Karen Feebrey v Jmti Pty Ltd T/A Jardine Motel

[2011] FWA 3857

[2011] FWA 3857

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Karen Feebrey

V

JMTI Pty Ltd T/A Jardine Motel

(U2011/227)

Raymond Feebrey

V

JMTI Pty Ltd T/A Jardine Motel

(U2011/4902)

COMMISSIONER CAMBRIDGE SYDNEY, 21 JUNE 2011

Unfair dismissal – request for FWA to allow extension of time for lodgement of applications.

[1] This Decision has been made in respect of two related applications for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009, (the Act). The applications were lodged at Sydney on 8 February 2011. The applications were made by Karen and Raymond Feebrey, (the applicants) and the respondent employer in each application is JMTI Pty Ltd trading as Jardine Motel (the employer).

[2] The applications indicated that the date of each of the applicants’ dismissal was 20 January 2011. Consequently the applications were made 5 days after the time limit prescribed by subsection 394 (2) of the Act. The employer made a jurisdictional objection to the applications on the basis that the applications had not been made within 14 days of the dismissals. The employer made a further jurisdictional objection on the basis that the applicants were not persons who had been dismissed from employment as could be established under the meaning given to “dismissed” by section 386 of the Act.

[3] On 20 May 2011, Fair Work Australia (FWA) conducted a Hearing via video conference to deal with the question of extension of time. At the Hearing the applicants were represented by Mr M Madden a solicitor from the firm Thompson Madden Solicitors and the employer was represented by Mr J W Merrell a barrister instructed by Ms T Lo a solicitor from the firm MacDonnells Law.

[4] During the Hearing Ms Karen Anne Feebrey, the applicant in matter U2011/227 provided evidence as a witness. Ms Feebrey attested to the veracity of the contents of a witness statement provided in support of an extension of time. Ms Feebrey provided some further evidence by way of oral amplification led as additional evidence in chief, and she was cross-examined on this material and the contents of her witness statement. The employer adduced evidence by way of an affidavit of Stephen John Mills, a Director of the employer. The affidavit evidence of Mr Mills was admitted without challenge and he was not required for cross examination.

Factual Background

[5] The applicants worked for the employer for about 2 years and 8 months. The applicants were engaged as the “live-in” managers of the Jardine Motel on Thursday Island, Queensland. The adult daughter of the applicants, Emma Jade Feebrey was also employed, at different times, at the Jardine Motel and held a position of permanent full-time Receptionist.

[6] As part of the applicants’ terms and conditions of employment they were entitled to the use of on-site accommodation described as the manager's flat. The manager's flat and the use of electricity at that premise was provided free of charge as a stipulated term of the applicants employment. The manager's flat was a single bedroom premise and as such could not conveniently accommodate the applicant's daughter, Emma Feebrey.

[7] The employer provided staff accommodation at a location referred to as 10 Victoria Parade. Initially the applicant's daughter, Emma Feebrey utilised the staff accommodation at 10 Victoria Parade. Emma Feebrey suffers from a medical condition which on occasions may require that she receive assistance to be rendered particularly during the night. Although 10 Victoria Parade is approximately 300 m from the Jardine Motel, Emma Feebrey relocated to one of the units (room 63) in the Motel in order to be in close proximity with the applicants so that any medical assistance could be more easily rendered.

[8] On 19 December 2010, Mr Stephen Mills, the employer’s Director, met with Ms Karen Feebrey at the manager's office of the Jardine Motel. Mr Mills spoke to Ms Karen Feebrey about various aspects of the Motel operation particularly including issues relating to staff accommodation and employees being accommodated in guest rooms of the Motel. Mr Mills instructed Ms Karen Feebrey to have room 63 vacated. This instruction was unambiguously directed at having the applicant's daughter relocate to the staff accommodation at either 10 Victoria Parade or alternatively at a closer location, the Federal Hotel.

[9] Ms Karen Feebrey protested at the instruction given by Mr Mills. The conversation about the instruction to relocate the applicant's daughter away from the Motel deteriorated to the point that Ms Karen Feebrey offered her resignation in response to the directive to relocate her daughter away from the Motel.

