Filipinas Wyatt v Silver Grevillea Florist T/A Silver Grevillea Florist

[2016] FWC 8176

[2016] FWC 8176

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Filipinas Wyatt
v
Silver Grevillea Florist T/A Silver Grevillea Florist
(U2016/9465)

COMMISSIONER BISSETT MELBOURNE, 14 NOVEMBER 2016

Application for relief from unfair dismissal – dismissed.

[1] Ms Filipinas Wyatt has made an application to the Fair Work Commission (Commission) seeking relief from unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). Ms Wyatt was employed by Silver Grevillea Florist (Grevillea). The owners of Grevillea are Ms Helen Hancock and Mr Stephen Hancock. Ms Wyatt was employed on a 457 (temporary skilled worker) visa as a florist.

[2] Ms Wyatt says that she did not resign her employment (as contended by Grevillea) and that she was dismissed. She says her dismissal date was 15 June 2016 when Mr Hancock wrote to Grevillea’s migration agent and advised it that Ms Wyatt had left Australia and was not returning and hence no longer met the requirements of her visa.

[3] Ms Wyatt says that she left Australia on 10 May 2016 with her husband to travel to the United Kingdom (UK). She says that she was on four weeks’ approved leave.

[4] Grevillea says that it did not dismiss Ms Wyatt and she, in fact, resigned her employment effective from 9 May 2016. It says that on 10 May 2016 Ms Wyatt and her husband left Australia to live in the UK. In the alternative it says that if it is found that there was a dismissal, the date of dismissal should be 6 June 2016 when Ms Wyatt would have been due back from the annual leave she says she was on, or 15 June 2016, when it advised its migration agent that she had left the country permanently.

[5] Ms Wyatt lodged her application for unfair dismissal on 15 July 2016. If the date of her dismissal was 15 June 2016 her application was made 30 days after the day of her dismissal and 9 days beyond the 21-day statutory time limit within which such an application should be made. If the date of dismissal was 6 June 2016 her application was made 39 days after the date of dismissal and therefore 18 days beyond the statutory time limit.

[6] On either scenario Ms Wyatt requires an extension of time within which to make her application for unfair dismissal.

[7] On 10 May 2016 Ms Wyatt and her husband (a UK citizen) travelled to the UK for a holiday. Ms Wyatt’s evidence is that she had a return ticket for either 17 or 27 May but she did not return with that ticket because she was having four weeks annual leave (so she would, presumably, remain overseas for the full four weeks). It is not clear why she purchased a ticket with a return date earlier than she intended to return.

[8] Ms Wyatt gave evidence that, after four weeks of annual leave, she remained ‘on leave’ because Grevillea owed her overtime payments and time in lieu. She agreed that, even if she did have approval to be on annual leave, she had no approval from Grevillea that she could extend this by any period. In any event Grevillea says it never approved annual leave for Ms Wyatt.

[9] Ms Wyatt agreed that if she was on annual leave for four weeks she was due back at work on 6 June 2016.

[10] Ms Wyatt said that she became aware that she had been dismissed from her employment when, on 15 June 2016, she received a copy of a letter sent from Grevillea to its migration agent in which Mr Hancock of Grevillea advised the agent that Ms Wyatt was no longer working for the business, had left Australia and was not returning. He sought to properly sever the 457 visa sponsorship arrangement. Ms Wyatt took from this letter that she had been dismissed from her employment.

[11] Ms Wyatt said that she then tried to lodge an application for unfair dismissal electronically from the UK but had trouble with her internet connection. She said she bought a new printer to try and scan her documents and forward them to the Commission. Apart from internet problems it is not clear why this was not successful.

[12] Ms Wyatt said that she then fell ill and, whilst she attended a hospital, it refused to treat her because her Australian health cover did not cover overseas medical treatment. She provided no medical certificate.

[13] Ms Wyatt said that she then decided to fly back to Australia to lodge her application for unfair dismissal and purchased a ticket to Australia for 10 July 2016. She said she did not return earlier because this was the ticket she could afford and because she wanted to have more of her holiday before returning to Australia.

