Karlee Hunt v Melbourne College of Hairdressing Beauty and Natural Medicine Pty Ltd
[2022] FWC 2182
•18 AUGUST 2022
| [2022] FWC 2182 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Karlee Hunt
v
Melbourne College of Hairdressing Beauty and Natural Medicine Pty Ltd
(U2022/5362)
| DEPUTY PRESIDENT YOUNG | MELBOURNE, 18 AUGUST 2022 |
Application for unfair dismissal remedy - jurisdictional objections - minimum employment period – no dismissal- extension of time – jurisdictional objections dismissed – extension of time granted
This decision concerns an application by Ms Karlee Hunt (Applicant) for an unfair dismissal remedy (Application) pursuant to section 394 of the Fair Work Act 2009 (Act). Ms Hunt’s application was lodged on 19 May 2022, concurrently with applications by Ms Taverna and Ms Delfino against the Respondent under section 394 of the Act for an unfair dismissal remedy (Other Applications).
The Respondent objected to the Application on the basis that Ms Hunt had not met the minimum employment period, had not been dismissed and, if she had been dismissed, had filed the Application outside the 21-day statutory time frame (collectively, Jurisdictional Objections). The Jurisdictional Objections were the subject of a hearing before me on 14 July 2022.
Ms Hunt appeared on her own behalf. Ms Danielle Gapes, Human Resources Advisor for the Respondent, appeared on behalf of the Respondent. Mr Fred Garai, Chief Executive Officer of the Respondent gave evidence on behalf of the Respondent.
This decision is divided into three parts as follows:
Part 1 addresses whether Ms Hunt has met the minimum employment period required under section 383 of the Act.
Part 2 addresses whether Ms Hunt was dismissed for the purposes of section 386 of the Act.
Part 3 addresses whether the Application was lodged within 21 days as required by section 394(2) of the Act and if not, whether an extension of time ought be granted under section 394(3) for the lodging of the Application.
Part 1 - Minimum employment period
Legislative provisions
It is useful to first set out the relevant legislative provisions in relation to the minimum employment period.
Minimum employment period
Section 382 of the Act, relevantly, provides as follows:
“A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period;
…”
Section 383 of the Act sets out the minimum employment period, and provides as follows:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i)the time when the person is given notice of the dismissal;
(ii)immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
Section 384 of the Act provides as follows:
“384 Period of employment
(1) An employee’s period of employment with an employer at a particular time is the period of continuous service the employee has completed with the employer at that time as an employee.
(2) However:
(a)a period of service as a casual employee does not count towards the employee’s period of employment unless:
(i) the employment as a casual employee was as a regular casual employee; and
(ii) during the period of service as a casual employee, the employee had a reasonable expectation of continuing employment by the employer on a regular and systematic basis; and
(b) if:
(i) the employee is a transferring employee in relation to a transfer of business from an old employer to a new employer; and
(ii) the old employer and the new employer are not associated entities when the employee becomes employed by the new employer; and
(iii) the new employer informed the employee in writing before the new employment started that a period of service with the old employer would not be recognised;
the period of service with the old employer does not count towards the employee’s period of employment with the new employer.”
Section 12 defines a regular casual employee as follows:
“regular casual employee: a national system employee of a national system employer is a regular casual employee at a particular time, if at that time:
(a)the employee is a casual employee; and
(b)the employee has been employed by the employer on a regular and systematic basis.”
Section 23 defines small business employer as follows:
“23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.
(2) For the purpose of calculating the number of employees employed by the employer at a particular time:
(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and
(b) a casual employee is not to be counted unless, at that time, the employee is a regular casual employee of the employer.
(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.
(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):
(a) the employee who is being dismissed or whose employment is being terminated; and
(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”
Background and findings of fact
Ms Hunt commenced employment with the Respondent in the position of Hairdressing and Makeup Trainer on 29 September 2015.[1] It is uncontested that Ms Hunt was employed as a casual employee and that she was continuously employed by the Respondent from 2015 until her employment ceased.[2] The time at which Ms Hunt’s employment ceased is addressed later in this decision. Ms Hunt’s written evidence is that over the period of her employment she consistently worked 1 – 4 shifts per week, depending on the units open to students and the class schedule.[3] Her evidence is that whilst the number of shifts she worked varied from semester to semester, her shifts were consistent across each unit. Her further written evidence is that for each semester she would teach a certain number of classes at the same time every week. This would be determined at the commencement of the semester and continue until the next semester, when a new work pattern would be established based on the units open and classes to be taught.[4] Ms Hunt’s evidence is that she had to request time off for a holiday and that his was always done via email with notice.[5] Her evidence is that she took no long breaks during her employment with the Respondent, “just a holiday each year for a week or two here and there.”[6] At hearing Ms Hunt gave the following evidence:
“Prior to the online scenario in June of 2021 how was that conducted? We had a Vice Principal who would give us the information about the units that we were opening and asking us how many classes we would need for that unit and then it would just go along. So, basically, if I said I needed eight classes and I was given one day for that particular class then for the next eight weeks I would be working say that Tuesday and then maybe on a Thursday I would have a different unit open with a different class and it might only go for four sessions. But then once I finished a unit I would be given another unit and so it was just a continuous cycle.[7]
…
When I had certain units opened my days were regular and then when the unit changed my days might change but they were usually anywhere from one to four shifts consistently in the whole six years that I was employed.”[8]
The last day on which Ms Hunt performed work for the Respondent was 16 September 2022.[9]
In approximately 2018 there was a change of ownership of the Respondent by way of share acquisition.[10] The management of the business did not change at that time, with the previous owner of the business, Ms Piva, remaining on as the Chief Executive Officer and Principal.[11] In late June/early July 2021, Mr Garai commenced as the Chief Executive Officer of the Respondent, replacing Ms Piva.[12]
Prior to 2022 the Respondent did not have semester breaks or otherwise operate on a tertiary or semester basis. Mr Garai’s evidence was that since the commencement of 2022 the Respondent has divided the year into semesters and students have set regular holiday breaks based on the Victorian school holiday periods.[13] His evidence was that this was not the case prior to 2022.[14] It appears uncontested that prior to 2022, with the exception of the Christmas period, the Respondent operated year round.
