Jeanette Crowley v Eureka Operations Pty Ltd T/A Coles Express

[2014] FWC 5123

[2014] FWC 5123

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeanette Crowley
v
Eureka Operations Pty Ltd T/A Coles Express
(U2014/3955)

COMMISSIONER WILSON MELBOURNE, 30 JULY 2014

Application for unfair dismissal remedy - jurisdictional objection - whether extension of time should be granted.

Introduction

[1] Jeanette Crowley has made an application to the Fair Work Commission (the Commission) seeking an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Crowley’s application relates to the termination of her employment with Eureka Operations Pty Ltd T/A Coles Express (referred to hereafter as Coles Express) on or around 31 October 2013, and was lodged at the Commission on 21 January 2014.

[3] For the reasons set out below, it is necessary to consider whether a further period should be allowed to Ms Crowley for the making of an unfair dismissal application.

[4] The matter commenced before Vice President Lawler with a hearing on 15 April, which did not resolve the issue, after which the application for an extension of time was allocated to me on 3 June 2014. I have had the benefit of considering the material and evidence taken before His Honour and have taken that material into account in forming my decision.

[5] Since I am satisfied there are exceptional circumstances in the manner set out in s.394(3) of the Act, I allow Ms Crowley the further period she seeks.

[6] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

[7] The 21 days for lodgement does not include the date that the dismissal took effect. 1 As a result, the first day of the period commences on the day following the dismissal.

[8] Having been dismissed on 31 October 2013, Ms Crowley’s application would need to have been made to the Commission no later than 21 November 2013 in order for it to be within time.

[9] A conciliation conference of the parties pursuant has not been held, since the application was made out of time. Ms Crowley has acknowledged this fact and seeks an extension of time pursuant to s.394 of the Act.

[10] Ms Crowley made an incomplete application to the Fair Work Commission which was received on 21 January 2014 but which was dated by her as 15 January 2014. Consistent with usual practice, the Commission staff telephoned and wrote to Ms Crowley on 23 January 2014 advising her that the application was incomplete and inviting her to provide further details. The incomplete material included details about the respondent and the date upon which Ms Crowley commenced working for them and the date she was dismissed. It took some time for Ms Crowley to provide a completed application, with such document not provided to the Commission until 20 February 2014.

[11] The circumstances of Ms Crowley’s employment with Coles Express and the company’s subsequent dismissal of her include the following:

• Ms Crowley commenced employment with Coles Express on 11 February 2011. She lives in rural NSW and worked at a Coles Express store near where she lives.

• On September 2013, she worked a shift and left a note for the attention of the store planner. The note made some allegations about the planner, including that she was discriminating against Ms Crowley and said “I am going to resign I not know what date yet as also taking Coles to court for DISCRIMINATION”. Another note left on the same shift advised that Ms Crowley was resigning. 2 Ms Crowley agrees she left these notes.3

• The content of these notes and Coles Express’ response to them led to a series of escalating events, which included phone calls and attempts to arrange a meeting with Ms Crowley, but which did not take place.

• Because a meeting had not taken place between the parties, the company sent Ms Crowley a letter on or around 17 October 2013, which detailed a number of allegations Coles Express wanted to put to her regarding her behaviour at work. 4 The allegations particularised phone calls between Ms Crowley and her Regional Area Manager, Mr Rick Meredith; and between Ms Crowley and other staff, including her store planner, Michelle. The allegations included;

• that Michelle had contacted Ms Crowley on 27 September and had let her know Coles Express had accepted her resignation;



• that afterwards Ms Crowley had been verbally abusive to Mr Meredith 5 and Michelle, and had said derogatory things about Michelle to other staff members.

• The letter of 17 October sought a written response to the allegations by 25 October 2013 and cautioned Ms Crowley that a failure by her to respond would not prevent the company from deciding her employment future.

• Ms Crowley did not respond to the letter and Coles Express decided to dismiss her.

