Jessica Williamson v Leskes Jewellers
[2018] FWC 2915
•25 MAY 2018
| [2018] FWC 2915 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.365—General protections
Jessica Williamson
v
Leskes Jewellers
(C2018/1680)
COMMISSIONER LEE | MELBOURNE, 25 MAY 2018 |
Application to deal with contraventions involving dismissal - extension of time - application dismissed.
Introduction
[1] Ms Jessica Williamson (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. The application was lodged on 27 March 2018 and concerns an allegation that adverse action was taken by Leskes Jewellers (the Respondent), being the dismissal of the Applicant on 5 March 2018, in contravention of s.340 and s.351 of the Act. It is not in dispute that the Applicant was dismissed on 5 March 2018. This is so, despite the Applicant’s employment separation certificate stating her employment ceased on 1 March 2018. It is apparent that this is an error based on the submissions of both parties and the email dated 5 March 2018 terminating the Applicant’s employment effective immediately. As the Applicant was dismissed on 5 March 2018, the application should have been lodged by 26 March 2018 and is therefore one day out of time. As the application is made outside the prescribed period in s.366(1)(a) of the Act, the Commission may allow a further period for the application to be made if satisfied that there are exceptional circumstances in accordance with s.366(2) of the Act.
[2] The Applicant filed a Form F8 – General protections application involving dismissal and an Applicant’s Outline of argument: extension of time document with attachments. The document did not include page 3 which requires the Applicant to answer a number of questions including explaining why the application was made more than 21 days after the dismissal, whether the Applicant questioned or argued against the dismissal after becoming aware of it, whether the Applicant considers the lateness of the application has caused the employer disadvantage or unfairness and to outline the reasons why the employer says the Applicant was dismissed. The Applicant failed to respond to emails and telephone calls from my chambers in relation to page 3 of the document. The Respondent filed a Form F8A – Response to general protections application and a Respondent’s Outline of argument: extension of time document.
[3] The matter was listed for Objections Conference/Hearing by Telephone before me on at 2.30pm on 10 May 2018. My chambers made a number of failed attempts to contact the Applicant by telephone which diverted to an automated voicemail indicating that the Applicant was not available. The Respondent was available to participate in the hearing. However, as my chambers was unable to contact the Applicant the Objections Conference/Hearing did not take place.
[4] On 11 May 2018 my chambers wrote to the Applicant advising that in the circumstances I was inclined to determine the matter based on the materials currently before the Commission. The Applicant was asked to advise by return email if she objected to this course and provide reasons for her failure to attend the hearing by close of business 17 May 2018. Further, that in the absence of any reply by this date the matter would be determined based on the written materials already filed. No response was forthcoming. In the circumstances, I have decided to determine the matter ‘on the papers’.
Background
[5] The Applicant commenced employment with the Respondent on 1 November 2017. The Applicant claims she did not attend work on Friday, 2 March 2018 as her employer, Mrs Sandra Greenberger, was contacting her on Facebook messenger while she was on her lunchbreak in a “nasty manner”. The Applicant submits she advised Mrs Greenberger she needed a “mental health care day” and she received a written response stating “whatever”. The Applicant submits she was stressed an anxious and attended a doctor on 2 March 2018 and was provided a medical certificate for the period 2 – 9 March 2018.
[6] On Monday, 5 March 2018 at 6.23pm her employer, Mr Trevor Greenberger sent an email to the Applicant which stated that there was a preference to provide the information in person, however “organising a face to face meeting has proven too difficult”. This seems unsurprising as she was on personal leave until 9 March 2018. The email referred to a number of “issues over the past 3 weeks” leading the Respondent to conclude the Applicant was not suitable for the position. The details of the issues are not specifically outlined in the email. The email alleges that on 1 March 2018 the Applicant indicated to other staff members that she intended to resign and that she was seen on video footage removing client information from the store, her client diary and other items and equipment. The email also provided that the removal of such information is in contravention of section 6.2 of the Applicant’s employment contract headed Obligations of Confidence. The Applicant agreed she took the diary home but submits that this was understood and consented to and she took it home every day to complete quotes.
[7] The email also stated that the Respondent was exercising its right as a small business with less than 15 employees to terminate the Applicant’s employment within the first 12 months and that her employment will cease immediately and she would be paid 1 weeks’ pay in lieu of notice.
[8] An employment separation certificate was provided to the Applicant which erroneously states the Applicant’s employment ceased on 1 March 2018 and that separation was due to unsuitability for the work. The Applicant’s dismissal took effect on 5 March 2018. This application should have been made within 21 days after the dismissal took effect, that is by no later than 26 March 2018.