The Respondent led no evidence as to Ms Hunt’s working arrangements prior to January 2021. However, it filed a document setting out the hours the Respondent says Ms Hunt worked between January 2021 and December 2021 (Document).[15] Garai’s evidence was that he compiled the Document from timetables on file and student rolls.[16] The timetables are from January 2021 onwards only.[17] The Document provides that Ms Hunt worked 39 hours in January 2021 (from 13 January 2021), 52 hours in February 2021, 78 hours in March 2021, 71.5 hours in April 2021, 45.5 hours in May 2021, 43 hours in June 2021, 22 hours in July 2021 and 6 hours in August 2021. The Document provides that prior to July 2021 on each occasion Ms Hunt worked she worked for 6.5 hours per day. In July and August 2021, the Document provides that Ms Hunt worked 2 hours per day. No hours are recorded as being worked after 5 August 2021.
Ms Hunt disputes that the Document accurately reflects the hours she worked in 2021.[18] She says that after June 2021 the Document does not accurately reflect the hours she worked.[19] These hours largely relate to hours worked during lockdown. During the period of Victoria’s lockdowns Ms Hunt’s evidence was that her hours were largely unchanged, with some differences,[20] and that she was paid Jobkeeper during these periods.[21] Ms Hunt’s evidence is that during July 2021 she worked 44.5 hours and that in the period 2 August 2021 to 15 August 2021 she worked 16 hours not the 6 hours recorded in the Document.[22] Ms Hunt filed a number of payslips in support of her contention that the Document did not accurately reflect the hours she worked after June 2021. The Payslips filed by Ms Hunt demonstrates that she was paid for 44.5 hours in July 2021, paid for 32 hours in August 2021 and 14.5 hours in the period 30 August 2021- 12 September 2021. As set out above, the last day Ms Hunt performed work for the Respondent was 16 September 2021. The hours provided in the Document for any month after June 2021, therefore, do not reflect the hours for which Ms Hunt was paid in those months. I consider the payslips to be a more reliable source of evidence than the Document as to the hours worked by Ms Hunt after June 2021. Further, on the basis of the payslips, it is not the case that Ms Hunt did not perform work for the Respondent after 5 August 2021. Accordingly, I do not consider that the Document accurately reflects the hours worked by Ms Hunt after June 2021 and I prefer the evidence of Ms Hunt as to the hours she worked during this period.
Mr Garai’s evidence is that in lockdown classes changed to online delivery[23] and were no more than four hours and in some cases were not more than two hours.[24] Lockdowns in the second half of 2021 in Melbourne occurred from 28 May 2021-10 June 2021, 16 July 2021-27 July 2021 and 5 August 2021 to 21 October 2021. Mr Garai’s evidence is that the rostering arrangements for the lockdowns in 2021 were based on the rostering arrangements put in place for the lockdowns in 2020.[25] His evidence was that following his commencement with the Respondent in July 2021 timetables for Trainers were sent by an administrative employee of the Respondent, Natasha.[26] He said that prior to that “I can’t comment”.[27] His evidence was that timetabling was based on the availability and the capacity of the Trainer that was assigned to that timetable. [28]
As to the timetabling and rostering arrangements, it does not appear contested that timetables came out generally two weeks in advance. Ms Hunt’s evidence was that prior to Mr Garai commencing with the Respondent the timetables were organised by the then Vice Principal. As to her specific working arrangements the following exchange occurred between the Bench and Ms Hunt:
“Prior to the online scenario in June of 2021 how was that conducted? We had a Vice Principal who would give us the information about the units that we were opening and asking us how many classes we would need for that unit and then it would just go along. So, basically, if I said I needed eight classes and I was given one day for that particular class then for the next eight weeks I would be working say that Tuesday and then maybe on a Thursday I would have a different unit open with a different class and it might only go for four sessions. But then once I finished a unit I would be given another unit and so it was just a continuous cycle.”[29]
That evidence is uncontested and I accept it.