• Ms Crowley has some confusion around the precise date on which she was dismissed, and the sequencing of events shortly before and after dismissal, together with the date that she became aware of the dismissal. The letter of dismissal sent to Ms Crowley refers to a termination date of 30 October 2013, however there is no evidence before me that Coles Express endeavoured to communicate this decision to Ms Crowley on that day. Rather the evidence is that Mr Hawkins, Regional Human Resources Manager, signed and posted the letter to Ms Crowley on 30 October and that Rick Meredith, Retail Area Manager, telephoned Ms Crowley on 31 October 2013 and told her the news. 6 While the company’s witnesses did not give oral evidence in these proceedings and Ms Crowley denies having received a phone call from Mr Meredith on 31 October informing her that she was dismissed, I consider that she is confused about this and accordingly I prefer Coles Express’ evidence in this regard. While Coles Express refer to a termination date of 30 October, the evidence is more consistent with 31 October being the date on which Ms Crowley’s dismissal took effect.

• For the purposes of this decision, I find that Ms Crowley’s dismissal was effected by the telephone call to her from Mr Meredith on 31 October 2013.

[12] Ms Crowley’s evidence and submissions indicates the following events and action both before and after her dismissal;

• She had experienced a critical incident with an intoxicated truck driver in July; this incident had a significant impact on her mental health and she believes her relationship with the employer went downhill as a result; 7

• Although she had been on a regular roster for some time, after the incident with the truck driver her hours started to be reduced; 8

• After not having shifts for a while, she received a letter of dismissal, after which she was hospitalised for a psychiatric illness on 17 November 2013; 9

[13] Ms Crowley relies on her hospitalisation and the effects of her illness as the reason her application for an unfair dismissal remedy was not received by the Fair Work Commission until 21 January 2014.

[14] An application relating to a dismissal that took place on 31 October 2013 would need to have been made no later than 20 November 2013 in order for it to be within time.

[15] Although Ms Crowley’s evidence is not clear about the precise sequencing of events that took place after her dismissal, her evidence, connected with that of her general practitioner, Dr Wrice, which is referred to in greater detail below, leads to the view that Ms Crowley was suffering increasingly difficult medical symptoms before her hospitalisation on 17 November and that she was probably in no position to attend to her affairs immediately upon discharge from hospital on 17 December.

[16] Ms Crowley’s evidence is that upon discharge from hospital in December, she required some time to adjust to her medication; and that although she had some basic understanding that a person who had been dismissed had a right to make a complaint of unfair dismissal, it was not until early in 2014 that she was able to consider acting on her rights and that she downloaded the Commission’s form only a few days before lodging it. 10

[17] Coles Express opposes the granting of an extension of time on the basis that no exceptional circumstances exist.

Legislation

[18] Relevant to the Commission’s consideration of this question are the provisions in s.394 of the Act:

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.

[19] A decision to allow a further period for making an application requires the Commission to be satisfied that there are “exceptional circumstances”, taking into account the six nominated criteria. The Full Bench in Nulty v Blue Star Group has held the following in relation to “exceptional circumstances”, in the context of similar legislative phrasing for consideration of extending a time period for the making of an unfair dismissal application:

“[13] 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. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. 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”. 11

Consideration

[20] In considering whether I am satisfied there are exceptional circumstances which might lead to allowing a further period for the application to be lodged, I turn to consider each of the criteria set out in s.394(3) of the Act.

1. The reason for the delay (s.394(3)(a))

[21] Ms Crowley’s reason for her delay in lodging an application for unfair dismissal remedy is her hospitalisation for a psychiatric illness that either developed or worsened not long after being dismissed.

[22] Ms Crowley’s general practitioner, Dr Virginia Wrice, gave evidence which included that Ms Crowley had been admitted to the Wagga Wagga Base Hospital on 17 November 2013 because of her illness, and was not discharged until 17 December 2013. 12 Dr Wrice’s evidence included that;

• She and other medical practitioners in her practice have seen Ms Crowley on a number of occasions;

• Although she was not the medical practitioner who admitted Ms Crowley to hospital she was aware of the circumstances of the admission 13;

• Other doctors in the practice saw Ms Crowley on a number of occasions between the end of September and mid-October, on which occasion she presented “usually with stress-related conditions mostly related to her situation working with Coles Express”. 14

[23] Ms Wrice also gave the following evidence both about Ms Crowley’s state before admission to hospital and after discharge;

THE COMMISSIONER: Thank you Dr Wrice. Just before I let you go can I just try and work this through a little bit further. Prior to her hospitalisation which was 17 November, prior to that period, you believe that she would have been too distressed or too anxious to lodge an unfair dismissal application?---I think so. I think she would have been feeling hardly done by and incredibly stressed, sleeping poorly, very upset and probably – I don’t know whether she knew, you know, which parts she could take on. I can’t really answer whether, you know, whether she knew what type to take but just going on the notes written, she was in a most distressed state prior to her admission.

