Dragana Radulovic v Peter Banic T/A National Cleaning Services Australia Pty Ltd
[2016] FWC 758
•4 FEBRUARY 2016
| [2016] FWC 758 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Dragana Radulovic
v
Peter Banic T/A National Cleaning Services Australia Pty Ltd
(U2015/7182)
DEPUTY PRESIDENT KOVACIC | MELBOURNE, 4 FEBRUARY 2016 |
Application for relief from unfair dismissal – dispute about date of dismissal and extension of time – date of dismissal 31 March 2015; no exceptional circumstances warranting allowing a further period for the making of an application - application dismissed.
[1] Mrs Dragana Radulovic (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 28 April 2015 under s.394 of the Fair Work Act 2009 (the Act) alleging that the termination of her employment by National Cleaning Services Australia Pty Ltd (the Respondent) on 31 March 2015 was unfair.
[2] As the application had been lodged seven days outside the 21-day timeframe for lodgement prescribed by s.394(2)(a) of the Act, the Commission issued Directions on 8 May 2015 requiring the parties to file an outline of submissions and any evidentiary material they intended to rely on regarding the extension of time issue.
[3] The extension of time issue was the heard on 10 June 2015. At the hearing, Ms Allison Ballard appeared with permission for Mrs Radulovic, while Mr John Wilson appeared with permission for the Respondent. Mrs Radulovic gave evidence on her own behalf together with her husband, Mr Milan Radulovic, while Ms Slavica Vrebac, Mrs Radulovic’s former manager, and Mr Peter Banic, the Respondent’s Managing Director, both gave evidence for the Respondent.
[4] For the reasons set out below I have concluded that Mrs Radulovic was dismissed on 31 March 2015 and that her application was therefore lodged seven days outside the statutory timeframe of time prescribed by s.394(2)(a) of the Act. Further, I am not satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act. Accordingly, the application will be dismissed.
Background
[5] Mrs Radulovic commenced part-time employment with the Respondent on 20 June 2011 as a cleaner, with her primary place of work being the Tuggeranong Child and Family Centre (the Centre), a client of the Respondent.
[6] According to Mrs Radulovic in January 2015 when on annual leave in Queensland she notified Ms Vrebac that she needed to take six weeks off for surgery and sent a follow up text message to that effect to Ms Vrebac on the same day.
[7] Mrs Radulovic returned to work on 26 January 2015 and on 10 February 2015 called Mr Banic to inform him of her impending surgery on 12 February 2015. Mrs Radulovic contends that Mr Banic asked if her husband could cover for her while she was on personal leave recovering from surgery.
[8] On 13 February 2015 Mrs Radulovic received a call from Ms Vrebac stating that the Centre had not been cleaned the previous night. Mrs Radulovic submitted that the conversation with Ms Vrebac concluded on the basis that Mrs Radulovic’s husband would cover for her during her absence. Mrs Radulovic also submits that she subsequently sent a text message to Ms Vrebac confirming that arrangement.
[9] In subsequent developments, Mrs Radulovic received a text message from Ms Vrebac on 31 March 2015 which stated:
“Dragana there is a cleaning issue about the toilets at the tugg. Child and Family centre and as there stated that inaf [sic enough] is inaf the staff has taking photos and there are sending it to Peter with a formal complained [sic complaint] I am sorry but I have to let you go.” 1
[10] Mrs Radulovic submitted that she responded to Ms Vrebac’s text message almost immediately questioning why she had been dismissed. Mrs Radulovic further submitted she contacted Mr Banic both later that evening and on a number of occasions in the weeks after receiving the above text message from Ms Vrebac.
[11] Mrs Radulovic submitted that she was paid out all of her entitlements on 10 April 2015, though later in her submissions she contended that this occurred on 17 April 2015 2.