As to rostering once classes moved to online delivery during lockdown Ms Hunt’s evidence was as follows:
“…I have emails to reception organising the classes between myself, Stephanie and Teresa as they weren’t aware of what the student needed and how we were going to go about the online learning. And so I was part of the discussion to create those like rosters of who was going to do what…”[30]
Ms Hunt filed an email chain between Natasha, her, Ms Taverna and Ms Delfino (Scheduling Emails). That email chain commences with an email from Natasha in the following terms:
“Good Afternoon Everyone,
As with lockdown extending for another two weeks until Thursday September 2nd, we will need to organise more online classes,
Some of you will be starting new units this week, and some are still continuing units started in the college.
Is there any units, that need to be started as more of a priority?
If you could please let me know so we can organise the online classes for them.
Thank you and stay safe.
Natasha”[31]
The response to that was provided by Ms Taverna as follows:
“Hi Natasha
I have been conversing with Karlee and Teri, our thoughts were to proceed as follows:
This week as per our previously organized timetable.
Next week, commencing our newly extended two week lockdown:
Stef:
Identify 2 sessions (any day apart from Wednesday when I shall be delivering Highlighting Wednesdays continue ighlighting for session 2 & 3Karlee:
NEXT WEEK Tuesday finishing off Provide
Then, Plan hair to be started, 2 sessions whichever day suits
FOLLOWING WEEK communicate 1 session whichever day suits and finish off plan hairTeri:
Continue basin services and (to be confirmed) Maintain toolsI hope this helps you. If we can be of any further assistance, please do not hesitate to contact us.
Kind regards
Stephanie Taverna”[32]
It was not contested that the last email above whilst sent by Ms Taverna was sent on behalf of herself, Ms Hunt and Ms Delfino. I do not consider the Scheduling Emails to be consistent with Mr Garai’s evidence that Trainers simply advised Natasha of their availability to enable her to co-ordinate online training delivery. I consider it consistent with Ms Hunt’s evidence as to her active involvement in scheduling classes and determining what was required to be delivered to students and how this could best be facilitated.
In light of the above matters, I find that in her employment with the Respondent since 2015 Ms Hunt has worked between 1-4 shifts per week, for 6.5 hours per day, other than when on an approved holiday break. I find that, largely, she continued to work those shifts during periods of lockdown, although during lockdown I accept that the lengths of the shifts was less than 6.5 hours. I find that the Respondent did not operate on a semester or term basis until the commencement of 2022, but that Ms Hunt’s hours of work were determined on a unit by unit or course basis and that units and courses commenced and were run throughout the year. In making this finding I have considered the apparent inconsistency between Ms Hunt’s written evidence that her working arrangements would be set at the commencement of the semester and continue until the next semester, where a new work pattern would be established based on the units open and classes to be taught, and her oral evidence that her working arrangements were based on units. It did not appear to be contested that prior to 2022 the Respondent had operated year round, other than for a break at Christmas and had not operated on a tertiary semester or term basis. Accordingly, I consider that Ms Hunt’s reference to semesters is simply a lack of precision in drafting and was not intended to indicate anything contrary to her oral evidence.
Consideration
Is the Respondent a small business employer?
The definition of when an employer will be a small business employer for the purposes of the Act is set out above.
In its Form F3 the Respondent says that it employed 7 employees.[33] In its Outline of Submissions it says that when Ms Hunt was employed by the Respondent it employed 8 employees.[34]
In her materials Ms Hunt says that the Respondent employed 12 employees at the time of her dismissal.[35]
At hearing the Respondent submitted that it was a small business employer as defined in the Act and that it had not employed 15 or more employees in the period October 2021 until June 2022.[36] At hearing Ms Hunt agreed that the Respondent employed less than 15 employees and its status as a small business employer was not in dispute.[37]
In the directions issued in this matter on 24 May 2021 the Respondent was directed to file submissions and evidence in support of its contention that it was a small business employer, including payroll and employment records. It did not do so. At hearing the Commission again sought that the Respondent produce payroll, employment, and other records to establish that it was a small business employer as it contended.[38] In response to this, following the hearing the Respondent filed a document entitled “Staff payroll list October 2021 to May 2022” (List). For reasons set out later in this decision, I have concluded that Ms Hunt was dismissed by the Respondent sometime between 9 December 2021 and 16 December 2021 and it is therefore this period that is the relevant period for determining whether the Respondent was small business employer for the purposes of the Act.
The List provides that at December 2021 the Respondent employed 14 employees, noting that the date Ms Gapes commenced employment in December 2021 is not specified. Further, the List does not provide specific dates when other employees commenced employment and is vague and general in its terms. Notwithstanding that, on the basis of the material before me, it appears that the Respondent employed 14 employees immediately prior to Ms Hunt’s dismissal. This is considerably more than the 7 employees stated in the Form F2 and the 8 employees stated in the Respondent’s Outline of Submissions. Notwithstanding that, I proceed on the basis that the Respondent is a small business employer for the purposes of the Act in that it had 15 or fewer employees at the time Ms Hunt’s employment ceased. However, in light of my conclusion regarding Ms Hunt’s period of employment, which is set out below, I do not consider anything turns on this.
Has Hunt met the minimum employment period?
Section 383
Section 383 of the Act provides that the minimum employment period for a small business employer is one year.
