Johanna Rowe v Victorian Amateur Turf Club (Melbourne Racing Club)
[2020] FWC 3323
•24 JUNE 2020
| [2020] FWC 3323 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Johanna Rowe
v
Victorian Amateur Turf Club (Melbourne Racing Club)
(U2020/6206)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 24 JUNE 2020 |
Unfair dismissal application – dispute as to effective date of dismissal and whether application made within the statutory time limit – extension of time for filing required – not granted.
[1] This decision concerns an application made by Ms Johanna Rowe for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is the Victorian Amateur Turf Club (Melbourne Racing Club) (the Respondent).
[2] Section 394(2) of the Act states 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 pursuant to s.394(3). There is firstly a question to resolve as to whether Ms Rowe’s application lodged on 5 May 2020 was within or outside of the 21-day time period and this arises due to a dispute between the parties as to the date upon which she was notified of her dismissal.
Background
[3] On 17 March 2020, due to the impact of the COVID-19 pandemic on its operations, the Respondent’s Executive Committee directed managers across the business to place a number of functions and projects on hold as well as to ask staff members to take leave and not present to the office. The Executive Committee also determined that a number of roles within the business were no longer required including fixed term contract staff, most permanent staff on probation, and amongst others, the role of Ms Rowe. Ms Sue Franklin, Executive Director – People & Culture and a member of the Executive Committee, directed Mr Duncan Thomson, General Manager – Hospitality, Food & Beverage, to notify Ms Rowe of her dismissal.
[4] On the morning of 18 March 2020, Ms Rowe says she received a text message from a colleague at 7:26AM alerting her to an email that had been sent by Mr Duncan Thomson, the General Manager – Hospitality, to her and five other staff. The email, timestamped at 7:02AM on 18 March 2020, stated:
“Hi All.
Thank you stepping out this list, I agree this situation presents a great time to get ahead of the work.
I have notified Johanna that there is no casual work to be done either at the office or at home.
I will be in touch regarding the Task project today but at this time most projects are on hold.
Kind Regards,
Duncan Thomson”
[5] Ms Rowe says that a separate email addressed to her was received at 6:58AM on 18 March 2020, with the subject line “Cease casual employment”:
“Hi Johanna,
Sadly I have been instructed to cease ALL casual employment effective immediately, so there is no need to come into work and there will be no options to work from home.
This obviously puts a hold on the Task upgrade as we battle to support the business through this.
Our intention will be to welcome you back when we are through this but as of now there is no more casual work with MRC.
Ben and I will be in contact with you today to talk through in more detail.
I know this is disappointing, however I appreciate your understanding and support to the club in this difficult situation.
Kind Regards,
Duncan Thomson”
[6] Later on 18 March 2020, Mr Ben O’Callaghan, Hospitality Operational Logistics Manager, telephoned Ms Rowe having been requested to do so in an email he had received from Mr Thomson. Mr O’Callaghan says that during this conversation, he reiterated that there would be no more shifts for the foreseeable future and that there was a lot of uncertainty surrounding the business. Ms Rowe’s evidence was largely consistent in recounting this conversation but she adds there was no mention of termination.
[7] Ms Franklin says that during a conversation with Mr Thomson on 23 March 2020, she formed the view that Ms Rowe’s termination had not been properly communicated. As a result, she prepared a formal letter to Ms Rowe dated 23 March 2020 to confirm that her role with the Respondent had come to an end. The letter was said to have been sent to Ms Rowe’s private email address on 25 March 2020 with a covering email that included “Please find letter confirming your discussions last week. I wish you all the very best Johanna…” The letter stated as follows:
“Dear Johanna,
We write to confirm that following your conversation with Ben O’Callaghan on Wed 18th March your Casual employment with Melbourne Racing Club ended on Wednesday 18th March. Unfortunately, this is due to current Government restrictions outside of our control and we are unable to offer further casual shifts.
Please note that Government assistance packages are currently available through Centrelink to directly support employees affected by these circumstances.
Finally, it is recognized that this is a very stressful time for you and your loved ones. Please note that the Benestar Counselling program remains available to employees and their families for up to 3 months post-employment with Melbourne Racing Club. The support is available 24/7 and an appointment can be made by contacting them directly on 1300 360 364.
