Heidi Donaldson v Endeavour Group Limited
[2024] FWC 2323
•30 AUGUST 2024
| [2024] FWC 2323 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Heidi Donaldson
v
Endeavour Group Limited
(U2024/7906)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 30 AUGUST 2024 |
Application for an unfair dismissal remedy – filed out of time – application dismissed
On 7 July 2024, Ms Heidi Donaldson made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment.
Ms Donaldson was employed by Endeavour Group Limited (Endeavour) as a Sales Assistant at BWS Matraville, New South Wales, however Ms Donaldson named her manager as the Respondent to the application rather than Endeavour. Ms Donaldson claims that she was dismissed on 17 April 2024 which is confirmed by the letter of termination issued to her.
Section 394(2) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. The final day of the 21-day period was therefore 8 May 2024 and ended at midnight on that day.
Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application. To determine whether there are exceptional circumstances, the factors in subsections 394(3)(a)-(f) of the FW Act are considered. These factors are:
(a) the reason for the delay; and
(b) whether Ms Donaldson first became aware of the dismissal after it had taken effect; and
(c) any action taken by Ms Donaldson 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 Ms Donaldson and other persons in a similar position.
Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]
The matter was allocated to my Chambers and listed for a case management conference on 9 August 2024.
Ms Donaldson did not appear at the case management conference and Directions were made in her absence. The Directions were communicated to Ms Donaldson by email. Ms Donaldson was asked for her views by email about whether the application should be amended to correctly name the Respondent as Endeavour. Ms Donaldson advised that she was ‘unsure about the respondent and changing it to Endeavour’. My Chambers sent correspondence to the parties on 20 August 2024 advising that the issue of the correct name of the Respondent would be addressed at the hearing.
Ms Donaldson filed material with the Commission on 16 August 2024. Endeavour filed material in accordance with the Directions on 23 August 2024.
The matter was listed for hearing in person before me at 10:00am on 29 August 2024. At 5:53am on 29 August, 2024, Ms Donaldson sent the following email to my Chambers:
Hi good morning
I have my midwife appointment today at 1 at hospital I can not miss it.
Will this be on time at 10 or might I be waiting a few hours. I apologise this being so late I’ve baby brain only 3 weeks to go for pregnancy.
I thought this would be a Microsoft teams hearing?
Regards Heidi Donaldson
At 5:53am on 29 August, 2024, Ms Donaldson sent a further email to my Chambers in the following terms:
Hello
I am not going to be able to make it I’m too heavily pregnant and not feeling the best in this heat.
I was such in a rush to get this dismissal started once found out I could do that knowing I was over 21 days. My wishes would have been too wait till after my baby born and have the legal representation. As I said such a rush to put this dismissal in once found out about it! I’m now struggling right now to do it all when so close having my baby boy.
You will most likely use this against me again though being pregnant almost due for my baby.
I would like to continue this once my baby is born with my representation as could not get one for this day too soon. If not Mr Wright then It’s what you rule.
Regards Heidi Donaldson
At 9:10am on 29 August, 2024, my Associate sent an email in the following terms to Ms Donaldson:
Dear Ms Donaldson,
I refer to the two emails that you sent to Chambers this morning.
The hearing will commence on time at 10am and is scheduled to take place in person.
Given your advice that you will have difficulty attending in person, Deputy President Wright has agreed to you participating via Microsoft Teams. Please ensure that Microsoft Teams is working on your computer or device and click on the link below no later than 9:55am today:
[link inserted]
The Respondent is also permitted to participate via Microsoft Teams. If the Respondent is already on their way to the Commission's premises, the Respondent may participate in person within a Hearing room.
Kind Regards,
[name redacted]
Associate to Deputy President Wright
Ms Donaldson did not attend the hearing via Microsoft Teams or in person. My Associate called Ms Donaldson twice on the phone number provided in the application, at 9:58am then 9:59am but there was no answer.
The hearing proceeded in Ms Donaldson’s absence. I have considered all of the material provided by the parties and Endeavour’s oral submissions at the hearing in my determination on the matter.
Application to amend
At the hearing, Endeavour requested that the Commission amend the application pursuant to s. 586 of the FW Act to reflect the correct name of the Respondent for the following reasons:
It was concerned about the Commission issuing a publicly available decision with Ms Donaldson’s manager named as the Respondent; and
It wanted the issue of whether Ms Donaldson’s application would be accepted outside of the 21-day time limit determined to finality at the hearing. If Ms Donaldson’s application was not amended, it would be dismissed because she had named the incorrect Respondent, giving rise to the possibility that she could file a fresh out of time application against the correct Respondent.
Section 586 provides:
Correcting and amending applications and documents etc.
The FWC may:
(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC.
It is well established that s.586 provides a power to amend the name of a respondent identified in a s.394 application to a different respondent.[2] Whether such an amendment should be made depends upon the facts of the case.[3]
Endeavour produced the following documents in support of its contention that it was Ms Donaldson’s employer at the time of Ms Donaldson’s dismissal:
1. Ms Donaldson’s final payslip
2. The letter of offer provided to Ms Donaldson on 22 May 2023 in relation to her part time role
Endeavour also referred to the notice of investigation and termination letters being issued on Endeavour’s letterhead and signed off by Endeavour Group and that they included Endeavour’s name and ABN in the footer.
Although Ms Donaldson said she was ‘unsure about the respondent and changing it to Endeavour’, she did not at any time dispute that she was employed by Endeavour.
I accept that this material submitted by Endeavour establishes that Endeavour was Ms Donaldson’s employer at the time of her dismissal and that Ms Donaldson’s manager was not her employer.
Ms Donaldson was on notice that the issue of the correct name of the Respondent would be dealt with at the hearing and was free to make submissions opposing the amendment of the application, but did not do so.