[14] Ms Wyatt returned to Australia on 10 July 2016 and made her application on 15 July 2016. She gave evidence that there was a delay after her return because she was advised by the Commission to seek legal advice and she could not get an appointment with the community legal centre for some days.

[15] Mr Hancock, for Grevillea, said that Grevillea did not dismiss Ms Wyatt but, if it was found it had, Ms Wyatt did not have a reasonable excuse for the delay in making her application and there were no exceptional circumstances such that an extension of time should be granted.

Legislation

[16] Section 394 of the FW Act states:

394 Application for unfair dismissal remedy

(1)  A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 -1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(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.

[17] It is clear that the Commission has the discretion to grant an extension of time if there are exceptional circumstances taking into account the matters outlined in s.394(3) as set out above.

Reason for the delay

[18] Ms Wyatt gave a number of reasons as to why she did not file her application within the 21-day time limit prescribed by the FW Act. These include that she was in the UK at the time on her holidays, she was having difficulty with her internet connection and could not electronically file her material, that she bought a new printer so she could scan her material, she was unwell but that she had to fly back to Australia to file her material and she did not get a flight until 10 July 2016 because she wanted to stay longer in the UK so she could look around and have a bit more of a holiday. Ms Wyatt also says that she did not know whether to deal with the pending cancellation of her 457 visa or her unfair dismissal first, that she had trouble finding the necessary information about unfair dismissals and she was not aware of the 21-day time limit for making an application.

[19] I have no evidence that Ms Wyatt attempted to file her application for unfair dismissal electronically. She did, however, provide evidence of enrolment on 26 June 2016 on the Commission’s e-filing system. Whilst she provided no further computer reports that indicate a failure of the system to accept her application I am prepared to accept that she did attempt to make an application. She provided no explanation as to what other attempts she made to make her application on time, for example, emailing her application, attempting to find a location that did have an internet connection (eg local library), mailing it, phoning the Commission or faxing the application. When specifically questioned she gave no reason why she did not attempt to contact the Commission by phone about making an application.

[20] Ms Wyatt provided no evidence to the Commission that she was ill whilst in the UK. While she may have attempted to deal with a local hospital there is no evidence she visited any other medical practitioner or sought medical assistance. Whilst I accept that, sometime after her return to Australia, she was hospitalised this is not evidence that she was debilitated such that she could not make her application whilst in the UK.

[21] It is not to Mr Wyatt’s credit, and does not support her argument as to her illness, that she decided she wanted to finish off her holiday in the UK before returning to Australia and making her application for unfair dismissal. She apparently bought a plane ticket precisely for the purpose of returning to Darwin to make her application and deal with any hearing.

[22] Even if I accept every other reason given by Ms Wyatt as to why her application was late it is apparent that she decided her holiday was more important that taking action to ensure that her application for unfair dismissal was made within the requisite timeframe. I do not accept the continuation of her holiday (which on her evidence was not approved leave from her employer after 6 June 2016) as a legitimate reason for the delay in making her application.

[23] If Ms Wyatt had been genuinely attempting to resolve problems with her migration status and that presented some bar to her doing anything about her dismissal I may have some sympathy for her application but there is no evidence that this was so.

[24] Further, that Ms Wyatt was not aware of the timeframe within which to make an application, is not an acceptable reason for the delay.

When the person became aware of the dismissal

[25] If Ms Wyatt was dismissed from her employment she says she was not aware of this until 15 June 2016 when she received a copy of the letter by Mr Hancock to the migration agent.

Any action taken to dispute the dismissal

[26] Ms Wyatt says that she sought to dispute the dismissal with Mr Hancock and that this concluded in what she called the ‘final communication’. This consists of an email to Ms Wyatt from Mr Hancock on 15 June 2016, which appears to be a reply to matters Ms Wyatt was raising with Grevillea’s bookkeeper, and some final reply from Ms Wyatt on 20 June 2016.

