Jasmine Jones v Training Online Australia T/A Alffie

[2019] FWC 716

[2019] FWC 716

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Jasmine Jones
v
Training Online Australia T/A Alffie
(C2018/7168)

DEPUTY PRESIDENT BEAUMONT PERTH, 13 FEBRUARY 2019

Application to deal with contraventions involving dismissal– whether application filed within 21 days – extension of time not granted – no exceptional circumstances.

[1] This decision concerns an application (the Application) made by Ms Jasmine Jones (Ms Jones) for the Fair Work Commission (the Commission) to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). Section 366 requires that the application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). The respondent, Training Online Australia Pty Ltd t/as Alffie (Alffie), objected to the application on the basis that it was filed outside the 21 day period prescribed by s 366(1).

[2] The date that Ms Jones’ dismissal took effect was 15 November 2018, but she did not lodge her application until 16 December 2018. The period of 21 days ended at midnight on 6 December 2018, and her application was therefore lodged 10 days out of time. She asks the Commission to allow a further period for the application to be made.

[3] The Application was heard before me by recorded telephone hearing on 6 February 2019. Ms Jones appeared for herself and gave evidence along with her other witnesses. Alffie’s Chief Executive Officer, Mr Paul Licuria, appeared and gave evidence for Alffie.

[4] Section 366(1)(b) extends the period in which the application under s 365 must be made. The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances the factors in s 366(2)(a) – (e) are taken into account. Having considered those factors, I find on balance that the circumstances are not exceptional. I decline to grant an extension of time under s 366(2). Accordingly, the Application is dismissed.

[5] The reasons for my decision follow.

Background

[6] Ms Jones started work with Alffie as a Relationship Development Manager on 9 July 2018. She gave evidence that she worked very long hours and loved her work.

[7] On or around October 2018, Ms Jones made a verbal complaint to Mr Licuria about being bullied and humiliated by her Manager. In response to Ms Jones’ complaint, Mr Licuria flew from Melbourne to Sydney to discuss it with the relevant Manager. Following that discussion, the Manager contacted Ms Jones and apologised for not being professional, and according to Ms Jones’ evidence, sent an email confirming the apology. Ms Jones considered that the matter had been addressed.

[8] To the best of Ms Jones’ recollection, it was during that same month of October 2018 that she informed Mr Licuria that she was unhappy about being allocated the region of half of New South Wales, when on commencement she had been informed that the region she was responsible for was the Central Coast and Newcastle. Ms Jones said that Mr Licuria became angry at this meeting, and one of her colleagues was present. The colleague was not called to give evidence. Having expressed her discontent regarding the change in region size, Ms Jones gave evidence that Mr Licuria offered to provide her with $5000.00 to compensate for the additional travel, which she accepted.

[9] It was Mr Licuria’s evidence that Ms Jones had referred to working extra hours and he therefore sought to build upon Ms Jones’ development so that she could better understand the role she was performing. Consequently, he arranged for her to fly to Melbourne to work with some of the representatives on the road to learn a different skill set. However, during Ms Jones’ probationary period he was alerted by staff and clients that Ms Jones was presenting late for meetings, using abusive language in addition to backstabbing her colleagues. It was Mr Licuria’s evidence that Ms Jones had been informed of this in weekly catch up meetings by her Manager. Mr Licuria confirmed that no warnings had been issued concerning such incidents. Ms Jones’ Manager was not called to give evidence.

[10] Mr Licuria drew the Commission’s attention to three emails that he had received all of which were dated 31 January 2019. The first, an email from another Relationship Development Manager, a colleague of Ms Jones, highlighted that Ms Jones had a negative attitude toward her Manager (Exhibit R1). The second email, from another Relationship Development Manager, confirmed a conversation that had taken place between the author of the email and Ms Jones. The second email detailed that Ms Jones had made derogatory comments regarding her Manager and the Qld & NSW Area Manager (Exhibit R2). The third email was from a client of Alffie and detailed that Ms Jones had presented late for a meeting and in addition had used offensive language (Exhibit R3). The authors of the emails were not called to give evidence.

[11] Ms Jones gave evidence that on 14 November 2018, whilst in Melbourne, she received a text message from Mr Licura instructing her to meet with him at 7.30am the next day and to bring someone with her if she wanted. Ms Jones continued with her evidence stating that on 15 November 2018, Mr Licuria met with her and informed her that her employment with Alffie was not working out based on little things he had heard. Ms Jones’ said that she asked for examples and said Mr Licuria informed her that she was not performing in accordance with the Alffie Values. Mr Licuria confirmed that this was the case noting that one of the Values, which were referred to as ‘obsessions’ in Alffie, was ‘make mumma proud’. This Value incorporated respect for colleagues and clients. According to Mr Licuria, Ms Jones’ behaviour did not align with the Alffie Values.

