Donna Keenan v Department of Human Services
[2020] FWC 821
•6 APRIL 2020
| [2020] FWC 821 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Donna Keenan
v
Department of Human Services
(U2019/14559)
DEPUTY PRESIDENT MILLHOUSE | MELBOURNE, 6 APRIL 2020 |
Application for an unfair dismissal remedy – effective date of dismissal – extension of time – exceptional circumstances.
[1] This decision concerns an application by Ms Donna Keenan for an extension of time pursuant to s.394(3) of the Fair Work Act 2009 (Act).
[2] Ms Keenan made an application for an unfair dismissal remedy under s.394 of the Act on 22 December 2019. Section 394(2) of the Act requires that an application for an unfair dismissal remedy be made within 21 days of the time the dismissal took effect or within such further period as the Commission allows under s.394(3). It is not in dispute that Ms Keenan’s application was filed outside the timeframe for lodgement of the application. Ms Keenan seeks that the Commission allow a further period of time for the application to be made. The Department of Human Services (DHS) opposes the grant of an extension of time.
[3] For the reasons set out below, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of the application. The application is dismissed.
Background
[4] Ms Keenan commenced employment with DHS on 14 June 2016. She was employed on a casual basis.
[5] On 24 September 2019 Ms Keenan commenced a Performance Improvement Plan (PIP). 1 The assessment period was scheduled to end on 25 October 2019.2 At the commencement of the PIP, Ms Keenan was advised by DHS that if she did not meet the requirements of the PIP DHS may cease offering her casual shifts.3 During this period, Ms Keenan was also subject to a four-week behaviour improvement plan.4
[6] At the end of the PIP period DHS determined that Ms Keenan had failed to achieve a satisfactory standard of performance. On 8 November 2019, Ms Keenan attended a performance review meeting. During this meeting, Ms Keenan was advised by her Team Leader, Michelle Budge that:
(a) she had not achieved the expected performance standards set out in the PIP; and
(b) a recommendation would be made by Ms Budge to an independent delegate of DHS that DHS cease offering Ms Keenan any further casual shifts. 5
[7] Ms Keenan was invited to advance any matters in response by 11 November 2019 for consideration by the independent delegate. However, DHS contends that Ms Keenan did not provide any response. 6
[8] Ms Keenan did not attend her rostered shifts, without explanation, on 12 November 2019 or 15 November 2019. 7
[9] By letter dated 15 November 2019, DHS advised Ms Keenan that it was considering ceasing offering her further casual shifts. Ms Keenan was given until 19 November 2019 to advance any matters for consideration by DHS in response to this view. 8
[10] Ms Keenan did not attend her rostered shift, again without explanation, on 19 November 2019. 9 Nor did Ms Keenan provide a response to the letter from DHS dated 15 November 2019. Following a discussion with Ms Keenan, DHS extended the deadline for Ms Keenan to respond to midnight on 24 November 2019.10
[11] Ms Keenan did not attend her rostered shift on 22 November 2019, again without explanation. 11
[12] In the absence of any response from Ms Keenan by the extended deadline, by email dated 25 November 2019, DHS advised Ms Keenan of its decision to cease offering her further casual shifts (cessation letter). The cessation letter stated that the decision was made on account of Ms Keenan’s performance failings against the PIP and took effect immediately. 12 It was sent to Ms Keenan by email and express post. A text message was also sent by DHS to Ms Keenan advising that a letter had been emailed and posted to her that required “immediate attention.”13
[13] Ms Keenan accepts that DHS sent the cessation letter to her by email on 25 November 2019. 14 However, as discussed below, Ms Keenan contends that she did not read it until some days later and potentially as late as one week after it was received.
When did the dismissal take effect?