Respondent’s submissions
In is written submissions the Respondent submits that Ms Hunt has not met the minimum employment period.[39] It submits that Ms Hunt’s employment was not on a regular and systematic basis and that she did not have a reasonable expectation of continuing employment on a regular and systematic basis.[40]
However, at hearing the Respondent conceded, correctly in my view, that Ms Hunt’s employment as a casual employee was as a regular casual for the purposes of section 384(2)(a)(i).[41] It submitted, however, that Ms Hunt’s period of service as a casual employee did not count towards her period of employment for the purposes of section 384(2)(a)(ii) because as an education facility the Respondent is dependent on enrolments and classes are determined in light of enrolments.[42] It says that students enrol in courses for a term and Trainers are provided with their teaching timetables on a week to week and month to month basis based on those enrolments.[43] Once a course concludes future hours of work will depend on enrolments for future courses to be offered. As such, it submits that Ms Hunt could not have had a reasonable expectation of continuing employment. Further, the Respondent submitted that Ms Hunt had not been engaged for a 12 month period between January 2021 and May 2022.[44]
Applicant’s submissions
Ms Hunt submits that she has met the minimum employment period under the Act. She submits that she has been continuously employed since 2015. She submits that her “…hours of work each week were consistent across each college term/ semester over the 6 year period”.[45]
Minimum employment period
The Respondent concedes that during her employment Ms Hunt was a regular casual, that is, that she was employed on a regular and systematic basis. At issue, therefore, is whether during the period of her employment with the Respondent Ms Hunt had a reasonable expectation of continuing employment on a regular and systematic basis. For the following reasons I find that she did.
Firstly, as set out above, Ms Hunt worked regular days and hours for the Respondent over a period of more than 6 years, with some variation during periods of lockdown. Secondly, Ms Hunt worked throughout the year with only a short break for one or two weeks. Thirdly, I consider that the manner in which Ms Hunt’s hours of work were determined when the previous Vice Principal was responsible for timetabling, and her subsequent involvement in the determination and scheduling of classes following Mr Garai’s commencement with the Respondent, to support this conclusion. Fourthly, during periods of lockdown Ms Hunt received Jobkeeper payments.[46] In light of these matters I consider that Ms Hunt had a reasonable expectation of continuing employment on a regular and systematic basis. As to the submission that because the Respondent is an educational institution and therefore dependant on enrolments Ms Hunt cannot have had a reasonable expectation of employment, I reject that submission. The evidence is that the Respondent operated year round with units open and enrolments occurring throughout the year. Accordingly, while the timetables may have only been set fortnightly in advance that occurred in the context of a continuous year round operation and one in which new students enrolled throughout the year and in respect of which Ms Hunt (and Ms Taverna and Ms Delfino) was actively engaged in determining, scheduling and timetabling classes. In these circumstances, I consider that Ms Hunt had a reasonable expectation of continuing employment on a regular and systematic basis.
Accordingly, I find that Ms Hunt’s entire period of employment with the Respondent from September 2015 until December 2021 counts towards her period of employment for the purposes of section 382 of the Act. That period is a period in excess of 6 years.
Finally, as to the Respondent’s submission that Ms Hunt had not been employed for 12 months between January 2021 and May 2022, I consider this submission to be misconceived. Section 382 provides that for an employee to be protected from unfair dismissal the employee must have completed a period of employment of at least the minimum employment period. I have found that Ms Hunt’s period of employment for the purposes of section 382 is in excess of 6 years. Pursuant to section 383 the minimum employment period for a small business employer is one year. Accordingly, at the time of her cessation of employment in December 2021 Ms Hunt had met the minimum employment period under section 383 of the Act.
Finding
Accordingly, I find that Ms Hunt has met the minimum employment period under section 383 and is therefore a person protected from unfair dismissal for the purposes of section 382 of the Act.
Part 2 – Dismissal
Legislative Provisions
Part 3-2 of the Act contains the statutory scheme concerning access to remedies for unfair dismissal. Section 394(1) of the Act provides that “A person who has been dismissed may apply to the Commission for an order under Division 4 granting a remedy.” Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied as to four specified matters, the first of which is that “the person has been dismissed”.
Section 386(1) of the Act, relevantly, defines when a person has been dismissed as follows:
“Section 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.
