Janette Reanie Smithers v Cheval Properties Pty Ltd T/A Penrith Hotel-Motel
[2010] FWA 3701
•14 MAY 2010
Note: An appeal pursuant to s.604 (C2010/3937) was lodged against this decision - refer to Full Bench decision dated 17 September 2010 [[2010] FWAFB 7251] for result of appeal.
[2010] FWA 3701 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Janette Reanie Smithers
v
Cheval Properties Pty Ltd T/A Penrith Hotel-Motel
(U2010/6000)
COMMISSIONER MCKENNA | SYDNEY, 14 MAY 2010 |
Application for an unfair dismissal remedy – extension of time.
[1] On 10 February 2010, Janette Smithers (“the applicant”) filed an application pursuant to s.394 of the Act, concerning an unfair dismissal remedy in relation to her termination of employment by Cheval Properties Pty Ltd trading as The Penrith Hotel-Motel (“the respondent”). The application was not filed within time and this decision concerns the question of whether an extension should be granted.
[2] By way of brief background, the applicant is in her early 60s and had been employed by the respondent as a regularly-rostered, casual bottle shop attendant since September 2007. The date of termination of employment is in issue. The respondent contended the dismissal, resulting from a downturn in trade leading to reduced casual hours, occurred on 17 December 2009. The applicant contended the dismissal was effected on 18 December 2009. On the applicant’s evidence, she was peremptorily dismissed during a telephone call on 18 December 2009, and without any reason being given to her.
[3] On 21 January 2010, the applicant initially filed an application pursuant to s.84 of the Industrial Relations Act 1996 (NSW) alleging she had been harshly, unreasonably or unjustly dismissed (the application is otherwise date-stamped as having been received on 20 January 2010). The application to the Industrial Relations Commission of New South Wales was not made within the time-frame of 21 days specified in s.85 of the Industrial Relations Act.The applicant withdrew that application on 9 February 2010, consequent upon advice the application had been brought in the wrong jurisdiction. The following day, 10 February 2010, the applicant filed the application now before Fair Work Australia.
[4] Section 394 of the Act is concerned with the standard time limit and extensions of time concerning unfair dismissal applications, relevantly reading:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to FWA for an order under Division 4 granting a remedy.
…
(2) The application must be made:
(a) within 14 days after the dismissal took effect; or
(b) within such further period as FWA allows under subsection (3).
(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA 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.”
[5] It appears that this application has not been the subject of conciliation because, by notice filed on 22 February 2010, the respondent has taken threshold objection to any extension of time being granted. Against that background, the conciliation conference was cancelled. Further, s.396 of the Act provides that Fair Work Australia must decide, as an initial matter to be considered before the merits whether the application was made within the period required in s.394(2).
[6] The applicant appeared on her own behalf. Based on the matters in her written materials, evidence and submissions, the applicant is of the view it would appropriate to extend time, given the circumstances around the time of the dismissal that led to the delay in filing. These were identified as including:
- the applicant was not given any reason for the dismissal on 18 December 2009. Despite her requests for reasons and written reasons, no reason or reasons were given;
- on 22 December 2009, the applicant had to leave Sydney to travel to Young (in regional New South Wales) as her 91 year old mother had been admitted to Young District Hospital;
- on 21 January 2010, the applicant made an application under s.84 of the Industrial Relations Act alleging she had been harshly, unreasonably or unjustly dismissed;
- on 9 February 2010, the applicant withdrew the application made under the s.84 of the Industrial Relations Act following advice received on 8 February 2010 that she had filed her application in the wrong jurisdiction; and
- on 10 February 2010, the applicant filed this application.
[7] As to these matters, the applicant submitted:
“I accept that my application was filed late with Fair Work Australia. The lateness of lodging my application was affected by the time of the year being Christmas when I was dismissed. The time of lodging was also affected by my having to travel all the way to Young for my ill mother. The respondent received notice of my claim from the documentation that I filed with the Department of Industrial Relations [sic]. The respondent would have received notification at a much earlier time if the Department of Industrial Relations had advised me that they had no jurisdiction to deal with the matter when I first attended their office in January.
I submit that in all the circumstances that time should be extended to allow the application to be filed and then able to be determined on its merits. I believe that this would do justice to the case and be just between the parties. The time for lodging is not so late that it would prejudice the respondent from being able to properly prepare for a hearing and have a fair and just hearing.”
