Farah Zamanisian v Robbay Pty Ltd

[2015] FWC 4253

[2015] FWC 4253

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Farah Zamanisian
v
Robbay Pty Ltd
(U2015/4659)

COMMISSIONER BISSETT MELBOURNE, 24 JUNE 2015

Application for relief from unfair dismissal - Extension of time.

[1] Ms Farah Zamanisian (the Applicant) has made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant was employed by Robbay Pty Ltd t/a Benara Road Early Learning Centre (the Respondent). The Applicant commenced working for the Respondent in January 2012 and says her employment was terminated on 13 March 2015.

[2] The Applicant lodged her application for unfair dismissal on 8 April 2015, 26 days after the purported date of dismissal. The application is therefore made five days outside the time limit specified in the Act for making such an application. 1

[3] The Commission can extend the time for making an application for unfair dismissal if it is satisfied there is exceptional circumstances (s.394(3) of the Act).

Background

[4] The Applicant gave evidence on her own behalf. Evidence was given for the Respondent by Ms Sarah Bay and Ms Amanda Wells (the Centre Manager).

[5] The Applicant says that the week beginning 9 March 2015 she was rostered to work a full week across five days. She says that when the roster was posted the following week on 13 March 2015 she was only rostered on for four days for a total of 17 hours and 30 minutes.

[6] The Applicant says that she was promised full time work with the Respondent. When questioned on this she agreed that she had not been explicitly told she would be working a 38 hour week from that time onwards but understood it from the body language of Ms Wells. The Applicant agrees that prior to 9 March 2015 she was not rostered to work on a full time basis.

[7] Ms Wells’ evidence is that the Applicant came to see her on Friday 13 March 2015 and requested a letter setting out her rate of pay and earnings. The Applicant also asked not to be rostered on 16 March 2015 as she had an appointment with the housing authority and that was who she needed the information for.

[8] Ms Wells subsequently drew up a roster that did not have the Applicant working on Monday 16 March 2015 but did have her rostered the other four days of the week. This roster was posted on 13 March 2015.

[9] The Applicant agrees that, at about 11.00pm on the evening of 13 March 2015 she sent Ms Wells a text message that read:

When you people not Grateful to my work, why i have to bother my self work for you people, forget about next week roster I’m not coming to work. (sic)

Ms Wells responded the next morning and said:

Well I guess ill b doing our job as well,…thanks a lot farah (sic)

The Applicant responded:

You welcome’ (sic).

[10] Ms Wells’ evidence is that, following receipt of the text messages she needed to revise the roster and reissued it on the Saturday for the following week without the Applicant on the roster.

[11] Ms Bay of the Respondent says that she contacted the Applicant by text on Tuesday 17 March 2015 when she failed to report for work. She had a number of exchanges with the Applicant by text but advised the Applicant that she needed to talk to Ms Wells about rostering matters. The Applicant said she did not want to talk to Ms Wells but only to Ms Bay.

[12] The next day, 18 March 2015, Ms Wells and Ms Bay spoke on loud speaker phone to the Applicant. They asked the Applicant if she had resigned to which she replied that she had quit.

[13] Ms Wells says that in a further conversation she spoke to the Applicant and explained that if she did not work out her notice she would forfeit some of the final payment due to her. She says she suggested that if the Applicant had a sick leave certificate this might be able to cover the notice period.

[14] The Applicant says that she spoke to Ms Wells (not Ms Bay) by phone on 17 March 2015 and that she told Ms Wells that she had not quit. She says Ms Wells then told her she would be put on the roster for the following week. She says she was not aware that she had been dismissed until she returned to see Ms Wells on about the 25 March 2015 with a medical certificate and was told by Ms Wells that she needed to submit her resignation.

Extension of time

[15] Section 394(3) of the Act sets out those matters for consideration in determining if the discretion should be exercised to grant an extension of time within which to make an application for unfair dismissal.

394 Application for unfair dismissal remedy

(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.

The reason for the delay

[16] The Applicant says that the delay in making her application was caused by her not knowing that there was a 21 day time limit within which to make an application.

[17] In the written material lodged by the Applicant she says that she contact ‘Fairwork Australia’ to make her claim for unfair dismissal. In her oral evidence she said she was ringing around and using the internet to find out what she should do. She says she commenced searching to try and find out what to do after about 25 March 2015 when she took her medical certificate in to Ms Wells.

When first became aware of the dismissal

[18] The Applicant initially said in her written material that she was advised of her dismissal by text message and when she received her roster with no hours on it. 2

[19] I understand from her submissions and the material filed (including text messages which include a snapshot of the roster) that, at worst, the Applicant became aware of her dismissal on Sunday 15 March 2015 when the amended roster was posted. This is the date she says she became aware that she was no longer on the roster for the following week.

Action taken to dispute the dismissal

[20] The Applicant says that she had a number of discussions with Ms Wells after her purported dismissal. She says she told Ms Wells she had not quit but was angry her name was taken off the roster.

[21] I prefer the evidence of Ms Wells and Ms Bay that they instigated contact with the Applicant after 13 March 2015. This strongly suggests that the Applicant took no action, until she lodged her application with Commission, to dispute the dismissal.