[10] On the following day, 20 December 2010, Ms Karen Feebrey provided the employer with written confirmation that she and her husband were providing 30 days notice of their resignation from employment. This communication identified inter alia, that the final day of employment would be 20 January 2011 and concluded with the following:

“We are not silly Steve and understand what we have done so please don't think we are asking to stay permanently. What has been done and said is past and I hope we can finish our relationship as we started it.

Kind regards

Karen Feebrey

General Manager

Jardine Motel”

[11] The applicants commenced a period of planned leave and departed from Thursday Island on the following day 21 December 2010. They returned to Thursday Island on 13 January 2011 and a series of difficulties emerged in respect to the finalisation of their employment and the handover of the Motel to a temporary relief manager who had been appointed from about 11 January 2011. Ms Karen Feebrey suffered an illness and was hospitalised for a short period on around 18 and 19 January 2011.

[12] The applicants’ employment concluded on 20 January 2011, they vacated the managers flat at that time and shortly thereafter departed from Thursday Island.

[13] On 28 January 2011 Ms Karen Feebrey completed a workplace complaint form with the Fair Work Ombudsman (FWO). On 4 February 2011 the FWO wrote to the applicants and acknowledged receipt of their workplace complaint form. This communication also advised the applicants in respect to complaints regarding unfair and/or unlawful dismissal and the requirement to raise such complaint with FWA within 14 days of termination of the employment. Ms Karen Feebrey then completed and dispatched the applications seeking unfair dismissal remedy in respect of her and her husband's employment. Consequently the applications were made 5 days after the 14 day time limit fixed by subsection 394 (2) of the Act.

The Applicants’ Case

[14] Mr Madden, who appeared on behalf of the applicants, submitted that FWA should find that there were exceptional circumstances regarding why the applications were made late. Mr Madden mentioned that Ms Karen Feebrey had made a formal application with the FWO within eight days after termination of the employment. According to the submissions made by Mr Madden the actions of Ms Karen Feebrey clearly displayed that she was acting quickly in support of her position that she and her husband had been unfairly treated. The applications were simply made with the wrong government agency, the FWO rather than the FWA.

[15] Mr Madden submitted that the circumstances of the case established that it was unusual and should therefore be treated as having exceptional circumstances for the purposes of the lodgement time-limit. Mr Madden stressed that the application had been made only five days after the 14 day time limit and that the complaint to the FWO had been made within time.

[16] Mr Madden further submitted that the case should be considered as having reasonable prospects for success as the actions of the employer whereby the applicant's daughter would be removed from the room that she occupied at the Motel, was a course of action that was likely to lead to the applicants resigning. According to the submissions made by Mr Madden this was a deliberate act of the employer designed to have the applicants resign from their employment.

[17] Mr Madden said that the exceptional circumstances to provide for the extension of time for lodgement of the claim related to the unusual aspects of the case. In particular he referred to the confusion with the complaint made to the FWO which had been made only eight days after the termination of employment, and the deliberate act of the employer designed to cause the applicants to resign.

The Respondent’s Case

[18] Mr Merrell, counsel who appeared for the employer, referred to an outline of submissions that have been filed on behalf of the employer on 9 May 2011. Mr Merrell made further oral submissions to supplement and amplify the documentary outline.

[19] Mr Merrell submitted that FWA did not have jurisdiction to hear and determine the applications because the applications had been made outside of the 14 day time limit. Mr Merrell submitted that the applicants had not established that there were exceptional circumstances taking into account the matters set out in subsection 394 (3) of the Act. Therefore according to the submissions made by Mr Merrell there was no case to justify the granting of an extension of time to permit the applications to proceed.

[20] Mr Merrell mentioned two important uncontested factual aspects of the applications. Firstly he noted that there was no dispute that the applicants gave one month’s written notice on 20 December 2010 and thereby their resignations from employment became effective on 20 January 2011. Secondly, Mr Merrell confirmed that there was no dispute that the applications were made five days out of time.

[21] The submissions made by Mr Merrell referred to numerous Decisions relating to the determination of exceptional circumstances as contemplated by subsection 394 (3) of the Act. In particular Mr Merrell referred to cases which involved the initiation of proceedings before the FWO or other agencies, and whereby it was advanced that the initiation of these other proceedings might provide basis for establishing exceptional circumstances. Mr Merrell submitted that by way of analysis of various other Decisions there was no foundation upon which to establish that the initiation of other proceedings, even if they were mistakenly understood to advance complaint about unfair dismissal, provided a basis to establish exceptional circumstances.