[12] On 17 April 2015 Mrs Radulovic sent an email to Ms Joe Hutchinson, the Centre’s manager requesting that her “termination be reviewed immediately”. Among other things the letter stated:
“On March 31/2013, I was terminated from Tuggeranong Child and Family Centre. I was fired without notice …” 3 (Underlining added)
[13] Ms Hutchinson responded by email on 20 Aril 2015 stating that “As I was not your employer I will not be able to respond to this request. I suggest you contact National Services please.” 4
[14] Mrs Radulovic and her husband met with Mr Banic on 21 April 2015 at which time he indicated that the Respondent was willing to investigate the matter if Mrs Radulovic provided a copy of the letter that she had sent to the Centre on 17 April 2015. However on 22 April 2015 Mrs Radulovic advised Mr Banic by email 5 that she would not be providing a copy of the letter as it was a private and confidential communication between her and the Centre. Attached to her email was a letter addressed6 to Mr Banic. The letter, which was dated 17 April 2015, was worded in very similar terms to the letter she had sent to Ms Hutchinson on 17 April 2015.
[15] In an email sent to Mrs Radulovic on 27 April 2015 by Ms Dee Cupac, the Respondent’s Office Manager, the Respondent restated its willingness to investigate Mrs Radulovic’s claims further should she provide evidence of her claims. Specifically, Ms Cupac stated that the Respondent would require the following:
“1. Evidence of the text message you sent to you on the 10th February 2015.
2. Evidence of the other text messages you refer to in your letter.
3. Any and all Doctor’s Certificates for the time off work related to your recent medical operation.
4. Copy of the Grievance Letter you emailed to the client on the 17th April 2015.” 7
[16] The Respondent disputes that it was advised of Mrs Radulovic’s surgery and her request for six weeks’ subsequent leave. The Respondent also denies that Mr Radulovic was given permission to work in Mrs Radulovic’s stead, noting that his attendance at the workplace had previously been expressly forbidden. Furthermore, the Respondent submits that Mrs Radulovic had a history of poor work performance and that she was validly terminated after a serious complaint by the Centre.
[17] As previously noted, Mrs Radulovic’s unfair dismissal application was received by the Commission on 28 April 2015.
[18] In her application, Mrs Radulovic stated that she had been dismissed from her employment on 31 March 2015 but contended in her written submissions that the date of dismissal could be taken to be either 17 or 21 April 2015 (discussed in greater detail below).
[19] The Respondent maintained that the date of dismissal was 31 March 2015.
When did Mrs Radulovic’s dismissal take effect?
[20] To determine whether Mrs Radulovic’s application was made within the statutory timeframe it is first necessary to come to a view as to the effective date of her dismissal.
[21] Mrs Radulovic submitted that the date of her termination was not clear as she was not given written notice of her termination, nor she given any clear explanation as to why she was dismissed. Further, Mrs Radulovic contended that the termination date could not have been 31 March 2015 if Ms Vrebac did not have the authority to dismiss her and that if her termination took effect on either 17 April 2015 (the date on which her entitlements were paid out) or 21 April 2015 (the date of the meeting with Mr Banic) her application was made within time.
[22] Key aspects of Mrs Radulovic’s oral evidence at the hearing was that she:
- did not receive a payment in lieu of notice 8; and
- was aware on 31 March 2015 that she had been dismissed by the Respondent 9;
- written notification of the termination was not required;
- Ms Vrebac had been authorised by Mr Banic to dismiss Mrs Radulovic; and
- the abovementioned letters from Mrs Radulovic to Ms Hutchinson and Mr Banic of 17 and 22 April respectively constitute admissions on the part of Mrs Radulovic that her employment had been terminated with immediate effect on 31 March 2015.
[24] In summary, the Respondent submitted that the preponderance of the evidence on both sides is that the employment came to an end on 31 March 2015 and that Mrs Radulovic was aware of that fact on that day.
[25] An analysis of the material before the Commission indicates that:
- Mrs Radulovic received a text message from Ms Vrebac on 31 March 2015 stating that “I’m sorry but I have to let you go”;
- Mrs Radulovic’s evidence was that she aware on 31 March 2015 she had been dismissed;
- Mrs Radulovic was paid out all of her entitlements on either 10 or 17 April 2015, but did not receive pay in lieu of notice;
- on 17 April 2015 Mrs Radulovic sent a letter to Ms Hutchinson which stated that she had been dismissed without notice on 31 March 2015; and
- that statement was repeated in Mrs Radulovic’s of 22 April 2015 to Mr Banic.
[26] The Full Bench in Beverly Jean Burns v Aboriginal Legal Service of Western Australia (Inc.) 10 (Burns) observed that “in our view, a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated.”11
[27] Drawing on the decision in Burns, the above analysis supports a finding that Mrs Radulovic was dismissed from her employment on 31 March 2015. The practical effect of this is that Mrs Radulovic’s unfair dismissal application was therefore lodged seven days outside the statutory timeframe.