Thank you. The application was lodged in the first attempt on 21 January so can I talk to you about the period between mid-December and late January. Can you give me an impression of her state of mind in that period and her capacity to address the unfair dismissal issue?---Keeping in mind that there would be Christmas and New Year and all of that in there too. Let me have a look. I think post hospital, you know, she was adjusting to new medication and the rules about coming in and having regular checks and things like that. I think she was just trying to get better herself at that point in time.

Okay?---And from where I’m sitting as she stared (sic) to improve and think more clearly about the whole process, then she was more able to tackle the next step.

So coming out of hospital in mid-December, mid to late December, that wouldn’t necessarily mean that a person is cured, it just means that they have come out of hospital?---That’s right, yes, but the community mental health team were seeing her on a regular basis and we were seeing her on a regular basis as well.

In my non-medical language, there might be a period of re-adjustment or servicing of - - -?---Absolutely. If you’re in hospital for a month no matter what you’re in for, you need time to re-adjust back to the real world.

Of course?---And because this was for a mental health problem I think it would take a lot longer.

Perhaps by late January - - -?---Sure.

- - - that re-adjustment might have got to a point where it could be concluded?

---Yes, yes. 15

[24] In considering whether or not there should be an extension of time granted to an applicant for the making of the unfair dismissal remedy I am required to give consideration to whether there is a credible reason for the whole of the period that the application was delayed.

[25] I consider the evidence given by Dr Wrice referred to above satisfies that need.

[26] That is, the reason Ms Crowley’s application for unfair dismissal remedy was delayed was her psychiatric illness which, on the balance of probabilities, was manifest some time prior to her hospitalisation, and which left her unable to substantively deal with the making of an application for unfair dismissal remedy until mid to late January 2014.

[27] I consider this is a significant factor in favour of the Applicant that could contribute toward a finding there are exceptional reasons for the grant of a further period for the making of an application.

2. Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

[28] Ms Crowley has some confusion around the precise date on which she was dismissed, and the sequencing of events shortly before and after dismissal, together with the date that she became aware of the dismissal.

[29] As discussed earlier, I have found 31 October is the date on which Ms Crowley’s dismissal took effect which is also the day she was informed of her dismissal. Accordingly this is not a situation in which the applicant became aware of their dismissal after it had taken effect.

[30] As a result, this statutory criterion is not a factor in my decision making.

3. Any action taken by the person to dispute the dismissal (s.394(3)(c))

[31] Section 394(3)(c) requires a consideration of whether or not an applicant has taken any action to dispute their dismissal.

[32] In relation to Ms Crowley, the material before me indicates that at the time of her termination of employment and subsequent to the termination she did not overtly dispute her dismissal from Coles Express.

[33] The evidence before me does not indicate there was a demonstrated or concerted effort on the part of the Applicant to question her dismissal between the date on which she was dismissed and the date on which her unfair dismissal application was made. I consider this factor to be neutral, in that the facts in this case assist neither the Applicant nor the Respondent.

4. Prejudice to the employer (including prejudice caused by the delay) (s.394(3)(d))

[34] The statutory consideration of prejudice to the employer is dealt with in s.394(3)(d) and is a reference both to the prejudice of having to respond to the claim itself as well as any further prejudice which may have accrued as a result of the delay itself. Coles Express acknowledges it would not suffer significant prejudice should the extension of time be granted, beyond being required to respond to the application, and does not raise any special prejudice grounds. 16

[35] As a result, I also consider this to be a neutral factor in my consideration of the granting of an extension of time.

5. The merits of the application (s.394(3)(e))

[36] The merits of the application are not entirely apparent on the basis of the material provided to date. The way in which the material has been filed would indicate that Coles Express has the more plausible case at this time. However, that is not to say Ms Crowley’s application is without merit, since I cannot rule out at this time that what is seen of her case is a product of her health and the fact that she is self-represented (in contrast to Coles Express who have been granted permission by VP Lawler and I to be represented by a lawyer).