…”
Background and factual findings
Ms Hunt’s evidence is that soon after Mr Garai commenced employment with the Respondent in July 2021 a meeting was held between herself, Mr Garai, Ms Taverna and Ms Delfino at which Ms Taverna inquired about underpayment. Ms Hunt says this prompted her to look into applicable rates of pay and Mr Garai sent the Award to the participants of the meeting. Ms Hunt’s evidence is that it appeared from her review of the Award that she had been underpaid for the entirety of her employment.[47]
On 5 October 2021 Mr Garai’s evidence is that he was contacted by the FWO advising that Ms Hunt, Ms Tavena and Ms Delfino had made a claim for unpaid wages (Claim). He says that the FWO directed that he meet with Ms Hunt, Ms Taverna and Ms Delfino regarding the Claim. [48]
It is uncontested that a zoom meeting was held on 12 October 2021 with Mr Garai, Ms Hunt, Ms Taverna and Ms Delfino (Meeting). Mr Garai’s evidence is that at the Meeting Ms Hunt’s position was that “she was not prepared to take on any more training classes until she is being paid the rate that she believes she is entitled to under the award, that being classified as a casual Teacher and tutor/instructor”.[49] His evidence is that based on this “I assumed that… Mrs Karlee Hunt had resigned...”.[50] Ms Hunt’s evidence under cross examination was that at the Meeting she said that “I wanted to be paid the relevant Award and I wouldn’t take any training classes until I was paid the correct rate. And I was never offered any other classes.”[51]
It appears uncontested that Ms Hunt, Ms Taverna and Ms Delfino participated in five meetings with Mr Garai seeking to resolve the Claim. It appears that certain proposals to resolve the Claim were exchanged between the parties, as on 18 November 2021 Mr Garai wrote to Ms Hunt, Ms Taverna and Ms Delfino by email saying, relevantly:
“Hello Teri, Stefanie & Karlee
Thank you for replying to us. The figures we have sent you do address what you have raised as concerns.
…From the advice we have maintained, the ombudsman may not be able to schedule a mediation date until 2022, which would hold up the settlement for a further period of time which we do not want to see happen as we would like to see this matter and your continued employment resolved quickly.
…”[52] (18 November Email).
It appears uncontested that further emails were exchanged between Ms Hunt, Ms Taverna and Ms Delfino and Mr Garai regarding the Claim throughout November 2021.
On 9 December 2021 at 2.37 pm, the Respondent sent an email to students (9 December Email). The email is sent from [email protected] and the signatory to it is Mr Garai (Email). The 9 December Email, relevantly, provides as follows:
“Hello hairdressing students,
I know that 2021 has not been a good year for many of you, the imposed Covid lockdowns this year have affected your academic progress to completing your qualification. There was also a change of management which was not managed as well as it could have been. With the change of management came a change of trainers who had been a part of your academic life since the time you commenced your learning journey.
Teri, Stefanie and Karlee will not be returning to MCOHB, they have decided to take another path in their lives, because of their absence we have been left short of suitable trainers to work with you to complete your learning journey. Sun Young Kong joined the college after we returned form lockdown and has brought her knowledge and experience with her to train and assess students for their future.
…”[53]
On 16 December 2021 Ms Taverna, on her own behalf and on behalf of Ms Hunt and Ms Delfino, emailed the owners of the Respondent in the following terms:
“Employment status?
Good afternoon Alysia and Peter,
We hope our email finds you well. We have been advised to contact you directly as you are our employer.
We would like for you to confirm for us our employment status.
It has been bought to our attention that an email sent out to all MCOHB students, on the 9th of December 2021, notifying them: that we are taking “another path in their lives” and as a result “we have been left short of suitable trainers to work with you to complete your learning journey.”We would have thought that this matter would have been addressed with us, prior to students being notified.
Until now, we have kept all correspondence private and confidential, regardless of the matter at hand.
We request that you address this matters as quickly as possible.
..” [54] (16 December Email).
Ms Hunt’s evidence is that no response was received to the above email.[55]
The Claim has not been resolved and on 17 May 2022 the FWO issued the Respondent’s with a Compliance Notice[56] in respect of unpaid minimum casual wages and unpaid superannuation entitlements.[57]
Consideration
Respondent’s submissions
The Respondent submits that Ms Hunt was not dismissed.[58] The Respondent submits that at no point did it issue or communicate that the employment had ended.[59] Rather, it says that Ms Hunt resigned and withdrew her services on 12 October 2021.[60] Further, in relation to the 9 December Email, it says that under its obligations as a registered training organisation (RTO) it was required to notify students of a change in Trainer.[61]
Applicant’s submissions
Ms Hunt submits that it was upon the FWO issuing the Compliance Notice to the Respondent that she “realised this matter was not going to be resolved in a manner that preserved any ongoing relationship between us” and Ms Hunt considered herself “effectively dismissed”.[62] In her Outline of Argument Ms Hunt says that upon the issuing of the Compliance Notice by the FWO she effectively “joined the dots” that her employment had ceased on 17 May 2022.[63] Accordingly, Ms Hunt submits that the date of her dismissal was 17 May 2022.[64]
Did Hunt resign?
I reject the Respondent’s submission that Ms Hunt resigned. Firstly, it is clear, even on the Respondent’s evidence of the Meeting, that at no stage did Ms Hunt expressly say that she resigned from her employment or that she did not wish to continue her employment with the Respondent. Secondly, Mr Garai’s evidence is that he “assumed” Ms Hunt resigned.[65] Mr Garai’s assumption as to this does not make it so and, further, I do not consider that assumption to be objectively reasonable. Thirdly, I do not consider that Ms Hunt’s statement that she was not prepared to take on any more classes until she is paid the rate she believed she was entitled to under the applicable Award amounts to a resignation or a statement that she no longer wishes to remain employed by the Respondent. I consider the statement is a conditional statement that Ms Hunt is unavailable for work until she is paid in accordance with the Award; it is not a statement that she will not at any time perform further work for the Respondent. She remains available for work but requires that she be paid the applicable Award rate. Fourthly, I consider Mr Garai’s email of 18 November 2021 to be inconsistent with the Respondent believing that Ms Hunt had resigned on 12 October 2021. Accordingly, I find that Ms Hunt did not resign on 12 October 2021.
