Justine Brunner v Wesley Institute of Training

[2020] FWC 3637

[2020] FWC 3637

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Justine Brunner
v
Wesley Institute of Training
(C2020/2264)

COMMISSIONER YILMAZ MELBOURNE, 10 JULY 2020

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - whether there are exceptional circumstances - whether to allow a further period - extension of time denied

[1] On 8 April 2020, Ms Justine Brunner lodged an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). Ms Brunner was employed by Wesley Institute (Wesley) from 8 November 2019 until 12 March 2020. Wesley’s pay records show that Ms Brunner was employed as a temporary casual consultant. Ms Brunner’s employment was terminated by email dated 12 March 2019 at 11.53pm. The application is 6 days out of time.

[2] Ms Brunner submits that the application is late because she confused the 21-day limit as business days rather than calendar days. Ms Brunner adds that her counsellor and her lawyer were of the same opinion that 21 days was business days. 1 Ms Brunner further suggested that her dealings with the Commission in the past lead her to believe it was 21 business days.

[3] Ms Brunner submits that her employment was terminated because she raised a complaint regarding bullying and that concerns regarding her performance were only raised after her complaint. Ms Brunner had taken leave and the dismissal occurred during her absence from work.

[4] Wesley submits that following a review of Ms Brunner’s performance and conduct by management, and due to the nature of her engagement, it was decided that Ms Brunner’s services were no longer required.

[5] Section 366(1) of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow. The application was lodged 6 days late.

Applicant’s submissions

[6] In her application, Ms Brunner contends that the actions of Wesley contravened the following sections of the Act:

•  S.340 protection concerning workplace rights;

•  S.343 coercion concerning workplace rights;

•  S.348 coercion concerning industrial activities, and

•  S351 Disability concerning mental disability.

[7] Ms Brunner contends that on 19 February she was placed on a different computer to perform her duties, when Facebook alerts interrupted her. She submits she had responsibility to monitor the organisation’s Facebook page. The alerts related to a private conversation between the Director, Ms Brunner’s manager and another senior staff member. Ms Brunner read through the private messages and found reference to her where she was referred to as Lady Gaga and other comments which she found offensive. Ms Brunner admits to knowing that she understood that she was logged in to the Director’s personal Facebook account, and then took photographs (“for evidence”) of the private conversations dating back to December 2019. Ms Brunner submitted her photographs of these conversations with her adverse action claim. 2

[8] Specifically, Ms Brunner found offensive that the three women noted that she looked like Lady Gaga and therefore referred to as such. She alleges that they joked that she may be bipolar, mocked her advice regarding a safe workplace, stated that they feared her and were worried she would run back to her mother in Melbourne. 3

[9] Ms Brunner submits she raised her “allegations” with her boss on 3 March 2019, and she submits that she was advised that staff felt intimidated by her and concerns with Ms Brunner’s attitude were raised by her manager. Ms Brunner submits that her manager indicated that she had intended to raise the organisation’s concerns with her performance during her 3-month review, which was delayed because they were busy. 4

[10] Ms Brunner submits that her manager advised her on 9 March 2020, that as she was still feeling uneasy in the office that she should take leave. Ms Brunner submits that she understood that a formal meeting would be arranged with the Director, however, this meeting did not eventuate. 5

[11] Ms Brunner describes the following actions in contravention of the relevant sections of the Act:

•  S.340- Having exercised her workplace right in raising a bullying claim she was terminated a week later;

•  S.343- Her manager logged her in to the computer and set her to work which lead to her having access to the Director’s Facebook account and ultimately lodging a bullying complaint;

•  S.348- Her manager allegedly intended to set her up incorrectly and when the “boss” arrived in the office, her manager demanded she move to another computer; and

•  S.351- The joke that she was bipolar in the private conversation related to her “work ethic”. 6

Respondent’s submissions

[12] Wesley admits that Ms Brunner, in reading the private conversation, can be characterised as an upsetting incident. It is submitted that Ms Brunner was apologised to and it appeared that the incident was resolved. Wesley denies any bullying towards Ms Brunner. 7