[28] As the application was lodged outside the statutory timeframe for lodgement, I turn now to consider the issue of whether there are exceptional circumstances warranting the Commission granting Mrs Radulovic a further period for the making of her application.
The Relevant Legislation
Section 394 of the Act provides:
“394 Application for unfair dismissal remedy
394(1) When a person may apply for order
A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
394(2) Standard time limit
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).
394(3) Extended time limit
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.”
Whether to allow a further period for the application to be made
[29] 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.394(3) above. I will deal with each of those matters separately.
(a) The reason for the delay
[30] Mrs Radulovic submitted that she did not understand her legal rights with respect to termination and pointed to her attempts to challenge her termination. Mrs Radulovic further submitted that her application was filed as soon as possible after she became aware she had to make her complaint to the Commission and not to the manager of the Centre.
[31] Notwithstanding this, Mrs Radulovic gave oral evidence at the hearing that she had researched unfair dismissal on the internet prior to 17 April 2015 in the context of preparing her letter to Ms Hutchinson and that as a result of that research she was aware that the Commission dealt with unfair dismissal applications 12. In response to a question from the Commission at the hearing, Mrs Radulovic attested that the reason for the delay in filing her application was in essence because she was not aware of the law, she was angry and she did not want to pursue the matter until after she had had the opportunity of speaking to Mr Banic13.
[32] The Respondent submitted that the essence of Mrs Radulovic’s reasons for delay were that she was ignorant of the timeframe for lodgement and she sought to dispute the dismissal with the Respondent during the statutory timeframe. Relying on the decision in Cheyne Leanne Nulty v Blue Star Group 14 (Nulty), the Respondent submitted that neither of those circumstances, whether taken individually or considered together, is exceptional.
[33] With regard to Mrs Radulovic’s submission that she was not aware of the law, I note that a Full Bench of the then Fair Work Australia determined in Nulty that:
“[14] Mere ignorance of the statutory time limit in s 366(1)(a) is not an exceptional circumstance ...”
[34] By way of background the reference in Nulty to s.366(1)(a) refers to the provision in the Act which deals with the time for making a general protections application in respect of a dispute involving dismissal. The provision is in almost identical terms to s.394(2)(a) of the Act.
[35] Further, the Full Bench in Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers 15 determined that an employee needs to provide a credible reason for the whole of the period that the application was delayed. In this case, Mrs Radulovic attested that she was aware from around 17 April 2015 that the Commission dealt with unfair dismissal applications, yet offered no reason for not lodging her application until 28 April 2015 other than wanting to speak to Mr Banic before pursuing the matter. I note that Mrs Radulovic and her husband met with Mr Banic on 21 April 2015. As such, Mrs Radulovic has failed to provide a credible reason for the delay in filing her application for at least the period 21 to 28 April 2015.
[36] The above analysis weighs heavily against a finding of the existence of exceptional circumstances.
(b) Whether the person first became aware of the dismissal after it had taken effect
[37] Neither party directly addressed this consideration in their submissions.
[38] The analysis at paragraphs [21]-[28] above regarding the date Mrs Radulovic’s dismissal took effect, and in particular Mrs Radulovic’s oral evidence that she was aware on 31 March 2015 that she had been dismissed, supports a finding that Mrs Radulovic became aware of her dismissal on the date it took effect.
[39] This does not point to the existence of exceptional circumstances.
(c) Any action taken by the person to dispute the dismissal
[40] Mrs Radulovic submitted that she disputed the dismissal on multiple occasions, both with Mr Banic over the phone, in face to face discussions/meetings and in writing, and also with the manager of the Centre.
[41] The Respondent did not dispute that Mrs Radulovic undertook such action, but submitted that this was not exceptional.
[42] Based on the material before the Commission, I am satisfied that Mrs Radulovic took steps to dispute her dismissal and that, on occasions, there appears to have been some delay in the Respondent responding to Mrs Radulovic’s calls and text messages.
[43] This points, albeit only slightly, to the existence of exceptional circumstances.
