Devi Crosby v Foxie Group Pty Ltd
[2018] FWC 1885
•15 MAY 2018
| [2018] FWC 1885 |
| FAIR WORK COMMISSION |
REASONS FOR DECISION |
Fair Work Act 2009
s.365—General protections
Devi Crosby
v
Foxie Group Pty Ltd
(C2018/562)
COMMISSIONER LEE | MELBOURNE, 15 MAY 2018 |
Application to deal with contraventions involving dismissal - extension of time - application dismissed.
Introduction
[1] Ms Devi Crosby (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. The Respondent to the application is Foxie Group Pty Ltd (the Respondent). The application concerns an allegation of adverse action having been taken by the Respondent, namely the dismissal of the Applicant, in contravention of the general protections set out in Part 3-1 of the Act, specifically s.340 and s.351 of the Act. As the application is made outside the prescribed period in s.366(1) of the Act, the Commission may allow a further period for the application to be made if satisfied that there are exceptional circumstances in accordance with s.366(2) of the Act.
[2] The matter was listed for Objections Conference/Hearing by Telephone before me on 29 March 2018. Mr McNeilly was granted permission to appear for the Applicant and Mr McKenney was granted permission to appear for the Respondent as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter. At the conclusion of the hearing I issued a decision ex tempore dismissing the application as I was not satisfied that there were exceptional circumstances that would warrant granting an extension of time. I advised I would provide written reasons for my decision. What follows are my reasons for decision.
[3] There is a dispute as to whether or not a termination at the initiative of the employer occurred. However, for the purposes of these proceedings, considering the agreed chronology below, the parties agree that the termination of employment took effect on 22 December 2017. There was a clear exchange in the correspondence which reflected that this was the end date of the Applicant’s employment. It is apparent that there were discussions about continuing the employment relationship beyond that date but that clearly did not occur. The Applicant’s email in the early hours of 22 December 2017 does not in any way demonstrate that she has accepted an offer to continue the employment relationship. The Applicant did not work beyond 22 December 2017 nor was she paid beyond that date. Moreover, the letter of 22 December 2017 from the Applicant’s representative makes demands for her re-engagement and re-instatement consistent with a demand to re-establish the employment relationship, consistent with a view that the employment relationship had come to an end. The response provided via email by the Respondent also on 22 December 2017 seeks an extension of the offer until 31 January 2018 to enable the Respondent to seek professional advice in relation to the letter. The subject of this email was “Ms Devi Crosby – Settlement offer for ending employment by way of redundancy”.
[4] As the termination of employment took effect on 22 December 2017 it is apparent that the application should have been lodged on 12 January 2018 in order to meet the statutory time limit. The application was lodged on 5 February 2018. Therefore the application is 24 days out of time.
Background
[5] Prior to the proceedings my chambers sent a proposed draft chronology to the parties. The parties provided comments in relation to the draft proposed chronology and the below represents an agreed chronology of relevant events:
1. The Applicant was engaged as a “consultant” from May 2013.
2. The Applicant became an employee of the Respondent on 20 April 2015
3. In late 2016 the Applicant advised the respondent she was pregnant and expecting to give birth in June 2017.
4. The Applicant was absent from the workplace on a period of maternity leave from May 2017.
5. In October 2017, the Applicant and the Respondent had discussions about the Applicant’s return to work from maternity leave.
6. The Applicant returned to work on 8 November 2017.
7. On 14 November 2017, the Applicant was advised by letter, signed by Mr Adam von Einem the founder and CEO of the following:
• As she did not wish to work full-time and on site in Geelong that as a result her employment as the Operations Manager would come to an end;
• That her notice period could be worked in a part-time capacity at 19 hours per week (0.5) resulting in the notice period being 6 weeks at that work rate;
• That on the basis of the above, her final date of employment as Operations Manager would be 22 December 2017; and
• That over the course of the coming weeks “…we will investigate what other roles may be of interest to you”.(Appendix DC01)
8. On 1 December the Applicant responded to the 14 November letter in the following terms:
“Dear Adam,
I write in response to your letter dated 14th November 2017.
Since receiving your letter, I have received legal advice surrounding my entitlements under unfair dismissal and general protections dismissal laws.
In short, I acknowledge and accept Foxie Group Pty Ltd termination notice effective 22 December 2017.
