Heidi Brandies v Secrets Shhh Pty Ltd
[2023] FWC 3405
•19 DECEMBER 2023
| [2023] FWC 3405 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Heidi Brandies
v
Secrets Shhh Pty Ltd
(U2023/10020)
| COMMISSIONER MATHESON | SYDNEY, 19 DECEMBER 2023 |
Application for an unfair dismissal remedy – jurisdictional objection that application is out of time because it was not validly made – jurisdictional objection dismissed.
On 12 October 2023 Ms Heidi Brandies (Applicant) filed a ‘Form F2 – Unfair dismissal application’ (Form F2) with the Fair Work Commission (Commission) seeking an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act). The Form F2 names the respondent in this matter is Secrets Shhh with an ABN of 36 617 804 332 (Respondent).
On 15 November 2023 the Respondent filed a ‘Form F3 – Employer response to unfair dismissal application’ raising a jurisdictional objection that the application is out of time (i.e. lodged more than 21 days after the dismissal took effect). The substance of the Respondent’s objection is that the application is out of time because it has not been validly made. This decision deals with the objection.
Background
The Applicant was employed by the Respondent as a Store Manager at the Respondent’s Penrith store. On 22 September 2023 the Respondent wrote to the Applicant advising her that she was suspended on full pay effective from 5.30pm on 21 September 2023 and that she was invited to attend a meeting with the Respondent’s ‘Head of People’, Tony Lum and the Respondent’s Chief Financial Officer, Melanie McClave, to ‘discuss [the Applicant’s] conduct towards [her] peers, and [her] performance as a Manager of Penrith’.
Further correspondence was sent to the Applicant dated 22 September 2023 setting out allegations that:
The Applicant’s conduct and actions ‘left employees feeling threatened and unsafe in the workplace’.
The Applicant’s conduct and actions ‘have been vexatious to other peers and managers’.
The Applicant had ‘solicited employees and customers to make vexatious allegations against employees of’ the Respondent.
The Applicant had ‘solicited customers to make complaints about employees of’ the Respondent.
The Applicant ‘targeted employees of minority or racial backgrounds to make vexatious allegations against’.
The Applicant ‘shared internal grievances [the Applicant had] with customers to cause the company reputational damage and embarrassment’.
The Applicant had ‘taken actions to prevent employees from obtaining sales and taken those sales’ herself.
The letter of allegation noted that the Applicant had ‘refused to attend the meeting’ the Respondent had first offered, ‘then produced a sick certificate’ and that an alternative meeting time had been offered, being 10am on 23 September 2023. The letter attached a list of questions for the Applicant to respond to and sought a response by close of business on Sunday 24 September 2023 if the Applicant would not be attending the meeting.
On 25 September 2023 the Respondent wrote to the Applicant advising her that it had reached a decision to terminate her employment for ‘gross misconduct’ effective immediately.
On 12 October 2023 the Applicant sent two documents to the Commission’s Melbourne Registry email being:
the Form F2; and
correspondence from the Respondent to the Applicant including the letter advising the Applicant of her suspension dated 22 September 2023, the letter setting out the Respondent’s allegations dated 22 September 2023 and the letter advising the Applicant of the termination of her employment dated 25 September 2023.
The Applicant had completed all parts in the Form F2 except for part 3.1 of the Form F2 which asks ‘What were the reasons for the dismissal, if any, given by the employer?’ which was unanswered in the Form F2. Under the part of the form dealing with ‘payment options’ the Applicant had ticked the box indicating that she had completed a fee wavier form and had attached it to her application.
On 17 October 2023 the Commission wrote to the Applicant acknowledging receipt of her application form and indicating that the staff will check the application to make sure it is complete.
On 17 October 2023 the Commission wrote to the Applicant again stating:
“There is missing or incorrect information in your application. We need you to fix your application before we can go ahead with your case. You must do this by 31/10/2023. If you don’t your application may be dismissed.”
The correspondence of 17 October 2023 indicated that the Applicant had not answered all the questions on the form and needed to complete part 3.1 and return the form to the Commission.
The Commission also sent correspondence to the Respondent on 17 October 2023 stating that:
“On 12 October 2023, we received an unfair dismissal application from Heidi Brandies. This means that they have started a case at the Fair Work Commission.
We need more information from Heidi Brandies and we have asked them to send it to us. We won’t take any further action until then. The Commission has not made a decision about the case.
…
What happens next?
If Heidi Brandies gives us the information we have asked for, we will send you another letter explaining what to do. At that time, we will also:
·send you their completed application
·ask you to tell us your side of the case and give you the form to do this.
If Heidi Brandies does not give us the information we asked for a Commission Member might dismiss the application. If that happens, we will send you a copy of the decision.”