[14] A Full Bench in Ayub v NSW Trains 15 considered whether the mere receipt of a communication by email is sufficient to constitute communication of the dismissal to the employee in circumstances where the employee has not read the communication immediately upon receipt.16 It concluded that the 21-day period for lodgement of an unfair dismissal application should not be interpreted to begin to run before an employee becomes aware of the dismissal, or has at least had a reasonable opportunity to become aware of this.17 The Full Bench said:
“In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.” 18
[15] Ms Keenan’s evidence as to when she read the cessation letter is inconsistent and difficult to reconcile. During the proceedings, Ms Keenan said as follows:
(1) She accepts that DHS sent her a text message on 25 November 2019 directing her to read an email attaching the cessation letter. However, she did not read the text message:
a. until the next day; 19 or
b. “potentially a few days later,” 20 on 27 or 29 November 2019.21
(2) She accepts that DHS sent the cessation letter by email which reached her inbox on 25 November 2019. However, it might have taken her a few days to read the cessation letter. 22
(3) She was “happy to take it as the 25th.” 23
(4) On 28 November 2019, she went to the workplace to collect her belongings because she was “getting red flags.” 24 However, Ms Keenan does not think that she read the cessation letter before attending the workplace.25
(5) While at the workplace on 28 November 2019, Ms Keenan found her personal belongings in a box on her work desk, 26 and Ms Budge asked Ms Keenan to return her security pass. However, this did not prompt Ms Keenan to read the text message or the email from DHS immediately thereafter.27 However, she probably read the email from DHS in the following days.28
(6) She did not become aware of the potential of a dismissal until one week after 25 November 2019. 29
(7) She read the cessation letter on the weekend that followed 25 November 2019 (being 28 or 29 November 2019) or on the Monday (30 November 2019). 30
(8) The Commission should regard the dismissal having taken effect from the end of that week, being 29 November 2019, but Ms Keenan regards it as 25 November 2019:
“No, I take it as the 25th - the day that they sent me the email, regardless of when I read it, when I received it, who read it before me, so on and so forth, what they meant by it, you know, how many other emails I had to read, all of that aside. If they sent it to me on the 25th that was the day that I received it.” 31
[16] In addition to making the above submissions, Ms Keenan contends that it is not clear that she has been dismissed at all. 32 Ms Keenan was of the view that the PIP process had not been finalised and the status of her employment was therefore undecided.33 DHS contends that the cessation letter was not a letter of dismissal,34 however this is not an argument that was run in the proceedings before me. Whether Ms Keenan has been dismissed is a question of fact to be determined on the evidence.35 For the purposes of this application, it is not necessary to determine whether Ms Keenan was dismissed. It is sufficient that the Commission has before it an application that, on its face, alleges a dismissal.36
[17] In these circumstances, it is appropriate to exercise caution in determining an effective date of dismissal so as not to “correlatively” determine Ms Keenan’s substantive application. 37 However, in order to determine the extension of time application, it is necessary to identify an effective date of the alleged dismissal.
[18] It is apparent from the evidence summarised above that Ms Keenan was unclear about the effective date of the alleged dismissal. Ms Keenan contends that she did not read the cessation letter on 25 November 2019 when it was sent by DHS. However, Ms Keenan was prompted to attend the workplace on 28 November 2019 to collect her belongings, despite not attending work since 8 November 2019.
[19] In her written material, Ms Keenan states that she was informed by a third party that her employment with DHS ended on 26 November 2019. Her evidence is that in the process of following up on an application for ergonomic office equipment, she was informed that as a consequence of her employment ending she would not be reimbursed for the cost of the equipment. 38 I consider that this exchange may have been the “red flag” that prompted Ms Keenan to collect her belongings from the workplace on 28 November 2019.
[20] I am satisfied, in the circumstances of this case, that Ms Keenan did not become aware of the alleged dismissal on 25 November 2019, despite receiving the cessation letter by email on this date. However, Ms Keenan gave evidence that on 28 November 2019:
(a) her personal belongings were “boxed up” on her desk “with a label on top of it ready to post to my old address”; 39 and
(b) Ms Budge asked that Ms Keenan return her security pass.
[21] In my view, these matters provided a clear basis for Ms Keenan to review the email from DHS containing the cessation letter. I therefore find that the date Ms Keenan became aware of the alleged dismissal was 28 November 2019. It took effect on this date. While the cessation letter was also express posted by DHS to Ms Keenan’s former residential address, I accept that it was not received by Ms Keenan on a date before 28 November 2019. 40
[22] In any event, I am satisfied that Ms Keenan had a reasonable opportunity to become aware of the alleged dismissal by 28 November 2019.
[23] It follows that the 21-day statutory timeframe for filing the application expired at midnight on 19 December 2019. This application was filed three days outside of that timeframe.
Statutory framework
[24] The Commission has the power, pursuant to s.394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd. In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 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 can be considered exceptional.
[25] Under s.394(3) of the Act, the Commission may allow a further period of time for an application under s.394 to be made, if it 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.