[12] Ms Jones stated that following her dismissal she filed an application for an unfair dismissal remedy (the UD Application). Having reviewed the Commission records it appears that the UD Application was lodged on 28 November 2018. Ms Jones’ evidence was that she had discontinued her UD Application after being advised by Legal Aid that she had not completed the minimum employment period with Alffie, and should withdraw the UD Application. The Commission records reflect that the Commission was informed Ms Jones was discontinuing her UD Application on 12 December 2018.

[13] In her evidence, Ms Jones said that Legal Aid informed her to make another claim for general protections as bullying came under this legislation. Ms Jones said she was told by Legal Aid that she was over the 21 day time frame, but was still advised to go ahead with the claim as it would potentially be accepted given her situation. Ms Jones she said she did not understand anything about a timeframe.

[14] A medical certificate was referred to in the proceedings dated 23 January 2019. The medical certificate stated:

This to certify that I saw Miss Jasmine Jones on 04/12/2018 for her back pain and depression/anxiety

I referred her to see psychologist and increased dose of antidepressant.

I advised her to continue seen physiotherapist.

she also was seen in Gosford district Hospital on 22/11/2018 for her cervical back pain.

[15] Ms Jones’ confirmed that she spent a couple of hours at Gosford District Hospital.

Submissions of the parties

[16] Both parties were provided with guidance regarding what was required to be addressed at hearing. Notwithstanding, submissions provided by both were of limited assistance.

[17] Ms Jones reiterated her view that the reasons for her dismissal were unfair and she felt she was being bullied and attacked for exercising her rights about making a verbal complaint about her Manager’s conduct toward her. Ms Jones detailed that the ‘whole ordeal’, referring arguably to the dismissal, had brought on her depression and anxiety to a significant degree leaving her almost crippled in bed and physically sick. Extensive detail of Ms Jones’ mental and physical suffering was provided. Ms Jones concluded that her body had been under complete stress and she was finding it hard to cope with anything.

[18] In short, Mr Licuria submitted that Ms Jones was on probation at the time of her dismissal and that he had bent over backwards to make sure she was supported professionally.

Extension of the 21 day period

[19] Consideration now turns to whether to extend the 21 day period within which the Application was to be brought.

[20] In order for the Application to proceed, it is necessary for Ms Jones to obtain an extension of time to make the application under s 366(2). This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a similar position.

[21] It has been said that proceedings not commenced in time should not be entertained. 1 However, the Act has given the Commission discretion to extend the prescribed period for the making of a general protections application involving dismissal. That discretion can be exercised only in exceptional circumstances where the matters specified in paragraphs (a) to (e) of s 366(2) are taken into account. It follows, that an applicant has a considerable onus to convince the Commission to exercise the discretion.2

[22] In decision of Cheyne Leanne Nulty v Blue Star Group Pty Ltd (Nulty) the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when ‘exceptional circumstances’ are established, there remains discretion to grant or refuse an extension of time. 3 The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

[23] The Act does not define ‘exceptional circumstances’ per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. 4 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 can be considered exceptional.5

[24] In the recent decision of the Full Bench in Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters clarification was provided regarding the assessment of exceptional circumstances:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional. 6

[25] At the commencement of the hearing the parties were referred to s 366(2) of the Act, and the meaning of ‘exceptional circumstances’. Both were invited to make any further submissions in relation to the question of whether there were exceptional circumstances.

Reason for the delay

[26] In Aaron Pottenger v Department of CAlffiene T/A Two Feet First, 7 the Deputy President observed that the Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable,8 or a reasonable explanation.9

[27] The absence of an explanation for any part of the delay, will usually weigh against an applicant in such an assessment. 10 Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight.11

[28] Having considered the evidence before me I am not persuaded that there is a credible explanation for the entirety of the delay based on the evidence led concerning Ms Jones’ health. While the medical certificate confirmed that Ms Jones had been seen at Gosford District Hospital, and provided information that the author of the certificate had reviewed her on 4 December 2018, the medical evidence did not indicate that Ms Jones was incapacitated for the duration of the delay.

[29] Further, it is clear that Ms Jones had capacity to challenge her dismissal by making the UD Application and was subsequently able to obtain legal advice. It was not the case that she was so incapacitated by her bad back, depression and anxiety that she was unable to pursue recourse. However, Ms Jones’ evidence was that she had no knowledge of the statutory time frame in which to make the Application.

[30] In the decision of Nulty the Full Bench considered the statutory time limit in the context of the discretion to extend time for making such applications on the existence of ‘exceptional circumstances’, it was said that:

[I]n doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[31] While Nulty referred to the ignorance regarding the statutory time limit, the observation made was that an employee, who is aggrieved at being dismissed, ordinarily ought to be expected to seek out information on any remedy they may have in a timely fashion. In the circumstances of this case, Ms Jones initially chose to pursue a remedy that perhaps was not open to her because she may have not served the minimum employment period. Consequently, she chose to discontinue that UD Application.