[13] Wesley submits that Ms Brunner opted to take leave of absence and during her absence serious errors in Ms Brunner’s work were uncovered. The errors are described as serious in nature that would be characterised as serious misconduct. 8 Management took the decision to not offer any further work to Ms Brunner and sent her a letter via email on 12 March 2020 advising of their decision. This letter detailed the organisation’s concerns with her behaviour and conduct.9

[14] Wesley submit that Ms Brunner’s allegations of bullying are misconceived as no action was taken during employment or post-employment against Ms Brunner. They further submit that Ms Brunner’s insistence of bullying against her has upset staff and further, Wesley raise concern with material allegedly posted by Ms Brunner on social media intended to shame individual staff members. 10 Wesley submit the allegation of bullying refers to Ms Brunner reading private material not intended for her. Wesley also raise concern that Ms Brunner took photographs of private conversations that contained information unrelated to Ms Brunner and were of a personal and private nature.

[15] Wesley submit that the application, together with Ms Brunner’s errors, has placed the organisation under significant strain to rectify compliance matters which Ms Brunner failed to perform and to maintain the viability of the business in the COVID-19 affected environment. 11

Consideration

[16] On 9 June 2020, I convened a hearing to determine whether to allow an extension of time to the lodgement of the application.

[17] General protections applications involving dismissal must be made within 21 days.

[18] However, s.366(2) permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

(b) Steps taken to dispute the termination; and

(c) Prejudice to the employer; and

(d) Merits of the application; and

(e) Fairness between the person and other persons in a like position.

[19] The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd (Nulty)¹² where it was held that:

“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 regular occurrence, even though it can be a on 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.”13

[20] I now turn to Ms Brunner’s arguments for an extension of time in relation to each of the considerations of s.366(2).

The reason for the delay

[21] The general protections involving dismissal application was lodged with the Commission on 8 April 2020.

[22] Ms Brunner submits the reasons that her application was lodged out of time were:

•  She misunderstood that the reference to days was not business days but calendar days;

•  Advice from her counsellor and/ or lawyer provided advice that days was business days; and

•  She experienced mental health issues that contributed to the delay.

[23] Ms Brunner provided no evidence to support her submission that she relied on incorrect advice and she did not present any evidence concerning her alleged incapacity to submit the application on time. Ms Brunner admitted to not making any inquiries on the Fair Work Commission website concerning the filing of such applications.
[24] Ignorance of the timeframe is not unusual, exceptional, or uncommon as an explanation by applicants. Ignorance of timeframe was considered in Nulty v Blue Star Group Pty Ltd (Nulty) where it was held:

“Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of “exceptional circumstances”. In 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.” 14

[25] I do not consider the reasons given for the delay weigh in Ms Brunner’s favour.

Steps taken to dispute the termination

[26] Ms Brunner did not challenge the dismissal with Wesley. Ms Brunner submits she was shocked to receive the email as no performance related issues were raised with her. 15

[27] Wesley confirms that no contact was made by Ms Brunner and it became aware that she had challenged the dismissal only when they received the application. 16

[28] This consideration does not weigh in Ms Brunner’s favour.

Prejudice to the employer

[29] Ms Brunner submits that Wesley would not be prejudiced by the application being a couple of days late given the severity of the allegations she makes against them. 17

[30] Wesley submits that staff are traumatised by the allegations made by Ms Brunner and further defending its decision to terminate her employment will further add to prejudice”. 18

[31] The mere absence of prejudice is not justification for an extension of time. I accept the application is an inconvenience for the employer, particularly if they are experiencing the difficulties from the errors allegedly made by Ms Brunner and due to the challenges associated with COVID-19. Given the lack of evidence in this regard I do not consider this consideration weighs in the Respondent’s favour.