[22] Mr Merrell made further submissions about the detail of the complaint made by the applicants to the FWO on 28 January 2011. Mr Merrell stressed that the complaints raised were about wages, conditions and alleged discrimination, and did not squarely raise the question of alleged unfair dismissal. Mr Merrell also mentioned that the evidence of the applicants’ capacity to complete the FWO pro-forma document, which was more complicated than an unfair dismissal claim form, demonstrated that the applicants were in no way impeded from making unfair dismissal claims within time. Mr Merrell submitted that the complaint made to the FWO should not represent any reason to find that there were exceptional circumstances.

[23] The submissions made by Mr Merrell also highlighted evidence regarding the mental and physical capacity of the applicants who at the relevant time had obtained advice from: the FWO in Cairns; the Queensland Working Women's Service in Brisbane and the Aboriginal and Torres Strait Islander legal service on Thursday Island. Consequently Mr Merrell submitted that there was no basis upon which to find that the mental or physical state of health of the applicants prevented them from making unfair dismissal claims with FWA. Indeed, according to Mr Merrell, the applicants had obtained advice from a variety of relevant sources and were therefore well placed to make unfair dismissal applications within time.

[24] Mr Merrell made further submissions directed to subsection 394 (3) (b) of the Act particularly relating to when the person first became aware of the dismissal. Mr Merrell said it was particularly important to note that the applicants had given written resignation from employment on 20 December 2010 and they knew that the anticipated date of termination of employment would be 20 January 2011. Mr Merrell submitted that despite numerous e-mail and other communications between the parties in the period between the written resignations on 20 December and the finalisation of employment on 20 January, there was no suggestion made by the applicants that they sought to retract, challenge or alter the basis upon which they had provided their resignations.

[25] Mr Merrell also made submissions about factual conflicts arising from the evidence about the conversation between Ms Karen Feebrey and Mr Mills on 19 December 2010. The disputed versions of this conversation represented the crucial evidence upon which to determine the alleged constructive dismissals of the applicants. Mr Merrell submitted that FWA was bound to accept Mr Mills' version of this crucial conversation because he wasn't cross-examined or challenged about it. Therefore according to Mr Merrell, the evidence would simply not support any prospect that the applicants could make out a case of constructive dismissal.

[26] In addition Mr Merrell referred to various other factors which he said could not support any prospect for a case of constructive dismissal to be established. Mr Merrell said that there was no term in the applicants’ contracts of employment that established that their daughter had any entitlement to be accommodated in a unit of the Motel. Further, Mr Merrell submitted that the employer did not engage in conduct that would have the probable or intended result of causing the applicants to resign. In this regard, Mr Merrell mentioned that on the day before the conversation of 19 December, the employer had agreed to increase the applicants annual salary.

[27] In summary, Mr Merrell submitted that by way of analysis of all of the factors mentioned in subsection 394 (3) of the Act, there was no basis upon which to establish that exceptional circumstances existed. Mr Merrell submitted that the applicants had failed to make out a case to permit any extension of time. Consequently Mr Merrell urged that the matters be dismissed.

Consideration

[28] Subsection 394 (3) of the Act provides FWA with a discretion to extend the time limit of 14 days as fixed by subsection 394 (2). Subsection 394 (3) is in the following terms:

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[29] Consequently subsection 394 (3) of the Act establishes that FWA must be satisfied that there are exceptional circumstances before exercising the discretion to extend time. There are six separate factors set out in paragraphs (a) to (f) which FWA is required to take into account in respect to establishing the existence of any exceptional circumstances. These particular legislative requirements should be approached having regard for the basic principles that apply in respect to the exercise of any discretion to extend a legislatively prescribed time.

[30] Importantly the onus rests with the applicants to convince FWA to exercise the discretion to extend time. Although in this instance the applications were made only five days after the 14 day time limit they were nevertheless made beyond the statutory time limit and therefore unable to be entertained unless exceptional circumstances exist so as to permit an extension of time.