[32] Ultimately, however the responsibility to seek out information on any remedy rests with an applicant. If the applicant gets it wrong through her or his ignorance and pursues a remedy that may not be open to her or him this will not necessarily constitute a credible explanation for part or the entirety of the delay; much turns on the particular circumstances of the matter. 12

[33] There was no evidence to show that Ms Jones was illiterate, spoke English as a second language, or in some other way had such mental incapacity that rendered her incapable of discerning the application open to her given that which she asserted. When it came to the UD Application, Ms Jones did not say that she was ‘being bullied and attacked for exercising my rights from making a verbal complaint about my manager bullying and humiliating me’. Instead the UD Application focused, among other matters, on the amount of work that was required of Ms Jones, her conduct not aligning to the Values of Alffie, non-compliance with training requirements for which Ms Jones had explanation and the procedural unfairness she considered she was afforded. It would appear that having received legal advice Ms Jones decided to discontinue her UD Application because of the aforementioned jurisdictional issue concerning the minimum employment period. Thereafter she determined to characterise her dismissal as arising from her making a verbal complaint. Notwithstanding that, she considered the complaint against her Manager resolved.

[34] I do not consider that Ms Jones’ health issues or ignorance of the law constitute an acceptable reason for the duration of the delay in making the Application. There is no doubt that Ms Jones is tremendously aggrieved by her dismissal, and it is conceivable that a loss of a job may cause terrible upset. This, however, is not uncommon.

[35] On balance, and in the circumstances of this particular case, I find the reason for the delay is not an acceptable one. This weighs toward a finding of there not being exceptional circumstances.

Action taken to dispute the dismissal

[36] It is evident that Ms Jones sought to clarify the reasons for her dismissal and responded to such reasons, but it is not clear that Ms Jones took action to dispute her dismissal save for later making her UD Application. I consider this a neutral factor.

Prejudice to the employer

[37] I cannot identify any particular prejudice that Alffie would face if an extension of time is granted. However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time. In the present case, I consider this to be a neutral factor.

Merits of the application

[38] The nature of the matter is such that consideration must be given to whether the Application was made within the time period required in s 366(1) and whether an extension of time in which to make the Application should be provided. These are initial matters to be considered before the merits of the Application.

[39] The merits of the Application have not been fully tested. Ms Jones contends that she was dismissed in contravention of s 340 of the Act. This section provides, among other things, that a person must not take adverse action against another person because the other person has a workplace right, or has, or has not exercised a workplace right. ‘Adverse action’ is defined in s 342 and includes dismissal. Section 341 provides that a person has a workplace right if, among other things, the person is able to make a complaint or inquiry in relation to his or her employment. Ms Jones contends that she had a discussion with Mr Licuria about her Manager degrading her, humiliating her and embarrassing her in front of a group training class. She holds the view that Mr Licuria took her Manager’s side and as a result of the bullying they were trying to find ways to dismiss her.

[40] Ms Jones worked for Alffie for less than 6 months. The material provided to the Commission shows that Alffie considered that Ms Jones had not completed a required training unit, had conducted herself in a manner unaligned to the Values of Alffie and was underperforming. With regard to the complaint made concerning Ms Jones’ Manager, it is apparent that Ms Jones considered that the complaint had been dealt with, as did Mr Licuria. It is then curious why it provides the basis for the Application.

[41] In my view, there was a paucity of evidence regarding what had been asserted by both Ms Jones and Alffie. Further, the evidence provided was, in part, of little probative value. Perhaps this is understandable given the inexperience of both parties concerning advocacy, and their apparent lack of preparation for the hearing. Extensive guidance on how to prepare for the arbitration was provided. Regrettably the evidence given was unchallenged and at times irrelevant. Given the interlocutory nature of an application to extend time, and mindful that the material has not been fully explored or tested, I do not consider the merits of the case tell for or against an extension of time. In the circumstances I consider the merits of the case to be a neutral consideration.

Fairness as between the applicant and other persons in a similar position

[42] The parties did not draw my attention to any relevant persons or cases that would be relevant in relation to the question of fairness as between Ms Jones and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

Conclusion

[43] The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. Further, where exceptional circumstances are found it must be determined whether it is fair and equitable that time should be extended.

[44] Having regard to all of the matters that I am required to take into account under s 366(2), I am not satisfied that the requisite exceptional circumstances exist. No factors weigh in favour of granting an extension. In my view, the circumstances of this case are not exceptional, either individually or when considered together.

DEPUTY PRESIDENT

Appearances:

Jasmine Jones for the Applicant

Paul Licuria for the Respondent

Hearing details:

Telephone, 6 February 2019

Printed by authority of the Commonwealth Government Printer

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 1   Cheyne Leanne Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20].

 2   Ibid.

 3   [2011] FWAFB 975, [15].

 4 Ibid [13].

 5   Ibid.

 6   [2018] FWCFB 901, [38] (emphasis in original).

 7   [2018] FWC 3403

 8   Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].

 9   Roberts v Greystanes Disability Services; Community Living[2018] FWC 64, [16].

 10 Ibid [39].

 11   Ibid.

 12   Andrew Green v Bilco Group Pty Ltd[2018] FWC 6818