the Club had advertised for a full time permanent supervisor.[2] Ms Von Fahland states that this prompted her to contact the Fair Work Ombudsman, regarding her rights.[3] Ms Von Fahland states that she was advised that she was entitled to make a request to her employer to be converted from a casual to a permanent employee.[4]
On 10 November 2023, Ms Von Fahland wrote to Mr Roche, formally requesting that her casual role be converted to a permanent full-time position.[5] On 18 November 2023, Ms Von Fahland met with Mr Roche who advised that they were willing to convert her.[6] She was provided with a contract, dated 17 November 2023, which stated that her remuneration would change to $29.30 per hour, a reduction of $6.55 on her base rate, as well as the removal of the casual loading. This resulted in her take home pay decreasing by $15.51 per hour as Ms Von Fahland states she worked at $35.85 per hour or $44.81 per hour with casual loading. [7] I do note, according to the Club, Ms Von Fahland was being incorrectly overpaid since 28 August 2023.[8] Ms Claire Chapman (Admin Financial Officer), advised Ms Von Fahland of this via email (undated) that her casual hourly base rate was $28.89, but is $35.85 with casual loading of 25%, and not $44.81.[9] In a subsequent email, Ms Chapman corrected this and advised that Ms Von Fahland’s casual hour rate was $36.11 including 25% casual loading.[10] Ms Chapman sent a further email to Ms Von Fahland apologising and asking her to disregard her previous email providing the following breakdown of her rates:[11]
“Your rates are as follows:
Rate before award increase on 1st July 2023 - $27.16 per hour or $33.95 including 25% loading.
Rate after award increase of 5.75% - $28.72 or including 25% loading is $35.90 per hour.
Your rate is $0.89c per hour more than the level 5 award.This means that the Club has overpaid a total of $3600.35 since the 3rd September pay until the 12 November.”
The contract noted that Ms Von Fahland was to respond to the offer by 1 December 2023,[12] however I note at this point that this is not in adherence with section 66D of the Act, which affords an employee 21 days to either accept or decline an offer of casual conversion. Given the offer was provided to Ms Von Fahland on 18 November 2023, she was entitled to consider the offer until 9 December 2023.
On 9 December 2023, still within the 21-day period afforded by section 66D of the Act, Ms Von Fahland met with Mr Roche again to discuss the offer. During this meeting, Ms Von Fahland raised her concerns with the impact of the reduced hourly rate and asked if the Club would consider an increase of $1.50 in her hourly rate.[13] Ms Von Fahland also provided Mr Roche with a marked up copy of the contract, highlighting several errors including: [14]
her length of service (12 months instead of 3 and a half years),
the duties she performed,
that the date she had to respond had already passed (1 December 2023), and
that two pages were missing from the contract.
Mr Roche undertook to review the contract to address the errors, stating that he would get back to Ms Von Fahland regarding the rate of pay after he had discussed it with the Board.[15]
On 12 December 2023, Ms Von Fahland was advised by Mr Roche that the Board had not approved her request for an increase in her rate.[16] Subsequently, she was handed a second casual conversion offer, dated 12 December 2023.[17] It is noted however, that Ms Von Fahland states she was not provided this document until 15 December 2023.[18]
The offer dated 12 December stated that she had until 5:00pm on 15 December 2023 to advise of her decision.[19] Again, it is noted that this timeframe was also inconsistent with section 66D of the Act, which affords Ms Von Fahland 21 days to consider an offer of casual conversion. Furthermore, this second letter of offer also contained errors including the date by which the contract had to be accepted, which was noted as 1 December 2023, even though the letter itself was dated 12 December 2023, as well as incorrect references to the letter being issued on 17 November 2023.[20]
It is Mr Roche’s evidence that on 16 December 2023, one day after Ms Von Fahland says she was provided the second casual conversion offer, a further letter was drafted. This letter was an offer of casual employment. This letter detailed Ms Von Fahland’s current casual rate of pay.[21] This is consistent with Ms Von Fahland’s evidence that on 16 December 2023, Mr Roche approached her in the kitchen and told her that he had placed a casual contract on Ms Geoghegan’s desk and that it was to be signed by the following day, being 17 December 2023.[22]
During oral evidence, Mr Roche confirmed that this letter was prepared as a part of a general overhaul of staffing arrangements he had been undertaking since starting at the Club. Mr Roche indicated that he had been seeking to ensure that all employees had a signed employment agreement.[23]During oral evidence, both Mr Roche and Ms Geoghegan confirmed that this letter was never physically provided to Ms Von Fahland and remained unopened on Ms Geoghegan’s desk.
