Karen Drapac v Ulukile Pty Ltd ITF Wenckowski/Nanni Family Trust T/A Morton's Shoes

[2018] FWC 989

[2018] FWC 989

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Karen Drapac
v
Ulukile Pty Ltd ITF Wenckowski/Nanni Family Trust T/A Morton’s Shoes; Kristian Wenckowski
(C2017/4265)

COMMISSIONER CIRKOVIC MELBOURNE, 14 FEBRUARY 2018

Application to deal with contraventions involving dismissal - whether to extend time for lodging the application.

Introduction

[1] On 2 August 2017 Ms Karen Drapac (‘the Applicant’) made a general protections application (‘the application’) under section 365 of the Fair Work Act2009 (‘the Act’). 1 The Respondents to the application are Ulukile Pty Ltd ITF Wenckowski/Nanni Family Trust T/A Morton’s Shoes (First Respondent) & Kristian Wenckowski (Second Respondent – referred to together as ‘the Respondents’).

[2] The Applicant commenced employment with the Respondents on 31 August 2010. 2 She was initially engaged as a casual in the position of Sales Assistant.3 The Applicant submits that she was dismissed on 13 July 2017 and that the dismissal took effect on that day.4 The application was lodged on 2 August 2017. TheApplicant submits the application was therefore madewithin the 21 day statutory time frame.5

[3] The Respondents submit that the Applicant resigned from her employment on 5 July 2017 and that her employment ended that day. 6 The Respondents submit that the application has therefore been lodged seven days outside the 21 day statutory time frame for lodgement as specified in s.366(1) of the Act.7 The Respondents further submit that under s.366(2) there are no exceptional circumstances that warrant the granting of an extension of time.8

Alleged contravention

[4] The Applicant submits that she was dismissed because of exercising her workplace rights and by reason of her physical disability.

[5] A breach of s.340 and s.351 are alleged.

Background

[6] The matter was heard before me on 17 October 2017 and 16 November 2017.

[7] At the hearing on 17 October 2017 the Applicant was represented by Ms Bailey of Counsel. Permission to appear was sought by Ms Bailey and granted pursuant to s.596 of the Act. 9 Mr Page from the Victorian Chamber of Commerce & Industry appeared on behalf of its member, the Respondents. At the hearing on 16 November 2017 the Applicant was represented by Mr Comito in Ms Bailey’s absence and Mr Page continued to appear on behalf of the Respondent.

[8] Six witnesses appeared before the Commission in this matter:

•  the Applicant, Ms Karen Drapac;

•  the Applicant’s partner, Mr Peter Milici;

•  the Applicant’s friend, Ms Shirley La Greca;

•  Morton’s Shoes co-owner and co-director, Mr Kristian Wenckowski;

•  Morton’s Shoes co-owner and co-director, Ms Sandra Nanni; and

•  Morton’s Shoes Payroll Manager, Ms Lisa Jones.

[9] During the hearing on 17 October 2017 consent amendments were made by both parties to their respective witness statements. I have taken those into account in coming to my decision.

[10] At the hearing on 17 October 2017 Ms Bailey on behalf of the Applicant sought a production of the notebook of Morton Shoes’ Payroll Manager, Ms Jones, and a copy of the rosters. 10 The Applicant subsequently filed a Form F52 on 18 October 2017 seeking an order for production of the requested documents. Imade an order for the Respondents to produce the requested documents on 18 October 2017. The Respondents complied with this order and the Applicant inspected the requested documents.

[11] On 6 November 2017 I directed a hearing to be held on 16 November 2017. At the hearing Ms Jones and Mr Wenckowski were called to give further evidence.

[12] Following the hearing on 16 November 2017 the parties filed further submissions pursuant to my directions issued on 17 November 2017. The Applicant filed written submissions on 4 December 2017. The Respondents filed written submissions in reply on 15 December 2017. The Applicant then filed written submissions in reply on 21 December.

Legislative scheme

[13] Subsection 366(1) of the Act provides that an application under s.365 must be made within 21 days after the dismissal took effect:

(1) 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 (2).

[14] Subsection 366(2) of the Act provides that the Commission may allow a further period for an application to be made if it is satisfied there are exceptional circumstances. The Commission in concluding whether exceptional circumstances exist must take into account the following factors:

(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.