The law to be applied
[9] Section 366(1) of the Act provides as follows:
“(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).”
[10] Section 366(2) of the Act provides as follows:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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 like position.”
Consideration
[11] Subsection 366(2) of the Act requires that, in deciding whether to grant an extension of time, I must consider if there are exceptional circumstances taking into account a number of factors. The term exceptional circumstances was considered by the Full Bench in Nulty v Blue Star Group Pty Ltd1, where the Full Bench stated that:
“[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.
...
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”2
[12] I will adopt the approach of the Full Bench as to the meaning of exceptional circumstances in my determination of this matter.
Matters to be taken into account pursuant to section 366(2)
[13] In deciding whether to allow a further period for an application to be made the Commission must take into account the matters set out in s.366(2) above. I will deal with each of those matters separately.
(a) The reason for the delay
[14] The Respondent submits that the Applicant has not provided a reason for the delay in submitting the application. The Applicant submits that the delay was caused by the incorrect date, 1 March 2018 and not 5 March 2018, being on the employment separation certificate. I am unable to understand how this contributed to the delay. The Applicant knew she was dismissed on 5 March 2018. This is not an acceptable reason for the delay.
[15] The Applicant also submits that she was temporarily absent from work when she was dismissed as a result of stress and anxiety. The Applicant provided a Centrelink form completed by her doctor on 11 April 2018 which sets out that she suffers from anxiety and depressed mood with a date of onset of 1 October 2017 and has a history of PTSD. The Applicant also filed with her application a medical certificate for the period 2 – 9 March 2018. The Applicant also submitted that “the medical certificates are still ongoing till today”. However, I have no further medical certificates before me. The Applicant did not attend the hearing to provide further evidence on this point. Overall, I do not consider I have sufficient evidence before me which demonstrates how the Applicant’s mental health has affected her ability to lodge this application within the statutory time frame.
[16] Having considered the materials before me I am not satisfied that the Applicant’s medical condition has affected her capacity to lodge the application. Overall, I am not satisfied there is an acceptable reason for the delay. This weighs against a finding that there are exceptional circumstances.
(b) Any action taken by the person to dispute the dismissal
[17] Action taken by an employee to contest the dismissal, other than lodging a general protections application, may favour the granting of an extension of time.3 There was no action taken by the Applicant to dispute the dismissal. This matter weighs against a finding that there are exceptional circumstances.
(c) Prejudice to the employer (including prejudice caused by the delay)
[18] The Respondent does not assert that it will suffer any prejudice. However, the absence of prejudice is itself an insufficient basis for granting an extension of time, and in the circumstances of this case, I regard this factor as neutral.
(d) Merits of the application
[19] The Applicant claims that there was adverse action taken by the Respondent against her within the meaning of the Act, namely the dismissal of the Applicant which occurred while she was on a temporary absence due to illness. It would seem likely that the Applicant was on a temporary absence due to illness or injury within the meaning of s.352 of the Act. The Respondent denies any unlawful adverse action taken against the Applicant and claims that the Applicant was dismissed for performance and behavioural issues and that she was not suited to the role. Whether this was in fact a legitimate reason for dismissal is in dispute.
[20] However, I am not in a position, nor is it appropriate to embark on detailed consideration of the substantive case. On the limited material before me going to the merits of the Applicant’s general protections application, I am unable to conclude that the application is without merit. This weighs slightly in favour of a finding that there are exceptional circumstances.
(e) Fairness as between the person and other persons in a like position
[21] This consideration is ultimately concerned with ensuring that consistent application of principle is achieved in determining whether an extended period of time within which to lodge an application should be allowed. The submissions made by the Applicant largely relate to the fairness or otherwise of the Applicant’s dismissal and the incorrect information on her employment separation certificate. There were no particular submissions made that were relevant to this factor.
[22] Accordingly, I regard this factor as neutral.
Conclusion
[23] I am not satisfied that there is an acceptable reason for the delay or that the Applicant took any action to dispute the dismissal which weighs against a finding of exceptional circumstances. Consideration of the merits of the application weighs slightly in favour. The other factors are neutral considerations. Having considered all of the factors set out in s.366(2), I am not satisfied that there are exceptional circumstances that would warrant granting an extension of time. Accordingly, the application is dismissed.
[24] An order to that effect will be issued concurrently with this decision.
COMMISSIONER
Printed by authority of the Commonwealth Government Printer
<PR607355>
1 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1
2 Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 at [13], [15]
3 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300
0
4
0