Was there a termination at the initiative of the employer?
Section 386(1) is set out above.
In order for an employee to have been dismissed for the purposes of section 386(1) the employee’s employment must have been terminated at the initiative of the employer. In Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 (Navitas) the Full Bench found that termination at the initiative of the employer in section 386(1)(a) did not, on its ordinary meaning, refer to termination of a contract of employment. Rather, the Full Bench found that that a termination of employment at the initiative of the employer for the purposes of section 386(1)(a) occurs where the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.[66] In NSW Trains v Mr Todd James[2022] FWCFB 55 (NSW Trains) the Full Bench, in the context of a case concerning demotion, found that that the expression ‘employment … has been terminated’ in s.386(1)(a) means termination of the employment relationship and/or termination of the contract of employment.[67]
The general contractual characteristic of casual employment is that a person who works over an extended period of time as a casual employee is engaged under a series of separate contracts of employment on each occasion the person undertakes work.[68] There are some, albeit rare, cases where a casual employee has been found to have been engaged under a single continuing contract of employment, but the accepted orthodoxy of casual employment is that each engagement is under a separate contract, rather than a continuing contract of employment.[69] In its materials the Respondent contends that Ms Hunt was currently engaged pursuant to a written casual contact of employment.[70] I reject that contention. The contract filed by the Respondent is incomplete and does not include the second page on which the term of the contract is specified.[71] Accordingly, on each occasion that Ms Hunt worked for the Respondent, at least since around 2018, there was a separate contract of employment entered into between the parties.
The last day worked by Ms Hunt was 16 September 2021. I therefore accept that there was no employment contract on foot between the parties following the completion of Ms Hunt’s last day of work on 16 September 2021. However, in the present circumstances, consistent with the decisions in Navitas and NSW Trains, a termination of employment at the initiative of the employer for the purposes of section 386(1)(a) occurs where the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.
Whilst I accept that upon the issuing of the Compliance Notice any possibility that Ms Hunt would be offered further employment with the Respondent was likely greatly reduced, I reject the Applicant’s submission that the issuing of the Compliance Notice was the action which brought about the termination of her employment. The action of issuing the Compliance Notice was not an action of the Respondent; rather, it was an action of the FWO. It could not bring the employment relationship to an end.
However, I consider that the 9 December Email did bring the employment relationship between the parties to an end. In the 9 December Email, the Respondent says that Ms Hunt “will not be returning” and that she has “decided to take another path in [her life].” Accordingly, the 9 December Email provides that Ms Hunt will not continue to participate in employment with the Respondent and I consider that no other conclusion can be reached than that the 9 December Email brought about the end of the employment relationship. I reject the Respondent’s submission that the Email was simply to comply with its obligations as a RTO. Firstly, if the Respondent was required to advise students as it contends, it is entirely unexplained as to why it did so in December when it says that Ms Hunt resigned on 12 October 2021 and Ms Kong commenced in the role of Trainer. Secondly, Ms Hunt delivered no classes after 16 September 2021 but the alleged notification was not until 9 December 2021. Thirdly, Mr Garai’s evidence is that in January 2022 the Respondent was required to notify students that Ms Hunt, Ms Taverna and Ms Delfino were not returning. As already set out, the email is dated 9 December 2021. I consider it more likely that the 9 December Email reflects the fact that the Respondent’s proposals to resolve the Claim had been rejected by Ms Hunt (and Ms Taverna and Ms Delfino).[72]
A dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[73] Further, the general principle is that 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.[74] In Ayub v NSW Trains[2016] FWCFB 5500 a Full Bench of the Commission held that where a dismissal occurs without notice the dismissal cannot not take effect until an employee knows, or at least has a reasonable opportunity to find out, that they have been dismissed.[75] It is in that sense the dismissal is regarded as having been communicated to the employee.[76] I consider that upon Ms Hunt becoming aware of the 9 December Email she knows, or had a reasonable opportunity to find out, that she has been dismissed. Her evidence was that it was upon the issuing of the Compliance Notice that she became aware that her employment with the Respondent would not continue. It was at that time she “joined the dots.” For my part, I am unable to see how that was not apparent upon receiving the 9 December Email. Further, I consider this to be evidenced by the 16 December Email enquiring as to the employment status of herself, Ms Taverna and Ms Delfino.
Accordingly, I consider that the 9 December Email brought about the termination of the employment relationship and thereby the termination of Ms Hunt’s employment with the Respondent. The 9 December Email was the principal contributing factor which brought about the end of the employment relationship. That termination was therefore on the Respondent’s initiative. I therefore find that Ms Hunt was dismissed by the Respondent and that the dismissal was effective on the date that she became aware of the 9 December Email. On the evidence before the Commission this was sometime between 9 December 2021 and 16 December 2021.
Finding
Accordingly, I find that Ms Hunt’s employment was terminated at the initiative of the employer. I therefore find that she was dismissed as that term is defined in section 386(1)(a) of the Act.