[15] The meaning of “exceptional circumstances” was considered in Nulty v Blue Star Group Pty Ltd 11where the Full Bench said:

“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.”

[16] As can be seen above, a general protections application involving dismissal “must be made” within 21 days or a further period allowed by the Commission. The words must be made are not defined in the Act but guidance to their meaning can be found in the Fair Work Commission Rules 2013. Rule 13 deals with lodgement of documents in the Commission and provides as follows:

“13 General requirements for lodging documents

...

(2) A document must be lodged with the Commission by:

(a) physically delivering the document to an office of the Commission between 9 am and 5 pm on a business day; or

(b) sending the document by post to an office of the Commission; or

(c) emailing the document in accordance with rule 14; or

(d) using the Commission’s electronic lodgement facilities in accordance with rule 15; or

(e) faxing the document in accordance with rule 16.”

Approach of the Commission

[17] The onus of establishing exceptional circumstances is on the Applicant who needs to provide a credible reason for the whole of the period that the application was delayed. 12

[18] This point was emphasised by the Full Bench in the recent decision of Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349 which, although concerned with the unfair dismissal application, contained the following statement, which is equally applicable to a s.365 application:

“[29] The appellant relies upon the Full Bench decision in Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2015] FWCFB 287 (Shaw and ANZ), at paragraph [12] the majority decision states:

‘[12] This decision makes an important point which we consider deserves re-emphasising. The delay required to be considered is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period. …’

[30] This extract must be read in its entirety. The decision goes on to state:

‘[12] … The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.’

[31] Hence, the decision emphasised that while the delay to be considered is the period subsequent to the expiration of 21 days, the circumstances from the time of the dismissal must be considered in determining whether the reason for the delay constitutes exceptional circumstances. 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. The reason for the delay by reference to the circumstances from the date the dismissal took effect is as expressed in Shaw and ANZ the correct approach.” 13

Did the Applicant resign on 5 July 2017 or was 13 July 2017 the effective date of dismissal?

[19] To determine whether the Applicant’s application was made within the statutory timeframe, it is first necessary to come to a view as to whether she resigned on 5 July 2017 or whether the dismissal took effect on 13 July 2017. It is conceded by the Respondents that if dismissal took effect on 13 July 2017, its jurisdictional objection must fail. 14

Submissions and evidence

[20] It is uncontested that the Applicant, a single mother with 5 children, was employed by the Respondents in the position of Sales Assistant from 31 August 2010. 15 It is also not in dispute that the Applicant advised Mr Wenckowski at the commencement of her employment that she required four days work “to get by.”16 Mr Wenckowski’s evidence that he told the Applicant at the outset that her hours would vary according to the Respondent’s business requirements was not challenged.17

[21] It is also agreed that from at least April 2015, 18 the spread of her shifts were changed and that as of February 2017 she was working one shift per week.19 The Applicant submits she was “very unhappy about the reduction in hours” because she “relied heavily on [her] usual wage” with the Respondents.20 While Mr Wenckowski stated that the Applicant in May 2017 “chose not to nominate to work any of the shifts available for the upcoming 3-month period”,21 he conceded during cross-examination that he knew after the Applicant “stormed out”22 during the meeting of February 2017 that the Applicant wanted to increase her hours of work with the Respondents.23 On the basis of above and the material before me, it is open to me to conclude on balance that as from at least February 2017 the Applicant was seeking additional hours from the Respondents and Mr Wenckowski was aware of the Applicant’s position.

[22] The parties agree that based on the evidence there were four key conversations between Mr Wenckowski and the Applicant, to which only they were privy, and that there is significant disparity between them as to what was said during those conversations. The resolution of this dispute requires a consideration of the key conversations which are set out below:

The conversation of 5 July 2017

[23] It is not in contest that the Applicant telephoned Mr Wenckowski on or about 5 July 2017. The Applicant claims that she telephoned Mr Wenckowski to let him know that she would be unavailable for work for the next three Mondays as she had obtained a position with Australia Post and was required to complete three weeks training with Australia Post on a full time basis.

[24] Mr Wenckowski gives a different account. He claims that the Applicant said that “I have accepted a position elsewhere so I won’t be able to work for you.” 24 Mr Wenckowski asserts that the Applicant’s words amounted to a resignation.

