Ellen McNamara v Le Cordon Bleu Australia T/A Le Cordon Bleu Australia

[2018] FWC 2705

[2018] FWC 2705

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ellen McNamara
v
Le Cordon Bleu Australia T/A Le Cordon Bleu Australia
(U2018/2597)

COMMISSIONER PLATT ADELAIDE, 14 MAY 2018

Application for relief from unfair dismissal – extension of time – application dismissed.

Summary

[1] Ms McNamara has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Le Cordon Bleu Australia T/A Le Cordon Bleu Australia (LCBA) which her form F2 Unfair Dismissal Application advised took effect on 15 December 2017 (sic).

[2] Ms McNamara filed her application in the Commission on 13 March 2017. Whilst the application did not recognise that it was made beyond 21 days from the date of dismissal the following explanation was provided:

“I am concerned about how my employment at Le Cordon Bleu Australia ended. What I am most concerned about was that I signed a one year contract starting on the 11th of January 2016. It was a maternity to take The contract ended and I was kept on (sic). Another lady fell pregnant but I wasn’t asked to sign a contract to take over her maternity leave.

When I advised the Sales and Marketing director I was pregnant in May of 2017, I was told that there would not be a job to come back to as the 2 ladies taking maternity leave would be back by the time I left. I was a little confused and concerned as I felt like I was getting let go of unfairly as I was no longer on a contract.

On the 5th of March, I was advised by the Sales and Marketing Director that they have hired another Sales and Marketing Officer on a one year contract. I feel upset and disappointed that I was never offered an opportunity to return to the Sales and Marketing Position after my maternity leave and now it has been filled.

My son came a little earlier than expected so I never had the chance to express this to the Human Resources Manager but I tried on numerous occasions to have a meeting with her but time just got away from both of us.

I had explained to the Sales and Marketing Director on numerous occasions that I was only planning on taking a few months off as my partner is here on a visa and is limited to hours he can work so my income was really important.”

[3] On 23 March 2018, LCBA lodged a form F3 Employer Response which indicated that the dismissal occurred on 15 December 2017 and raised a jurisdictional objection on the basis that the application was lodged out of time and that Ms McNamara was not dismissed.

[4] This decision only deals with the extension of time issue.

[5] On 29 March 2018, my Associate corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 11 April 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter were provided to the parties. Ms McNamara was directed to provide a statement concerning the extension of time and any documents to be relied upon by 5 April 2018. LCBA was invited to file any material in reply by 9 April 2018.

Submissions

[6] On 3 April 2018 Ms McNamara provided a written submission which is relevantly summarised as follows:

•  On 11 January 2016 she commenced working for LCBA on a fixed term basis to cover for a parental leave absence. That contract was to conclude on 28 April 2017.

•  In November 2016, Ms McNamara was advised that another staff member was to take parental leave between 1 May 2017 and 15 December 2017. This offer was not recorded in writing.

•  Ms McNamara contends that at the expiration of her initial fixed term contract she continued working as a full-time ongoing employee.

•  In mid-2017 Ms McNamara advised LCBA that she was pregnant but would only seek to have a couple of months off.

•  Ms McNamara had a discussion with the Human Resources Advisor.

•  Ms McNamara had a discussion with the Sales and Marketing Manager about returning to her position after maternity leave and she was advised that it was unclear if there would be a position to return to.

•  Ms McNamara unsuccessfully sought to formally discuss the matter with the HR Advisor.

•  Ms McNamara’s baby arrived early and her last day of work was 15 December 2017.

•  On 5 January 2018 she attended the office and spoke to the HR Advisor who said she was not aware of what was going on. A discussion was held regarding the payment of annual leave.

•  On 22 February 2018 Ms McNamara sent a text message to the Sales and Marketing Manager advising that she was happy to return to work as she felt uneasy about leaving so suddenly. The Sales and Marketing Manager advised that the position had been filled.

•  This application was lodged on 13 March 2018.

[7] On 9 April 2018 LCBA provided a written submission which is relevantly summarised as follows:

•  On 11 December 2015 LCBA offered Ms McNamara a 12 month fixed term full-time position. The position commenced on 11 January 2015 and concluded on 28 April 2017 (sic) to cover a maternity leave absence.

•  LCBA provided a number of records which it said indicated that Ms McNamara was aware that her position was linked to the absence of persons on parental leave.

•  LCBA asserted that it farewelled Ms McNamara at the Christmas Party at the end of 2017.