Part 3 -Extension of time
Legislative context
As set out above, I have found that Ms Hunt was dismissed by the Respondent at some time between 9 December 2021 and 16 December 2021.
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). The period of 21 days ended at midnight on 30 December 2021 at the earliest and midnight on 6 January 2022 at the latest. The application was therefore filed somewhere between 134 days and 141 days outside the 21 day period.
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.[77] 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.[78]
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.
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.
Consideration
Reason for the delay
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. 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.[79]
Ms Hunt says that she did not lodge the Application prior to 19 May 2021 because she “had a reasonable basis to consider that, following the resolution of the wage underpayment matter, I would return to employment at the Respondent at the appropriate rate.”[80] Ms Hunt says that this belief was based on her statement in the Meeting, which she says demonstrates that she was available for work if she was paid the correct rate, the 18 November Email, which she says said that she would “continue my employment” and the 16 December Email, in relation to which she says that in the absence of a response she considered that her employment continued.[81]
I accept that Ms Hunt was not provided with notice of dismissal. I also accept that the Claim has been the subject of lengthy discussions from September 2021 until May 2022. However, the Claim is a separate and distinct matter. As to considering that her employment continued until the Compliance Notice was issued, I am unable to see how this could be the case. Firstly, the 18 November Email does not say that Ms Hunt’s employment will continue once the underpayment case was settled. Secondly, upon becoming aware of the 9 December Email, which states that Ms Hunt will not be returning to the Respondent and has taken a different path in life, I do not consider that she could have reasonably believed that her employment was continuing, irrespective of what she believed the 18 November Email said. Whatever might have been said in the 18 November Email was clearly overtaken by the 9 December Email. I do not consider this is altered by the failure of the Respondent to reply to the 16 December Email. Whilst I consider this unreasonable, rather than leave any doubt as to whether Ms Hunt is still employed by the Respondent, I consider the absence of a response reinforces that she is not.
In light of all the above, I do not consider that Ms Hunt has provided a reasonable or acceptable explanation for the delay in lodgement. This weights against the grant of an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
I have found that upon being provided with the 9 December Email, Ms Hunt had a reasonable opportunity to know that her employment had ended. Notwithstanding that, it is uncontested that the Respondent did not at any time advise Ms Hunt that her employment had ended, that it would not offer her any further engagements. I consider this weighs in favour of granting an extension of time.
Action taken to dispute the dismissal
There is no evidence that Ms Hunt took any action to dispute her dismissal. This weighs against the grant of an extension of time.
Prejudice to the employer
There is a not insignificant delay between the dismissal and 19 May 2022 when the Application was lodged. However, I cannot identify any particular prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this a neutral consideration.
Merits of the application
An application to extend time is essentially an interlocutory matter that does not allow the merits to be fully tested. The merits are nonetheless a matter which I am required to take into account in assessing whether there are exceptional circumstances.
Ms Hunt contends that she was dismissed because she sought to be paid the applicable rate under the Award and raised concerns regarding a failure of the Respondent to make superannuation contributions required under the Award. She also contends that her dismissal was unfair as she was not notified of it. The Respondent says it made a decision not to re-engage Ms Hunt in January 2022 as she had not shown or communicated she wanted to be re-engaged by it. The Respondent also says that it did not re-engage Ms Hunt due to lack of enrolments and the absence of available casual shifts, [82] however it led no probative evidence in support of this submission.
Whilst the merits have not been fully tested, on the material before me I consider Ms Hunt’s contention that she was unfairly dismissed to have substantial merit and a significant prospect of success. I have not made this finding lightly. This is essentially an interlocutory matter. All of the evidence is not necessarily before me, nor has it been fully heard or tested in the context of a hearing as to the merits of the Application. However, for the following reasons I consider that the Application has considerable merit. Firstly, that Ms Hunt raised with the Respondent that she did not believe she was being paid the relevant rate of pay under the Award is not contested. Secondly, that she was not paid the correct rate of pay under the applicable Award nor provided with her correct superannuation entitlements appears, prima facie, to be supported by the issuing of a Compliance Notice by the FWO in respect of these matters. [83] Thirdly, the Claim was on-going and unable to be resolved. Fourthly, I have found that Ms Hunt did not resign or withdraw her services unconditionally in the manner contended for by the Respondent. Fifthly, there is a strong chronological nexus between Ms Hunt raising these matters and the Respondent ceasing to offer her further work. Sixthly, it is uncontested that the Respondent did not notify Ms Hunt of her dismissal; rather, it advised students that she was not returning and informed them, incorrectly and without any basis, that Ms Hunt had decided to take another path in her life. Seventhly, the Respondent’s complete failure to respond to the 16 December Email and confirm its view that Ms Hunt had resigned on 12 October 2021.
Accordingly, I consider this weighs strongly in favour of the grant of an extension of time.
Fairness as between the person and other persons in a similar position
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 generally turn on their own facts. The parties did not draw my attention to any persons or cases that would be relevant in relation to the question of fairness as between Ms Hunt and other persons in a similar position. I consider this to be a neutral consideration in the present matter.
