Drew v Vanilla Slice Pty Ltd ATF Sorrento Family Trust
[2016] FWC 972
•22 February 2016
[2016] FWC 972
DECISION
Fair Work Act 2009 s.394—Unfair dismissal Stephanie Drew v Just Fine Food (U2015/14189) COMMISSIONER WILSON MELBOURNE, 22 FEBRUARY 2016 Application for relief from unfair dismissal. [1] Stephanie Drew was employed by the operators of Just Fine Food in Sorrento,
Victoria, from late 2013 and appears to have been continuously employed with the business
between about January 2014 and August 2015.
[2] My decision in this matter follows a hearing on 5 February 2016, at which Ms Drew
gave evidence on her own behalf. Richard Guarnuccio, a Director of the business and Ms Ida
Arnold, the business manager, both of whom gave evidence on behalf of the Respondent,
Vanilla Slice Pty Ltd as Trustee for the Sorrento Family Trust, which has operated the
business since on or around 7 June 2015. I have also had regard to the material that each party
filed in preparation for the hearing conducted by me on 5 February 2016.
[3] Ms Drew’s application for unfair dismissal was made to the Fair Work Commission
on 12 November 2015 and asserts the date on which her termination of employment took
effect was 22 October 2015. If that is the correct date on which her termination of
employment took effect, then Ms Drew’s unfair dismissal application is within the time
allowed by the Fair Work Act 2009 (the Act) for the making of such applications, and the
application was lodged in the Fair Work Commission (the Commission) on the last day on
which it may have been made.
[2016] FWC 972[4] While the application is ostensibly within time on Ms Drew’s construct, the issues in
dispute between the parties include whether she is a person protected from unfair dismissal,
for reason of whether she has been employed for at least the minimum employment period as
well as the date upon which Ms Drew’s termination of employment actually did take effect.
Depending on the answer to those propositions, and in particular, my finding about when her
dismissal took effect, it may be necessary to consider whether an extension of time for the
making of an application is appropriate to grant.
[5] Vanilla Slice Pty Ltd as Trustee for the Sorrento Family Trust trades as Just Fine Food
and operates a restaurant and café business at Sorrento, Victoria, and as might be expected has
a relatively small number of employees. The Respondent indicates that as 22 October 2015,
the date asserted by Ms Drew as the date of her dismissal, it employed 18 employees. Ms
Drew was employed pursuant to the provisions of the Restaurant Industry Award 2010
[MA000119] and worked on a casual basis for the business. The business is a restaurant and
café serving breakfast and lunch meals, coffee and the like, and is heavily seasonal. It has
operated for more than 20 years.
[6] There is no dispute between the parties that Ms Drew was employed on a casual basis,
and Mr Guarnuccio conceded in the hearing that, on the basis of her work until August 2015,
her employment had been on a regular and systematic basis, within the meaning of s.384 of
the Act. Having regard to the matters upon which evidence was given, I consider that
concession was appropriate to make, and that it is consistent with the evidence.
[7] Because of the matters in dispute between the parties, is necessary for me to determine
the following;
Whether Ms Drew has completed the minimum employment period referred to within s.383 of the Act, having regard to the rules set out in s.384 regarding the determination of the period of employment; The date on which Ms Drew’s employment ended; and
[2016] FWC 972
If that date is before 22 October 2015 and her application for unfair dismissal remedy is therefore out of time, whether or not there are exceptional circumstances within the meaning of s.394 (3) of the Act that would lead the Commission to allow a further period for Ms Drew’s application of Unfair Dismissal Remedy to be made. [8] A further preliminary question arose in the course of discussion with Mr Guarnuccio
in the hearing about the Respondent’s overall case, which is whether Ms Drew was dismissed
within the meaning of s.386(1)(a); that is, whether her employment was terminated on the
employer’s initiative. Since that question was outside of the scope of these proceedings, I
make no finding about that question.
[9] Having regard to all the evidence and submissions of the parties leads me to make the
following findings;
The exclusion of casual service as a transferring employee subject to a transfer of business is not operative in this matter, which means I do not find that Ms Drew’s period of employment counts only from the date that Vanilla Slice Pty Ltd took over the business, being on or around 7 June 2015; As a result, Ms Drew has completed at least a period of service which is at least the minimum employment period; The date of termination of Ms Drew’s employment was 9 August 2015, which is the last date on which she performed paid work for Just Fine Food. For the avoidance of doubt, I make no finding about whether that was, or not, a termination on the initiative of the employer; Because of my finding about the date of Ms Drew’s termination of employment, her unfair dismissal application is 74 days out of time; I am, however, satisfied there are exceptional circumstances that warrant an
extension of time to be granted by the Commission for the making of Ms Drew’s
application for unfair dismissal remedy.