•  LCBA submitted Ms McNamara was aware that her employment would cease in 2017 as a result of an email it received from her at 2:49pm on 26 October 2017.

[8] A Hearing was conducted by way of a telephone conference on 11 April 2018. A sound file record of the telephone conference was kept. Ms McNamara represented herself and Ms Makris of HWL Ebsworth represented LCBA. Permission was granted pursuant to s.596(2)(a) of the Act.

[9] After the conclusion of the conference the Commission reflected on the material provided and advised that a further Hearing would be convened to allow sworn evidence to be presented and be subject to cross examination. Directions were issued for the provision of statements and other material to be relied upon and the matter was relisted on 9 May 2018. Ms McNamara was given permission to appear by telephone as she would not be present in Australia at that time.

[10] At the Hearing on 9 May 2018 Ms McNamara was self-represented and called evidence from herself and her partner, Mr Roberto Ignacio Ullivarri Contreras.

Evidence

[11] Ms McNamara provided a number of statements 1 and exhibits, including a screenshot of a text message trail between her and an LCBA employee, Mr Nick Teoh. Ms McNamara’s evidence can be summarised as follows:

•  At the conclusion of her first contract on 28 April 2017 she was engaged on an ongoing full-time basis.

•  Ms McNamara became pregnant shortly thereafter and contended that she left employment on 15 December 2017 (due to the early arrival of her baby) and took maternity leave after her baby was born on 16 December 2017.

•  Ms McNamara states that she first became aware that her employment had ceased on 29 February 2018 upon receipt of the communication from Ms Sarah Bavey.

•  Ms McNamara filed her application on 13 March 2018 which she asserts was within 21 days of her becoming aware of her dismissal.

•  Ms McNamara denies being told her contract would cease on 20 December 2017 or advising Mr Roper or other persons that she was aware her role would end in December 2017.

[12] Ms McNamara gave evidence that sometime between 5 January and 19 January 2018 she was unsure if she was still employed by LCBA.

[13] A screenshot of a text message trail between Ms McNamara and Mr Teoh was submitted by Ms McNamara. An expanded version was tendered by LCBA, the relevant portion reads as follows:

“Mr Teoh: WTF is this I hear you’re not coming back to work here?

Ms McNamara: yeah apparently I don’t have a job to come back too.

Mr Teoh: That’s quite disappointing. And fcuked up (sic). Do you have any alternate plans?

Ms McNamara: Na not really I’ll work something out (sic).”

[14] Ms McNamara rejected the contention that the exchange revealed that she was aware of the cessation of her employment by 19 January 2018 at the latest.

Roberto Ignacio Ullivarri Contreras

[15] Mr Contreras submitted a statement 2 and gave evidence that he was present at Ms Davies ‘farewell’ speech and did not understand the comment referring to the end of the employment, but that Ms McNamara was taking parental leave.

[16] Mr Contreras stated he was at a social event on 17 February 2018 where Ms Davies asked “when are you coming back?”. Mr Contreras states that Ms McNamara advised him that her position had been replaced on or about 23 February 2018.

[17] LCBA continued to be represented by Ms Makris and called evidence from the following witnesses:

•  Ms Sophie Davies (Senior Brand Manager)

•  Mr Dylan Roper (IT Manager)

•  Ms Sarah Bavey (Director Sales and Marketing)

•  Ms Ashleigh Griffiths (HR Advisor)

Sophie Davies

[18] Ms Davies tendered a statement 3 and gave evidence that Ms McNamara was first engaged to cover a period of parental leave taken by Ms Austin in 2015. This arrangement was contained in a written contract of employment which was a fixed term contract which expired on 28 April 2017.4 Ms Davies contended that Ms McNamara was further engaged to cover the absence of another employee on parental leave (Ms Phillips), the engagement was contiguous. The new end date was proposed to be 20 December 2017. Unfortunately this arrangement was not formalised in a written contract of employment and is now disputed by Ms McNamara. Ms Davies submitted a number of attachments to her statement5 which she asserted supported the notion that Ms McNamara was aware that she was on a fixed term contract which ceased on 20 December 2017. As it turns out, this issue does not need to be determined in order to resolve the jurisdictional objection.

[19] Ms Davies contends that as a result of a speech given by her at a Christmas Party held on 8 December 2017 Ms McNamara would have known that her employment was to cease in December 2017.