The first conversation of 9 July 2017

[25] It is not disputed that the Applicant contacted Mr Wenckowski on 9 July 2017. 25 The Applicant contends that she had been “ruminating a lot about the job with Australia Post” and that she found the prospect of embarking on something new “very daunting.”26 Her evidence as to the conversation is that she told Mr Wenckowski how much she loved her work with the Respondents, her colleagues and asked whether there was a possibility of further hours with the Respondents.27 The Applicant states that Mr Wenckowski said that he would ask his wife if there were any further hours available.28

[26] Mr Wenckowski does not dispute the Applicant’s evidence in so far as it relates to the Applicant’s request for further hours and that he would contact his wife to see if there were any further hours that could be offered to the Applicant. Where Mr Wenckowski’s evidence differs to that of the Applicant is that he claims that the Applicant said that she was having “second thoughts” regarding her decision to leave Morton’s Shoes. 29

The second conversation of 9 July 2017

[27] It is not disputed that Mr Wenckowski made contact with the Applicant later on 9 July 2017 and advised her that the Respondents could not offer the Applicant additional hours. 30

The conversation of 13 July 2017

[28] The Applicant contends that she made contact with Mr Wenckowski again on 13 July 2017 when she advised him that she would not be continuing with her training at Australia Post and that she could therefore return to her normal shift the following Monday. 31 The Applicant claims that Mr Wenckowski told her that his wife was going to fill the Monday shift from then on and that there were no further shifts available to the Applicant.32 The Applicant states that Mr Wenckowski “apologised” and said “I’ve got no further hours for you.”33 The Applicant stated that: “I was devastated by the termination of my employment.”34

[29] Mr Wenckowski does not dispute that the Applicant telephoned him on 13 July 2017 but states that the Applicant had called to advise him that she regretted leaving the Respondent, that she missed her former colleagues, that she had resigned from her position at Australia Post and that she would like her old job back. He states that the applicant sounded quite jovial when she made contact with him on that occasion. Mr Wenckowski states that he advised the Applicant that “unfortunately, I don’t have any hours available for you” 35 and that he could not afford her to leave the company again at a crucial time of year.36

[30] Mr Milici gave evidence that he was present when the Applicant spoke to Mr Wenckowski on 5 July but when asked during cross examination to confirm whether he was “present or privy to any telephone discussions” between the Applicant and Mr Wenckowski he replied: “no, I didn’t hear the conversation that was going on.” 37

[31] He also gave evidence that the Applicant had told him that she had been offered a casual position with Australia Post and that she was intending to ask Mr Wenckowski for 3 weeks off to attend Australia Post training, 38 that she enjoyed her job and had no intention of leaving,39 that she was hopeful on 8 July that Mr Wenckowski would obtain her further hours,40 and that she was “devastated” on 13 July.41

[32] Ms La Greca gave evidence that she had known the Applicant for over 40 years 42 and had spoken with the Applicant about her intention to supplement her income with further hours at Australia Post,43 and that she was distressed on 13 July 2017.44

[33] Ms Nanni (the partner of Mr Wenckowski) gave evidence corroborating Mr Wenckowski’s assertion that he spoke to Ms Nanni both after his conversation with the Applicant on 5 July 2017 when he advised Ms Nanni that the Applicant had resigned, 45 and following his conversation on 9 July 2017 when he sought Ms Nanni’s views as to whether the Applicant could be offered further hours.46 I have no reason to doubt the truthfulness of Ms Nanni’s testimony in relation to these matters notwithstanding some confusion recorded on transcript as to whether the request for further hours took place on Sunday 9 July or “Sunday 13 July” as was put by counsel for the Applicant.47 I have accepted the version that supports Mr Wenckowski’s evidence for the purposes of coming to my conclusion as to the interaction between Mr Wenckowski and Ms Nanni on 9 July 2017.