We wish you all the best for your future career.”
[8] As Ms Rowe had not confirmed receipt of the letter dated 23 March 2020, the email of Ms Franklin was forwarded to Ms Rowe’s private email address by Mr Thomson on 27 March 2020 at 9:08AM.
[9] Ms Rowe sent an email reply to Ms Franklin at 9:22AM which stated:
“I have received your letter. You refer to a discussion with Ben. See below for your records.”
[10] Ms Rowe attached the email sent to her and Mr O’Callaghan by Mr Thomson at 6:58AM on 18 March 2020. In subsequent correspondence to the Respondent’s Chief of Staff, Ms Elise Biesbroek, dated 19 April 2020 and referred to below, Ms Rowe says she did not think much when she received the letter dated 23 March 2020 and that she forwarded the email from Mr Thomson “for the record”. At the hearing, Ms Rowe admitted that she may not have read the entire text of the letter from Ms Franklin dated 23 March 2020.
When did the dismissal take effect?
[11] The Respondent contends that the termination of Ms Rowe’s employment was confirmed by the letter dated 23 March 2020 whereas Ms Rowe contends her employment with the Respondent was not terminated until 17 April 2020.
[12] The term “dismissed” for the purposes of the unfair dismissal jurisdiction is defined in s.386(1) of the Act:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[13] The Full Bench in Ayub v NSW Trains (Ayub) 1 discussed when a termination of employment at the employer’s initiative can be said to have taken effect for the purpose of s.394(2)(a) in the following way:
“[17] At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. Where the communication is in writing, the communication must at least have been received by the employee in order for the termination to be effective.”
[14] From this results the following principles relevant to this case:
• An employer must communicate to the employee by plain or unambiguous words or conduct that the employment is terminated; and
• In order for the termination in writing to be effective, the communication must at least have been received by the employee.
[15] Further, I consider a letter purporting to terminate a person’s employment must be expressed in such a way that a reasonable person receiving the letter would understand that their employment had been terminated.
[16] Ms Rowe says that based on the email from Mr Thomson sent at 6:58AM on 18 March 2020 and her discussion with Mr O’Callaghan later that day, her understanding was that she had been stood down from her employment but not terminated. In particular, she had regard to Mr Thomson’s statement that the Respondent’s “intention will be to welcome you back when we are through this but as of now there is no more casual work with MRC”. Mr Thomson did not otherwise converse with Ms Rowe on 18 March 2020. He did not converse with Mr O’Callaghan either, instead sending him an email directing him to “discuss the situation” with Ms Rowe.
[17] Mr O’Callaghan confirmed he did not speak with either Mr Thomson or Ms Franklin before he called Ms Rowe. He said he told Ms Rowe there would be no more shifts in the foreseeable future. Mr O’Callaghan also said that he thought Ms Rowe had been stood down.
[18] Ms Franklin’s evidence that she formed the view that Ms Rowe’s termination had not been properly communicated during a conversation with Mr Thomson on 23 March 2020 is significant. This leads me to conclude that indeed it had not been properly communicated and I accept Ms Rowe’s evidence that as at 18 March 2020, she believed she had simply been stood down.
[19] It is however not in dispute that on 27 March 2020, Ms Rowe received Ms Franklin’s letter dated 23 March 2020. The Respondent submits this letter confirmed Ms Rowe’s termination.
[20] As to this, I have noted that the text of the email that forwarded the letter stated:
“Hope this email finds you well in this new ‘isolated’ state we find ourselves in.
Please find attached letter confirming your discussions last week.
I wish you all the very best Johanna.”
[21] Ms Rowe admitted she may not have read the entire text of the letter dated 23 March 2020. Having heard her evidence, it appears to me that she focussed solely on the reference to her conversation with Mr O’Callaghan. Ms Rowe says it was this reference that caused her to think that it was not a letter terminating her employment, particularly because Mr O’Callaghan had told her there would be no more shifts in the foreseeable future.