In addition to my final pay (to be processed on 27th December 2017) I am seeking:
Written reference outlining my roles and responsibilities during my tenure;
8 weeks of my full-time salary as redundancy;
Plus 8 weeks of my full-time salary as compensation.
With complete and utmost respect of the professional and personal relationship which we have enjoyed since 2013, I wanted to provide you with an opportunity to address and rectify to prevent further action.
Given that Christmas is fast approaching, I would appreciate if you could respond no later than 10 December 2017.” (Appendix DC06)
9. The Applicant and Mr von Einem met on 5 December 2017 along with an advisor to the Respondent, an Inject HR consultant. At the conclusion of the 5 December 2017 meeting a “without prejudice” offer was made to the Applicant.
10. On 21 December 2017, Mr von Einem sent an email to the Applicant stating, among other things, that he was concerned that he had not heard back from the Applicant and refers to the 5 December meeting where concerns about the Respondent’s decision to not approve the request for a part-time and work from home position following maternity leave where discussed and that he thought the conversations went well. The email also stated the following:
“We agreed on 5th December that the Operations Manager role that you had agreed to after we moved our office to Geelong involved 2 days in the Geelong office and full-time which never had the chance of being tested given you were unwell.
This full-time role with 2 days in Geelong and 3 days from home per week is the position that is still available to you and in the interests of supporting you as best we can this is still an option to discuss and ultimately what you can still return to.” (Appendix DC02)
11. The Applicant responded to this letter on 22 December 2017 stating, among other things, that she agreed it was a good discussion (most of which was without prejudice) and that the verbal offer of $7k falls below the Applicant’s expectations and what she believes she is entitled to. The email also refers to a pre maternity leave agreement to work 2 days in Geelong and that there was no agreement prior to maternity leave to be full-time in Geelong. The email acknowledges that the Respondent has “again… amended” the offer “…saying this role is available to me, full time, three days from home and 2 days in Geelong”. The email concludes with the following paragraphs:
“I appreciate that you are now saying my position is still available to me, and is an option to discuss and still return to, however this is 5 weeks after you gave me notice, causing stress, uncertainty and anxiety leading up to the Christmas period.
To be honest Adam, after dedicating myself completely to you and Foxie for more than four years, I had honestly hoped and trusted that my jack-of-all-trades, 24/7 loyalty, unwavering commitment, professional advice and overall value would have meant more to you.
Given my grievance, I am reluctant to speak with you further as every time we speak, we come away with different interpretations and/or you change your mind. I am sincerely disappointed that it has come to this.” (Appendix DC03)
12. On 22 December, Mr Ritchie from Solutions@Work also wrote on behalf of the Applicant to Mr von Einem. That letter is a 6 page letter that sets out a range of allegations that the Respondent was in breach of various legislation including the Fair Work Act 2009, Paid Parental Leave Act 2010, Sex Discrimination Act 1984, Equal Opportunity Act 2010 and the Disability Discrimination Act1992. The letters also includes the following:
“… Given the above instructions from our client, please confirm:
• Whether the above event, and comments as described, are admitted or denied;
• Whether our client remains an employee of Foxie or not post 22 December 2018 [sic] (tomorrow), the date you previously informed her she would be ‘finished up’ on.
We recommend you carefully consider your actions before acting further, and seeking to confirm our client’s dismissal in the above circumstances. For a relatively small employer (we are instructed around 19 employees), rash and foolish actions to dismiss a long-serving manager because she inconvenienced you by taking parental leave will result in serious legal, reputational and social media risk and damage for your company. Your actions described above, clearly in breach of the various employment and discrimination legislation cited, will expose your small organisation to a long, drawn-out claim through the courts which we are sure is not anyone’s wish for 2018.
…
Given the above abhorrent and unlawful treatment of our client, and numerous breaches of the FW Act which have occurred to date we recommend you contact our client (through us) immediately and:
• Apologise to her for your actions to date;
• Confirm she remains a valuable part of Foxie (and your senior leadership team) and you and all other employees look forward to her returning to resuming her full-time hours and pre- leave duties in the New Year;
• Re-engage Ms Crosby on her pre-maternity leave arrangements, namely:
○ Reinstating her to her Operations Manager position and returning all the substantive pre-leave duties to her;
○ Reinstating her computer system access and company property necessary for her to perform her job;
○ Return her to her permanent, full-time hours which she stands ready, willing and able to perform (note she has never agreed to vary her full-time employment to part-time or reduced hours, as she cannot afford to do so).