[10] I have found above that there is to be no exclusion in Ms Drew’s case of her casual
service as a transferring employee subject to a transfer of business.
[2016] FWC 972
[11] Section 384 sets out the rule for establishment of an employee’s period of
employment, with the general rule being set out in s.384(1) that the period of employment is
the employee’s period of continuous service. However, s.384(2) requires certain service to be
included, and other service excluded. Firstly, casual service that is regular and systematic and
which has a reasonable expectation of continuation is to be included. However, despite that,
such service is to be excluded where the employee is a transferring employee subject to a
transfer of business AND certain criteria are met.
[12] The evidence demonstrates clearly that, when the business was sold from one owner to
another at the end of May and start of June 2015, there was no connection of the nature of
associated entities between the vendor, Dolphin Star Pty Ltd, and the purchaser and operator
of the ongoing business, Vanilla Slice Pty Ltd. Notwithstanding that fact, the evidence also
shows that there was a transfer of business within the meaning of the Act and that Ms Drew
and other employees were transferring employees.
[13] For the service to be excluded, the Commission would need to be satisfied that the
new employer (in this case Vanilla Slice Pty Ltd) had informed Ms Drew in writing before
her employment with Vanilla Slice Pty Ltd started that a period of service with Dolphin Star
Pty Ltd would not be recognised; per s.384(2)(b)(iii); see Benjamin Hill v Sahir T/A Cafe
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Moderno at Fountain Gate. There is no evidence before me that Ms Drew was informed of this matter. Accordingly, the exclusion of prior service with Dolphin Star Pty Ltd does not
operate. Ms Drew is therefore to be regarded as having completed the minimum employment
period.
[14] The further evidence to which I have had regard and which informs my other findings
includes Ms Drew’s working pattern which showed a relatively fluctuating number of hours
worked each week. Although such was the case, Ms Drew nonetheless appears to have
[2016] FWC 972worked hours worked in most weeks, with a handful of exceptions where, for reasons such as
annual holiday and the like, she was not available.
[15] Ms Drew also argues that on 8 August 2015, she told staff working at the
Respondent’s business, that she had recently become pregnant and that the next day, when she
expected to see her name on the roster, it was not. For its part, the Respondent argues that
pregnancy simply was not a factor in Ms Drew leaving. Instead, Just Fine Food argue that
over the weeks that it had operated the business, Ms Drew had been increasingly unavailable
to work for the business including for reason of her obtaining casual employment with other
employers.
[16] While there is a contest between the parties about precisely what Ms Drew had said to
people in the business prior to late August, and for her part whether the announcement of her
pregnancy lead to a reduction in the hours, the fact is that Ms Drew did not have any work
with Just Fine Food after 9 August 2015.
[17] The submissions and evidence given on behalf of Just Fine Food, including from Mr
Guarnuccio, puts the argument that the Respondent formed the view at or around 8 August
2015 that Ms Drew should not be offered further shifts.
[18] For her part, Ms Drew gave evidence that after finding that she had not been rostered
for work, she made regular weekly contact with people in Just Fine Food about whether she
would be again placed on the roster and that she continued for about two months after 9
August 2015 in the belief that she would eventually be offered further work. Her evidence is
that even though she made weekly contact and asked the same question, no-one told her that
she would not be rostered again.
[19] It was not until 22 October 2015 when she finally received advice from Just Fine Food
that she was not going to be rostered again. The circumstance by which that came about was
that Ms Drew had a text message exchange, with Karen Arnold, Ms Ida Arnold’s daughter,
[2016] FWC 972who worked in a supervisory role at Just Fine Food, and enquired whether Ms Drew would be
available over the forthcoming Melbourne Cup weekend. Even though Ms Drew indicated in
reply that she would be available, the prospect of that occurring was cut short on the same day
when, after being consulted about the matter, Mr Guarnuccio advised in a text message that
Ms Drew would not be placed on the roster again. That in turn was relayed to Ms Drew, and
the date on which it was relayed, 22 October 2015, in turn has becomes the date relied upon
by the Applicant as the date on which her termination of employment occurred for the
purposes of this decision.
[20] During the period between 9 August 2015 and 22 October 2015, Ms Drew had been
working as a casual waitress elsewhere, although there is conflicting evidence before me
about whether by mid-October that work was either reducing or coming to an end. In the
context of this decision, it is unnecessary for me to resolve that particular issue.