[22] Nonetheless, I consider that the letter dated 23 March 2020 from Ms Franklin to Ms Rowe was expressed in such a way that a reasonable person would have understood that their employment had been terminated. In particular, I have also noted the following excerpts:
• “We write to confirm that following your conversation with Ben O’Callaghan on Wed 18th March your Casual employment with Melbourne Racing Club ended on Wednesday 18th March”;
• “Please note that the Benestar Counselling program remains available to employees and their families for up to 3 months post-employment with Melbourne Racing Club”; and
• “We wish you all the best for your future career.”
[23] In its analysis of the proper construction of s.394(2)(a) of the Act in Ayub, the Full Bench concluded that a dismissal may not take effect prior to it being communicated to the employee. 2 It was further stated in Ayub:
“In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee’s usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.” 3
[24] Accordingly, having regard to the circumstances of this case I conclude that the date upon which Ms Rowe’s dismissal was effective was 27 March 2020.
Extension of time
[25] As outlined above, s.394(2) of the Act states 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 pursuant to s.394(3). In this case, the period of 21 days ended at midnight on Friday, 17 April 2020. As such, Ms Rowe’s application, made on 5 May 2020, was lodged 18 days outside of the 21-day time period.
[26] Ms Rowe asks the Commission to grant a further period for the application to be made under s.394(3) of the Act. The Respondent opposes this request.
[27] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”. 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. 4 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.5
[28] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
[29] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[30] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the application.
Reason for the delay – s.394(3)(a)
[31] 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 or reasonable explanation.
[32] The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. 6
[33] Ms Rowe submits that she did not understand Ms Franklin’s letter dated 23 March 2020, received by her on 27 March 2020, to have had the effect of terminating her employment, and instead still believed she had been stood down.
[34] Having been sent Ms Franklin’s letter by Mr Thomson at 9:08AM on 27 March 2020, I note that Ms Rowe’s almost immediate reply sent to Ms Franklin at 9:22AM directed Ms Franklin back to the email that Mr Thomson had sent to her at 6:58AM on 18 March 2020.
[35] At 3:06PM on 31 March 2020, Ms Rowe emailed Ms Franklin from her private email address and asked her to advise whether the Respondent was registering for the “new government initiative to keep people in jobs”. Ms Franklin responded at 6:28PM on the same day as follows:
“Thanks Johanna
I can confirm MRC is pleased with the news of the subsidy for employees currently employed with us and as an organisation we have registered with the ATO as required.
Regards
Sue”
[36] In the intervening period on 31 March 2020, Ms Rowe had received an email from Mr Josh Blanksby, Chief Executive Officer, with the subject line “Business update – Job Keeper Payment”. The email was sent to Ms Rowe’s work email address in a circulation via Ms Biesbroek at 3:51PM and stated:
“Good afternoon all,
I hope all of you are keeping safe and maintaining contact with your friends and loved ones through this crisis.
No doubt you would have seen yesterday that the Federal Government announced a JobKeeper payment subsidy available to businesses to assist them to pay their employees for the next 6 months. It applies to businesses that have lost more than 30% of their revenue due to the Coronavirus – a threshold we clearly meet across all our businesses. The best resource currently available on the JobKeeper Payment is the Treasure Department fact sheet – an MRC employee, you do not need to take any action in relation to the JobKeeper Payment. The onus is on the business to apply for it and notify the employee it has applied for it on their behalf. The JobKeeper Payment is a wage subsidy ($1500 pre-tax per fortnight) for:
• full and part-time employees on the Club’s payroll from 1 March 2020, and;
• casuals who have served 12 months or more with the Club as of 1 March 2020.
We have registered with the ATO and are currently exploring how it applies to us. Please be patient as we navigate the detail of this scheme, as further information is continually being provided by the Government. We will continue to provide updates when we understand the detail, however please be rest assured no one will be short-changed in respect of this initiative and we will ensure we are completely transparent in how it is applied.
This is obviously good news for everyone – especially our casual workforce – and will help in our planning over the next few months as we navigate this shutdown.
My advice last week to all staff about considering personal finances continues to apply despite this announcement. While the JobKeeper Payment is a welcome initiative and will assist us, the payment currently only applies for the next six months. We still do not know when our business will be able to operate at full capacity again. There is still much uncertainty for the racing and club industry, so it remains prudent to continue to be cautious about our future.
Again, our Employee Assistance Program remains in place so I encourage you to reach out if you need to. Continue to look after your health – get out and exercise, eat well and pick up the phone to a family member and friend through these times to keep healthy.