On 17 December 2023, Ms Von Fahland attended work as usual. In her oral evidence, Ms Von Fahland indicated that over the past few days, she had been very confused about which way to go, having been offered two separate letters of offer, and now being asked to sign a casual contract. Ms Von Fahland stated:
“Going back to November when I first got given the contract, to the 15th of December when I got given the second contract, to the 16th where I got told the casual. To brought to this date, I am still confused.”
She further stated that she had intended to talk to Mr Roach about the various contracts that day, but was aware that he was in a board meeting when she arrived and therefore did not have the opportunity to do so.
Ms Von Fahland states that during her shift, she noticed that her roster had been completed up till 24 December 2024 and that she was only rostered for 18 hours, as opposed to her usual 38 hours. It is Ms Von Fahland’s evidence this was quite a shock, and that she began to feel flustered and upset as she attempted to calculate how she would make ends meet in the days leading up to Christmas.
It is Ms Von Fahland’s evidence that her concerns about the reduced hours, on top of some personal issues she was also experiencing at that time, all got on top of her to the point she felt she was experiencing a “meltdown”. She decided that she was “in no fit state to work” and felt that she needed to leave. Ms Von Fahland states that she waited for the next rostered staff member to arrive and then asked them to make contact with the supervisor who was rostered to take over from her to ask if they could start earlier so that she could go, which they agreed to do.
When the replacement supervisor arrived to start their shift, Ms Von Fahland had a brief discussion with them, expressing her discontent with the reduction in her hours and expressing that, even though she was not sure she was satisfied with the terms of the permanent contract, she felt as though she really had no option other than to sign it, because she feared that as a casual her hours would continue to be reduced.
Shortly after her conversation with the supervisor, having ensured a replacement had arrived, Ms Von Fahland left the Club and travelled to a nearby lookout to clear her mind and think. Ms Von Fahland states that when she left her car to go to the lookout, she left her phone in the car, noting there was no service at the lookout in any event. Upon returning, Ms Von Fahland noticed she had some missed calls and text messages from Ms Geoghegan and an email from Mr Roche.
The email stated as follows:[24]
“As per the below email we have gone thru [sic] the steps to convert you from casual to permanent, a letter of offer was provided which you rejected as you wanted $30.80 as your hourly rate, unfortunately the club had offered a rate of $29.30 per hour which was already above the award by $1.47 per hour.
We then provided you a letter of offer as a Casual Food & Beverage Supervisor and requested that this be signed by Sunday December 17, to date this is yet to be signed.
As I mentioned to you very clearly, we need a signed letter of employment from you for you to stay on with us at Mackay Golf Club, your failure to do so is being taken as a resignation. If this is correct, can you please return your keys to either Kath or the office team, we will not be able to release your final pay for the period 11/12/23 - 17/12/23 without the keys returned to us. Should you wish to stay on as a casual, please contact myself or Kath so we can ensure the roster is correct and ensure the letter of offer is signed and left with Martika by close of business today Sunday December 17.Chloe as I have mentioned to you on more than one occasion it has never been mine or the club’s intention to have you depart as you are a valued member of our team and I have tried to work with you to find a better outcome.