Conclusion
The time limit that applies to the exercise of a person’s right to bring an application under section 394 reflects the Parliament’s intention that this right be exercised promptly. The Act recognises that there are some cases where a late application should be accepted, namely where there are exceptional circumstances.
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the parties, I satisfied that there are exceptional circumstances. In my view, when all the various circumstances are considered together, they are exceptional. In particular, I consider the combination of the Claim and its nature, the chronological nexus between the Claim and the failure to offer Ms Hunt further work, the false information provided to students in the 9 December Email, the failure to notify Ms Hunt of her dismissal or respond to the 16 December Email and the merits of the Application overall, are circumstances which when taken together are out of the ordinary course, unusual, special or uncommon. As such, I am satisfied that there are exceptional circumstances.
Accordingly, I grant an extension of time under s 394(3) for the lodgement of the Application until 19 May 2022.
The matter will now be programmed for the filing of materials and listed for hearing.
DEPUTY PRESIDENT
Appearances:
K Hunt for the Applicant
D Gapes for the Respondent
Hearing details:
14 July 2022
Melbourne (by Microsoft Teams)
Printed by authority of the Commonwealth Government Printer
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[1] Form F2 1.1; Applicant’s witness statement, Court Book (CB) pg 100
[2] Transcript PN 668
[3] Applicant’s Outline of Argument, q.2h, CB pg 78; Applicant’s witness statement, CB pg 100
[4] Applicant’s Outline of Argument, q.2h, CB pg 78
[5] Ibid q.2l, CB pg 79
[6] Applicant’s Outline of Argument, q.2l, CB pg 79
[7] Transcript PN 503
[8] Ibid 504
[9] Transcript PN 509; Applicant’s witness statement, CB pg 100
[10] Transcript PN 275
[11] Ibid 274
[12] Ibid 270
[13] Ibid 272, PN 308
[14] Ibid 272
[15] CB, pg 61
[16] Transcript PN 312
[17] Ibid 255
[18] Ibid 507
[19] Ibid 508
[20] Applicant’s witness statement, CB pg 100
[21] Ibid
[22] Applicant’s Outline of Argument at [4], CB pg 73
[23] Ibid 286
[24] Ibid 289
[25] Ibid 286
[26] Ibid 257
[27] Ibid 270
[28] Ibid 270
[29] Transcript PN 503
[30] Ibid 502
[31] CB, pg 125
[32] Ibid 125
[33] Form F3 at q.1.7
[34] Respondent’s Outline of Submissions at [6], CB pg 36
[35]Applicant’s Outline of Argument, CB, pg 85
[36] Transcript PN 84
[37] Ibid 80
[38] Ibid 97
[39] Respondent’s Outline of Submissions at [1], CB pg 34
[40] Ibid [4], CB pg 35
[41] Transcript PN 141
[42] Ibid 145, PN 650
[43] Respondent’s Outline of Submissions at [4], CB pg 37
[44] Transcript PN 644
[45] CB pg 100
[46] Ibid 136
[47] Witness statement of Karlee Hunt CB, pg 101
[48] Witness statement of Fernando Garai, CB pg 64
[49] Ibid 65
[50] Ibid
[51] Transcript PN 499
[52] CB, pg 106
[53] Ibid 107
[54] Ibid 108
[55] Witness statement of Karlee Hunt CB, pg 102
[56] CB pg 181
[57] Ibid 181
[58] Respondent’s Outline of Argument at [9], CB pg 36
[59] Ibid at [8], CB pg 36
[60] Form F3 at q.1.3, Respondent’s Outline of Argument at [2], CB pg 155
[61] Respondent’s Outline of Argument at [10], CB pg 36
[62] Witness statement of Karlee Hunt CB, pg 138
[63] Applicant’s Outline of Argument, q.1b, CB pg 72
[64] Witness statement of Karlee Hunt CB, pg 138
[65] Witness statement of Fernando Garai, CB pg 65
[66] Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [50]
[67] NSW Trains v Mr Todd James[2022] FWCFB 55at [45]
[68] City of Sydney RSL & Community Club Limited v Balgowan [2018] FWCFB 5 at [24]
[69] Ibid at [24]
[70] CB pg 37
[71] Ibid
[72] Ibid 102-103
[73] Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported AIRCFB, Williams SDP, Acton SDP, Gregory C, 21 November 2000) Print T3496 at [24]; Ayub v NSW Trains [2016] FWCFB 5500 (Hatcher VP, Wells DP, Johns C, 30 September 2016)
[74] Plaksa v Rail Corporation NSW [2007] AIRC 333 (Cartwright SDP, 26 April 2007) at para. 8; citing Barolo v Centra Hotel Melbourne, Print Q9605 (AIRC, Whelan C, 10 December 1998); Mohammed Ayub v NSW Trains [2016] FWCFB 5500 (Ayub) at [17], [48] and [49]
[75] Ayub v NSW Trains[2016] FWCFB 5500 at [48] and [49]
[76] Ibid at [48]
[77] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[78] Ibid.
[79] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39]
[80] Witness statement of Karlee Hunt, CB pg 130
[81]Applicant’s Outline of Argument, q.1, CB pg 130
[82] Respondent’s Outline of Submissions at [6], CB 155
[83] CB pg 181
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