Emily Rust v Boss Photography

[2009] FWA 1327

[2009] FWA 1327

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643—Termination of employment

Emily Rust
v
Boss Photography
(U2009/11083)

COMMISSIONER FOGGO MELBOURNE, 11 DECEMBER 2009

Termination of employment.

[1] This is an application lodged on 7 August 2009 pursuant to s.643 of the Workplace Relations Act 1996 (the Act) in which Miss Emily Rust (the Applicant) alleges the termination of her employment from Boss Photography (the Respondent) was in breach of s.659 of the Act.

[2] The Respondent filed the Form R28 and raised an objection to the Tribunal extending the time for lodgement however did not object to conciliation before that issue was determined.

[3] The matter was initially listed for conference on 15 September 2009 in Shepparton due to the location of the parties. This conference was adjourned at the request of the Respondent and ultimately took place as a conference by telephone on 13 October 2009. This conference did not settle the matter and a Notice of Invitation was issued for the filing of additional submissions to allow Fair Work Australia to determine the matter without a hearing.

[4] From the information provided by the Applicant and the previous employer it appears that agreement exists that Ms Rust commenced work with the Respondent in November 2005 in the position of Studio Administrator and Photo Editor. The position was a casual position and it was agreed that Ms Rust generally had a period of six to ten weeks off during the Christmas period.

[5] Mr Boseley, from the Respondent, stated that in previous years the Applicant had worked for approximately 16 hours in total during January but that the need for her to work was entirely on the demands of the business. During the January period for 2009 he decided that he would not require Mr Rust to work any hours. This seems unexceptional and would almost certainly not have led to the extant application had a lack of communication between Ms Rust and Mr Boseley completely derailed the employment relationship.

[6] Mr Boseley stated that at 12.16 pm on 24 December 2008 he rang Ms Rust to thank her for her year’s work and to ask her to collect a bonus of $370. He also stated that he wished to discuss the work arrangements for 2009 with Ms Rust during the phone call. The phone call was not answered and a message was allegedly left. The phone call was not returned and Mr Boseley proceeded to deposit the Christmas bonus on Ms Rust’s bank account on 30 December 2008.

[7] Ms Rust stated that she usually had six to ten weeks off over the Christmas period. Mr Boseley confirmed that employees including Ms Rust usually had time off during January, February and most of March. Ms Rust has in the past done some work in January but on a needs basis. The parties submissions are generally in agreement that this is a slow period for the business. Mr Boseley states that March is a busy period so perhaps his statement that it is both a slow period and a busy period refer to the difference between the beginning and the end of the month.

[8] Mr Boseley stated that he again phoned the Applicant at 3.06 pm on 2 February 2009 and was still unable to contact her. Ms Rust claims that she returned that phone call but there is no evidence from phone records to this effect and Mr Boseley states that he was not contacted by her. He stated that Ms Rust had previously maintained regular contact via phone, with Boss Photography during the summer quiet period.

[9] On 18 February 2009 Mr Boseley received a letter from the Workplace Ombudsman stating that Ms Rust had lodged an enquiry regarding the relevant level of wages paid to her over the past three years of employment with Boss Photography. He then assumed that this was the reason why Ms Rust had not returned his calls.

[10] The matter before the Ombudsman was resolved and formal notification was received by both Ms Rust and Mr Boseley on 16 June 2009 stating that the investigation was closed and referring to Ms Rust as a ‘former’ employee. Mr Boseley stated that he had not terminated the employment of Ms Rust and the statement in the letter from the Ombudsman was an assumption on their part.

[11] In relation to this issue Mr Boseley stated that during discussions with the Ombudsman he was asked if Ms Rust was currently working at Boss Photography and he stated no “based on the situation that there was no work at that time, and not once was termination mentioned.” 1

[12] Ms Rust stated that she had not resigned and since she had been informed that she could not have her employment terminated because she had lodged an enquiry or a complaint with the Ombudsman then she assumed that she still had her job at Boss Photography. She stated that it was not until she received the paperwork that she understood there to be a 21 day limit for lodging applications under the Act and she had “unknowingly exceeded” the limit. 2

[13] In her written submissions Ms Rust stated:

“I did what I was advised to do by my ‘Workplace Inspector’, which was wait until my claim was resolved to see if Gary contacted me and asked me back to work which didn’t happen. I lodged my application for Unlawful Termination as advised, using the only date I had available, being the date of a letter I received summarising my back pay claim where Boss Photography was listed as my former employer.” 3

[14] Mr Boseley’s written submissions 4 asked why, if Ms Rust had planned to continue working for the Respondent she did she not maintain contact, return calls, visit the Studio or attempt to make any contact with Boss Photography in late January / February to arrange a starting date. He stated that as a direct result of Ms Rust failing to respond to or contact the employer, he did not advertise but filled the position on 17 March 2009 in line within normal operations.