[26] I consider each of these matters below.
Consideration
Reason for the delay
[27] Ms Keenan raised a number of matters to explain the reason for the delay in filing the application. The relevant period required to be considered under s.394(3)(a) is the period after the 21-day timeframe for lodging the application, being 20 December 2019 to 22 December 2019. 41 The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.42
[28] Firstly, Ms Keenan contends that she was waiting to hear from CPSU organiser, Mr Wainscott, who she understood was speaking with Human Resources about her PIP and behaviour improvement plan. 43 Ms Keenan submitted that Mr Wainscott was assisting her with the “administering of the performance and behaviour improvement plans, and the fact that the process had not given me an opportunity to respond as was required and promised.”44 Ms Keenan says that this discussion contributed to the delay.
[29] The evidence reveals that on 2 December 2019, Mr Wainscott telephoned the Assistant Director of the Employee Relations Team and asked whether there had been an outcome in relation to Ms Keenan’s PIP and behavioural improvement plan. Mr Wainscott was advised that Ms Keenan had been notified of the outcome of the PIP. It was suggested that he contact Ms Keenan for further information. 45
[30] On 20 December 2019, Ms Keenan emailed Mr Wainscott and said that further discussions between Mr Wainscott and Human Resources would not be of assistance to her. 46 Rather, Ms Keenan requested a referral to Slater and Gordon. The correspondence indicates that Ms Keenan had emailed Mr Wainscott some days earlier in respect of the referral, but that email is not in evidence. It also suggests that there had been a discussion between Ms Keenan and Mr Wainscott approximately two weeks prior, however the exact nature of this discussion is also not in evidence and therefore unknown.
[31] Mr Wainscott responded to Ms Keenan by email on 24 December 2019. He said:
“Hi Donna,
My apologies. I haven’t got on to Caleisha or HR in general, but have sent off a referral for you. I was under the impression that you wanted to wait until after I’d had a chat to HR before the referral.”
[32] Ms Keenan contends that without a referral, which she sought for “the matter of unfair dismissal” she could not confer with Slater and Gordon and this contributed to the delay. 47
[33] Ms Keenan’s contention that the application was delayed because she was waiting on the outcome of Mr Wainscott’s discussion with DHS about her PIP and behaviour improvement plan is inconsistent with her 20 December 2019 email to Mr Wainscott. In this email, Ms Keenan observes that discussions between Mr Wainscott and Human Resources would be fruitless. Ms Keenan makes this statement in the context of her view that there is “a clear lack of consistency between my story and what DHS is telling you.” This lends support to Ms Keenan’s submission that Mr Wainscott was engaging with DHS for the purpose of providing Ms Keenan with an “opportunity to respond” to the administration of the PIP and behaviour improvement plan.
[34] I find that Ms Keenan chose to await the outcome of Mr Wainscott’s discussion with Human Resources before taking any other substantive steps to dispute the alleged dismissal in the period prior to 20 December 2019.
[35] In light of the 20 December 2019 email, I do not accept that Ms Keenan was waiting to hear the outcome of Mr Wainscott’s discussion with DHS during the relevant period of the delay, being 20 December 2019 to 22 December 2019. It follows that Ms Keenan’s submission to this effect is rejected. This does not constitute a credible explanation for the delay in the lodgment of the application.
[36] I note that there is no evidence before me that Mr Wainscott was engaged to assist Ms Keenan in disputing the alleged dismissal. Rather, upon Ms Keenan’s email of 20 December 2019 advising that discussions with DHS would not be of assistance to her, Mr Wainscott provided a referral to Slater and Gordon on 24 December 2019. This is consistent with Mr Wainscott’s expressed view in the 24 December 2019 email that he understood Ms Keenan’s preference to be that a referral would follow his discussion with Human Resources.
[37] The referral post-dates Ms Keenan’s application for an unfair dismissal remedy, which was made on 22 December 2019. Ms Keenan had not conferred with Slater and Gordon by this time but made the application in any event.
[38] There is no sufficient basis to conclude that the delay in making the application was occasioned by Mr Wainscott and the provision of the referral. On the evidence, the referral was provided by Mr Wainscott consistent with his understanding of Mr Keenan’s instructions. There is no evidence of Ms Keenan requiring a referral to Slater and Gordon to lodge the application. Accordingly, the timing of the referral does not constitute a credible explanation for the delay.