○ Full ‘backpay’ for the reduction of hours (and loss of pay) she has suffered from the November 2017 to present day as a result of Foxie unlawfully reducing her wages from 38 hours to 19 hours per week and transferring her senior managerial duties to other staff.
○ Consider organising and paying for a mediation to resolve the numerous issues relating to the employment and the significant work-related stress you have heaped on your employee as she struggles to manage on reduced hours and income when she expected to have resumed her full-time hours and senior managerial duties.
Please contact me directly, or have your representative/recruitment consultant contact me urgently on the number below to discuss the above serious issues.” (Appendix DC04 at 5.1, 5.2 and 6.4)
13. Mr von Einem responded to this letter by email on 22 December 2017 and requested an extension from the required response date to 31 January 2018.
14. On 9 January 2018 the Applicant’s representative responded to Mr von Einem’s extension request on the proviso that the Respondent confirm the Applicant:
• Remains an employee of Foxie Group Pty Ltd;
• Her employment, or her rights, are not prejudiced in any way as a result of our previous correspondence; and
• Continues to be paid salary as an employee (whilst we maintain she is legally entitled to be paid 38 hours per week, we will accept you making the usual payment of 19 hours per week, each week, through the interim period until this issue is resolved).
The Respondent’s representative responded to this correspondence on 16 January 2018 advising that Mr von Einem did not confirm the contents of the above bullet points.
15. The Respondent sent a further letter to the Applicants representatives on 22 January 2018. (Appendix DC05) That letter stated a number of things including that:
• The Applicant ceased to be an employee of the Respondent on 22 December 2017;
• There had been discussions between the Applicant and the Respondent attempting to reach agreement about a new contract of employment that suited the Applicants desire to work part-time and from home but that no agreement was able to be reached;
• There is no basis for the applicants claim she is entitled to redundancy pay;
• The Applicant had “rebuffed” the Respondent’s efforts to accommodate a new contract of employment (the 2 days in Geelong, 3 days at home proposal set out in the 21 December correspondence);
• The Respondent rejects the various allegations in the 22 December letter sent by the Applicants representatives; and
• The Respondent rejects the proposed settlement offer set out in the 22 December correspondence.
16. The application to deal with contraventions involving dismissal was lodged on 5 February 2018 pursuant to s.365 of the Fair Work Act 2009.
The law to be applied
[6] Section 366(1) of the Act provides as follows:
“(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).”
[7] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”
Consideration
[8] I have considered the evidence and submissions, including the written submissions that were filed and the oral submissions made during the hearing against the criteria in s.366 of the Act.
[9] Subsection 366(2) of the Act requires that, in deciding whether to grant an extension of time, I must consider if there are exceptional circumstances taking into account a number of factors. The term exceptional circumstances was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd1, where the Full Bench stated that:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. 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 singular occurrence, even though it can be a one 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.
...
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”2
[10] I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.
Matters to be taken into account pursuant to section 366(2)
[11] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.
(a) The reason for the delay
[12] In its written submissions the Applicant submitted, among other things, the following:
• The cause of this application being lodged out of time is a direct result of the Respondent’s representative taking one month to respond to the letter dated 22 December 2017 sent by the Applicant’s representative.
• The application is not out of time because the Respondent only confirmed the Applicant was no longer an employee on 22 January 2018.