[34] Ms Jones gave evidence that Mr Wenckowski told her that the Applicant had resigned at their weekly meeting on 10 July 2017. 48 She also corroborates Mr Wenckowski’s evidence that he spoke to Ms Jones on 17 July 2017 telling her that the Applicant had telephoned Mr Wenckowski and asked for her job back.49 I have no reason to doubt the truthfulness of the testimony of Ms Jones in relation to these conversations. I have also taken into consideration Ms Jones’ evidence that she wrote in her notebook “10/7 Karen resigned” after being advised by Mr Wenckowski during their meeting on 10 July.50

The roster

[35] Pursuant to my order on 18 October 2017 the Respondents provided documents to the Commission as to roster arrangements at the Respondent’s Ivanhoe premises. Evidence was given by Ms Jones. But ultimately her evidence on this point was of limited utility given her evidence that she was not involved with the preparation of the rosters. 51

[36] Mr Wenckowski’s evidence as to the preparation of the Ivanhoe roster is that the documents serve to indicate no more than the Applicant appearing on the roster for the 4 week cycle during the month of July, albeit with her name crossed out as in Mr Wenckowski’s view the Applicant was no longer performing work for the Respondent. 52 Mr Wenckowski claims that the Applicant was only taken off the handwritten roster after the expiration of the 4 work cycle as the roster was printed by Mr Wenckowski as a blank document at the start of the month.53 I accept Mr Wenckowski’s evidence in this regard.

Findings of fact and credit in relation to the alleged resignation and effective date of dismissal

[37] There are a number of inconsistencies between the evidence of the Applicant and that of Mr Wenckowski as to the discussions had between them to which only they were privy. I prefer the evidence of the Applicant to that of Mr Wenckowski in relation to these discrepancies, including the important discussion on 5 July 2017 where the Applicant was alleged to have resigned, for the following reasons:

A. First, the Applicant struck me as a reliable and credible witness who gave a clear and cogent account as to the discussions between her and Mr Wenckowski, which in my view were largely consistent with her written statement. She also had a good recollection of the relevant events, particularly the discussions with Mr Wenckowski. I accept the truth and accuracy of the evidence she gave. The Applicant was willing to concede that Mr Wenckowski may have misunderstood the “gist” of the conversation in particular as to the discussion between her and Mr Wenckowski on 5 July, which is reproduced below:

“And how did you say that?  -Exactly what I said then. I’ve said, “Hi, Kristian”, you know, “It’s me.” I said, “Look, I’m just ringing to let you know that I’ve been offered a position at Australia Post”, and Kristian appeared to be quite happy about that. But I said – also went on to say that how this will affect Mortons will be that I’ll be unable to attend work for the next three Mondays due to training. I had to undertake a three week training course and I wouldn’t be able to work for the next three Mondays. But going forward, it was a 15 hour week position. So after the three week training period I’d still be able to work for Morton’s.

Did Mr Wenckowski say anything in response to that?  -He said to me that if he was in my shoes he understood, and he said, “Well, if I was in your shoes”, you know, “I’d be doing the same thing.” And I took that that, you know, given the lack of income that I was receiving, that he understood that there was no choice but to – for further work.

And did you say anything, or did Mr Wenckowski say anything after that, after he’d said, “If I was in your shoes I would have done the same”?  -He just said, you know, “Keep me informed.” I said, you know, “I start training on Monday, the 10th.” And he said, “Just keep me informed.”

Yes. I put it to you, Ms Drapac, that during this conversation you actually said to Mr Wenckowski, “I’ve accepted a position elsewhere so I won’t be able to work for you”, or words to that effect. That’s correct, isn’t it?  -I disagree with that.

You disagree with that?  -I disagree with that.

I also put it to you that you told Mr Wenckowski that you left because there weren’t enough hours for you at Morton Shoes?  -I disagree with that.

Is it possible that you and Mr Wenckowski misunderstood what was being discussed, in your opinion?  -I think Mr Wenckowski misunderstood the gist of the conversation. I certainly didn’t. I made it very clear to him that I had no intention of leaving Morton’s.

How did you make that clear?  -By telling him that after the three weeks training, period, I would still be able to work for him.” 54

B. Second, Mr Wenckowski’s evidence was at times inconsistent, vague and imprecise particularly in relation to the following issues:

5 July conversation

[38] During cross examination, the following interchange occurred as to what was said between Mr Wenckowski and Counsel for the Applicant during the 5 July telephone conversation:

““On Wednesday 5 July 2017 Karen called me on the phone and said, “I’ve accepted a position elsewhere so I won’t’ be able to work for you.” Is that the extent of what you recall of her resignation, as you put it?  -Correct.