I’ll be in touch soon.”
[37] Ms Franklin did not respond to the reply correspondence Ms Rowe had sent her on 27 March 2020 and Ms Rowe received a further business update email from Mr Blanksby on 9 April 2020, again sent via Ms Biesbroek. In relation to the JobKeeper payments, this email stated:
“Last night the Government passed the Job Keeper Payment legislation. We have applied for this via the ATO and are confident it applies across our permanent and casual workforce considering the impact of COVID-19 on our business. This won’t be the absolute solution for us to enable our business to continue as is but will provide some relief on wages. The Executives have been working this week to determine the future footprint of each of our teams from May onwards. I appreciate for all of you this is an anxious time and your Manager will be in touch in the coming week or so to explain the impact on your teams. We are very much trying to limit this impact and doing so in a fair and reasonable manner, taking into account the different businesses we operate. I will provide a more thorough update on this in coming weeks.”
[38] At 8:10PM on 16 April 2020, Ms Rowe emailed Payroll from her work email address to enquire about her capacity to apply for JobKeeper. The email stated:
“Hi
I am writing to hopefully get some answers regarding Job Keeper.
I have worked at MRC for over 5 years on a casual basis working a minimum of 52 hours per fortnight. I was stood down by the club but advised that I was welcome back once normal operation commenced.
I have been in contact with Centrelink and were advised by them that I am a prime candidate for Job Keeper – exactly the status of employee that the incentive was designed for. They advised that the Club should be collecting the incentive on my behalf whether there is work available or not.
Can someone please get back to me.”
[39] The following day on Friday 17 April 2020, Mr Nicholas Smith, Senior HR Advisor, replied firstly to Ms Rowe’s work email address at 9:53AM, and then to her private email address at 10.48AM, as follows:
“Good Morning Johanna.
I understand the recent few weeks have been difficult for everyone. As a result of the Government restrictions many functions within MRC have ceased. Some of these roles have been partially shut down, whereas a number have been deemed to no longer be required. I have Spoken to Sue Franklin the Executive Director People & Culture and she has confirmed that Ben O’Callaghan informed you that unfortunately we are no longer able to offer you any casual work as your previous position will no longer exist and as a result your employment with MRC ended as of 18th March 2020. A copy of the letter confirming this was sent to you on the 23rd March 2020 from Sue Franklin.
Unfortunately this means that you will be ineligible to be included in the JobSeeker program with MRC. We encourage you to contact Services Australia to discuss your options I have attached an information sheet we distributed early in April to offer guidance on some of these benefits.
If I can give you any assistance in accessing services with Centerlink please don’t hesitate to contact me.”
[40] There are a number of factors that satisfy me that Ms Rowe was confused about her employment status during the period from 27 March 2020 until 17 April 2020:
a) Ms Rowe’s almost immediate reply sent to Ms Franklin at 9:22AM on 27 March 2020 directed Ms Franklin back to the email that Mr Thomson had sent to her at 6:58AM on 18 March 2020, which suggests Ms Rowe still believed at that time that she had been stood down by the Respondent or at least was prepared to argue the point, however there was no reply from Ms Franklin disabusing her of this notion. The lack of a response to this email by Ms Franklin appears to have had the result of leaving things in a suspended state, with Ms Franklin of the view that the termination had now been communicated and Ms Rowe continuing to believe that she had simply been stood down;
b) Additionally, I consider the exchange of emails on 31 March 2020 is instructive in relation to Ms Rowe’s state of mind. As it turned out, Ms Franklin appears to have read nothing significant into a former employee making an enquiry about the position of her former employer in relation to the freshly announced JobKeeper scheme, while Ms Rowe apparently took no cue from the use of the term “employees currently employed with us” in Ms Franklin’s reply;
c) Furthermore, while I accept Ms Franklin’s explanation regarding the breakdown in communication between the Respondent’s IT and P&C teams, which resulted in Ms Rowe receiving the emails from the Respondent’s Chief Executive Officer on 31 March 2020 and 9 April 2020, these emails simply served to entrench the belief of Ms Rowe that she was still an employee and I consider it unsurprising that Ms Rowe subsequently wrote to the Respondent’s payroll department on 16 April 2020 seeking answers regarding Jobkeeper payments; and
d) Finally, Ms Rowe only started to take steps to challenge her termination after receiving the letter from Mr Smith on 17 April 2020.