[27] The date of the email from Mr Hancock on 15 June 2016 (asking Ms Wyatt to stop badgering the bookkeeper) does not suggest it was in relation to Ms Wyatt’s dismissal if Ms Wyatt says she only became aware of the dismissal on 15 June 2016. The email seems to be the end of a chain of emails that commenced prior to 15 June 2016. The Commission was not provided with the earlier emails by Ms Wyatt.

[28] Given the date of the ‘final communication’ I am not convinced that the chain of emails related to Ms Wyatt’s dismissal which she only became aware of, on her evidence, on 15 June 2016.

Prejudice to the employer

[29] No submissions were made on this matter although I note that Ms Helen Hancock is quite ill and she was primarily responsible for running Grevillea. Her illness would affect her ability to give evidence in any future proceedings.

[30] Whilst Ms Wyatt questioned how unwell Ms Hancock was in May 2016 when both were still at Grevillea, she does not question it now.

Merits of the case

[31] It is accepted that the Commission will rarely have the evidence in front of it in dealing with an application for an extension of time with which it could make a decision as to merits of a case.

[32] In this case the merits of the application were heard in conjunction with the application for an extension of time.

[33] On the basis of the material I have before me it is likely that Ms Wyatt was not dismissed from her employment and that, if she was, her dismissal would not be harsh, unjust or unreasonable.

[34] Ms Wyatt says she went on four weeks leave on 10 May 2016. On this basis she would have been due back at work on 6 June 2016. Her return ticket to Australia was for 17 or 27 May 2016 but she did not return on these dates and she did not present for work on 6 June 2016. Until she received a copy of the letter to the migration agent, it is not clear when Ms Wyatt intended to return to Australia. She certainly had not communicated with her employer about any extension to her leave. At best Ms Wyatt was on unauthorised leave from 6 June 2016.

[35] Ms Wyatt received an email from Ms Judy Major, the bookkeeper on 6 May 2016 in which she was advised that, six weeks after arriving in the UK, she could present at ‘the Australian Consulate’ (sic) 1 with relevant information to access her superannuation. Ms Wyatt’s only response was that she had misplaced the superannuation fund identification card she needed to do so. There was no response from Ms Wyatt to indicate she didn’t need her superannuation because she had not resigned. This suggests that she did not intend to return to Australia. There would be no other basis on which she could claim her superannuation.

[36] Mr Hancock said that if Ms Wyatt was on annual leave he would have contacted her a day or so prior to 6 June 2016 when she was due back to check that everything was alright and that she would be back at work. He said he did not do so because he believed she had resigned.

[37] Ms Wyatt’s actions in deciding that she could stay on leave until a date of her choosing tells against a finding that she was unfairly dismissed.

[38] I have taken this into account (although it is not determinative) in reaching my decision.

Fairness

[39] No submissions were made on this aspect.

Conclusion

[40] The finding I must make is whether exceptional circumstances exist and, if they do, if I should grant Ms Wyatt an extension of time within which to make her application for unfair dismissal taking into account those matters outlined above.

[41] The meaning of exceptional circumstances was considered in the decision in Nulty v Blue Star Group 2 where the Full Bench of Fair Work Australia found:

[31] 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…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. 3

[42] Whilst the myriad of issues confronting Ms Wyatt may be considered unusual and certainly out of the ordinary, her conduct in deciding that she wanted to continue her holiday (in circumstances where it does not appear she had a return ticket beyond one which had passed its use-by-date) suggests she was more interested in her holiday than taking any substantive action about her dismissal.

[43] Whilst Ms Wyatt is from a non-English speaking background, she gave evidence (supported by her husband) that she is extremely proficient in English and in using computers.

[44] A consideration of all of the factors outlined above, but in particular the reason for the delay, convince me that no exceptional circumstances exist such that I should grant Ms Wyatt an extension of time within which to make her application.

[45] For these reason I decline to grant an extension of time. Ms Wyatt’s application for unfair dismissal is therefore dismissed. An order to this effect will be issued today.

COMMISSIONER

Appearances:

F Wyatt for the Applicant

S Hancock for the Respondent

Hearing details:

2016

Darwin

27 October 2016

 1   Exhibit R2.

 2   [2011] FWAFB 975.

 3 Ibid [31].

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