Please feel free to call me as I have tried to call you to discuss the above.” (Emphasis added)
Ms Von Fahland says she felt stressed and shocked after reading the text messages and email. Ms Von Fahland maintains that due to this, and her state of mind, when she read Mr Roche’s email, she focussed only on the part that said she would not be paid if she did not return the keys.
Ms Von Fahland states that her first priority was ensuring that she had money for her and her children over the Christmas period, so she returned to the club to drop off the keys and talk to Mr Roche before he commenced his leave, however unfortunately, he had already left. Ms Von Fahland subsequently handed her keys back, presuming that she would speak with Mr Roche about her roster and the conversion issue once he returned from leave.
Ms Von Fahland states that at no time did she intend to resign, nor did she understand that the action of returning her keys would have triggered the ending of her employment, particularly as she felt she still had 16 days left to make a decision regarding the offer of casual conversion.
Ms Von Fahland notes that later that day, after she had returned the keys, she was removed from the rosters going forward. Ms Von Fahland did not seek further clarification from Mr Roche until 29 December 2023. She states that she waited until 29 December as she was aware that Mr Roche was on leave. The email stated:[25]
“Good morning David
I am unsure when you are back from holidays I think it maybe be soon or this coming Monday. I would have rang or spoke sooner but knowing you were leaving for Christmas holidays I have put off my response.
As per the steps to convert me from casual to permanent. At first I was sat down in your office and told the club will be advising my role plus others and that if I wanted to stay on I would have to apply for the job advertisement.
Only after I contacted fair work was I offered a convert [sic] from casual to permanent position. I contacted fair work for a few reasons one being my role being advertised and also due to the fact I felt since speaking to you about a lot of issues in the work place that myself and other staff have spoke about and that I felt after doing so I was getting punished for speaking up to you and that the functions manger had been told or found out I had spoke to you and with in [sic] a week my week ends were taken off me and then my hours cut right back, this had never happened in the past 3 plus years of my employment.
After speaking to fair work and sending you a request or [sic] casual to permanent I then received a pay cut via email effective immediately, with the club saying there was an error with my pay.
I then received a contract to go permanent and I was told to look over it and sign it by a certain date which was less than the 21 days. After looking over it I noticed there were a few things wrong with the contract letter of offer and also there were 2 pages missing along with a list of my duties I have done over the past 3 plus years we're [sic] not on the contract.
I brought a copy back to you and spoke about the issues with the contract along with the hourly rate and I asked for a slight [sic] higher amount due to the fact other workers were being offered the same amount I was being offered but not doing the same amount of duties I was required to do.
In the past when I was asked to take on extra responsibility and duties this came with a [sic] offer of a pay increase witch [sic] put me at a higher rate as other stuff due to the extra responsibility and duties and this was something I thought would be taken into consideration when being offered a permanent position. You spoke to me about it told me you will speak to the board and also fix the errors in the contract.
On Tuesday the 12th of December I am pretty sure that was the date (I could be wrong) you gave me a new (fixed) permanent contract and also told me the club/ board have rejected my offer of the hourly rate of $30.80.
I said to you I was unsure if I was going to sign it due to the hourly rate but I was told by fair work and thought I had 21 days from being handed the contract to make my mind up and decide if this was something I was going to sign. As I have told you in the past I was very nervous about signing a permanent contract as I have only ever worked as a volunteer or casual.
Then on Saturday the 16th of December you came into the kitchen where myself and other staff were working and told me you had placed a casual contact on Kaths [sic] desk and that it was to be signed by the following day that being Sunday the 17th of December.
Understand there was lots going through my mind, weather [sic] I was going to stay or not or if I was going to go permanent or casual.
Later that day kath [sic] spoke to me out side [sic] in front of Colleen and Maria and asked what I was doing I told her I was unsure I had Colleen saying just sign the permanent contact I had Maria saying I should just sign the casual one like she did and I had Kath saying that she needs to know for at least next week if I am going to work so she can do the rosters. And also stated that I should at least work leading up to Christmas as what was I going to do financially, if I did not. I said yes put me on the roster and I will keep thinking on my options.