[41] As outlined at [25] above, the period of 21 days ended at midnight on Friday, 17 April 2020.
[42] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21-day period. 7
[43] In Diotti vLenswood Cold Stores Co-op Society t/a Lenswood Organic (Diotti), 8the Full Bench explained the approach to be taken by reference to the following example:
“For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter.” 9
[44] In this case, I accept Ms Rowe was confused until she received Mr Smith’s email on the 21st day after her dismissal took effect but note her application was not made until 5 May 2020, a considerably longer 18 days outside of the 21-day time period than the example given in Diotti.
[45] Having received Mr Smith’s email on 17 April 2020, Ms Rowe emailed Ms Biesbroek at 1:27PM on Sunday 19 April 2020, stating that she had been under the impression that she had been stood down, not terminated. Furthermore, she sought Ms Biesbroek’s support to be reinstated as “stood down” rather than terminated so that she could receive the JobKeeper allowance. Ms Biesbroek’s response at 11:36AM on Monday 20 April 2020 advised that Ms Franklin would provide a formal response.
[46] Ms Franklin’s response was sent to Ms Rowe at 6:35PM on Monday 20 April 2020. In it, she advised Ms Rowe:
“After careful consideration of your request to be eligible for the Job Keeper subsidy from the Melbourne Racing Club (MRC), I write to confirm for you that the decision has been taken to deny that request.”
[47] On 20 April 2020, Ms Rowe had also made representations to Mr Warren Horton, the Chief Operating Officer of the Respondent. She was referred back to Ms Franklin.
[48] On 21 April 2020, Ms Rowe emailed Ms Franklin advising she had spoken to Mr Horton and requested a telephone call. Their subsequent conversation did not result in the position of the Respondent changing.
[49] Ms Rowe emailed Ms Biesbroek again on 22 April 2020, seeking her assistance and asking whether there was anyone else in the business to whom she could speak. Ms Rowe flagged that her next step was “to go through Fair Work.” Ms Biesbroek forwarded the email to Ms Franklin.
[50] On 23 April 2020, Ms Franklin responded to Ms Rowe with an email stating:
“Dear Johanna
Further to the email correspondence to Elise Biesbroek received on the 22nd April 2020, I write to confirm the Club’s position in relation to the administration of the Job Keeper subsidy as it applies to you.
From the outset of the extraordinary circumstances we have found ourselves navigating due to COVID-19, the Club has sought to be procedurally sound in relation to the treatment of employees across a myriad of employment circumstances.
It is our firm view that as an Events and Hospitality business, it will be a substantial amount of time before we are up and running again and, at that point, MRC will be reduced business in size.
With that view in mind – and for clarity – the decision was taken on the 23rd March 2020 to end your casual employment contract. I have provided a letter to you confirming that decision and outcome.
The Job Keeper subsidy is for employees currently contracted with the business and is intended to ‘tide them over’ until the business is operational again. It is not our opinion that you qualify and it would be improper for MRC to process a subsidy for you when you are not currently contracted by the Club. Equally, the Club does not have an obligation to re-hire former employees.
We have gone to great lengths to ensure applications for subsidies for all Club employees are thoroughly considered and decisions made are procedurally sound. In arriving at this decision, I can assure you that I have consulted with all relevant internal stakeholders and it is made on a reasonable basis.
Warren has confirmed to the Club that he does not wish to be involved in this process due to his personal relationship with you. further, Warren has confirmed he does not support your position on this matter, on the basis he has no view on it.
On this basis, we confirm our decision to deny your request to obtain a Job Keeper subsidy via MRC.”
[51] Following this, Ms Rowe says she consulted the Commission and the Australian Tax Office. She says she was advised by a Commission staff member that she should write to the highest authority at the Respondent for final confirmation as well as to submit a Form F13A.