[39] Secondly, Ms Keenan contends that:
(a) she thought that she had 28 days from the alleged dismissal date to lodge her unfair dismissal application. This was based on what Ms Keenan thought was a “fair and reasonable” timeframe; 48 and
(b) Mr Wainscott had failed to inform Ms Keenan of the 21-day statutory timeframe for lodging the application. 49
[40] However, these contentions are contrary to the content of Ms Keenan’s unfair dismissal application in which she states that she was aware of the 21-day timeframe for lodgement. Specifically, on lodgement of the application Ms Keenan said that:
“There is still discussion ongoing between the employer and the Union, this wait time is extending well past 21 days after receiving notification of termination but I am aware of the time frame for lodgement and thought I should put the application in.” 50
[41] Accordingly, Ms Keenan’s submissions at [39], which are at odds with her acknowledgment of the 21-day timeframe, are rejected. I also observe that Ms Keenan’s statement that, “there is still discussion ongoing between the employer and the Union” is inconsistent with the content of Ms Keenan’s 20 December 2019 email to Mr Wainscott, in which she says that such discussions would not be helpful.
[42] Thirdly, Ms Keenan said that the application was filed late because she was unwell. On 2 December 2019, Ms Keenan attended the emergency department. The medical discharge summary specifies that the principal diagnosis was a migraine. 51 Ms Keenan complained that she had suffered from the migraine for one to two weeks prior to attending the emergency department and that it had been occasioned by fibromyalgia.52 These symptoms led Ms Keenan to attend The Alfred, as opposed to a local medical clinic.
[43] Ms Keenan also relies upon a medical certificate which confirms that she attended a medical clinic on 16 December 2019. The medical certificate states that Ms Keenan was complaining of hay fever and a headache. 53 Ms Keenan contends that this was ongoing from 2 December 2019 and attributes this to an earlier diagnosis of chronic sinusitis.54 She says that she was prescribed medication which alleviated her symptoms in three to four days.55
[44] The matters advanced by Ms Keenan as to her wellbeing do not provide a satisfactory explanation for the delay. On Ms Keenan’s best case, she may have presented with some symptoms of hay fever or a headache on 20 December 2019, however her evidence is that by at least this date she was “feeling much better.” 56 This is supported by Ms Keenan’s evident capacity to correspond with Mr Wainscott on 20 December 2019.
[45] There is no further evidence that explains how these afflictions were so disruptive to Ms Keenan that it would constitute a credible reason for the delayed lodgement of her application on 22 December 2019.
[46] This factor weighs against the grant of an extension.
[47] For completeness, Ms Keenan also said that the delay had been occasioned by moving to a new house. However, this argument was abandoned during the proceedings. 57
Whether the person first became aware of the dismissal after it had taken effect
[48] DHS took reasonable steps to communicate to Ms Keenan on 25 November 2019 its decision to cease offering her further casual shifts. However, for the reasons described at [20]-[21], Ms Keenan became aware of the alleged dismissal on 28 November 2019. Ms Keenan had 21 days to lodge her application from this date.
[49] I consider this factor to weigh against the grant of an extension.
Action taken by the person to dispute the dismissal
[50] Ms Keenan contends that she contacted Mr Wainscott with a view to disputing the alleged dismissal. 58 She said that “by liaising with Matthew Wainscott I was also pursuing avenues there for action taken by the person to dispute the dismissal.” However, consistent with my conclusion at [36], the evidence does not support a finding that Mr Wainscott had been engaged by Ms Keenan to dispute the alleged dismissal.
[51] There is no other material before me that evidences any steps taken by Ms Keenan to dispute the dismissal. While a referral to Slater and Gordon was provided by Mr Wainscott, this of itself does not constitute an action to dispute the dismissal.
[52] This factor weighs against the grant of an extension.
Prejudice to the employer
[53] DHS does not argue that it would be prejudiced if the extension of time was granted.
[54] Accordingly, I consider this to weigh in favour of a grant of an extension.
Merits
[55] There is insufficient material before me to make any detailed assessment as to the merits of the substantive application. Nor should the Commission embark upon such analysis in determining whether to grant an extension of time. 59 However, the application is not without its difficulties.
[56] Firstly, there is a dispute as to whether Ms Keenan was dismissed within the meaning of s.386 of the Act.