The Commission’s correspondence to the Respondent on 17 October 2023 also sought the name of the best contact person to deal with the case and a secure email for them.
On 18 October 2023 Mr Lum of the Respondent emailed the Commission and requested that correspondence be sent to both Melanie McClave and himself, copying Ms McClave to the email.
On 18 October 2023 the Applicant called the Commission and confirmed that the answer to part 3.1 of the Form F2 was in the documents she had attached to her application.
On 26 October 2023 the Applicant’s fee wavier request was granted by the Commission.
On 2 November 2023 the Commission notified the parties that the matter was listed for conciliation with a Commission conciliator on 20 November 2023, provided the Respondent with a copy of the application the Applicant emailed to the Commission on 12 October 2023 and requested that the Respondent lodge a response by 9 November 2023. The Respondent did not file a response within this time and on 15 November 2023 the Commission sent correspondence to the Respondent chasing up the Form F3. The Respondent filed its Form F3 raising its jurisdictional objection on 15 November 2023.
The Respondent’s objection
In its Form F3 the Respondent raised an objection to the application, being that it was made out of time (ie lodged more than 21 days after the dismissal took effect).
During a mention and directions hearing the Respondent clarified that it raised this objection because it held the view the application was not validly made and sought for the objection to be determined.
Following the mention and directions hearing, the matter was set down for a hearing that was held on 18 December 2023 to deal with the Respondent’s objection. Both parties were self-represented.
In its submissions the Respondent objected to the application on the basis that the Form F2 ‘was not compliant with the Fairwork rules for a valid application due to the following reasons’:
The Applicant filed an incomplete application on 12 October 2023, three days before the final date for submission.
The Commission advised the Respondent that the Applicant had lodged an incomplete application and had failed to pay the application fee.
The Respondent received details of the application on 2 November 2023 which still shows an incomplete application.
The Applicant recorded a serving email address that was inconsistent with the person she had been dismissed by or corresponding with.
The Applicant failed to detail the reason for the dismissal, which is the basis for the case and leaves the Respondent unable to firmly defend its position correctly, as the Applicant has not detailed the full details for a compliant response. Furthermore the Applicant has not submitted an addendum to state what her belief is for the dismissal.
The Applicant failed to detail the legal employer she is making the application against, which is detailed on her payslips, contract of employment or can easily be found under a company search without cost.
The Applicant failed to note the correct start date with the Respondent.
Under section 394(2) of the Act, the Applicant has failed to file a complete and proper application within the required 21 days.
The Application is still not a complete and correct application which the Respondent can lawfully defend.
Applicant’s submissions
The Applicant submitted that her application was made on 12 October 2023 and was made in time. In relation to the specific issues raised by the Respondent in its objection, the Applicant submitted, by way of summary:
The email address given for the Respondent in the Form F2 was for Tony Lunn who the Applicant was corresponding with throughout the suspension and dismissal process and whose position was ‘Head of People’ which handled human resources matters.
The Respondent’s reasons for her dismissal were set out in the letter of termination which she had attached to the Form F2 due to a shortage of space to write the reasons in the space provided at question 3.1 of the Form F2.
The Respondent sometimes uses the name Secrets Shhh and Secrets Shhh Pty Ltd. On payslips the company name in the header is stated as Secrets Shhh and in the top right corner the name is stated as Secrets Shhh Pty Ltd. The Applicant attached a copy as evidence of this. In the Respondent’s employment app the name Secrets Shh is used. The Applicant also attached a copy of her original contract of employment which states “Opportunity to join the Secrets Shhh team” and includes a header “Secrets Shh”. Notwithstanding the differences in name, the Applicant submitted the Respondent is clear to all in the application.
The commencement date of her employment as set out in her application is correct as she had accepted the employment contract by signing it on 7 November 2022 and this was the commencement date of her employment.
The Commission has not asked her to ‘redo or add to’ her application submitted on 12 October 2023 but had ‘simply missed’ the attachments being the letter of termination which included the reasons for dismissal and her fee waiver form.
Consideration
Section 394(1) of the Act provides that a person who has been dismissed may apply to the Commission for an order under Division 4 of the Act granting a remedy. It is not in dispute in these proceedings the Applicant is a person who has been dismissed. It is also agreed between the parties that the Applicant was dismissed on 25 September 2023.
Section 394(2) of the Act provides that the application must be made:
(a)within 21 days after the dismissal took effect; or
(b)within such further period as the Commission allows under subsection (3).
Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made by a person under s.394(1) if the Commission is satisfied that there are exceptional circumstances, taking into account the matters referred to in that subsection.
Section 585 of the Act requires that an application to the Commission must be in accordance with the procedural rules (if any) relating to applications of that kind and a note to that section provides that the Commission may, under section 587, dismiss an application that is not made in accordance with the procedural rules.