The next morning Sunday the 17th of December I turned up to work open the place up cooked and prepped the food for the day then went out for a smoke and to check my phone I then seen the roster for the coming week and noticed yet again my hours had been cut right back to only had received 18 hours not even enough to cover my rent after tax being taken out. But to see even a Junior staff member that has not even been there for 2-3 weeks not even having his RSA yet received more hours on that weeks roster over me the supervisor. This did make me very upset as this has happened quite a few times in the past where my hours have been cut back only to be told there is nothing happening at the club and this is all the hours kath [sic] could give. I have worked at the club for over 3 years and up
Untill [sic] the end of this year have never had my hours cut back even on the quiet weeks. Then in the mist [sic] of all of this I had lunch orders come in I went to start the lunch orders only to find out there was no steak defrosted for the lunch orders and the only other staff member had no [sic] showed up For [sic] work yet.
When she did arrive I was very upset and asked her if she could contact tikka to start 1-2 hours early as I had to leave that I was in no state to work for the 1st time ever I left work early but I did stay and continue to work untill [sic] tikka arrived. When I left work I went down to the beach to the look out to clear my mind.
When I got home I seen I had 2 missed calls from Kath and 2 messages from Kath the 1st one was saying call me and the 2nd was saying she had been told I said she begged me to stay and that she didn't that she wanted me to stay for my finances, but gave me all the hours she could. This upset me as I know that was not the case as juniors had received more hours than myself. I then received an email from you Reading [sic] it very quickly. I seen the part where it stated if I did not return the keys I would not get paid for the week of work I had just completed seeing this 8 days before Christmas I quickly got into the car and drove back to the club. Noticed your car was gone there for [sic] you must have left for holidays I had no choice but to leave the keys so I could receive my pay in time for Christmas.
Then with in [sic] a few hours my hours had been taken off the roster.”
Ms Von Fahland, sent an additional email on the same day as follows:[26]
“Hi David
Continuing on from my last email, as my phone started to glitch, it may have been the cause of an extra long email.
After I noticed my hours taken back to zero that day I waited to see if I got my pay as I did hand the keys back as instructed to do so to receive my pay. I did not receive a call from you unsure on this? And I did not contact you due to knowing you had left for 2 weeks holiday. I then got told Kath had said she could not even contact me as I had blocked her on all platforms this is another lie I did remove her off my personal Facebook account but I still had a phone and email. I then got giving [sic] a gift card as Christmas bonus from the club for my son jack and Colleen also received one and also a bag of lollies with $40 cash and was told this was her share of the tips from the tip jars that had been building up over the year. I was told the money in the tip jars was going back to club [sic] from our Christmas party and that staff were not receiving any of the tips I believe that is wrong and the staff including my self [sic] were given these tips through out the year from customers.
To end this email off I did not put in my resignation. And I thought I had 21 days from being handed the contract. I handed the keys back in a heated moment worries [sic] I would not receive my pay check [sic] right before Christmas as stated.
From Chloe von fahland”
Extension of Time
Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[27]
In deciding whether I am satisfied that there are exceptional circumstances, I must consider:
the reason for the delay;
whether the person first became aware of the dismissal after it had taken effect;
any action taken by the person to dispute the dismissal;
prejudice to the employer (including prejudice caused by the delay);
the merits of the application; and
fairness as between the person and other persons in a similar position.