I put it to you that it’s possible that sentence continues, “I won’t’ be able to work for you for the next three weeks”?  -I don’t think anyone who’s ever left our employment has said they’ve resigned as a casual. They - it’s just like using the word, “dismissal.” It’s - no, you know, she didn’t say the word resign. It’s just as I’ve stated there.

Did you try to persuade her not to leave?  -No - look, I actually said to Karen and she explained to me that she needed additional hours and had we had hours available to her she wouldn’t be leaving because she enjoyed her job with us so I knew her position. Our relationship as employee and employer was good so there was no bad blood, no nothing. You know, she was going because she had an opportunity to work a lot more hours than what we had to offer and I said I understood.

I put to you in fact that there was bad blood between you two by that stage, following the matters that I’ve already taken you to this morning. What do you say about that?  -No bad blood at all - I don’t hold grudges against anybody.

Did you ask Ms Drapac to put her resignation in writing?  -No.

Did you ask her when her last day would be?  -She said she was commencing work with Australia Post on the Friday so I assumed that virtually the position - like, she wasn’t able to work for us anymore. That was it - like, tendering her resignation, basically, on the 5th.

When you say, “tendering her resignation”, she didn’t specifically say to you, “I am not coming in on this particular or this particular day will be my last day?” You just assumed that, did you?  -She said she was going to work for Australia Post so I think that’s a reasonable assumption that she is not going to work for us.

So just asking you to answer the question - it was just your assumption that she was resigning effective immediately?  -Well, I’m not sure how you would interpret it. If someone says somebody accepted a position elsewhere and, “I can’t work for you”, that to me says they can’t work for you.

She worked for you for almost seven years at this stage?  -She had certainly been with us for a long period of time.

So presumably you would have expected that there might have been some sort of notification or something like that - period of time?  -Look, with any of our casual employees, and casuals is at a moment’s notice so I understand if they have to take a day off for a medical appointment, take kids to school - things arise at a moment’s notice. There is certainly no one, as I say, who’s tendered a resignation to me consciously, who has left our employment by saying, “I resign, here it is in writing.” They’re a casual employee.” 55

Applicant’s request for time off to take holiday and to attend surgery

[39] When asked about the reduction of the Applicant’s decision to postpone her surgery in favour of a holiday the following interchange occurred between Mr Wenckowski and counsel for the Applicant:

“In March 2016, Ms Drapac asked for some time off for a holiday with her partner, Mr Milici?  -Yes.

Then not long after she made that application, she also informed you that she had been offered surgery and she had been on a waiting list for that particular surgery? She did.

In fact she asked you to have time off for both of those things, is that correct?  -She did.

You in fact told her that you had made inquiries but you weren’t able to accommodate it. She would have to just have the surgery, is that what you told her?  -We said we couldn’t have her off for the length of time needed for both the operation and the holiday.

Yes, and you would have made inquiries with the other casuals to see if they could fill in time for her, would you?  -We - you know, it’s a difficult one to recollect there. We thought the period of, say, 10 to 12 weeks was too long to be without someone. It virtually put too much reliance on myself and my wife and having two boys at home who we run around for school and sport we just could not commit to both of us being there for a prolonged period beyond what we did. So it was basically a decision about us, no one else.

You recall that Ms Drapac ultimately ended up going on holiday rather than having the surgery?  -That was her choice.

Yes, but in fact it was later that year, come October, that she informed you that in fact again she had been offered this surgery for a second and final time. You recall that?  -She certainly instructed us, correct.

She did take time - she told you it was going to be about six to eight weeks, something like that, for the surgery?  -Yes, yes.

You were pretty upset that you had told her she could have one or the other but now it’s the same year, she’s had her holiday, and here she was taking time off for her surgery. That’s right, isn’t it?  -She was having time off for her surgery, that’s correct.

But you were angry about that, weren’t you?  -We spoke to her earlier in the year about the possibility of either/or. Casuals - Karen was a casual employee so what Karen chose to do, unfortunately, can’t be influenced by my thoughts or whatever.” 56

Going away party

[40] When asked whether Mr Wenckowski organised a going away party for the Applicant, Mr Wenckowski said:

“We were actually in the throes of organising something, to take a collection. So we had two people away or going away at that time so our intention was when the two employees returned from overseas we would actually put something on.