[37] The material provided by Coles Express sets forth two significant arguments that would be required to be considered by the Commission in the event the matter proceeds to a merits hearing. The first is that Ms Crowley tendered a resignation, which in all the circumstances, was accepted by Coles Express. The second is that Ms Crowley was abusive to a number of people before her dismissal and that the level of abuse amounted to misconduct on the part of Ms Crowley, therefore justifying her dismissal.

[38] There is insufficient evidence before me to form a view about the merits of these arguments on the part of Coles Express, save to indicate that the circumstances of the situation appeared to have changed between the time in late September 2013 at which Ms Crowley is said to have complained or resigned and the time at which the decision to dismiss was taken, at the end of October 2013. That is, the evidence that is before me shows that initially Coles Express wished to discuss Ms Crowley’s September note with her, but that as time went by the situation moved from one of whether or not a resignation had been offered and ought be accepted, to one of whether Ms Crowley should be dismissed for misconduct.

[39] In the hearing of this matter which recommenced on 15 July 2014, Coles Express also indicated that after the dismissal Ms Crowley had continued to be abusive towards other Coles Express staff, and perhaps offensively so. I do not have a detailed account of this allegation and so put no reliance upon the allegation.

[40] On Ms Crowley’s part, her argument is that she was unjustifiably discriminated against following the critical incident involving the intoxicated truck driver referred to above and that part of that discrimination involved her hours being reduced to the point where she had no work. Again there is insufficient evidence on these arguments to be certain they have merit.

[41] Ms Crowley will demonstrably have difficulty in communicating her submissions to the Commission should the matter proceed. That fact in itself does not diminish the merits of her case. With competent representation it may be that she is able to demonstrate her case has sufficient merit.

[42] On balance I consider this criterion to be no higher than neutral, for the reason that on the one hand serious misconduct is argued with some force against Ms Crowley; but on the other hand I am not able to exclude the possibility that an orderly presentation of Ms Crowley’s case will show it to have merit.

6. Fairness as between the person and other persons in a like position (s.394(3)(f))

[43] The Commission’s consideration in respect of this criterion is a consideration Ms Crowley’s situation in comparison to other persons who may have been dismissed and who seek to make an application for an unfair dismissal remedy. This subsection invites a comparison of persons who have also had their employment terminated and are capable of lodging an application under s.394, and, relevantly whether it would be fair to that class of person in the event that Ms Crowley’s application was permitted to be filed late.

[44] I consider that Ms Crowley is in a different category to most applicants and that a question of unfairness to other applicants does not arise if she is to be granted an extension of time. She has been ill, and seriously enough to have been hospitalised for a month. She plainly suffers difficulties of communication more so than other applicants, and lacks some clarity of thought.

Conclusion

[45] I consider that, on balance, this criterion is either neutral with reference to Ms Crowley, or even a factor in her favour, when considering her personal circumstances.

[46] As a result of the foregoing analysis, I am satisfied there are exceptional circumstances in the manner envisaged by s.394 of the Act for the grant of a further period to Ms Crowley for the making of an application for an unfair dismissal remedy.

[47] An order extending the period of time in which Ms Crowley may make her application is issued at the same time as this decision.

COMMISSIONER

Appearances:

Ms J Crowley on her own behalf

Ms C Berry and Ms S Summerbell (solicitors) for the Respondent

Hearing details:

2014.

Sydney (Lawler VP):

15 April

Melbourne (Wilson C):

June 20, July15

 1   Acts Interpretation Act 1901 (Cth) s.36(1)

 2   Coles Express Employer Response Form, paras 3.2.2 - 3.2.3

 3   Transcript, PN 89 - 95

 4   Exhibit R2, statement of Matthew Hawkins

 5   Statement of Rick Meredith, 17 July 2014

 6   Exhibit R2, statement of Matthew Hawkins

 7   Transcript, PN 49 - 53

 8   Ibid, PN 58 - 64

 9   Ibid, PN 70 - 71

 10   Ibid, PN 131 - 134

 11   Nulty v Blue Star Group, 2011, 203 IR 1 at [13].

 12   Transcript, PN 224

 13   Ibid, PN 228 – 229

 14   Ibid, PN 253

 15   Ibid, PN 259 – 266

 16   Respondent's Outline of Submissions, Exhibit R1, para 28

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