Dianne Kewley v Knick Knacks Colonnades Pty Ltd T/A Knick Knacks

[2013] FWC 3984

[2013] FWC 3984

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dianne Kewley
v
Knick Knacks Colonnades Pty Ltd T/A Knick Knacks
(U2013/7591)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 20 JUNE 2013

Application for unfair dismissal remedy - extension of time - effective date of dismissal.

[1] On 15 March 2013 Ms Kewley lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act), through which she sought relief with respect to the termination of her employment with Knick Knacks Colonnades Pty Ltd. Whilst Ms Kewley’s application was lodged against Knick Knacks, there is no dispute that Ms Kewley was an employee of Knick Knacks Colonnades Pty Ltd (Knick Knacks). I have utilised the discretion in s.586 of the FW Act to amend the application accordingly. I also note that Ms Kewley lodged an initial application which was not signed and appears to have been forwarded to the Fair Work Commission (FWC) from the Fair Work Ombudsman. The parties have both acknowledged that the Fair Work Ombudsman has commenced an investigation into Ms Kewley’s concerns that she was underpaid. I have taken the second application, provided on a signed basis, as the application to be determined in this matter. The application was not settled through the conciliation process and has been referred to me for determination.

[2] The application was the subject of a directions conference on 17 May 2013. At this conference a number of initial issues were identified. These related to whether the application was lodged within time, whether the Small Business Fair Dismissal Code (the Code) had application and, in that event, whether the termination of Ms Kewley’s employment was consistent with that Code.

[3] These initial matters were the subject of a determinative conference on 13 June 2013. Ms Kewley represented herself at this conference. Knick Knacks was represented by Ms Thompson of counsel pursuant to a grant of permission made under s.596(2)(a). I note that Ms Kewley indicated at the directions conference on 17 May 2013 that a grant of permission would not be opposed but I nevertheless gave her a further period of time in which to express concern about this. At the determinative conference on 13 June 2013 Ms Kewley confirmed that she did not object to a grant of permission being made to Ms Thompson.

The Evidence

[4] Knick Knacks is a retail store. Ms Kewley worked in that store from August 2011. It is common ground that Ms Kewley was engaged, at least initially, on a weekly hire part-time basis. She undertook an initial retail assistant function before later working as a “store manager-in training”. Whilst both parties agree that this “store manager-in training” function ceased on or around 11 September 2012, the circumstances of the cessation and subsequent events are disputed. After that date Ms Kewley’s work pattern became irregular and she last worked on 5 November 2012.

[5] Ms Kewley gave evidence about her employment circumstances. Her evidence was that she was employed on a part-time weekly basis and was paid $16 per hour. Ms Kewley’s evidence was that, notwithstanding the reduction and subsequent sporadic nature of her rostered shifts after 11 September 2012, she attended for work when required and when she was sick she provided a medical certificate. Ms Kewley’s evidence was that after 11 September 2012 she was required to contact her manager on a weekly basis to see if she was rostered to work but that around 5 November 2012 her manager advised her that she should simply wait to be advised of work and that the manager would try to obtain work for her over Christmas.

[6] Whilst no further work was offered to her, Ms Kewley advised that she continued to regard herself as an employee and that she was neither told of her dismissal nor advised of it in writing until she received advice, in late February 2013, from her superannuation fund, to the effect that she was no longer employed.

[7] Additionally, in mid February 2013 Ms Kewley advises she met her manager, Ms Du when she visited the Knick Knacks shop and that she asked to be allocated shifts. She subsequently received a text message to the effect that she needed to reapply for her position. She challenged this advice and did not hear further from Ms Du.

[8] Ms Kewley subsequently lodged this application.

[9] Knick Knacks tended witness statements for Ms Du, Ms Kewley’s direct manager, Mr M Sun, the manager of Knick Knacks and another employee, Ms Ling. Knick Knacks elected not to call any of these persons. Whilst the witness statements went to issues about Ms Kewley’s employment, concerns that managers had about her work and her performance and to the alleged termination of her employment on 7 November 2012, this information was strongly refuted by Ms Kewley on oath. Whilst I have admitted the statements I have significant reservations about them as I am unable to verify the assertions made.

[10] Knick Knacks called Mr J Sun to give sworn evidence in the matter. His evidence was that he was the sole Director and shareholder of Knick Knacks and of another company, Knick Knacks Group Pty Limited. Mr J Sun’s evidence was that in September and November 2012 the total number of employees engaged by both companies was nine. Mr J Sun’s evidence was that he did not have shareholdings in other companies.

[11] Mr J Sun’s evidence was that he discussed with Mr M Sun, Ms Kewley’s work performance and received e-mails detailing concerns in this respect on 24 September and 29 October 2012. Further, that he agreed with Mr M Sun that Ms Kewley should be dismissed and helped to draft a letter to that effect, dated 7 November 2012. His evidence was that he was aware that Mr M Sun had completed a Code Checklist which was attached to a statement provided by Mr M Sun.

[12] Mr J Sun’s evidence went to Knick Knacks’ time recording approach and its practice of regarding shifts not worked by Ms Kewley as various forms of leave.

Findings

[13] Section 396 states:

“396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.’

[14] I have initially considered whether Ms Kewley’s application was lodged within the legislative time limit. Section.394 currently states:

“394 Application for unfair dismissal remedy

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

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

Note 2: For application fees, see section 395.