[15] He further questioned her intent to return stating:

“A Classified Advertisement in the local newspaper, The Mansfield Courier, was run on 8th April 2009, advertising, H&R detailing were now “Open 5 DAYS PER WEEK”. Therefore, if Miss Rust, had any intention of returning to the employ of Boss Photography how was Miss Rust expecting to operate the car detailing business five (5) days per week and continue to work 24 hours per week over a five (5) day working week for Boss Photography?

Miss Rust was employed by Boss Photography on a. casual basis as stated in. her employment contract and was at no time ever terminated.” 5

[16] The Respondent provided documentation to support his submissions including:

“1.) A copy of the letter I received on 23 February 2009 from the work place ombudsman showing the date that I was first notified of a claim being made against me.

2.) A copy of newspaper advertisement with the date showing Emily’s business was now open 5 days per week.

3.) A copy of the telephone calls made to Emily’s mobile.

4.) Copy of bonus paid to Emily showing amount and date paid.” 6

[17] Mr Bosely stated that he had provided four opportunities for communication between he and Ms Rust specifically 24 December 2008, the payment of bonus 30 December 2008, 2 February 2009 and the meeting in person on approximately 10 March 2009. He stated that he was correct in concluding that Ms Rust no longer wanted to work at Boss Photography.

Conclusion

[18] In determining whether to extend the time to lodge an application for relief of termination of employment the principles which are contained in the Federal Court decision in Brodie-Hanns v MTV Publishing Limited 7 are usually applied and will be in this application. The principles are as follows and a statement regarding the application to this matter follows;

(1) Special circumstances are not necessary but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation for the delay which makes it equitable to extend.

(2) Action taken by the Applicant to contest the termination, other than applying under the Act, will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

[19] Ms Rust actively contested the underpayment or incorrect payment for work of her classification through the Workplace Ombudsman. There is no evidence to substantiate any suggestion that the Ombudsman’s office advised her to do anything regarding the termination of her employment and Ms Rust herself stated that she sought advice from the Registry of Fair Work Australia.

[20] I am unable to accept that the first occasion on which Ms Rust believed that her employment had been terminated was when the settlement papers from the Workplace Ombudsman in which it was noted that Boss Photography was her ‘previous employer’ were received by the parties on 16 June 2009.

[21] In her statement Ms Rust stated that it was only from the 16 June 2009 letter that she realised her employment with Boss Photography had ended and that then, or shortly afterwards, she became aware that there was a 21 day time limit to lodge an application.

[22] The application was lodged with the Registry of the Commission on 7 August 2009. This is well beyond the 21 day time limit and there is no satisfactory explanation for the delay.

[23] I do not accept that an employee who has not attended for work or spoken to her employer for six months would believe that she was still employed. In the circumstances of this case it is not unusual that the employment relationship ended not least through the effluction of time and because there was no contact between the employer and the employee regarding the hours to be worked and the attendance at work.

[24] On the basis of the information available the argument that Ms Rust had her employment terminated because she lodged an enquiry with the Workplace Ombudsman cannot be substantiated because her failure to respond to contact directly led to the employer believing that she no longer wanted to continue in employment.

(3) Prejudice to the Respondent including prejudice caused by delay will go against the granting of an extension of time.

(4) The mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.

[25] There has been a substantial period of time lapse since Ms Rust worked for the employer and since there was an employment relationship between Ms Rust and the company. It is stated that new employment relationships have been put in place. This may well prejudice the employer if there was a return to work but similarly if there was a meritorious case and the outcome was in Ms Rust’s favour the issues must be addressed. In any case neither the Applicant nor the Respondent directly addressed the issue of prejudice.

(5) The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

[26] I am not satisfied in any case on the basis of the information provided by the parties to this application that there is a high degree of merit in the application. Put simply, even though Ms Rust had sought review of her wages she should have advised Mr Boseley of her intent regarding her desire to continue in employment.

[27] She had every right to seek the advice of the Workplace Ombudsman as she did and given the outcome of deliberations through that avenue Mr Boseley should have addressed her concerns earlier. Had that occurred I do not believe that the stand off which occurred would have happened. However in the circumstances of this case the fact that Ms Rust did not contact her employer, even accepting that she attempted to once early in 2009 but was unsuccessful, if she was concerned that she have continuing employment her lack of contact and attempts at contact weigh against her.

(6) Consideration of fairness as between the Applicant and other persons in a like position are relevant to the exercise of the Court's discretion.

[28] This principle is not directly relevant to this application.

[29] On the basis of the submissions and information before the Commission and applying the principles from Brodie-Hanns as set out and explained above, I am not satisfied that the circumstances of this case are such that the prescribed period of 21 days for the lodgement of an application should be extended. An order will issue giving effect to this decision.

COMMISSIONER

 1   Attachment to R28 received 24 August 2009.

 2   Attachment to R27 received 7 August 2009.

 3   Submissions received 23 October 2009.

 4   Submissions received 22 October 2009.

 5   Attachment to R28 received 24 August 2009.

 6   Submissions received 22 October 2009.

 7   (1995) 67 IR 298.

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