[8] The respondent contended the dismissal was effected on 17 December 2009 and that the application was filed some 55 days after that termination. Mr P Ryan of the Australian Hotels Association submitted, in part, that:
“11. The Respondent submits that individually and collectively, reasons do not constitute ‘exceptional circumstances’ for the following reasons:
• There is no evidence that the illness of the Applicant’s mother was such that it prevented the Applicant from lodging the application (see Ebott v FMSA [2010] FWA 2177; Wemyss v Mission Australia Employment Services [2010] FWA 1798);
• There is no evidence as to extent that the Christmas period prevented the Applicant from lodging the Substantive Application. Any delay caused by the Christmas period is limited to the days that Fair Work Australia was closed (see Kelly v Qantas Airways Limited[2009] AIRC 587);
• Unfamiliarity with the jurisdiction is not a sufficient reason. Should the Tribunal accept that the Applicant’s application to the IRC of NSW is an acceptable reason; the Respondent submits that it was filed on 21 January 2010, some 35 days after the termination of employment and 21 days after the time limit had expired;
• The delay compared to the time limit in this matter represents just under 3 times the prescribed time limit. The delay compared to the date of filing of the IRC of NSW application represents 1.5 times the time limit (see Wemyss v Mission Australia Employment Services [2010] FWA 1798).”
[9] I turn now to a consideration of the matters specified in the Act.
Reason for the delay
[10] As outlined in the extract of submissions above, the three principal matters relied on by the applicant were the Christmas period; her mother’s illness, necessitating travel to Young; and initially seeking relief in the wrong jurisdiction. In her evidence, the applicant also placed reliance on the fact she had asked for written reasons for the dismissal and expected that, as an organisation run by “professional people”, the respondent would attend to that request.
[11] The fact the dismissal occurred a week before Christmas, does not relevantly ground a claim of exceptional circumstances, but the need to go to regional New South Wales on 22 December 2009 in connection with the hospitalisation of the applicant’s 91 year old mother is a relevant factor weighing in favour of the applicant’s case. The applicant’s evidence indicated she had returned initially from Young just before the New Year, but went “backwards and forwards” a few times thereafter. As the applicant’s mother was in Young District Hospital, the applicant went “home” to Young, describing it as “as very bad time, with Christmas time”. She explained that she was undecided about whether “to do this or not”, but decided to make an unfair dismissal application when she had received nothing in writing. Mr Ryan submitted there was nothing to verify the applicant’s evidence that her mother was admitted to hospital. Equally, there was nothing advanced to contradict the applicant’s evidence in this respect, and nor was cross-examined on this point.
[12] As to the fact the applicant initially sought relief in the wrong jurisdiction, I have noted the respondent’s submission that “unfamiliarity with the jurisdiction is not a sufficient reason”. While a lack of familiarity with the remedies available to contest a dismissal may not, of itself, be a sufficient reason to demonstrate exceptional circumstances, it is a relevant factor to be considered and it is weighs in favour of the applicant. As the Full Bench of the Industrial Relations Commission noted in Hurrell and Queensland Cotton Corporation Limited [2003] NSWIRComm 139; (2003) 125 IR 145:
“12 Having made that observation, a lack of knowledge of the 21 days time limitation specified in s 85(1) of the [Industrial Relations Act 1996 (NSW)] may well be a relevant consideration in determining whether to accept an application out of time. A failure to consider or to give any weight to such evidence may well amount to a failure to have regard to evidence relevant to essential aspects of the exercise of discretion. The discretion to accept an application out of time involves balancing a range of considerations, including an applicant's ignorance of the relevant time limit, whether an applicant has an arguable case and the applicant's prospects of success. In Griffith Ex-Services Club Limited v Federated Liquor and Allied Employees Union of Australia (NSW Branch) on Behalf of Vian (1993) 51 IR 186, the Full Commission considered the predecessor provisions to those now contained in s 85 of the Act concerning late applications for relief from unfair dismissal (see s 246(3) - (4) of the Industrial Relations Act 1991) in this way:
Those subsections, in our view, are procedural and expressly grant the Commission the discretion to allow the lodgement of applications beyond the 21 days prescribed in s246(2). The applicant employee carries the burden of showing why the Commission should exercise its discretion to grant such an extension: Lucic v Nolan (1982) 45 ALR 411 at 416. The discretion, however, requires the formation of the view that there is a “sufficient reason”. Factors going to the formation of a view of a sufficient reason are outlined in s256(4)(a) to (d). It is not appropriate to formulate any definition of what constitutes a “sufficient reason”: see Martin v Nominal Defendant (1957) 74 WN (NSW) 121. However, the evidence of the proceedings before the Commissioner was relevant to be considered pursuant to the statutory requirements in regard to the formulation of the view.