Relevant Factors
Reason for the delay
The Act does not specify what reasons might justify granting an extension, however previous decisions of the Commission have referred to an “acceptable” or “reasonable explanation” of the delay. The absence of an explanation for any part of the delay will usually weigh against an applicant when assessing whether there are exceptional circumstances, whereas 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.[28]
The Applicant identified a number of factors that provide further context as they relate to the delay in lodging her application:[29]
1. She was unsure of when she actually was dismissed. Due to the confusion, and her view that she had not resigned, when filling out the Form F2 she simply used the date of her last shift, being 17 December 2023;
2. That she did not resign, she simply returned her keys, thinking she needed to do this to be sure she would receive her pay over the Christmas period;
3. At the time, she believed that she still had 16 days reminaing to consider whether she wished to accept the contract as she was advised by Fair Work Ombudsman that she had 21 days to accept or reject the contract;
4. She waited to hear from the Respondent confirming her termination and providing her with a separation certificate, which was not provided;
5. That she experienced delays in accessing legal advice given the time of the year; and
6. She was also managing moving as she had to leave her rental while assisting her mother with doctor/specialist appointments.
It appears evident from Mr Roche’s email dated 17 December 2023 that it was his intention to convey to Ms Von Fahland that if she did not wish to accept the casual contract, this would be taken as her resignation, and that this would be confirmed by the act of her returning her keys to the Club.
Ms Von Fahland however, appears to genuinely have been unaware that her failure to sign a casual contract would be taken as a resignation. Particularly noting that, in accordance with s.66D of the Act, she still had 16 days to decide whether or not to accept the offer of permanent employment.
Ms Von Fahland argues that while she put 17 December 2023 as the date of dismissal on the form, due to the factors above, she does not consider this to be the correct date.
When explaining why she had listed 17 December 2023 as the date of dismissal on her Form F2, Ms Von Fahland advised that she was still unaware of the dismissal date as she had “yet to be dismissed”. She intended to leave this field blank but was unable to proceed with the lodgement of the application unless she entered a date. Ms Von Fahland states:
“In my unfair dismissal application, it says effective dismissal date, when did the applicants dismissal take effect. I have put in there Sunday the 17th of December, but I have also stated in there it they does not let you type an explanation or does not let you leave that area blank.
If you try to leave that area blank, the form will not lodge. It comes up with an error saying you need to fill in order to lodge the application.”
Ms Von Fahland subsequently put 17 December 2023 as this was the last day she worked, however it is clear that she attempted to clarify the confusion regarding the date of dismissal in her email response to the Commission regarding her application being lodged out of time, which provided:[30]
“I have not been told by my employer that I have fired there for I was unsure on what date to put on the form when filling it out so I just put the last day I worked which was 17 December 2023.”
In cross examination, Ms Evans asked Ms Von Fahland whether she considered that perhaps the point at which she discovered her hours had been reduced to zero might be the date on which the dismissal took effect. Ms Von Fahland did not accept this, noting that she had not been advised that she been dismissed or that the employment relationship had ended. Ms Von Fahland further noted that her hours had been cut by Ms Geoghegan in the past, “to suit her personal life, and also as a form of punishment” and that she had simply thought it had happened again.
Ms Von Fahland maintains that she had not intended to resign and that she did not understand that the act of returning her keys would lead to the employment relationship ending. This is confirmed by Ms Von Fahland’s email to Mr Roche dated 29 December 2023 and her oral evidence that she had no intention of resigning and only returned her keys in order to be paid.[31]
During her oral evidence, I asked Ms Von Fahland when it became evident to her that she had been dismissed, she replied:
“Umm, more so when I went to the club that day to drop another staff member off and with my own eyes, I seen David Roche car in the car park…
Might have been the second or third of January. I just dropped another worker off. I never got out of the vehicle. Umm that there kind of made me get a lump in my throat and think, well, something's happening. Here he is, like I'm confirming, seeing his car confirmed to me he was back at work and I hadn't had a response.
Uh, so that was when I decided to give him till the end of the business day Monday, hoping I would get a response. I was constantly refreshing my email, hoping to get a response. So we can resolve the matter. So I can get back to work cause I at this point was in a state of shock at bills piling up, and I needed to get back to work, especially after Christmas. And when I hadn't received a response, that's when it become more obvious to me.”