• In the alternative, the application was delayed as a direct result of the Respondent trickily taking one month to respond to the Applicants representative’s letter. 3
[13] As outlined in the chronology of events above the Applicant was advised in writing on 14 November 2017 that her employment would “come to an end” on 22 December 2017. At the hearing the Applicant’s representative agreed termination took effect on 22 December 2017. However the Applicant submits that there was significant confusion and ambiguity due to subsequent decisions and job offers made to the Applicant. 4
[14] The Applicant refers to the correspondence between 14 November and 22 December 2017 and submits that given the original notice of termination (some six weeks’ prior) and subsequent discussions about the Applicant’s pre-parental role being available to her, the Applicant instructed her representative to write to the Respondent seeking clarification about her employment status. It is submitted that in the 22 December 2017 correspondence the Applicant’s representative indicated to the Respondent that the Applicant still considered herself an employee of the Respondent, highlighted the confusion in the Applicant’s mind and events to date and requested a response by 29 December 2017 to clarify the situation. The Respondent requested an extension that day to respond to the correspondence. On 9 January 2018 the Applicant’s representative responded to the extension request on the proviso that the Respondent confirm three bullet points including; that the Applicant remains an employee, that her employment, or her rights, are not prejudiced in any way as a result of previous correspondence and that she continues to be paid salary as an employee. 5 The Respondent provided a response to this correspondence on 16 January 2018 and rejected the contents of the three bullet points in the Applicant’s letter.6
[15] The Applicant submits that the Respondent refused to reply to their email and belatedly wrote to their offices on 22 January 2018, being one month after their initial letter and over three weeks’ beyond their requested response date. Further, that the actions of the Respondent in taking one month to respond to “what should have been glaringly obvious to them (was the Applicant still their employee or not)” caused the delay which the Applicant submits was a deliberate strategy by the Respondent so that any application would be lodged outside of 21 days. It is submitted that after receiving the 22 January 2018 response from the Respondent (which confirmed the Applicant’s employment had come to an end on 22 December 2017), the Applicant immediately commenced this application, within 21 days of receiving that confirmation. 7
[16] I do not accept the Applicant’s submissions that there was confusion about when the employment relationship ended and that the alleged failures of the Respondent to reply in a timely manner contributed to the delay. There is no evidence to support a finding that the Applicant could have thought she was employed after 22 December 2017. As per the chronology above, it is clear that the employment relationship ended on 22 December 2017.
[17] Further, the claim that the Respondent’s representative took a month to respond to its 22 December 2017 correspondence is not accurate. The response sent on 16 January 2018 clearly did not confirm the contents of the three bullet points. If anything that correspondence further reinforced that the employment relationship had come to an end. Irrespective, the claim that the Applicant’s representative immediately commenced the application after receiving the Respondent’s correspondence is not consistent with the facts. The Applicant’s representative took nearly three weeks from 16 January 2018 and two weeks from 22 January 2018 to lodge the application. There is no explanation for this further considerable delay.
[18] For these reasons I reject the Applicant’s submissions that there was confusion about when the employment relationship ended and that the alleged failures of the Respondent to reply in a timely manner contributed to the delay.
[19] The Applicant’s representative submitted that if the Commission does not find the reasons for the delay and the merits of the application are such to warrant an extension of time that it should be attributed to representative error. 8 I have considered whether representative error may be an acceptable reason for the delay. The late lodgement of an application due to representative error can be considered an acceptable reason for the delay, depending on the circumstances.
[20] The leading authority on the approach to dealing with representative error as a reason for delay is Clark v Ringwood Private Hospital, 9 which in turn has been cited in Davidson v Aboriginal and Islander Child Care Agency10 and further cited in McConnell v A and PM Fornataro T/A Tony’s Plumbing Service.11
[21] Relevantly Clark v Ringwood Private Hospital makes clear that a late lodgement of an application due to representative error may be grounds for an extension of time. However, there is a distinction between the delay caused by the representative where the employee is blameless and other circumstances where there may have been representative error but in fact the employee, or the Applicant, has contributed to the delay.
[22] It is also clear on the authorities that a representative error includes inactivity or a failure to act promptly on the part of the representative. However, the actions of the employee are the central consideration in deciding whether or not the explanation of representative error is acceptable. For example, in that context, if an application was delayed because the employee has left it in the hands of the representative and simply not followed up their claim, then an application might be refused. However, where an employee has given clear instructions to lodge an application and the representative has failed to do so then an extension may be granted.
[23] There is no indication that the Applicant’s representative was given clear instructions or indeed any instructions to lodge an application within the statutory time period. Rather it is submitted by the Applicant’s representative that, as her representative, they could have contacted the Applicant on 9 January 2018, but failed to do so. While that concession is consistent with a finding that the Applicant was poorly represented, evidence that the Applicant had taken some action to instruct the representative to file the application within the required period is needed to satisfy me there was representative error of the type contemplated in Clark v Ringwood Private Hospital. There is no such evidence. Consequently, I am not satisfied that the claim that there was representative error is an acceptable reason for the delay.
[24] Overall, I am not satisfied there is an acceptable reason for the delay. This weighs against a finding that there are exceptional circumstances.
(b) Any action taken by the person to dispute the dismissal
[25] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time. 12
[26] Notwithstanding the Applicant’s reluctant acceptance she was to be dismissed on 22 December 2017 her representative certainly disputed, in vigorous terms, her termination in the 22 December letter and this is a matter that weighs in favour of granting the extension of time.