When was that going to be?  -When everyone comes back from overseas - now, one has just recently returned two weeks ago from overseas.

So what date had you planned for that?  -I wasn’t making the planning. Sandra, I must say, was making the plans. I haven’t planned those sorts of events for anybody in our organisation so - - -” 57

[41] The evidence that “Sandra, I must say was making the plans….” is at odds with the evidence of Ms Nanni who gave evidence that it was a matter that was discussed briefly, during the following interchange between her and counsel for the Applicant during cross examination:

“You would have organised, no doubt, or would have had a think about organising some sort of going away party for Mrs Drapac after she resigned, would you?  -It’s something we tend to do, yes.

So when you say you tend to do, is that something you had organised for Mrs Drapac?  -Well, it’s funny you mention that. It was something that I - Kristian and I had discussed.

When did you discuss that?  -To tell you the truth, I can’t remember now. It’s not something we - but I know that when Karen did resign, it was during school holidays because I remember saying to Kristian: “Well, you know, wait a couple of weeks, we have to work it out.” We’ve got two kids we drive left, right and centre to basketball after work every day and footy and what have you, so we would have to work out a good day for us to be free to go out for drinks or whatever it might be. So we thought we’d wait until the term starts and we know what their schedule is that way Karen will have had, you know, two weeks at her new job so we could ask about how it had gone and what she was doing and things like that.

So you were planning in a couple of weeks, something like that?  -Possibly. It was just a quick conversation we had without a timeframe as such.

Did you discuss it with people from work as well?  -Probably. I don’t know. I don’t think I did. I’m not sure to tell you the truth. Because soon after that obviously, you know, after the phone call on the 13th which was, you know, not even a week after, it was quite clear - - -

What was quite clear?  -Well, that Karen was very unhappy in her new job and was basically trying to blame us for putting her in that position. So, obviously, any discussions of a farewell party obviously just we thought we’d wait.” 58

C. Third, I find it improbable that the Applicant having accumulated just under 7 years of service with the Respondents would choose to resign from her employment just 2 months short of her pro rata long service leave accrual.

D. Fourth, contrary to the Respondents’ submissions, 59 the Applicant’s conduct subsequent to the 5 July conversation, in my view supports the proposition that the Applicant, having reviewed the material provided by Australia Post, made contact with Mr Wenckowski on 9 July to request further hours with the Respondents. In my view the request is consistent with the Applicant’s evidence that having secured an additional 15 hours with Australia Post and the one 8 hour shift on Monday with the Respondents, the Applicant was securing the requisite number of shifts to “get by”. Consistent with this evidence is the Applicant’s submission that having considered her position and having reviewed the material received from Australia Post the Applicant was making a further request to the Respondents for extra hours. On the basis of the material before me, I accept the proposition that the Applicant was hoping to secure the extra hours from the Respondents, in which case, she would not have required the additional hours with Australian Post. During her cross examination the Applicant gives the following evidence:

“MR PAGE: Ms Drapac, I withdraw my previous question. I’d like to rephrase it. During this phone call you informed Mr Wenckowski that you were not sure about working at Australia Post, didn’t you?  -I did.

And what was that based on?  -We were given a kit from Australia Post which consisted of approximately 50 modules - - -

Sorry, just to clarify it, on what date were you given this kit?  -On the 7th.

The 7th?  -And going through it, I just believed that it was a bit too overwhelming for me. Not only that but I’d also been informed by another staff member that Kristian was after somebody to fill in for a couple of days, so in a last ditched effort I contacted Kristian hoping that he would offer me those two days off employment.” 60

E. Fifth, I find it improbable that Mr Wenckowski would have responded to the request on 9 July by contacting his wife to determine if there were further hours available if the Applicant had already resigned. The evidence in my view supports an inference that the Applicant was at that stage still employed by the Respondents and was expecting the Applicant to return to perform her regular Monday shift after the completion of the Australia Post training. I accept her evidence that at that point she was hopeful that the Respondents would provide her additional hours.