Mr Roche stated that he attempted to call Ms Von Fahland on 6 January 2024, to respond to her email, but was unsuccessful and subsequently left a message.[32] During cross examination however, Mr Roche confirmed that he did not have Ms Von Fahland’s correct contact number. I consider it is therefore not possible that Ms Von Fahland could have received his message. It also follows that the calls he says were made to Ms Von Fahland on 17 December 2023 would not have reached her phone nor registered as missed calls, and as such, she would have been unaware of them.
Viewed objectively, I accept that Ms Von Fahland was genuinely unaware that the employment relationship had ended on 17 December 2023, and that this was further compounded by the fact that she never received a response from the Respondent to her email of 29 December 2023. In accepting that Ms Von Fahland was not aware that she had been terminated on the 17 December 2023, it follows that the date from which the 21 days would have been calculated may have been incorrect. This will be further explored below.
Ms Von Fahland submits that she was advised by the Fair Work Ombudsman that she had 21 days to consider the new permanent contract, with 16 days remaining from 12 December 2023. At this point, it is relevant to explore the question of the contracts she had been provided.
The first contract, dated 17 November 2023, to convert to permanent full-time employment was provided to Ms Von Fahland on 18 November 2023. A copy of this contract was entered into evidence. [33] It is clear that this document was poorly drafted, had missing pages and contained a significant number of errors. The second contract, dated 12 December 2023, to convert to permanent full-time employment also included errors relating to several dates and a request for Ms Von Fahland to provide a response by a date that had passed before the contract had even been issued.[34] Importantly, these contracts appeared to have significantly reduced her hourly rate, a factor that would have required significant consideration.
As explored above, Ms Von Fahland met with Mr Roche on 9 December 2023 to provide feedback regarding the contract.[35] She also took the opportunity to ask if the Board would consider an increase in her hourly rate.[36] Mr Roche agreed to redraft the contract and also that he would take her request to the Board.[37]
On 12 December 2023 Ms Von Fahland was advised that her request for an increased rate of pay had been rejected and was provided with a new contract.[38] Though Ms Von Fahland submits that this new contract was not provided to her until 15 December 2023.[39] In any event and understandably, Ms Von Fahland wanted to take her time to review this contract to be sure it was correct, and to further consider her position now that her request for an increase in hourly rate had been rejected. It is also her evidence, that she correctly understood that she had 21 days within which to make her decision about her casual conversion. Given the issues with the first offer, and the confusion about her rate of pay, I consider it reasonable that Ms Von Fahland would have presumed she had 21 days from the date of the second contract being 12 December 2023. That would have given her until 2 January 2024 to make her decision regarding whether or not she wished to convert to permanent employment. I therefore accept that Ms Von Fahland’s understanding of her rights pursuant to S. 66D supports her argument that she did not intend to resign on 17 December 2023, which has implications for the day from which the 21 days should be counted.
Ms Von Fahland in her oral evidence explained that upon returning to work from the lookout, on 17 December 2023, Mr Roche was no longer there. When asked by Ms Evans why she did not speak to Ms Geoghegan, Ms Von Fahland explained that based on her previous discussions with Mr Roche, it had been agreed that in order to avoid arguments, she would only speak to Mr Roche. I note that this is inconsistent with Mr Roche’s 17 December 2023 email, which asks Ms Von Fahland to contact either himself or Ms Geoghegan.[40]
Notwithstanding the above, and the proximity of the 17 December 2023 to Christmas and the associated public holidays, Ms Von Fahland emailed Mr Roche on 29 December 2023, once she thought he would have returned from leave. In this email, she raised her concerns about what had transpired on the 17 December 2023 and clearly indicated that she had not resigned.[41] I again note that Ms Von Fahland has never received a reply to this email.