Merits of the application

[32] Ms Brunner alleges that while Wesley Asserts she was dismissed for work performance and stealing an employee’s credit card, she submits that she was not given appropriate management support, and that 10 days after seeing the 3 way conversation on Facebook chat, which she describes as bullying towards her, she raised with the Director that she was terminated. Much to her dismay, the Director raised her performance and attitude. Ms Brunner submits the Director informed her that staff were intimidated by her and while they had intended to raise these matters during the 3-month review, this was delayed. 19

[33] Wesley submits that Ms Brunner’s behaviour did not align with Wesley values. Wesley denies any bullying or lack of support for Ms Brunner and submits that administration tasks associated with delivery of courses, student and attendance records, as well as reports for government were mismanaged. Wesley submits the notebook containing Ms Brunner’s notes relating to performance of tasks had pages removed and that she asked staff members to remove the “training books”. It also submits that communications to staff and students was problematic. 20

[34] Wesley submits that Ms Brunner was not accused of stealing, rather it is alleged that a staff member had accidently had her credit card taken and used which resulted in the person’s resignation. Further, the lack of remorse or action by Ms Brunner to rectify the incident was a consideration. Wesley also submits that Ms Brunner spent many hours going through a private Facebook chat reading and taking photographs, then publishing on social media comments about staff to shame them publicly.  21

[35] While, the merits were not tested, Ms Brunner did not make out her case in respect of the alleged contraventions concerning her workplace rights, industrial activity and mental disability. Evidence was lacking and it appears that Ms Brunner lacked the understanding concerning the scope of the protections provided regarding workplace rights, industrial activity and disability. Ms Brunner alleges her reading of the private conversation between 3 staff was bullying towards her. The material that she submitted with her application does not satisfy the test of bullying. There was no evidence or suggestion that Ms Brunner was subject to repeated unreasonable behaviour causing a risk to her health and safety.

[36] Ms Brunner was engaged as a temp, or casual, and in that period, Wesley submits it had concerns with her performance and attitude. It is alleged that Ms Brunner was moody and her lack of attention to her work raised performance and attitude issues. These concerns were not raised until after Ms Brunner reported that she had seen the private Facebook discussion which caused her distress. It appears that Wesley failed to follow any disciplinary procedure, but instead determined that Ms Brunner’s temporary casual engagement should conclude. While there may be deficiencies in the performance management process, it is not sufficient to sustain the argument that Wesley contravened the general protections provisions of the Act.

[37] Ms Brunner relies largely on the Facebook chat entries to argue that after she raised her concern that she was adversely affected by her termination of employment. As I observed, the photographs taken by Ms Brunner were submitted which demonstrates to any reasonable person that the enormous effort that would have realistically taken copious amounts of time to do. If Ms Brunner read this material and took photographs during work hours, it can be characterised as a failure to attend to her duties. I further observe that Ms Brunner read private chats that did not concern her. These chats contained private discussion about children and other commercial and private matters, which Ms Brunner took upon herself to read and take copies of.

[38] On balance, whilst the respective evidence the parties would rely on was not tested, I do not consider that Ms Brunner’s chances of success in arguing her case on merit are strong.

Fairness between the person and other persons in a like position

[39] Neither party responded adequately to this consideration. Consequently, I consider this to be a neutral factor in the present matter.

Conclusion

[40] In this instance, I need to be satisfied that there are exceptional circumstances warranting an extension of time. The statutory timeframe is there for a reason, consequently, to grant an extension is a high bar.

[41] While the application was six days late, I have considered the evidence and submissions against each of the considerations set out in s.366(2), and I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.366(2). Accordingly, the application is dismissed.

COMMISSIONER

Appearances:

Ms J Brunner for herself

Ms J Hurn for the Respondent

Hearing details:

2020

Melbourne (by telephone)

9 June

Printed by authority of the Commonwealth Government Printer

<PR720902

 1   Transcript at 3:19 and Applicants outline of argument at Q 1d.

 2   Applicant’s application form F8 at 3.1.

 3   Ibid.

 4   Ibid.

 5   Ibid.

 6   Applicant’s application form F8 at Q3.3.

 7   Respondent’s outline of argument at Q1h.

 8   Ibid.

 9   Letter of termination sent by email dated 12 March 2020 at 11.53pm.

 10   Op Cit.

 11   Respondent’s oral submissions at hearing.

12 [2011] FWAFB 975.

13 Ibid at [13].

14 [2011] FWAFB 975 at [14].

 15   Applicant’s outline of argument at Q 1e.

 16   Respondent’s outline of argument at Q1e.

 17   Applicant’s Outline of Argument at Q1f.

 18   Respondent’s outline of Argument at Q1g.

 19   Applicant’s outline of argument at Q1g and 1h.

 20   Respondent’s outline of argument at Q 1h.

 21   Ibid.