[27] Overall, I am satisfied that the Applicant took action to dispute the dismissal and this weighs in favour of granting the extension of time.
(c) Prejudice to the employer (including prejudice caused by the delay)
[28] The Respondent submits that it will suffer prejudice as it has had to fill the Applicant’s Operations Manager role on the basis of the cessation of the employment relationship. Further, the lateness of the application has disrupted the functioning of the Respondent’s small business. 13 There is no evidence before me to satisfy me that there will be prejudice to the employer if the extension of time is granted. However, the absence of prejudice is itself an insufficient basis for granting an extension of time, and in the circumstances of this case, I regard this factor as neutral.
(d) Merits of the application
[29] The Applicant made numerous allegations in the application which are disputed by the Respondent. In short, the Applicant submits, among other things, that the Respondent’s actions have contravened various sections of the Act and that the Applicant’s employment was terminated because she exercised her workplace right to access parental leave, exercised her workplace right to return to work post parental leave, exercised her workplace right to request flexible working arrangements and was the parent and carer for her new born infant. It is also alleged that during the Applicant’s absence due to parental leave the Respondent allocated her duties to other employees then refused to allocate the duties back to her on her return and that the Respondent’s CEO had used discriminatory terms towards female employees relating to pregnancy or family/carer’s responsibilities. 14
[30] The Respondent submits that its primary position is that the Applicant was not dismissed and that the Applicant’s role ceased by mutual agreement. It relies on a letter to the Applicant dated 14 November 2017 which states “As you have indicated, you do not wish to work full-time and onsite in Geelong, and as a result your employment as the Operations Manager will come to an end”. The Respondent submits there was no other substantive and/or operative reason for the termination of the Applicant’s employment. 15
[31] For the purposes of determining an extension of time application the Commission should not embark on a detailed consideration of the substantive application. 16 No witness evidence was given in the matter. The Applicant submitted at the hearing that the merits are a neutral consideration and I agree. In the circumstances, there is insufficient material to consider the merits of the application as other than a neutral consideration.
(e) Fairness as between the person and other persons in a like position
[32] The consideration of this factor may relate to fairness in matters of a similar kind that are either currently before the Commission or have been decided in the past. 17 There were no particular submissions made that were relevant to this factor. Accordingly, I regard this factor as neutral.
Conclusion
[33] I am not satisfied that there is an acceptable reason for the delay which weighs against a finding of exceptional circumstances. The only factor weighing in favour is action taken by the Applicant to dispute the dismissal; however, this does not outweigh the failure to provide an acceptable reason for what is a significant delay. All other factors are neutral considerations. Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances that would warrant granting an extension of time. Accordingly, the application is dismissed.
[34] An order giving effect to this decision has previously been published in PR601660.
COMMISSIONER
Appearances:
G McNeilly for the Applicant
M McKenney for the Respondent
Hearing details:
2018
Melbourne (Telephone Hearing):
29 March.
Final written submissions:
27 March 2018.
Printed by authority of the Commonwealth Government Printer
<PR601642>
1 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1
2 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [13], [15]
3 Exhibit A2, Applicant’s Outline of Argument: extension of time, Q1.a at [3] – [5]
4 Exhibit A2, Applicant’s Outline of Argument: extension of time, Q1.a at [1]
5 Exhibit A2, Applicant’s Outline of Argument: extension of time, Q1.d.at [7] – [9]
6 Exhibit R2, Letter dated 16 January 2018 from Ben von Einem & Associates to Solutions@Work
7 Exhibit A2, Applicant’s Outline of Argument: extension of time, Q1.d.at [10] – [12]
8 Exhibit A2, Applicant’s Outline of Argument: extension of time, Q1.i. at [4]
9 Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420
10 Davidson v Aboriginal and Islander Child Care Agency (1998) 105 IR 1
11 McConnell v A & PM Fornataro T/A Tony's Plumbing Service (2011) 202 IR 59 at [35]
12 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
13 Exhibit R3, Respondent’s Outline of Argument: extension of time, Q1.g
14 Exhibit A2, Applicant’s Outline of Argument: extension of time, Q1.h and Form F8 – general protections application involving dismissal, Q3
15 Exhibit R3, Respondent’s Outline of Argument: extension of time, Q1.h
16 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14]
17 Markos Wilson v Woolworths[2010] FWA 2480 at [24] – [29]
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