13 Similarly, in Skelly v Prouds Jewellers Pty Ltd (1994) 53 IR 3 at 6, in the context of an application for the extension of time to appeal, the Full Commission emphasised the need to take all relevant factors into account in determining an extension of time application; see also the decision of Walton J, Vice President in Brady v Kennedy t/as “Sardines” (1999) 91 IR 258. In our view, the considerations discussed in those decisions are apposite to the exercise of discretion under s 85(3) of the Act. In particular, we would adopt the observations of the Vice-President in Brady, that "the ultimate exercise of discretion is governed by the requirements of justice in a particular case".
14 To arbitrarily adopt an approach that "ignorance of the law is no excuse" when dealing with an application for an extension of time may lead to a failure to consider potentially relevant issues, such as the reasons and circumstances as to the ignorance of the relevant time limitation, personal circumstances affecting or potentially affecting an applicant's knowledge or access to professional advice and the actual circumstances giving rise to late lodgement, including any attempts to lodge an application. The Commission needs only to be satisfied that there is a "sufficient reason" to accept the late application, having "particular" regard to the matters identified. When viewed in that way, the maxim concerning ignorance of the law emerges as even less relevant than otherwise may be the case. The use of the maxim in applications to extend time in unfair dismissal matters has the real potential for error, as this matter highlights.”
[13] Although Hurrell and Queensland Cotton Corporation Limited involved a different legislative scheme than the Act and was concerned with the misapplication of a criminal law maxim to an unfair dismissal application, the principle that may be drawn from the comments of the Full Bench and applied to this application is that the applicant’s lack of knowledge of the remedy appropriately available to her - with the resulting delays occasioned by filing in the wrong jurisdiction is a matter which - may, despite Mr Ryan’s submission, be a relevant consideration. Here, the applicant plainly had a poor appreciation of, or was poorly advised about, the remedies appropriately available to her - as evidenced by the fact she filed an application for relief under s.84 of the Industrial Relations Act. Moreover, if the applicant had been aware sooner of the jurisdictional difficulty with the application filed under the Industrial Relations Act, this application would still be out of time - but it would not have been so far out of time. The applicant’s evidence in this respect was that when she returned to Sydney she went to the “Industrial relations office just across from Central” (which I take to be the NSW Office of Industrial Relations at Rawson Place, near Central Station), explained the situation, and was given a form to complete - evidently being a form to make an application under the Industrial Relations Act rather than under Fair Work Act. Then, two or three days before the listing of the matter before the Industrial Relations Commission, the applicant received some form of communication from the Industrial Relations Commission about the jurisdictional difficulty and was advised to file an application with Fair Work Australia – which she then did on the day immediately after discontinuing the proceedings before the Industrial Relations Commission.
[14] On the other hand, I note the applicant’s evidence suggests she was aware that she had a remedy, but she was undecided about whether to make an application while awaiting the written reasons she had requested (despite being informed no reasons would be given, she expected that an organisation run by “professional people” would provide something in response to her request), in circumstances where the person who effected the dismissal would not give any reason during the telephone conversation.
Whether the person first became aware of the dismissal after it had taken effect
[15] As I noted at the earlier in the decision, there is dispute between the applicant and the respondent as to the date the dismissal was effected. The respondent’s only witness in the proceedings, Sandra Summers - General Manager, was not the person who effected the dismissal. Ms Summers deposed as follows:
“6. I was advised that Applicant’s employment was terminated by the acting Hotel Manager, Debbie Alliston on 17 December, 2009. I was advised that this happened in person and not over the telephone.”
[16] Ms Summers’ understanding was that Ms Alliston informed the applicant of the termination of employment at the end of her shift on Thursday 17 December 2009, advising she was no longer required.