Section 587(1) of the Act provides that without limiting when the Commission may dismiss an application, the Commission may dismiss an application if:
(a)the application is not made in accordance with the Act; or
(b)the application is frivolous or vexatious; or
(c)the application has no reasonable prospects of success.
Rule 8 of the Fair Work Commission Rules 2013 (Cth) (Rules) provides that the President may approve forms for the Rules and if the President approves a form for a particular purpose, then subject to the Rules, the approved form must be used for the purpose.
The Form F2 is the approved form to be used for an unfair dismissal application. Rule 8(5) provides that if the Rules require that an approved form be used, it is sufficient compliance if a document is substantially in accordance with the approved form.
It is not in contention that if the application is taken to be made on 12 October 2023, it would have been made within the 21 day time frame prescribed by s.394 of the Act. However the real contention in these proceedings is whether the Respondent’s identified deficiencies in relation to the documents filed with the Commission on 12 October 2023 mean that the application has not been made.
A number of the grounds are advanced by the Respondent in support of its objection that the application is not validly made and there is some overlap between them. In distilling these further it is apparent that the grounds are:
The Form F2 is incomplete in that the Applicant failed to detail the reason for the dismissal at question 3.1 of the Form F2 or state what her belief is for the dismissal with the consequence that the Respondent is unable to defend against the claim.
The Respondent contact nominated on the Form F2 was inconsistent with the person the Applicant had been dismissed by or corresponding with.
The Applicant recorded the incorrect start date in the Form F2.
The Applicant failed to identify the legal employer she is making the application against in the Form F2.
During the hearing I confirmed with the Respondent that these grounds reflect the substance of its objection and I deal with each of these below. The Respondent did not press its objection that the application was not made because the Applicant failed to pay the application fee.
Is the Form F2 incomplete and does it mean that the application is not validly made?
The Applicant has used the correct form for an unfair dismissal application, being the Form F2. The Form F2 is complete except for part 3.1 of the Form F2 which asks ‘What were the reasons for the dismissal, if any, given by the employer?’ which was unanswered in the Form F2.
Part 3.2 of the Form F2 is complete. This is the Applicant’s response to the question “Why was the dismissal unfair?” At paragraphs 7 and 8 of her response to this, the Applicant says:
“On the 21st September 2023 I was instantly suspended during my shift. I was told that it was due to my management performance that day. However the Suspension Letter & Termination Letter sent later involved other allegations against me.
The Termination Letter was issued on the 25th September 2023 which was the same day I was notified by Icare they had received my workers’ compensation application.”
Attached to the Form F2 were a number of documents including a letter dated 25 September 2023 in which the Respondent sets out a number of allegations and says:
“Decisions reached:
1. To point one of the allegations, we find that you have engaged in conduct that has left employees feeling unsafe and feeling threatened in the workplace.
2. To point two of the allegations, we find that there is sufficient evidence that you have made numerous vexatious allegations against peers for the sole purpose of damaging their reputation and position within the company. We find that even separating you from these people, you remain fixated on making allegations against these people, where there could be no link to you.
3. To point three of the allegations, we found that you had solicited employees and customers to make vexatious allegations against employees.
4. To point four of the allegations, we believe that you have engaged with trying to engage customers to complain about employees to cause harm to their employment and make them fearful of coming near the Penrith store.
5. To point five of the allegations, we find that most of the people targeted by your vexatious allegations of their misconduct are of minority or racial backgrounds.
6. To point six of the allegations, we feel you had shared internal grievances with customers and cause reputational damage to the company, whether intentional or not.
7. To point seven of the allegations, we did not feel this was fully proven on the balance of information provided in the investigation.
The company has therefore reached a decision to terminate your employment for Gross Misconduct effective immediately…”
I have considered the Form F2 filed by the Applicant and the accompanying documentation filed with it.
Question 3.1 of the form asks “What were the reasons for the dismissal, if any, given by the employer?” A note under the question states:
“Using numbered paragraphs, specify the reason(s), if any, given by the employer for your dismissal. Attach any letter of dismissal and/or separation certificate given to you by the employer. Note that the Commission will send copies of any documents you provide to the employer. Attach extra pages if necessary.”
While part 3.1 of the Form F2 has not been completed, the attached letter of 25 September 2023 sets out reasons for the dismissal given by the employer. The Form F2 itself invites an applicant to file any such attachments in responding to part 3.1. The termination letter is also referred to in the response to question 3.2. While the Applicant could have referenced the termination letter in responding to part 3.1 or restated the reasons within it, I do not accept that her failure to do so leads to the consequence that the application is invalid and I am satisfied that the documents filed with the Commission are, at the very least, substantially in accordance with the approved form.