(d) Prejudice to the employer (including prejudice caused by the delay)
[44] Mrs Radulovic submitted that no prejudice would be caused to the Respondent were an extension of time granted. The Respondent conceded that no issue of prejudice arises.
[45] I therefore consider this factor to be a neutral consideration.
(e) The merits of the application
[46] Mrs Radulovic contended in her application that her dismissal was unfair as she was dismissed while recuperating from major surgery. Mrs Radulovic further contended in her application that the Respondent gave permission for her husband to undertake her work duties for a period of six weeks while she was recovering from surgery and that any underperformance by her husband should not have led to her dismissal.
[47] In her submissions, Mrs Radulovic contended that she has strong prospects of success in her unfair dismissal application.
[48] The Respondent in its submissions highlighted that much of Mrs Radulovic’s and the Respondent’s version of events differ significantly in a number of respects, though based on its submissions it considered the merits lie with it. The Respondent also submitted that it cannot be said that Mrs Radulovic has a highly meritorious case and that having regard to the respective cases the best that can be said is that the merits of her case are a neutral consideration.
[49] Based on the material before the Commission it is clear that a number of key issues are disputed. For instance, Mrs Radulovic attested that she sent Ms Vrebac a text message in January 2015 advising that she needed six weeks off due to her impending surgery. However, both Ms Vrebac and Mr Banic gave evidence that they were not aware that Mrs Radulovic was to have surgery in February 2015. Further, the Respondent produced a copy of the text message allegedly sent by Mrs Radulovic in January 2015 but dated 11 May 2015 16, bringing Mrs Radulovic’s evidence in this regard into doubt. Further, Mrs Radulovic referred to a number of text messages she had allegedly sent to the Respondent both prior to and following her dismissal. However, Mrs Radulovic did not produce copies of any of those text messages, allegedly because her mobile phone battery had died and all records of messages sent were lost17. In the absence of such evidentiary material being presented to the Commission, I consider the merits of Mrs Radulovic’s case to be less than compelling. However, if Mrs Radulovic were able to produce such evidentiary material it may strengthen her case.
[50] Further, I note both the Respondent’s suggestions that one of the medical certificates relied upon by Mrs Radulovic to support her absence appeared to have been altered and Mrs Radulovic’s evidence under oath that this was not the case 18. Suffice to say, the Respondent’s questions appear to have some substance based on the copy before the Commission19.
[51] Against that background, and particularly in view of the disparity between the parties’ respective versions of the circumstances in this case, I consider this factor to be a neutral consideration.
(f) Fairness as between the person and other persons in a similar position
[52] Neither party addressed this consideration in their submissions.
[53] Accordingly, I consider it to be a neutral consideration.
Conclusion
[54] The question of exceptional circumstances was dealt with by a Full Bench of the then Fair Work Australia in the decision of Nulty in the following way:
“[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.”
[55] Based on the above analysis, the only factor that points to exceptional circumstances, albeit only slightly, is that Mrs Radulovic did take steps to dispute her dismissal. The remaining factors are either neutral considerations or, in the case of the reasons for delay relied upon by Mrs Radulovic, clearly do not point to the existence of exceptional circumstances.
[56] Having considered all of the factors set out in s.394(3) and drawing on Nulty, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394(3).
[57] Accordingly, the application will be dismissed. An order to that effect will be issued with this decision.
Appearances:
A. Ballard for Dragana Radulovic.
J. Wilson for Peter Banic T/A National Cleaning Services Australia Pty Ltd.
Hearing details:
2015.
Canberra:
June 10.
1 Respondent’s Outline of Submissions at Annexure 2A
2 Applicant’s Outline of Submissions at paragraphs 61 and 81
3 Ibid at Annexure A
4 Ibid at Annexure 3C
5 Ibid at Annexure 7A
6 Respondent’s Outline of Submissions at Annexure 7B
7 Ibid at Annexure 7D
8 Transcript at PN130
9 Ibid at PN181-190
10 Print T3496
11 Ibid at paragraph [24]
12 Transcript at PN235-250
13 Ibid at PN163
14 (2011) 203 IR 1
15 (2010) 197 IR 403 at 408-409
16 Respondent’s Outline of Submissions at Annexure 2B
17 Transcript at PN91
18 Ibid at PN256-269
19 Respondent’s Outline of Submissions at Annexure 7G
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