[17] In the absence of any evidence adduced by the respondent as to the date of the dismissal other than hearsay, I accept the applicant’s evidence she was informed of the dismissal on 18 December 2009. I note the applicant also telephoned the hotel on Friday 18 December 2009 to advise she was unwell and would not be attending work that day. It would seem improbable the applicant would have made any such call on Friday 18 December 2009 to notify of her absence from work due to illness if she had been informed by Ms Alliston, as the respondent’s case contended, on Thursday 17 December 2009 that she was no longer required.
Any action taken by the person to dispute the dismissal
[18] According to the applicant’s evidence, she was insistent in asking for the reasons why she was being dismissed, but was informed that there was no requirement to give reasons. She also voiced her concerns about being dismissed in circumstances where this had not been “even remotely mentioned” to her previously and that she had not been informed about performance-related issues. Moreover, before filing this application, the applicant had commenced proceedings under the Industrial Relations Act alleging she had been harshly, unreasonably or unjustly dismissed.
[19] The applicant’s actions in insisting that she be given reasons for the dismissal, objecting to the dismissal in the absence of advice about performance-related issues and the commencement of proceedings under the Industrial Relations Act may be accepted as constituting action taken by her to dispute the dismissal. As such, I do not accept the respondent’s submission that “there was no evidence of any action by the applicant to contest the termination of employment other than applying under the Act and that making such an application should not be considered to be action taken to contest the termination”.
Prejudice to the employer, including prejudice caused by the delay
[20] As to prejudice, Mr Ryan submitted that Ms Alliston, the person who effected the termination of employment, no longer works for the respondent. Mr Ryan further submitted that if the application had been filed within the prescribed time limit, the respondent would have been in a better position to defend the matter.
[21] The fact the person who effected the termination of employment is no longer employed by the respondent does not relevantly arise so as to establish prejudice to the respondent. It is open to the respondent to request Ms Alliston to give evidence or to summons her to give evidence. In any event, Ms Summers’ evidence suggested that Ms Alliston has indicated a preparedness to assist the respondent in relation to this application when she is well.
The merits of the application
[22] There was evidence that a memorandum had been issued to staff on 18 November 2009 in the following terms:
“All staff are advised due to the downturn in trade we have been experiencing, we will be altering the roster and fewer casual shifts will be on offer as we will have to bring in other permanent staff from other hotels to absorb some of the shifts.
It is difficult to issue as many casual shifts as we have done so in the past however we have little choice at this time and we will endeavour to minimize the impact it may have on your hours.
We may be in a position to offer some other casual shifts at our other hotel, please discuss your availability with Meegan on this issue.
We have been receiving numerous requests for time off and again I would like to remind everyone that due to the limited staffing levels we have at this hotel makes our resources’ stretched to the limited when preparing the rosters.
Continual frequent requests to have time off may prove difficult to continue to offer casual shifts and again I would ask you speak directly with Meegan about your availability.”
As to this, Mr Ryan submitted the respondent had advised employees, including the applicant, that a downturn in trade was leading to reduced hours and, in those circumstances, the substantive application has little merit.
[23] As to the merits of the matters, the applicant contends, shortly stated, that the dismissal was unfair because the she was not given any reason or reasons for the dismissal despite her requests thereto, she was given no prior warning, another employee has been given the shifts she worked, and she was dismissed during a telephone call from Ms Alliston after she had called-in sick.
[24] As I have noted earlier, the respondent’s evidence about the circumstances of the termination of employment is hearsay, and the applicant was emphatic in her evidence that her employment was terminated in a telephone from Ms Alliston on 18 December 2009. The applicant’s evidence was that she had been sick on the night of Thursday 17 December 2009 and visited her doctor on the morning of Friday 18 December 2009. The applicant’s evidence was that she had also telephoned the hotel about her non-attendance due to illness and was advised by an employee that presented “No problem”. Later that day, the applicant received a telephone call from Ms Alliston to say she had been told by Ms Summers that she was no longer required at the hotel. The applicant asked for a reason stating, “I need a reason why I am being dismissed, in writing please”. According to the applicant, Ms Alliston replied, “No, you are not required to have that”. The applicant restated her request for a second time, emphasising that this had not been foreshadowed to her, that there had been nothing to suggest she had not been doing her work properly and she was unaware of any problems. Ms Alliston replied “No, you don’t need that”. The applicant then, for a third time, reiterated her request, stating “Well .. I do need it and I would like to get it”. The applicant suggested the telephone call could be verified by telephone records, but there was no evidence thereto.