[52] Ms Rowe said she therefore then wrote to Mr Damian Menz, General Manager Legal and Commercial, sending him an email at 4:22PM on Friday 24 April 2020 in which she requested “final confirmation” from the Respondent to be rehired so that she would be eligible for the JobKeeper scheme. Mr Menz sent a response at 11:55AM on Monday 27 April 2020, which confirmed that the Respondent would not rehire Ms Rowe.
[53] Another three days passed and at 11:25AM on Thursday 30 April 2020, Ms Rowe lodged a Form F13A- Application for the Commission to deal with a JobKeeper dispute (coronavirus economic response) with the Commission outlining that the remedy she sought was to be rehired by the Respondent. She was advised by a Commission staff member shortly before 5:00PM that her application was not within the Commission’s jurisdiction but that she may wish to lodge an unfair dismissal application with a request for an extension of time. An email was also sent to Ms Rowe from the Commission at 4:56PM advising her how to discontinue the JobKeeper application and stating she may be entitled to lodge an unfair dismissal application. Electronic links to the Unfair Dismissal page on the Commission’s website and the Commission’s Unfair Dismissal benchbook were also provided at this time.
[54] Ms Rowe subsequently sent an email to the Commission at 2:42PM on Monday 4 May 2020 discontinuing the JobKeeper application. Ms Rowe’s unfair dismissal application was lodged at 12:52PM on 5 May 2020. Her primary proposition is that she believed the unfair dismissal application had been made within time, based on a termination date of 17 April 2020.
[55] Ms Rowe submits that as soon as she understood her employment had been terminated, she took steps to negotiate reinstatement of her employment with the Respondent. When her request for reinstatement was denied on 23 April 2020 (via the email from Ms Franklin) and on 27 April 2020 (via the email from Mr Menz), Ms Rowe says she made both the JobKeeper application pursuant to s.789GV and her unfair dismissal application within eight days. Ms Rowe says that it was only after her contact with the Commission on 30 April 2020 that she became aware that there was a 21-day time limit within which to lodge an unfair dismissal application. Ms Rowe says because she considered she had been terminated on 17 April 2020, she thought she was still within time when she lodged the unfair dismissal application. However, I have noted the Commission advice on 30 April 2020 regarding an extension of time if she wished to lodge an unfair dismissal application.
[56] In the circumstances, I am not satisfied that Ms Rowe has provided an acceptable explanation for the delay between 18 April 2020 and 5 May 2020. A delay due resulting from an applicant’s request for an internal review of the decision to terminate his or her employment has been found not to excuse a delay in lodging an unfair dismissal application. 10
[57] In this case, I do not consider the fact that Ms Rowe made a series of requests that she be rehired so she would be eligible for the JobKeeper scheme provides an acceptable explanation for that part of the delay. Ms Rowe could have made these requests after an unfair dismissal application had been lodged. Further, on 30 April 2020, the requirement for a request for extension of time was raised.
[58] The absence of an acceptable explanation for the delay between 18 April 2020 and 5 May 2020 weighs against a conclusion that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect – s.394(3)(b)
[59] Ms Rowe was notified of the dismissal on 27 March 2020 which was the same day upon which I have found that it took effect. Therefore, she had the full period of 21 days to lodge an unfair dismissal application. This might normally weigh against Ms Rowe but given the circumstances after the dismissal and particularly Ms Rowe’s confusion regarding the status of her employment until 17 April 2020, I consider this factor to be neutral.
Action taken to dispute the dismissal – s.394(3)(c)
[60] The failure to take any action to dispute the dismissal up until 17 April 2020 is explained by Ms Rowe’s confusion regarding the status of her employment. After receiving the email from Mr Smith on 17 April 2020, Ms Rowe began agitating for the reinstatement of her employment so that she could receive JobKeeper payments. In addition to corresponding with various individuals employed by the Respondent, Ms Rowe lodged the JobKeeper application, outlining that the remedy she sought was to be rehired. This weighs in favour of an extension of time.
Prejudice to the employer – s.394(3)(d)
[61] The Respondent submits that as the delay is a number of weeks, this gives rise to a general presumption of prejudice. 11 Furthermore, it submits that the COVID-19 pandemic has affected the Respondent’s business significantly in that it will have difficulty in being sufficiently resourced if the application proceeded and relies on the decision of Mujalli v Powercor Australia T/A Beon Energy Solutions in submitting that minor prejudice would accrue if the application proceeded and this weighed marginally against the granting of an extension of time.