Prejudice to the employer

[22] No submissions were made on this point.

Merits of the case

[23] At my request the Respondent provided a copy of the rosters for the centre for the week beginning 23 February, 2 March and 9 March 2015. The parties had, between them each provided the rosters for 16 March 2015 as initially posted and as revised.

[24] Those rosters show that the week beginning 23 February 2015 the Applicant was rostered on four days to work approximately 24 hours and the week beginning 2 March 2015 she was rostered to work about 25 hours (in a four day week). The week beginning 9 March 2015 she was rostered to work about 38 hours and the week beginning 16 March she was rostered to work about 18 hours and 30 minutes.

[25] These rosters indicate that, despite the Applicant’s claim that her hours were cut, she did not consistently work a full time work load of 38 hours per week. Ms Bay says that the week of 9 March 2015 the Applicant did work a full time load as she was covering for staff leave.

[26] The Applicant’s material strongly suggests that she resigned from her employment. Her text message of 13 March 2015 is clear. She says ‘I’m not coming to work’. She then did not turn up for work the following week or contact the Respondent until Ms Bay contacted her on the Tuesday to find out where she was.

[27] The material before me indicates that the roster first published for the week commencing 16 March 2015 had the Applicant on it. Given the history of the Applicant’s hours of work she had, on this evidence, little reason to be surprised at the hours given to her in the week of 13 March 2015.

[28] On its face this information would indicate that the Applicant most likely resigned her employment and that she did this on 13 March 2015. On this basis her application would appear to have very little merit.

Fairness between the person and others in a similar position

[29] No submissions were made on this matter

Conclusion

[30] In the process of hearing evidence with respect to the extension of time substantial evidence was given as to whether, in fact, the Applicant had been dismissed or had resigned from her position. This is relevant as the Respondent says the Applicant resigned on 13 March 2015 while the Applicant says she was dismissed on this date.

[31] If the Applicant had been dismissed on 13 March 2015 I am satisfied that she became aware of the dismissal on 15 March 2015 when she became aware that she was not on the roster for the following week. She took no action after 15 March 2015 to assert her right to be at work. She did not attempt to attend work on the Monday 16 March 2015 (when she was not rostered on but she claims she should have been working) or on the Tuesday 17 March 2015 when the roster issued on 13 March 2015 had her working. By all of her actions the Applicant had accepted her dismissal. There is no other explanation for her failure to attend work on Tuesday 17 March 2015. All of the contact with her was at the instigation of the Respondent, including providing her with materials to assist her in applying for other jobs.

[32] If I accept 15 March 2015 as the date the Applicant’s became aware of her dismissal then she had 21 days from this date within which to lodge her application for unfair dismissal. The application would therefore still be out of time such that an extension of time is necessary for it to proceed.

[33] The Applicant provides no reason for the delay in making the application other than she was searching the internet for information. I am satisfied that information in relation to the procedures for making a claim for unfair dismissal are readily accessible on the internet. Below the advertisements, the Fair Work Ombudsman and the Commission are the first two websites encountered if ‘unfair dismissal’ is put into the Google search engine. In any event it is well established that mere ignorance of the time frame within which an application should be made does not, on its own, create exceptional circumstances such that an extension of time should necessarily be granted. If she had called either the Ombudsman or the Commission as she said she did she would have been advised that she had 21 days from the date of her dismissal to make her application.

[34] Although it is not a matter I need to determine here, the Applicant’s own evidence, including the text messages, strongly suggests that she resigned from her employment. She attended the doctor and obtained a medical certificate only on the suggestion of Ms Wells. Ms Wells put this forward as a mechanism by which the Applicant might avoid the penalty of resigning without giving the notice required under the Children’s Services Award 2010. The Applicant did not go to the doctor before about 24 or 25 March 2015 and did not otherwise suggested in any text, message or discussions with Ms Bay or Ms Wells that she was unwell and not fit to attend work. I am satisfied that the only reason the Applicant went to the doctor was for the reason given by Ms Wells.

[35] I prefer the evidence of Ms Wells and Ms Bay that, on 17 March 2015 they asked the Applicant if she had resigned and she replied that she had quit. The Applicant was clearly upset at not being given more hours on the roster. This was reflected in the text messages of 13 and 14 March 2015 where she indicated she was to returning.

[36] Having found that the Applicant became aware of (what she says was) her dismissal on 15 March 2015 the application for unfair dismissal is still out of time. I am not satisfied, taking into account the reasons for the delay and the apparent merits of the case (including whether she resigned), that there are exceptional circumstances such that I should exercise my discretion to grant an extension of time should be granted.

[37] The Commission therefore has no jurisdiction to deal with the matter.

[38] The application is dismissed. An Order to this affect will be issued with this decision.

COMMISSIONER

Appearances:

F. Zamanisian for herself.

S. Bay and A. Wells for the Respondent.

Hearing details:

2005.

Melbourne and Perth (video and telephone hearing):

June 24.

 1 Section 394(2).

 2   Although the Applicant did not date this advice, the roster was most likely the one sent out by Ms Wells following the receipt of the Applicant’s text message of 13 March 2015 that she was not returning to work.

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