Fairness as between the person and other persons in a similar position
[25] There was no evidence adduced by either the applicant or the respondent going to the matters of fairness as between the person and other persons in a similar position, although I note Mr Ryan submitted, based on the cases to which he had referred, that fairness between the applicant and other persons in a similar position can be achieved only by dismissing the substantive application.
CONSIDERATION
[26] This application for extension raises strongly competing considerations in relation to whether the applicant has made out exceptional circumstances, in circumstances where the termination of employment occurred on 18 December 2009 and the application was filed, well out of time, on 10 February 2010. I accept that the applicant’s need to attend Young in connection with her 91 year old mother’s hospital admission is a matter which would partly explain delay. However, I also note and accept Mr Ryan’s submission, relying on Ebbott v FMSA[2010] FWA 2177, that, in itself, going to Young would not have prevented the filing of an application – albeit the physical dislocation from the applicant’s Sydney home and the carer’s issues that necessitated travel to Young are relevant to the overall situation. Similarly, while the applicant obviously had a poor appreciation of the provisions concerning unfair dismissal claims given that she filed initially in the wrong jurisdiction, it is not suggested she was unaware of unfair dismissal remedies. That is, the evidence suggested she was considering making an application with respect to an unfair dismissal claim from around the time of her dismissal, but did not do so for reasons including going to Young, the effect of the Christmas period, and because she was waiting for the written reasons for the dismissal that she expected from the “professional people”. The fact the applicant filed in the wrong jurisdiction is a matter which explains, quite satisfactorily in my view, a large part of the delay, but, equally, the application to the Industrial Relations Commission was itself made beyond the time-frame of 21 days specified in the Industrial Relations Act. I have also considered the matters raised by the applicant, but they do not resonate strongly in terms of prejudice for the reasons outlined earlier in the decision.
[27] I consider the applicant would have an arguable case that the dismissal was unfair, albeit that may well be contest in any hearing on the substantive claim of unfair dismissal by evidence from Ms Alliston as to the date on which the termination of employment was effected and the content of any face-to-face conversation. However, in the assessment of the potential merits of the substantive application, the evidence properly before me comprises that only of the applicant’s evidence. As to that, the applicant was unwell on Thursday 17 December 2009. On Friday 18 December 2009, the applicant visited her doctor and also telephoned the hotel to say she was unwell and would not be attending work. Later that day, Ms Alliston telephoned the applicant and informed her that she was no longer required at the hotel. The applicant thought the dismissal was for some unspecified, performance-related reasons - given her complaints about lack of warnings prior to the dismissal. The applicant said she was “shocked” by the telephone call, because she had not been given any prior “indication”. Moreover, the applicant asked for reasons, but Ms Alliston did not provide any reasons - stating that no reasons were required. If this was dismissal brought about for the reasons identified in the memorandum dated 18 November 2009, the applicant was not informed that was the case - and there was at least a suggestion in the evidence, such as in the last paragraph of the memorandum to staff, that there had been some issues involving leave requests as well as evidence that the respondent had declined a request from the applicant for leave to travel to Young. Ms Summers explained that while previous requests from the applicant for leave to visit her sick mother had been accommodated the most recent request was refused as another employee had been granted leave and “the relieving manager just couldn’t accommodate her continual time for request off as a casual. It was proving too difficult for us. In addition, we had to put on full time staff to absorb all the casual rates” for financial reasons.
[28] On a consideration of the matrix of circumstances in this case in the context of the provisions of s.394(3) of the Act, I am satisfied, on balance, that exceptional circumstances exist in relation to this application having regard, in particular, to the physical dislocation and exigencies associated with the applicant’s carer’s responsibilities concerning the admission of her 91 year old mother to Young District Hospital and the filing initially of an application concerning unfair dismissal in the wrong jurisdiction. On the evidence adduced at this stage of the proceedings, I also consider the applicant has an arguable case concerning the substantive application.
[29] It is appropriate to extend time. An order to that effect has been issued in conjunction with the publication of this decision.
COMMISSIONER
Appearances:
J. Smithers in person.
P. Ryan for the Australian Hotels Association on behalf of the respondent.
Hearing details:
Sydney
2010
April 23.
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