[57] Secondly, there is a contest regarding Ms Keenan’s satisfaction of the requirements under the PIP. This includes the data relied upon by DHS in its assessment of Ms Keenan’s performance.
[58] Finally, Ms Keenan claims that she was not provided with an opportunity to present her views in response to the PIP assessment, which is contested by DHS. In support of its position, DHS relies upon a meeting with Ms Keenan on 8 November 2019 and correspondence dated 14 and 21 November 2019 which it says Ms Keenan did not respond to.
[59] Given the factual dispute between the parties, which has not been tested before me, this factor is a neutral consideration.
Fairness as between the person and other persons in a similar position
[60] The parties did not raise any circumstances that are relevant in the consideration of the question of fairness as it relates to Ms Keenan or any other person in a similar position.
[61] I consider this to be a neutral consideration.
Conclusion
[62] The test of exceptional circumstances in s.394(3) of the Act is a stringent one. Having considered each of the statutory criteria, I am not satisfied that there are exceptional circumstances that support an extension of time.
[63] Ms Keenan’s application for an extension of time is dismissed.
DEPUTY PRESIDENT
Appearances:
D. Keenan, Applicant
C. Sim, Respondent
Hearing details:
2020
Melbourne
February 17.
Printed by authority of the Commonwealth Government Printer
<PR716769>
1 Respondent’s outline of argument: objections filed on 4 February 2020 (Respondent’s objections) 1(h) at [2]
2 Respondent’s objections 1(h) at [3]; however, see Respondent’s document list filed on 4 February 2020 (Respondent’s document list), Letter from Respondent to the Applicant dated 14 November 2019 which provides that the PIP period was until 22 October 2019
3 Respondent’s objections 1(h) at [2]
4 Ibid
5 Ibid 1(h) at [4]
6 Ibid
7 Ibid 1(b)
8 Ibid 1(h) at [5]
9 Ibid 1(b)
10 Ibid 1(h) at [5]
11 Ibid 1(b)
12 Respondent’s document list, letter from Respondent to the Applicant dated 25 November 2019
13 Respondent’s document list, text message dated 25 November 2019
14 Applicant’s outline of argument: objections filed on 26 January 2020 (Applicant’s outline of argument) 1(a)
15 Ayub v NSW Trains[2016] FWCFB 5500
16 Ibid at [35]
17 Ibid at [36], [42]
18 Ibid at [50]
19 Transcript of proceedings dated 17 February 2020 (Transcript) [135]
20 Transcript [137]
21 Ibid [139]
22 Ibid [141]
23 Ibid [151]
24 Ibid [170]
25 Ibid [172]-[174]
26 Ibid [241]
27 Ibid [181]-[183]
28 Ibid [194]
29 Ibid [152]
30 Ibid [207]
31 Ibid [197]
32 Ibid [155]
33 Ibid [41]
34 Respondent’s objections at 1(a)
35 Byrne v Australian Airline (1995) 185 CLR 410 at p.428
36 See Hewitt v Topero Nominees Pty Ltd[2013] FWCFB 6321 in the context of s.365 of the Act although the observations are apposite
37 Cameron Milford v Coles Supply Chain Pty Ltd [2019] FWCFB 2277 at [21]
38 Transcript [145]
39 Ibid [241]
40 Ibid [208]-[219]
41 Mr Keith Long v Keolis Downer T/A Yarra Trams[2018] FWCFB 4109 at [40]
42 Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 at [12]
43 Applicant’s outline of argument 1(d)
44 Ibid
45 Witness Statement of Caleisha Sward undated, filed on 4 February 2020 at [3]-[5]
46 Applicant’s document list filed on 26 January 2020, 20 December 2019 email trail (which included a response email from Mr Wainscott dated 24 December 2019)
47 Witness statement of Donna Keenan undated filed on 26 January 2020 at bullet-points 4-6
48 Exhibit 3 bullet-point 1; Transcript [300]
49 Exhibit 3 bullet-point 2; Transcript [340]
50 Form F2 Unfair Dismissal Application filed on 22 December 2019 at 1.5
51 Exhibit 1
52 Exhibit 1; Transcript [354]
53 Exhibit 2
54 Transcript [381], [384]
55 Ibid [384]-[385]
56 Ibid [384]
57 Ibid [396]-[399]
58 Ibid [439]
59 Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14]
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