Subsection 394 (3) (a) - the reason for the delay

[31] There appeared to be two major reasons which were said to have caused the delay with the lodgement of the applications. Firstly, the primary reason for the delay related to the applicants making complaint to the FWO on 29 January 2011, and the second aspect of the delay involved the ill-health of Ms Karen Feebrey shortly before the termination of the employment.

[32] In many instances a misdirected complaint made within time but in the wrong place would represent justifiable and understandable reason so as to permit a subsequent application to proceed. Indeed, over time, numerous statutory provisions have existed so as to permit unfair dismissal claims that were filed within time but in the wrong jurisdiction to have been considered to have been made within time in the appropriate jurisdiction.

[33] However the circumstances in this instance involved a workplace complaint form made to the FWO rather than any formal application in respect of alleged unfair dismissal. Although I can really appreciate the potential confusion that might be created between the FWO and the FWA, the distinction between a claim for unfair dismissal and a more generalised workplace complaint is clearly evident from the detail contained in the pro-forma document of the FWO as completed by the applicants¹.

[34] The case advanced on behalf of the applicants did not suggest that there was any element of representative error associated with the complaint made to the FWO as opposed to lodgement of unfair dismissal claims. The evidence established that the applicants had obtained advice from a variety of relevant sources including the FWO. Although the applicants may not have been conversant with terminology such as constructive dismissal the organisations that were providing advice to the applicants would, unless they were manifestly inept, been awake to the prospects of constructive unfair dismissal actions. Consequently it is difficult to accept that the applicants completed the FWO workplace complaint form genuinely believing that it either represented or encompassed unfair dismissal claims.

[35] The second reason for the delay with the applications involved the illness of Ms Karen Feebrey. It was clear from the evidence that Ms Karen Feebrey was incapacitated on 18 and 19 January 2011. However, as was strongly submitted by Mr Merrell, this incapacity did not prevent Ms Karen Feebrey from making the FWO workplace complaint on 28 January 2011. Further it was clear that the FWO workplace complaint form is a significantly more complicated document than an application for unfair dismissal. Consequently it cannot be accepted that the illness of Ms Karen Feebrey operated as a valid reason to delay the making of unfair dismissal claims. In any event that incapacity would only account for two days delay if it could have been established as valid reason preventing the making of an application.

[36] Consequently the applicants have not established that either the making of the FWO workplace complaint, or the illness of Ms Karen Feebrey, represented valid reason for the delay in the lodgement of the applications.

Subsection 394 (3) (b) - whether the person first became aware of the dismissal after it had taken effect

[37] The applicants first became aware of the alleged constructive dismissals at the time of their resignations on 19 December 2010. The resignations were confirmed by the applicants in writing on 20 December 2010 and a period of 30 days elapsed before the termination of the employment was effective. This period of time provided ample opportunity for the applicants to research, consult and further consider the circumstances of their alleged forced resignations.

[38] Essentially the applicants had an extended period that included the 30 days notice during which to undertake the steps necessary to make unfair dismissal claims. The legislation ordinarily contemplates that such steps would be undertaken within a period of only 14 days. Therefore this factor operates strongly against the granting of an extension of time.

Subsection 394 (3) (c) - any action taken by the person to dispute the dismissal

[39] During January 2011 the applicants engaged in extensive communications with the employer about matters relating to the finalisation of their employment and the handover of the Motel to a relief manager. Although matters relating to the finalisation of the applicants employment, such as specific departure date and flight arrangements, were the subject of dispute, at no time before the filing of the unfair dismissal applications was there any challenge to the underlying basis for the termination of the employment.

[40] Frequently in cases involving alleged constructive dismissal a written resignation may include words which suggest that the employee felt that they had no other option but to resign. Therefore it was somewhat unusual that in this instance the written resignation which confirmed the verbal advice of the previous day stated, inter alia, that the applicants understood what they had done. This communication and the absence of any subsequent challenge regarding the basis for the termination of employment meant that not only was there no challenge to the dismissals but moreover there were clear indications that the applicants were acting in a considered and consensual manner. Therefore this factor operates strongly against the granting of an extension of time.