[21] Having considered the evidence in this matter I am satisfied that even though Ms
Drew’s working hours with Just Fine Food were reducing over July and early August, perhaps
as an indication of her being employed elsewhere, she was nonetheless working regularly and
systematically for the business and had an expectation of continuing to do so, noting the twin
exigencies of the normal reduction of hours in the business during winter, and the periodic,
but not complete, unavailability of Ms Drew for reason of other work commitments. That her
hours were then reduced to zero, as happened after 9 August, was atypical, even making
allowances for the usual reduction in customer demand and working hours during July.
[22] I am satisfied overall that the reduction in hours to zero was a termination of
employment, albeit that I make no finding about whether it was at the initiative of the
employer, or that it was a consequence of Ms Drew’s unavailability for other work
commitments. The evidence shows clearly that Ms Drew wanted further work of some
[2016] FWC 972amount, albeit on days that might be considered by the Respondent to be limited, and held
herself out for more, and that she did so at least weekly.
[23] I have taken into account that Ms Drew did not form a view that her employment had
actually ended until 22 October 2015. She was patient about the situation during the 2 ½
months before that date, and perhaps either pre-occupied by her pregnancy, or not being
especially worried about the Respondent’s lack of response because of her other work
commitments. She was no doubt also learning the ways of working of the new owners.
[24] Taken together, those factors explain why Ms Drew did not form a view her
employment had ended before 22 October 2015, however they do not remove the factual
situation, enlivened by the Respondent’s evidence about when it made its decision, that her
employment had ended in August.
[25] For the purposes of this decision, I find that Ms Drew’s employment ended on 9
August 2015.
[26] Section 394(2) of the Fair Work Act 2009 requires an unfair dismissal application to
be made within 21 days after the dismissal took effect or within such further period as the
Commission allows under s.394(3). Since Ms Drew’s unfair dismissal application was lodged
in the Fair Work Commission on 12 November 2015, it is apparent referred to above that the
application is 74 days out of time.
[27] In considering an application for an extension of time for the making of an unfair
dismissal application, the Act requires I must be satisfied that there are exceptional
circumstances for the making of the application taking into account the criteria which are
specified within s.394 (3) of the Act. The Full Bench has held that the test for granting an
extension of time involves both a broad discretion and a high hurdle of exceptional
circumstances, and the longer the delay in making the application the more difficult it will
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generally be to get over that hurdle. A decision as to whether to extend the time period under [2016] FWC 972
3
s.394(3) involves the exercise of a discretion. Consideration of whether there are exceptional circumstances requires consideration of all the circumstances, with it being well established
that “[t]o be exceptional, circumstances must be out of the ordinary course, or unusual, or
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special, or uncommon but need not be unique, or unprecedented, or very rare”.
[28] I have given consideration to all of the criteria within s.394(2) and am overall satisfied
that Ms Drew’s situation indicates exceptional circumstances and that it is appropriate to
allow a further period for the making of her unfair dismissal application. In considering
whether an extension of time should be granted, I am required to consider all of the criteria in
s.394, which I now do.
Consideration of the factors set out in section 394(3) of the Act
1. The reason for the delay
[29] The relevant circumstances include that Ms Drew did not form a view that she had
been dismissed until 22 October 2015, despite the actual date of termination being on 9
August 2015. Once she formed the view she had lost her employment with Just Fine Foods,
she contemplated taking action against the Respondent for what she believed to be an unfair
st
dismissal and did so on 12 November 2015, which, as it happens, is the 21 day after 22 October 2015, being the date on which she thought she had been dismissed. She took that
action by contacting an industrial relations consultant, who informed her of the time limit and
then drafted and submitted her application to the Commission the same day.
[30] In forming a view about whether an applicant puts forward an acceptable reason for
the delay in making an unfair dismissal, I must have regard to the person’s explanation for the
whole period of the delay, being the period between the end of the actual 21 day lodgement
period and the date on which the application was lodged.
[31] In Ms Drew’s case, with her employment ending on 9 August 2015, the last day of
lodgement would have been 30 August 2015. The delay to which I must have regard is the
[2016] FWC 972
period between that date and 12 November 2015. Ms Drew’s explanation for that delay, is
that she first did not realise she had lost her job and that when she realised she had, she then
contemplated action against Just Fine Food, and eventually taking action on what she
understood to be the last permissible day.
[32] I consider that explanation to be an acceptable reason(s) for the delay for Ms Drew
making an unfair dismissal application. Accordingly, this criterion resolves in her favour.
2. Whether the person first became aware of the dismissal after it had taken effect
[33] On the basis of the evidence before me, I am satisfied that Ms Drew first became
aware of the termination of employment on 22 October 2015. This is a factor which resolves
in favour of an extension of time.
3. Any action taken by the person to dispute the dismissal
[34] Action taken by an employee to contest the dismissal, other than lodging an
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application, can be treated as favouring the grant of an extension of time.