Ms Von Fahland also submits that another reason for the delay was that she experienced delays in accessing legal advice, granted I acknowledge the difficulty Ms Von Fahland would have faced attempting to seek legal advice towards the end of the year and shut down of offices. Ms Von Fahland’s submits that she sought advice from the Fair Work Ombudsman, Women’s Work Rights Australia and other organisations.[42]
As previously explored, it was Ms Von Fahland’s genuine confusion regarding the date on which her employment had ended that contributed to the delay. In the case of Bessymon Skaria v St Peters & St Pauls Jacobite Syrian Orthodox Church Adelaide, Deputy President Anderson explains that despite receiving independent advice, the lack of knowledge about a time limit is not deemed a reasonable explanation for seeking an extension of such time limit. [43] I am therefore not satisfied that a delay in accessing legal advice in isolation is a reasonable explanation for the delay.
Ms Von Fahland’s submits that she had to balance her application whilst assisting her mother with doctor/specialist appointments and moving out, which at one point led to her being homeless, understandably this would have been difficult to manage noting that Ms Von Fahland is a single mother with several children. Deputy President Colman in McBride v JA Krieger Forestry Services describes the lodgement process of the application as one ‘which involves the completion of a very simple form in any one of, a variety of simple ways’[44], however I find that the above factors considered together alongside the issues arising from the multiple contracts and confusion surrounding the end of employment date would be reasonable factors for a delay in the lodgement of her application given the circumstances and the time of year.
Therefore, taking all the above factors into consideration, I am satisfied that these factors weigh in favour of an extension of time, in particular the genuine confusion caused by several poorly drafted contracts, Ms Von Fahland not receiving a response regarding her employment status, and Mr Roche’s failed attempts to appropriately respond to her email dated 29 December 2023. I find these factors add weight to Ms Von Fahland’s contention that she was unaware that the employment relationship had ended and as such I am satisfied that it is a reasonable explanation of the delay.
Whether the person first became aware of the dismissal after it had taken effect
Whilst it is apparent that Ms Von Fahland suspected something was amiss, and that this prompted her to send the email to Mr Roche on 29 December 2023 seeking to clarify the situation, I am satisfied that it was not until early January 2024, when she saw Mr Roche’s car in the carpark, and realised he had returned from leave but had still not contacted her, that she realised that the club may have moved to end the employment relationship. Viewed objectively, and having taken all of the evidence into consideration, I accept Ms Von Fahland’s evidence that this was the point at which it became apparent to her that she had been dismissed.
Relevant case law has established that a dismissal does not take effect until it is communicated to the employee.[45] In Ayub v NSW Trains, the Full Bench of the Commission stated that the 21-day period cannot begin to run “before an employee who has been dismissed at the initiative of the employer became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this.”[46] As such, this consideration weighs in favour for an extension of time.
Action to dispute the dismissal
Ms Von Fahland’s conduct of returning her keys to the Respondent appeared to signal her resignation, however due to her misunderstanding of the situation, I am satisfied that she genuinely did not realise her employment had ceased on 17 December 2023. It is relevant however, that once Ms Von Fahland did realise that something was amiss, she took steps to seek clarification from Mr Roche. In this correspondence, Ms Von Fahland clearly articulated her understanding that she had not resigned. Ms Von Fahland did not receive a response to her email. This factor weighs in favour of an extension of time.
Prejudice to the employer
There is no evidence of any prejudice to the Respondent. I have treated this matter as a neutral consideration.
Merits of the application
Without having received further submissions and evidence in relation to the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits to be a neutral consideration in this case.
Fairness as between the person and other persons in a similar position
This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration in this case.
Conclusion
Having considered all the circumstances of the case, I consider Ms Von Fahland’s genuine confusion and unawareness that her employment had ended as well as the lack of communication from the Respondent regarding her employment status amounts to exceptional circumstances.
As such, additional time can be allowed for Ms Von Fahland to make her application. This means that Ms Von Fahland is entitled to apply for an unfair dismissal remedy.