Dylan Roper

[20] Mr Roper tendered a statement 6 and gave evidence. Mr Roper provided an account of a conversation he had with Ms McNamara whilst providing IT support on 12 December 2017. Mr Roper contends that Ms McNamara told him that she did not have a job anymore.

[21] This evidence was contested by Ms McNamara. Mr Roper also witnessed Ms Davies farewell Ms McNamara at the Christmas Party.

Sarah Bavey

[22] Ms Bavey tendered a statement 7 and gave evidence that Ms McNamara was first engaged to provide parental leave cover for Ms Austin and then Ms Phillips. Ms Bavey contends that in October 2016 she advised Ms McNamara that the position covering Ms Phillips would cease on 20 December 2017 and this was agreed.

[23] Ms Bavey also submitted accounts of conversations with Ms McNamara which she asserted implied that Ms McNamara knew her role would cease on 20 December 2017. Ms Bavey submitted she had a conversation with Ms McNamara in November 2017 where she asserted that Ms Phillips would return to work in December 2017.

[24] Ms Bavey submitted she was also present when Ms Davies said thank you and farewell at the Christmas Party.

[25] On 19 February 2018 Ms Bavey received a text message from Ms McNamara and on the following day she replied that that a person had been recruited to the Sales and Marketing team a few weeks prior and that the operation was fully staffed.

[26] On 29 February 2018 Ms McNamara attended the office with her new baby.

Ashleigh Griffiths

[27] Ms Griffiths tendered a statement 8 and gave evidence. Ms Griffiths gave evidence that Ms McNamara was provided with a farewell card and gift in November 2017.

[28] Ms Griffiths also attended the Christmas Party where Ms Davies farewelled Ms McNamara. Ms Griffiths advised that Ms McNamara’s ‘last day’ was on Friday 15 December 2017 as her baby arrived early.

[29] Ms Griffiths processed two payslips in January 2018, one was the payment of annual leave to cover the period up to 20 December 2017, the second was a payout of all entitlements and noted that the employment has ceased on 15 January 2018. Unfortunately these emails were sent to Ms McNamara’s work email address which she did not have access to at the time. It was not disputed by LCBA that these documents were not received by Ms McNamara.

[30] Ms Griffiths identified numerous errors in LCBA’s records concerning communications to Ms McNamara’s including her contract of employment and pay slips.

Submissions

[31] Ms McNamara contends she first became aware that her employment had ceased on 29 February 2018 and that the application was lodged within time. In the alternative if the application was not lodged within time Ms McNamara contends that if her application was late it is explained by the fact she was looking after her baby and was never formally advised of her dismissal.

[32] LCBA contends that the employment was for a fixed term which was understood to end on 20 December 2017 and that its communications and interactions with Ms McNamara was consistent with that position. In the alternative LCBA contended that Ms McNamara was aware of the cessation of employment on 5 January 2018 or at the latest 19 January 2018 as a result of the communications between Ms McNamara and Ms Griffiths on 5 January 2018 and Mr Teoh on 19 January 2018. LCBA contend that the explanation provided by Ms McNamara does not reveal the existence of exceptional circumstances.

Applicable Law

[33] Section 394 of the Act relevantly states:

“394 Application for unfair dismissal remedy

....

(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.”

[34] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd⁹which stated:

“[10] It is convenient to deal first with the meaning of the expression “exceptional circumstances” in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression “exceptional circumstances” in s.394(3) and held:

“[5] The word “exceptional” is relevantly defined in The Macquarie Dictionary as “forming an exception or unusual instance; unusual; extraordinary.” We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act.”

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[12] The ordinary meaning of the expression “exceptional circumstances” was considered by Rares J in Ho v Professional Services Review Committee No 295, a case involving in s.106KA of the Health Insurance Act 1973 (Cth). His Honour observed:

“23. I am of opinion that the expression ‘exceptional circumstances’ requires consideration of all the circumstances. In Griffiths v The Queen (1989) 167 CLR 372 at 379 Brennan and Dawson JJ considered a statutory provision which entitled either a parole board or a court to specify a shorter non-parole period than that required under another section only if it determined that the circumstances justified that course. They said of the appellant’s circumstances:

‘Although no one of these factors was exceptional, in combination they may reasonably be regarded as amounting to exceptional circumstances.’