Subsection 394 (3) (d) - prejudice to the employer (including prejudice caused by the delay)

[41] The employer acknowledged that there was no particular prejudice to the employer if an extension of time was granted. Consequently this factor could be considered to provide some potential assistance to the applicants.

Subsection 394 (3) (e) - the merits of the application

[42] This factor is directed towards an elementary assessment of the potential prospects of the matters if the extension was granted and the matters proceeded to hearing and ultimately determination. As a matter of fundamental logic the prospects for success of an alleged constructive dismissal are lessened by the nature and circumstances of such dismissal when compared to clear employer initiated dismissal.

[43] In these matters this factor has become a significant, almost decisive element of the determination of the question of extension of time. The case for the applicants would ultimately turn upon whether they had been constructively dismissed. The alleged constructive dismissals were said to have occurred by way of the resignations given as direct response to the instruction of Mr Mills to have the applicants’ daughter relocate from the Motel unit to the staff accommodation. This instruction was given during the discussion between Mr Mills and Ms Karen Feebrey which occurred on 19 December 2010.

[44] There was crucial factual contest with the evidence of the conversation between Mr Mills and Ms Karen Feebrey on 19 December 2010. For instance, the evidence of Ms Karen Feebrey was that Mr Mills confined his instruction for relocation to the applicants’ daughter while the evidence of Mr Mills was that he made a general instruction for all staff to be relocated out of Motel units. If Mr Mills's version was to be adopted the instruction was one based upon more efficient utilisation of the Motel units and as such a reasonable instruction not specifically aimed at the applicants’ daughter. Alternatively if Ms Karen Feebrey’s version of the conversation was preferred the directive was personalised and thus likely to be conduct which intended or was likely to result in the resignations of the applicants.

[45] Unfortunately the state of the evidence regarding the crucial conversation of 19 December 2010 was entirely unsatisfactory. Mr Mills was not required for cross examination and his affidavit was admitted without challenge. Consequently I am left with no alternative but to accept the unchallenged version of the 19 December conversation and reject the evidence of Ms Karen Feebrey wherever that differed from the evidence of Mr Mills. Therefore if the matters were to proceed to a merits hearing there was a significant, almost vital, absence of evidence to support a finding that the actions of the employer created or constructed the dismissals of the applicants manifest as their resignations.

Subsection 394 (3) (f) - fairness as between the person and other persons in a similar position

[46] This factor was not relevant in this instance.

Conclusion

[47] I have examined each of the factors contained within subsection 394 (3) of the Act in order to determine whether exceptional circumstances exist in this case. The terminology “exceptional circumstances” was considered by Lawler VP in the case ofJohnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery ². The consideration therein established a caution against adopting an overly stringent interpretationofwhat constitutes “exceptional circumstances”. It would seem that it would be sufficient to establish exceptional circumstances where one or more of the factors mentioned in paragraphs (a) to (f) of subsection 394 (3) was unusual or out of the ordinary.

[48] In this instance the exercise of the discretion to extend time has been required in respect to a relatively short delay of five days. Despite the short delay the factors that are contained in paragraphs (a) to (f) of subsection 394 (3) of the Act must still be carefully considered as prerequisites to any further contemplation of the applications.

[49] Upon analysis the reasons that were offered for the delay cannot be held to be legitimate or valid basis for the delay. In addition, the applicants had an extended period beyond the ordinary 14 day time limit period, during which they had opportunity to challenge the alleged constructive dismissals and/or make necessary preparations for filing of unfair dismissal claims. Further, there was a regrettable but vital evidentiary deficiency upon which the claims might have had some prospect for success. The other factors under consideration provided little countervailing assistance to the applicants’ claims or were of neutral impact.

[50] Consequently, there was no basis to establish exceptional circumstances and therefore FWA is unable to exercise the discretion to extend time. The applications have been made beyond the time limit set by subsection 394 (2) of the Act. Consequently the applications are dismissed.

COMMISSIONER

Appearances:

Mr M Madden, solicitor from Thompson Madden Solicitors, for the applicants.

Mr J W Merrell, of counsel, with Ms T Lo, solicitor from MacDonnells Law, for the employer.

Hearing details:

Sydney, 20 May 2011.

¹ Exhibit 1 - Annexure 1.

² Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

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