In these circumstances, pursuant to s.394(3) of the Act, I order that the time for Ms Von Fahland to make her unfair dismissal application under s.394 of the Act to the Commission be extended to 9 January 2024.
COMMISSIONER
Appearances:
C. Von Fahland for herself
J. Evans for the Respondent
D. Roche for the Respondent
Hearing details:
2024
Brisbane
13 February
[1] Witness Statement of David Roche at P.97 of the DCB.
[2] Statement of Chloe Von Fahland at P.17 of the DCB.
[3] Ibid.
[4] Ibid.
[5] Evidence 2/5 – Letter to David Roche dated 10 November 2023 at P.22 of the DCB.
[6] Statement of Chloe Von Fahland at P.17 of the DCB.
[7] Evidence 1 – Payslip dated 4 September 2023 at P.21 of the DCB, Evidence 2/5 – Letter to David Roche dated 10 November 2023 at P.22 of the DCB and Evidence 6 – Letter of Offer dated 17 November 2023 at P.31 of the DCB.
[8] Evidence 3 – Email from Claire Chapman (undated) at P.25 of the DCB.
[9] Ibid.
[10] Ibid at P.26 of the DCB.
[11] Ibid at P.27 of the DCB.
[12] Evidence 6 – Letter of Offer dated 17 November 2023 at P.35 of the DCB.
[13] Form F3 at P.73 of the DCB.
[14] Statement of Chloe Von Fahland at P.17 of the DCB and Evidence 6 – Letter of Offer dated 17 November 2023 at P.30-37 of the DCB.
[15] Witness Statement of David Roche at P.98 of the DCB.
[16] Ibid.
[17] Evidence 7 – Letter of Offer dated 12 December 2023 at P.38-45 of the DCB
[18] Statement of Chloe Von Fahland at P.17 of the DCB.
[19] Form F3 at P.73 of the DCB and Witness Statement of David Roche at P.99 of the DCB.
[20] Evidence 7 – Letter of Offer dated 12 December 2023 at P.43 of the DCB
[21] Ibid.
[22] Evidence 12 – Email to David Roche dated 29 December 2023 at P.58 of the DCB.
[23] Form F3 at P.73 of the DCB.
[24] Evidence 10 – Email from David Roche dated 17 December 2023 at P.48 of the DCB.
[25] Evidence 12 – Email to David Roche dated 29 December 2023 at P.56-60 of the DCB.
[26] Ibid.
[27] Nulty v Blue Star Group (2011) 203 IR 1 at [13].
[28] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[29] Email response to Out of Time Application dated 16 January 2024 at P.8 of the DCB.
[30] Ibid.
[31] Evidence 12 – Email to David Roche dated 29 December 2023 at P.60 of the DCB.
[32] Witness Statement of David Roche at P.99 of the DCB.
[33] Evidence 6 – Letter of Offer dated 17 November 2023 at P.35-37 of the DCB.
[34] Evidence 7 – Letter of Offer dated 12 December 2023 at P.38-45 of the DCB.
[35] Witness Statement of David Roche at P.98 of the DCB.
[36] Statement of Chloe Von Fahland at P.17 of the DCB.
[37] Witness Statement of David Roche at P.98 of the DCB.
[38] Witness Statement of David Roche at P.99 of the DCB and Evidence 7 – Letter of Offer dated 12 December 2023 at P.43 of the DCB.
[39] Statement of Chloe Von Fahland at P.17 of the DCB.
[40] Evidence 10 – Email from David Roche dated 17 December 2023 at P.48 of the DCB.
[41] Evidence 12 – Email to David Roche dated 29 December 2023 at P.56-60 of the DCB.
[42] Email response to Out of Time Application dated 16 January 2024 at P.8 of the DCB.
[43] [2019] FWC 7159 at [77].
[44] [2021] FWC 6284 at [5].
[45] Burns v Aboriginal Legal Service of Western Australia (Inc) Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at [24].
[46] Ayub v NSW Trains[2016] FWCFB 5500 at [36].
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