[35] The overt action Ms Drew took to dispute her dismissal was her unfair dismissal
application; however, I have also had regard to the numerous inquiries she made of Just Fine
Foods from 9 August 2015 about whether she would be re-established to the roster.
4. Prejudice to the employer (including prejudice caused by the delay)
[36] The delay in the filing of the application is 74 days. The respondent does not claim
that the delay in lodging the application caused it prejudice, other than the additional time and
expense objecting to the extension of time.
[37] While there has been prejudice and disruption to the employer already with these
proceedings, there is likely to be further prejudice if I were to grant the extension of time.
Balanced against this is the probability that a full merits proceeding is not likely to bring
forward much additional material to that already before the Commission. It is acknowledged
that the process of having to respond to an unfair dismissal application itself create some
[2016] FWC 972prejudice to the former employer. However the consideration of the Commission in relation
to this criterion is a consideration as to prejudice beyond this usual requirement of having to
respond to the claim. The presumption is that in the event an employer claims that there will
be prejudice arising from the extension of time, the employer must produce evidence to
demonstrate prejudice. In the event that such evidence is brought forward, the employee
would then need to demonstrate that the facts as shown by the former employer do not
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amount to prejudice.
[38] In relation to this matter, there is no evidence before the Commission that there would
be undue prejudice to the former employer if an extension of time is to be granted.
5. The merits of the application
[39] The merits of the application to which I must have regard are whether or not the
limited evidence I have seen to date discloses a likely unfair dismissal.
[40] In relation to the Commission’s consideration of the merits of an application when
undertaking an analysis of whether an extension of time for the filing of an unfair dismissal
application should be granted, the Commission does not require detailed evidence and usually
does not make findings factors as to the evidence which is brought forward on the merits of
the application. Instead the Commission’s consideration of this question is to ascertain
whether there is an arguable case on behalf of the Applicant; or alternatively whether it
appears that such case either has very strong or very weak merits on its face. It has been said
in previous matters that a highly meritorious claim may persuade a decision-maker to accept
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an explanation for delay that would otherwise have been insufficient.
[41] On the one hand, Ms Drew asserts that her termination of employment came about
because she let the business know that she was pregnant. While I make no findings that such
was the case or not, I note the Respondent’s case that she had commenced working elsewhere
and was becoming increasingly unavailable. Such situation, with the potential for
[2016] FWC 972plausibility, would answer with some adequacy, the complaint of unfairness advanced by Ms
Drew.
[42] In considering Ms Drew’s application, I am satisfied that there is at least an arguable
case on her behalf, while noting that the case is as yet untested and that Just Fine Food
strenuously opposes the construction of circumstances she would likely forward.
[43] Notwithstanding the submissions on behalf of either party, I am not able at this time to
form a view about whether this criterion resolves in favour of either.
6. Fairness as between the person and other persons in a similar position
[44] In considering whether I should grant an extension of time, I need to have regard to
whether it is fair to other unfair dismissal applicants whose applications are either currently
8
before the Commission, or have been decided in the past.
[45] I consider that in this case, the unusual circumstance of an Applicant waiting two
months before learning that her delisting from a roster amounted a termination of
employment, coupled with her then moving to lodge an unfair dismissal application on the
last day of what she understood to be the 21 day time period, combine to a situation in which
the grant of an extension to Ms Drew would not amount to an unfairness to other applicants.
[46] This criterion resolves in favour of Ms Drew.
[47] After consideration of the whole of the material before me and the legislative criteria, I
am satisfied that there are exceptional circumstances that would allow a further period for an
unfair dismissal application to be made by Ms Drew.
[48] For these reasons, I grant an extension of time pursuant to s394 of the Fair Work Act
and will issue an order that the time for Ms Drew to file her unfair dismissal application made
pursuant to s.394 of the Act be extended until 12 November 2015.
[2016] FWC 972
| COMMISSIONER |
| Appearances: |
| Ms S Drew on her own behalf |
| Mr R Guarnuccio for the Respondent |
| Hearing details: |
| 2015. |
| Melbourne. |
| February 5. |
| Printed by authority of the Commonwealth Government Printer |
| <Price code C, PR577038> |
1
[2013] FWC 668, at [12]
2
Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace
Relations [2014] FWCFB 2288 at [21]
3
Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, at [9]
4
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v
Australian Postal Corporation [2007] AIRC 848
5
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300
6
Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health
Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited
(unreported, 2003) PR927201 [16].
7
Haining v Deputy President Drake (1998) 87 FCR 248, 250
8
Wilson v Woolworths [2010] FWA 2480, at [24]‒[29]
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