24. Brennan and Dawson JJ held that the failure in that case to evaluate the relevant circumstances in combination was a failure to consider matters which were relevant to the exercise of the discretion under the section (167 CLR at 379). Deane J, (with whom Gaudron and McHugh JJ expressed their concurrence on this point, albeit that they were dissenting) explained that the power under consideration allowed departure from the norm only in the exceptional or special case where the circumstances justified it (167 CLR at 383, 397).

25. And, in Baker v The Queen (2004) 223 CLR 513 at 573 [173] Callinan J referred with approval to what Lord Bingham of Cornhill CJ had said in R v Kelly (Edward) [2000] QB 198 at 208, namely:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

26. Exceptional circumstances within the meaning of s 106KA(2) 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. Thus, the sun and moon appear in the sky every day and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events.

27. 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’ in s 106KA(2) 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. And, the section is directed to the circumstances of the actual practitioner, not a hypothetical being, when he or she initiates or renders the services.”

[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.”

Consideration

[35] I have considered all the evidence and material submitted, including the material highlighted in paragraphs [11] to [32].

[36] It is not in dispute that Ms McNamara’s last day of work occurred on 15 December 2017. The company contends that Ms McNamara’s last day of employment was on 20 December 2017. Unfortunately there is no documentary confirmation of that position. Ms McNamara states she was unaware that she was dismissed until 28 February 2018. LCBA contend that Ms McNamara was aware from the outset that her contract was of a fixed term which expired on 20 December 2017. The variation to Ms McNamara’s employment arrangements was not documented and the witness evidence in support of it is disputed.

[37] In the alternative, LCBA contends that the text message exchange between Ms McNamara and Mr Teoh indicated that Ms McNamara was aware that she did not have a job to come back to (and her employment had ceased) on 19 January 2018.

[38] Ms McNamara conceded that in the period between 5 and 19 January 2018 she was not sure if her employment had ceased or not.

[39] I find that the text message conversation on 19 January 2018 detailed at paragraph [13] provides evidence that Ms McNamara was aware that her employment had ceased by that date.

[40] Accordingly, I find that Ms McNamara was aware that her employment had ceased on 19 January 2018.

[41] This unfair dismissal application by Ms McNamara was made 32 days outside of the 21 day time limit and therefore, can only be pursued if this time limit is extended.

[42] Section 394 of the Act requires the Commission to take into account the matters set out in s.394(2)(a)-(f). It is convenient to discuss these under the various matters raised by the provision, however, insofar as they are relevant, each matter has been treated as a matter of significance in the decision making process.

The reason for the delay

[43] Ms McNamara advised that if the application was late, it was because she was not aware of the dismissal and because of the birth of her son and that fact that the employer did not advise her of the dismissal in writing.

[44] I have found that Ms McNamara was aware of the dismissal from 19 January 2018.

[45] Ms McNamara has not adequately explained the entirety of the delay.

Whether the person first became aware of the dismissal after it had taken effect

[46] I have found that Ms McNamara first became aware of the dismissal on 19 January 2018.

Any action taken by the person to dispute the dismissal

[47] Ms McNamara corresponded with Ms Griffiths on 13 March 2018 outlining her concern that she was told she “would not have a job to come back to” and that she had been replaced by another person. 10

Prejudice to the employer (including prejudice caused by the delay)

[48] There is no submission that the granting of an extension of time represents prejudice to LCBA and I regard it as a neutral matter.

The merits of the application

[49] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly I have regarded the merits as a neutral factor.

Fairness as between the person and other persons in a similar position

[50] Consideration of fairness relative to other persons in similar positions is a neutral factor.

Conclusion

[51] For the reasons I have set out above, I am not satisfied that Ms McNamara’s circumstances can be regarded as exceptional so as to support an extension of time. The request for an extension of time is refused and, accordingly, the application will be dismissed. An Order¹¹ reflecting this decision will be issued.

COMMISSIONER

Appearances:

Ms E McNamara on behalf of the Applicant

Ms M Makris on behalf of the Respondent

Hearing details:

2018.

Adelaide:

9 May 2018.

Printed by authority of the Commonwealth Government Printer

<PR607080>

 1   Exhibit A1 and A2.

 2   Exhibit A3.

 3   Exhibit R3.

 4   See attachment to Exhibit R2.

 5   Exhibit R3.

 6   Exhibit R4.

 7   Exhibit R1.

 8   Exhibit R2.

9 [2011] FWAFB 975.

 10   See attachment to Exhibit R2.

11 PR607082.