Taking all of these matters into account, I have determined that it is appropriate to allow an amendment of application to provide that Endeavour is the Respondent.
Whether the application should be accepted outside of the 21 day time limit
I set out my consideration of each matter in s. 394(3) of the FW Act below.
Reason for the delay
For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 8 May 2024. The delay is the period commencing immediately after that time until 7 July 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]
An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay.[6]
In relation to the reason for the delay, Ms Donaldson said in her application:
Since the day of losing my job I was 14 weeks pregnant and I suffered my depression and anxiety my Psychologist said it’s Adjustment disorder. It’s taken this extra time for me to not fall apart thinking about it.
Ms Donaldson did not file any additional material explaining the reason for the delay apart from a letter from Mrudula Mathew, Clinical Psychologist dated 10 August 2024 which stated:
This is to certify that Heidi C Donaldson has been attending psychology sessions with me since 2020 for the management of depression, anxiety, and stress symptoms.
On 12/04/24, during the psychology review via telephone, Heidi mentioned that her psychological symptoms worsened due to her unfair dismissal from work. We addressed these symptoms through Cognitive Behavioral Therapy and Acceptance and Commitment Therapy techniques to help her manage the psychological challenges.
On 08/08/24, Heidi was interviewed over the phone. She noted that she is experiencing stress symptoms related to her ongoing tribunal for unfair dismissal, but she is effectively managing the stress using the techniques she learned in therapy.
Given that Ms Mathews has been providing psychology services to Ms Donaldson since 2020, it is reasonable to expect that Ms Donaldson would have sought treatment from Ms Mathews soon after the dismissal given that Ms Donaldson says that since the day of her dismissal, she experienced anxiety and depression. If this had occurred, Ms Mathews should have been in a position to provide evidence about whether Ms Donaldson was suffering from some incapacity which prevented her from lodging the application on time. Instead, the letter from Ms Mathews refers to consultations she had with Ms Donaldson before the date of the dismissal and after the application was filed. It does not deal with Ms Donaldson’s capacity to file an unfair dismissal application within the 21 day period after the dismissal. It does not explain why Ms Donaldson was well enough to prepare and file an unfair dismissal application on 7 July 2024 but not before that day and in particular during the period from 17 April 2024 to 8 May 2024.
In the circumstances, I am not satisfied that the reasons for the delay advanced by the Applicant weigh in favour of a finding that there were exceptional circumstances.
Did Ms Donaldson first become aware of the dismissal after it had taken effect?
The application indicates that Ms Donaldson first became aware of the dismissal when it took effect on 17 April 2024.
What action was taken by Ms Donaldson to dispute the dismissal?
Ms Donaldson did not make any submissions in relation to this matter. Endeavour submitted that Ms Donaldson took no action to dispute the dismissal until she lodged her claim out of time on 7 July 2024.
What is the prejudice to the employer (including prejudice caused by the delay)?
Ms Donaldson did not make any submissions in relation to this matter. Endeavour submitted an employer is entitled to expect an applicant to pursue an application promptly after the termination of employment. Such a delay creates prejudice to the employer. However, Endeavour did not point to any specific prejudice it suffered as a result of the late application.
What are the merits of the application?
Ms Donaldson was dismissed because she used her personal ‘Everyday Rewards Plus Card’ for customer transactions on approximately 107 occasions between 1 February and 20 March 2024. Endeavour says that this was in breach of its Code of Conduct and Everyday Rewards Plus Card Policy.
Ms Donaldson says that the events leading up to her dismissal commenced two days after she told her manager that she was 14 weeks pregnant. Ms Donaldson does not appear to deny the allegation that she used her personal ‘Everyday Rewards Plus Card’ for customer transactions but claims that she was not aware that this was prohibited by the Code of Conduct and the Everyday Rewards Plus Card Policy. Further Ms Donaldson contends that other employees engaged in the same conduct and received warnings rather than being dismissed.
It is evident from this material that the Commission would be required to consider a number of potentially contested issues including whether Endeavour had adequately communicated its policies to employees and whether differential treatment of employees engaging in the same alleged misconduct had occurred. Evidence in respect of these matters would be heard and weighed in a hearing of the merits of this matter if an extension of time was granted. In the absence of a hearing in relation to this evidence, it is not possible to make any firm or detailed assessment of the merits.
In the circumstances, I find that it is not possible to make an assessment of the merits of the application.
Fairness as between Ms Donaldson and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?
I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:
(a) the reasons for the delay, being Ms Donaldson experiencing anxiety and depression;
(b) Ms Donaldson becoming aware of the dismissal when it took effect;
(c) the absence of any action being taken by Ms Donaldson to dispute the dismissal prior to making the application;
(d) no specific issue of prejudice to the employer being identified;
(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and
(f) no issue of fairness arising as between Ms Donaldson and other persons in a similar position.
Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[7] Exceptional circumstances may 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 can be considered exceptional.[8]
The reasons for the delay, the time that Ms Donaldson became aware of the dismissal and the lack of action taken by Ms Donaldson to dispute the dismissal do not weigh in favour of a finding of exceptional circumstances. The matters in subsections 394(3)(d)-(f) are neutral considerations.
Having regard to all of the matters listed at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.
Conclusion
Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.
I make the following orders:
1. The application is amended to provide that the Respondent is Endeavour Group Limited.
2. Ms Donaldson’s application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
No Appearance for the Applicant
Ms J. Lombardelli, for the Respondent
Mr R. Kakwani, for the Respondent
Hearing details:
2024
29 August
In person, Sydney and via Microsoft Teams
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[2] Mr David Djula v Centurion Transport Co. Pty Ltd[2015] FWCFB 2371, [26]
[3] Ibid, [33]
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[8] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
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