I also reject the Respondent’s contention that the Applicant’s omission has the consequence that the Respondent is unable to defend against the claim. Should the merits of the matter proceed to be determined the Respondent will have an opportunity to establish its reasons for the dismissal and address whether there was a valid reason for the dismissal.
In the circumstances of this matter the Form F2 asks for reasons given by the employer and this can be discerned from the documentation accompanying the Application, in particular the contents of the termination letter that had been filed. The Respondent suffers no prejudice from the Applicant’s omission in failing to state these at part 3.1 of the Form F2. To the extent that the failure to provide any stated text in response to part 3.1 of the Form F2 is an irregularity in the form or manner in which the application has been made I consider it appropriate to waive this irregularity and do so pursuant to s.586(b) of the Act.
Application fee
While the Respondent did not press its objection regarding the application fee, I note that the Applicant applied for and was granted a fee waiver by the Commission. This does not mean that an application has not been made.
Nominated Respondent contact on the Form F2
The Applicant nominated the Respondent’s then ‘Head of People’, Tony Lum rather than the Respondent’s Chief Financial Officer, Melanie McClave, as the Respondent’s contact person. This does not have the consequence that the application has not been made. I also observe that Commission’s correspondence to the Respondent on 17 October 2023 sought the name of the best contact person to deal with the case and a secure email for them and on 18 October 2023 Mr Lum of the Respondent emailed the Commission and requested that correspondence be sent to both Melanie McClave and himself, copying Ms McClave to the email. I do not accept the Respondent’s contention that it has suffered prejudice as a result of the Applicant naming the contact that she did.
Employment commencement date stated in the Form F2
The Applicant says in her Form F2 that she began working for the Respondent on 7 November 2022. The Respondent says this is incorrect and identifies the date the Applicant commenced working for the Respondent as 21 November 2022 in its Form F3. While there is a contest of facts between the Applicant and Respondent, this does not mean that an application has not been made.
Alleged failure to identify the correct Respondent
In the Form F2 the Applicant has identified the legal name of the employer as ‘Secrets Shhh’ with the ABN 36 617 804 332. An ABN search identifies that the ABN belongs to ‘Secrets Shhh Pty Ltd’. The Respondent contends that the legal name of the employer was ‘Secrets Shhh Pty Ltd’ and the failure of the Applicant to correctly identify the legal name of the Respondent invalidates the application.
The Respondent confirmed during the hearing that Secrets Shhh Pty Ltd was the Applicant’s legal employer at the time of her dismissal. It is apparent to me that this is the legal employer that dismissed the Applicant. The minor error in the Applicant’s Form F2 in relation to the stated name of the Respondent does not mean that the application has not been made. I sought the views of the parties regarding whether the Commission should exercise its discretion to amend the Form F2 to reflect this. The Applicant indicated that she wished for this correction to be made while the Respondent maintained its original position that the application was not validly made.
Section 577(1) of the Act provides that the Commission must perform its functions and exercise its powers in a manner that:
(a)is fair and just; and
(b)is quick, informal and avoids unnecessary technicalities; and
(c)is open and transparent; and
(d)promotes harmonious and cooperative workplace relations.
Section 578 of the Act provides that in performing its functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:
(a)the objects of this Act, and any objects of the part of this Act; and
(b)equity, good conscience and the merits of the matter; and
(c)the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Section 381(1) of the Act provides that the object of Part 3-2 of the Act dealing with unfair dismissal is:
(a)to establish a framework for dealing with unfair dismissal that balances:
(i) the needs of business (including small business); and
(ii) the needs of employees; and(b)to establish procedures for dealing with unfair dismissal that:
(i) are quick, flexible and informal; and
(ii) address the needs of employers and employees; and
(c)to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.
Section 586(a) of the Act provides the Commission with the discretion to allow a correction or amendment of any application, or document relating to a matter before the Commission, on any terms that it considers appropriate. In the circumstances of this matter I am satisfied that an exercise of discretion to amend the name of the Respondent in the Form F2 from “Secrets Shhh” to “Secrets Shhh Pty Ltd” is consistent with the Commission performing its functions and exercising its powers in a manner that is quick, informal and avoids unnecessary technicalities and in a manner that is consistent with the objects of Part 3-2 of the Act.
I therefore exercise discretion to amend the name of the Respondent in the application to “Secrets Shhh Pty Ltd” pursuant to s.586(a) of the Act.
Conclusion
I find that the Applicant made an application on 12 October 2023, within 21 days after the dismissal took effect. As such the Respondent’s objection is dismissed. Directions for the filing of submissions and a date for the arbitration of the merits of the matter will be sent to the parties.
COMMISSIONER
Appearances:
Ms H Brandies on her own behalf.
Ms M McClave on behalf of the Respondent.
Hearing details:
2023.
Sydney (by Video).
December 18.
Printed by authority of the Commonwealth Government Printer
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