[42] Given my above findings, I am persuaded by the Applicant’s case that she did not resign on 5 July 2017 but rather the effective date of dismissal is 13 July 2017.

[43] In coming to my conclusion, I have considered the comprehensive written submissions of both parties and taken into account each of the propositions advanced by the respective parties.

Conclusion

[44] Given my finding that the Applicant did not resign on 5 July 2017, I am satisfied on the balance of probabilities that the effective date of dismissal was 13 July 2017. Given those circumstances, I do not need to consider the matters set out in s.366(2). The Respondents’ jurisdictional objection is therefore dismissed. Ms Drapac’s application will now be listed for a conference aimed at resolving the dispute.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Appearances:

Ms Bailey of Counsel, for the Applicant (17 October 2017).

Mr Comito of Ryan Carlisle Thomas Lawyers, for the Applicant (16 November 2017).

Mr Page of Victorian Chamber of Commerce & Industry, for the Respondents (17 October & 16 November 2017).

Hearing details:

2017.

Melbourne.

17 October

16 November.

<PR600430>

 1   Form F8 – General protections application involving dismissal (Filed 2 August 2017).

 2   Witness Statement of Applicant, [3].

 3 Ibid [5].

 4 Ibid [3].

 5   Form F8, [1.4].

 6 Respondent’s Outline of Submissions Re Extension of Time – Section 365 and 366(2), [2] of Introduction.

 7   Transcript (17 October 2017) PN433, PN437.

 8   Respondent’s Outline of Submissions Re Extension of Time – Section 356 and 366(2), [18]-[42] of Body of Submissions.

 9   Transcript (17 October 2017) PN123.

 10   Ibid PN773.

 11   [2011] FWAFB 975 [13].

 12   Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010]197 IR 403.

 13   Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic[2016] FWCFB 349.

 14   Respondent’s Outline of Submissions Re Extension of Time – Section 356 and 366(2), [3] of Introduction.

 15 Form F8, [1.2] & Respondent’s Outline of Submissions Re Extension of Time – Section 365 and 366(2), [1](a).

 16   Transcript (17 October 2017) PN472.

 17   Ibid PN473.

 18   Statement of Applicant [9], Witness Statement of Kristian Wenckowski Transcript (28 September 2017) [4], Transcript (17 October 2017) PN477.

 19 Statement of Applicant [19], Witness Statement of Kristian Wenckowski Transcript (28 September 2017) [10].

 20 Statement of Applicant [9].

 21 Witness Statement of Kristian Wenckowski (28 September 2017) [12].

 22   Transcript (17 October 2017) PN519.

 23   Ibid PN521.

 24 Witness Statement of Kristian Wenckowski (28 September 2017) [13].

 25   Transcript (17 October 2017) PN613.

 26 Witness Statement of Applicant [28].

 27   Ibid.

 28   Ibid.

 29 Witness Statement of Kristian Wenckowski Transcript (28 September 2017) [14].

 30   Witness Statement of Applicant [29], Transcript (17 October 2017) PN631, PN458.

 31 Witness Statement of Applicant [30].

 32   Ibid.

 33   Ibid.

 34 Ibid [31].

 35   Transcript (17 October 2017) PN635.

 36   Ibid PN638.

 37   Transcript (17 October 2017) PN392.

 38 Witness Statement of Peter Milici [11].

 39 Ibid [13].

 40   Ibid.

 41 Ibid [16].

 42   Transcript (17 October) PN412.

 43 Witness Statement of Shirley La Greca [11].

 44 Ibid [12].

 45   Transcript (17 October) PN676.

 46   Ibid PN679.

 47   Ibid PN681.

 48   Ibid PN708, PN728.

 49   Ibid PN750.

 50   Ibid PN708, Subpoenaed Document – Ms Jones’ notebook.

 51   Transcript (17 October) PN763-765, Transcript (16 November) PN133-136.

 52   Transcript (16 November 2017) PN373-380 and PN386-402.

 53   Ibid PN375.

 54   Transcript (17 October) PN262-PN269.

 55   Ibid PN574-PN583.

 56   Ibid PN493-PN502.

 57   Ibid PN585-PN587.

 58   Ibid PN686-PN691.

 59 Respondent’s Closing Submissions [17].

 60   Transcript (17 October) PN286-289.

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