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

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[15] The 21 day time limit applies to dismissals which took effect after 1 January 2013. Prior to that date, the time limit was 14 days.

[16] I am not satisfied, on the evidence before me, that Ms Kewley was provided with the termination of employment letter dated 7 November 2012. Further, the evidence about whether she was told by Ms Du around that time that her employment was terminated is unclear. What is clear is that from 9 September 2012 Ms Kewley was not given regular work at Knick Knacks consistent with regular part-time employment. For instance, in the last two weeks of her employment Ms Kewley worked on only two occasions for a total of nine hours. 1 Further, notwithstanding that I have substantial reservations about the time recording and payment systems applied by Knick Knacks, the information provided by Mr J Sun2 indicates that Ms Kewley undertook only sporadic work after 11 September 2012. I think it highly likely that Ms Kewley’s part-time employment contract was terminated on or around 11 September 2012 and that her employment then took on more of a casual nature.

[17] Notwithstanding this, from 5 November 2012 Ms Kewley was not offered any work at Knick Knacks. On the evidence before me, I accept that she was not told that she was dismissed. However I think it should have been patently clear to Ms Kewley that she was no longer employed. Ms Kewley’s work changed from regular part-time employment to a situation where she was told that she would be contacted if and when any future work became available and then no work was offered to her at all. This simply cannot be reconciled with ongoing employment. Ms Kewley’s own advice is that an advisory authority she referred to as “Fair Work SA” informed her in November 2012 that she might pursue an unfair dismissal remedy because she was not being offered any work but Ms Kewley chose not to act on that advice. I have taken the reference to “Fair Work SA” could refer to either the FWC, the Fair Work Ombudsman or to Safe Work SA. In her application she states:

“Late November I made a phone call to Fair Work SA in regards to the treatment I was receiving from my place of work. I was placed through to a nice lady (Frofro I wrote on my diary page as her name but I am unsure of this) who spoke to me about the unfair treatment but also saying I had a good case for Unfair Dismissal as I was not receiving any shifts.”

[18] The determination of the date upon which an employee became aware of the termination of employment is generally an important prerequisite step in the consideration of whether an application was lodged within time or whether an extension of time should be granted. A failure on the part of the employer to make an employee aware of a dismissal at the time of the termination of employment may be, pursuant to s.394(3)(b), a factor in favour of an extension of time. However, in Ms Kewley’s circumstances the time period involved and the extent to which Ms Kewley had obtained advice but had nevertheless not taken any action means that I must conclude that, at some time in the weeks following 5 November 2012 Ms Kewley must have become aware that her regular employment had ceased. Whilst I think this occurred at around the time she spoke to the advisory authority she referred to as “Fair Work SA”, at the very latest it must have been clear when she was not offered any further work over the Christmas period. Ms Kewley’s evidence was that in the intervening time she returned to study and did not pursue clarification of her employment standing. Ms Kewley’s application was not lodged for a further 11 weeks after Christmas and hence well outside of the current three-week time limit. Accordingly, the application was made outside of the legislative time limit and, absent an extension of time, cannot be pursued.

[19] I have considered whether an extension of time should be granted pursuant to s.394(2)(b) by considering the factors in s.394(3).

[20] I am not satisfied that Ms Kewley has an acceptable reason for not taking any action to challenge her employment status until some four and a half months after she stopped being given work. She was given advice about her rights in November 2012 and simply did not act on that advice.

[21] Evidence confirming the provision of any verbal or written information about the termination of Ms Kewley’s employment on 7 November 2012 has not been provided to me in a satisfactory form so that I have accepted that this is a factor favouring some leniency relative to an extension of time, but the time delay itself is so substantial that I cannot rely solely on this factor to justify such an extension.

[22] Given the time period involved and the evidence that another of Ms Kewley’s managers has since left Knick Knacks, the delay must be taken to prejudice the Knick Knacks’ position.

[23] The merits of Ms Kewley’s application are problematic with respect to whether, as at 7 November 2012, she was a person protected from unfair dismissal. On her own evidence Ms Kewley did not undertake regular part-time work after 11 September 2012. I consider it likely that after that date she was effectively a casual employee and that she accepted that change in discussions she had with Knick Knacks management on 10 or 11 September 2012. Accordingly, it is unlikely that, after that date she was a person protected from unfair dismissal. I should note that this preliminary conclusion does not prejudice Ms Kewley’s rights to pursue claims for payment associated with her employment.

[24] In terms of issues of comparative fairness, I am satisfied that the general approach adopted by the Fair Work Commission would involve rejection of an extension of time request in these circumstances.

Conclusion - Extension of Time

[25] The termination of Ms Kewley’s employment occurred at an undetermined time in September or November 2012.

[26] I am not satisfied that Ms Kewley’s situation meets the requirements necessary to be regarded as exceptional circumstances so as to warrant the granting of an extension of time of the magnitude involved in this matter. As a consequence, the application must be dismissed. An Order [PR538055] to this effect will be issued.

[27] Given this conclusion it is not necessary that I consider whether Knick Knacks is a small business for the purposes of s.388 such that the Code has application, or whether that Code was properly applied in this situation.

SENIOR DEPUTY PRESIDENT

Appearances:

D Kewley on her own behalf.

A Thompson counsel for the respondent.

Hearing details:

2013.

Adelaide:

June 13.

 1   See attachment to Ms Kewley’s statement Exhibit A1

 2   Exhibit R5

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<Price code C, PR538054>