[62] I am however satisfied that there would be no greater prejudice to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not a factor that would point in favour of granting an extension of time. However, if I was to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.
Merits of the application – s.394(3)(e)
[63] Section 396 requires the Commission to consider whether an application was made within the 21-day period before considering the merits of the application. Nevertheless, s.394(3) requires the Commission to take into account the merits of the application in deciding whether it is satisfied that there are exceptional circumstances.
[64] The parties’ contentions in relation to the merits of the application were set out in the materials that were filed and canvassed at the hearing. I do not repeat them here. Briefly, however, Ms Rowe contends that at the time she was stood down she was working on several important projects that will need to be completed and her extensive operational knowledge will be critical to them. Further, she submits that in addition to her office work, she had regularly worked as a casual event staff member but has been terminated whereas all other casual event staff have been retained and are receiving JobKeeper payments.
[65] The Respondent contends that Ms Rowe was terminated on the basis of redundancy due to the impact of COVID-19 on its business, an attendance-focussed events business. It says that it has only kept on employees whose functions will be absolutely necessary when the business can operate again and that the tasks that Ms Rowe had been performing, to the extent they are required in the future, will likely be consolidated into another role. The Respondent says it is unlikely that Ms Rowe will be required to work as a casual events staff member again because for the foreseeable future, there will be highly reduced staff requirements.
[66] The merits of the application will turn on questions of evidence that would need to be tested, including under cross-examination if an extension of time were granted and the matter were to proceed. Much would depend on findings of fact. In light of this, and based on the limited material before me, I am not able to make any firm assessment of the merits. I consider that the Applicant has at least an arguable case, and the Respondent a prima facie defence. I do not consider the merits to tell for or against an extension of time. It is a neutral consideration.
Fairness as between the person and other persons in a similar position – s.394(3)(f)
[67] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. however, cases of this kind will generally turn on their own facts.
[68] In the present matter, Ms Rowe submits that all other casual event staff remain employed by the Respondent and are receiving JobKeeper entitlements. For example, Ms Rowe says she was advised that Mr O’Callaghan had “finished up within his probationary period” but has since been rehired for 12 hours per week. Ms Rowe also submits that other industries who remain a long way from normal operation, such as the AFL and airlines, have retained their staff on JobKeeper. She asserts that in consulting her network of colleagues and friends who have been affected by COVID-19, she has come to the conclusion that she is alone in being terminated over being stood down.
[69] The Respondent submits that it has only retained those employees (on JobKeeper payments) whose functions would be “absolutely necessary” when its business became operational again. It asserts that in relation to Ms Rowe, to the extent that her former duties are required, will likely be consolidated into another role as the business will be working with “far fewer staff” in an attempt to ensure the long term viability of the business.
[70] Both parties raised matters in relation to this consideration going to the merits of Ms Rowe’s unfair dismissal application. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.
Conclusion
[71] I do not consider there is an acceptable explanation for the delay, particularly between 18 April 2020 and 30 April 2020. This factor weighs strongly against a conclusion that there are exceptional circumstances. That Ms Rowe took action to contest her dismissal, once apparent to her, weighs in favour of an extension but I attribute little weight to the mere absence of prejudice to the Respondent. I consider the merits of the application and the remaining factors in s.394(3) to be neutral for the reasons stated. Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by Ms Rowe, and having attributed the weight as I have done, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together.
[72] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.
DEPUTY PRESIDENT
Appearances:
Ms J Rowe for herself.
Ms J Ward and Mr N Smith for Victorian Amateur Turf Club (Melbourne Racing Club).
Hearing details:
2020.
Melbourne (by telephone):
June 17.
Printed by authority of the Commonwealth Government Printer
<PR720476>
1 [2016] FWCFB 5500.
2 Ibid at [35] and [41].
3 Ibid at [50].
4 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
5 Ibid.
6 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
7 Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]-[31].
8 [2016] FWCFB 349.
9 Ibid at [31].
10 Gao v Department of Human Services[2011] FWAFB 5605 (Giudice J, Harrison SDP, Asbury C, 23 August 2011).
11 Brisbane South Regional Health Authority v Taylor [1996] HCA 25.
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